By: dmc-admin//October 1, 2001//
“[I]t is not unreasonable to assume that in 1998-99, five years after the decision in [Helling v. McKinney, 509 U.S. 25 (1993)], prison officials knew or should have known that even though Alvarado was housed with a non-smoking cellmate on a non-smoking unit, in light of his severe asthmatic condition, an environment in which ambient tobacco smoke is present could pose a serious risk to his future health, thereby constituting a violation of the Eighth Amendment. Like the complaint in Helling, Alvarado’s complaint, liberally construed, alleges that defendants’ deliberate failure to enforce smoking rules is resulting in his exposure to levels of ETS that are posing an unreasonable threat to his future health. See 509 U.S. at 28, 36. Given the decision in Helling, the right of a prisoner to not be subjected to a serious risk of his future health resulting from ETS was clearly established in 1998-99. Both prongs of the Wilson test have been met to defeat defendants’ qualified immunity defense at this time.”
Affirmed.
Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Harlington Wood, Jr., J.