A Louisiana prisoner filed a 42 U.S.C. sec. 1983 action against the city, state and various prison officials, alleging that since the beginning of his incarceration in 1981, he has been required to live and work “in environments filled with tobacco smoke” such that it poses a threat to his health in the future.  The district court granted the Defendants’ motion to dismiss, based on qualified immunity.  The U.S. Court of Appeals for the Fifth Circuit reversed and remanded, holding that the court first determine whether the Plaintiff has alleged a violation of a clearly established constitutional right.  Following the U.S. Supreme Court’s Helling ruling, a court must then “assess whether society considers the risk that the prisoner complains of [ETS] to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”  The Court of Appeals concluded that it “is not beyond doubt that he can prove no set of facts establishing both of his allegations showing that this situation would not be within contemporary standards of decency” and therefore vacated the district’s court’s judgment dismissing the complaint as to the named individual Defendants.

122 F.3d 319, 1997 U.S. App. LEXIS 26316.