LANGUAGE

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.