A nonsmoking prisoner filed an action under 42 U.S.C.S. sec. 1983, alleging that his asthma required him to be placed in a housing unit free from environmental tobacco smoke (ETS), that the defendants knew of this requirement but that they failed to do so.  This failure constituted deliberate indifference to his serious medical needs, he argued.  After a four-day bench trial, the court entered judgment in favor of the prisoner against the warden and two deputy wardens with an award of damages, while it dismissed claims against two doctors.  The court found that Reilly does suffer from asthma, that — contrary to regulations — inmates near Reilly smoked, thus causing him to be exposed to ETS, and that this exposure to ETS “exacerbates the symptoms of asthma such as shortness of breath and difficulty in breathing.”  The court also found that the warden and deputy wardens “took no action to assure that Reilly was placed in a housing unit free of ETS,” that their failure to act was “deliberate,” and that “Reilly was exposed to an unreasonable risk of serious damage to his health by reason of the inaction of” the warden and deputy wardens.  The court found that “Reilly’s serious medical need to be placed in a smoke-free environment was also proven by a preponderance of the evidence” and the fact that “Reilly was not in a smoke-free environment endangered his health.”  Noting that he had been deprived of a smoke-free environment for 1,825 days and that compensation at $20 per day for pain and suffering as well as mental anguish is just and fair, the court awarded Reilly $36,500 in compensatory damages and $18,250 in punitive damages.

The U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s judgment, at 310 F.3d 519, 2002 U.S. App. LEXIS 23692.  The defendants contended that they should have been granted qualified immunity because the plaintiff did not have a right to a “completely smoke-free environment” but only the right not to be celled with an active smoker.  They also argue that Reilly did not establish that he had a “serious medical need” to which the defendants were “deliberately indifferent.”  The Court of Appeals ruled: “We find no merit to either of these contentions” and did not find reversible error in the district court’s calculation of damages in this case.

157 F.Supp. 2d 762, 2001 U.S. LEXIS 11781.