A pro se prisoner filed an action under 42 U.S.C.S. sec. 1983 for damages and declaratory and injunctive relief. The court dismissed the claims against all defendants except the warden, who moved for summary judgment. Washington claimed that the prison officials acted with deliberate indifference by exposing him to high levels of environmental tobacco smoke (ETS) when they housed him in the same cell as an inmate who smokes 20 cigarettes per day. The warden sought summary judgment, arguing that there are no genuine issues of material facts in dispute and that he is entitled to the defense of qualified immunity and to judgment as a matter of law. The court granted the motion for summary judgment, ruling that “Plaintiff offers no scientific, statistical, or any other kind of evidence as to the seriousness of the potential harm and the likelihood that any alleged injury to his health was caused by ETS.” Furthermore, “[b]ecause plaintiff failed to set forth specific facts demonstrating that there is a genuine issue for trial as to the objective element of his Eighth Amendment claim, defendant is entitled to judgment as a matter of law.” The Court further ruled that the plaintiff’s “burden here is to demonstrate that defendant knew before he housed a smoker with a non-smoker that the smoker would violate the non-smoking policy and would smoke a sufficient number of cigarettes in the cell as to expose the cellmate to unreasonably high levels of ETS. Plaintiff failed to meet his burden.” The court concluded that “the undisputed evidence shows that defendant took reasonable measures to avert the risk of ETS exposure in prison cells.”
The U.S. Court of Appeals for the Ninth Circuit, at 2003 U.S. App. LEXIS 19443, ruled that the “district court properly granted summary judgment to defendants because Washington failed to show that prison officials acted with deliberate indifference to his health by housing him with a cellmate who smoked. Washington’s own submissions show that defendants, once they were aware of Washington’s grievance, responded by moving him out of the cell within six weeks.”
2003 U.S. Dist. LEXIS 5207 (U.S.D.C. N.D. Calif. 2003).