Nonsmoking prisoners sued prison officials for violating their Eighth Amendment rights by subjecting them to unreasonable dangerous levels of environmental tobacco smoke (ETS) throughout the prison in both smoking and no-smoking areas.  The Defendants filed a motion for summary judgment, arguing that the levels of ETS did not rise to the level of an Eighth Amendment violation and that they, in any event, entitled to qualified immunity. The District Court judge denied the defendants’ motion because the evidence “affords a rational basis for a fact-finder to conclude that defendants exposed them to unreasonably dangerous levels of ETS and violated contemporary standards of decency.”  See Alden, B., “Inmates’ Suit Over Second-Hand Smoke Survives,” New York Law Journal, September 16, 1996, 1, 8.

Discovery proceeded until defendants renewed their motion for summary judgment on the basis of qualified immunity.  On October 20, 1998, the district court, after hearing oral argument, adhered to its earlier decision and denied the motion from the bench.  On November 16, 1999, the U.S. Court of Appeals for the Second Circuit ruled, at 196 F.3d 330, 1999 U.S. App. LEXIS 29894, that “at this stage of the litigation defendants are not entitled to qualified immunity from these claims, and plaintiffs may proceed with their action.”  The court concluded that, after the U.S. Supreme Court’s ruling in Helling v. McKinney, “a reasonable person would have understood that exposing an inmate to high levels of ETS could violate the Eighth Amendment.”  The court cited the district court’s opinion denying the defendants’ original summary judgment motion, that the “plaintiffs’ allegations, if believed, overwhelmingly describe a prison environment permeated with smoke resulting from, inter alia, unenforcement of inadequate smoking rules, overcrowding of inmates and poor ventilation.”  See Sotos, J., “2d-hand Smoke Claims Draw 2 Conclusions from 2 Circuits,” Chicago Daily Law Bulletin, February 3, 2000, 5.

937 F. Supp. 301, 1996 U.S. Dist. LEXIS 13265, No. 93 Civ. 6018 (JES), (S.D. N.Y. 1996).