A nonsmoking prisoner alleged that, while he was incarcerated in jail, a significant number of prisoners smoked, as did many of the jail staff and that he suffered from nausea and nosebleeds.  He also alleged that his health is in great risk dur to the ETS in jail.  Defendants argued that the Eighth Amendment claim should be dismissed based on qualified immunity.  The court denied that motion for a dismissal, ruling that “a prisoner’s right to be free of excessive levels of second-hand smoke was clearly established by” the U.S. Supreme Court’s 1993 ruling in Helling v. McKinney.  The court ruled that the individual defendants’ motion for summary judgment is premature and, thus, should be denied without prejudice.

, 2006 U.S. Dist. LEXIS 47490 (U.S.D.C.  D.C.)