).  A nonsmoking prisoner who alleged that he suffers from “an extremely sensitive allergic reaction to formaldehyde that is found in smoking, including exposure to second-hand smoke…,” sued several defendants, alleging that his involuntary exposure to secondhand smoke while incarcerated violated his Eighth Amendment right to be free from cruel and unusual punishment.  After a trial, a jury found for the defendant, Epps. Other claims against other defendants had been previously dismissed.  The verdict was affirmed at 464 Fed. Appx. 388, 2012 U.S. App. LEXIS 5678.  While the result was being appealed, Stern filed another lawsuit, alleging that the Mississippi Department of Corrections Commissioner “had again housed Stern in a smoking environment in deliberate indifference to his medical needs.”  He filed a third lawsuit, alleging retaliation for pursuing his rights during the original trial.  Later he was released on parole.

Defendants filed a motion for summary judgment, arguing 1) that Stern’s claims are barred by res judicata because they could have been advanced before the original trial; 2) that his claims are moot, since he was released from prison and; 3)  that he is entitled to nominal damages only since there has been no showing of physical injury.  The court rejected the three arguments, noting that his second lawsuit alleges facts that occurred after the original trial and that Stern’s demands for compensatory and punitive damages are not moot.  Further, Stern has described suffering an irreversible physical injury, so that claim is not limited to nominal damages.

2012 U.S. Dist. LEXIS 149325 (S.D. Miss. 2012).