Alvarado v. Litscher

A prisoner in Wisconsin brought a case against prison and state officials, claiming his exposure to second-hand smoke while in prison was a violation of his Eighth Amendment right to be protected from cruel and unusual punishment.  The prisoner had severe chronic asthma which was made worse by exposure to smoke.  He alleged that despite being in a non-smoking section of the prison he was still exposed to tobacco smoke because of lack of enforcement of non-smoking rules and because smoking was permitted in common areas.  The defendants sought preliminary dismissal of the case on the ground of qualified immunity.  The trial court denied the dismissal motion and here the appellate court agrees.  The court held the plaintiff had established a deprivation of an actual constitutional right and that right was clearly established at the time of the violation based on the U.S. Supreme Court case of Helling v. McKinney.

Alvarado v. Litscher 267 F.3d 648 (7th Cir. 2001)

  • United States
  • Sep 28, 2001
  • U.S. Court of Appeals, Seventh Circuit
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Parties

Plaintiff Chad J. Alvarado

Defendant

  • B. McCreedy, Health Services Manager
  • Jane Gamble, Warden
  • Jon E. Litscher, Secretary

Legislation Cited

42 U.S.C. sec. 1983

Eighth Amendment

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Under the reasonable person standard of Harlow and Anderson, it is not unreasonable to assume that in 1998-99, five years after the decision in Helling, 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."