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• Court: Delaware inmate may sue over secondhand smoke 

A former Delaware prison inmate who complained that being forced to bunk with heavy smokers was cruel and unusual punishment can sue the state, a federal appeals court ruled.

Roger Atkinson, who served seven months at Delaware's Multi-Purpose Criminal Justice Facility, had offered sufficient evidence that prison officials disregarded his health concerns and subjected him to "unreasonably high" levels of smoke, the 3rd U.S. Circuit Court of Appeals ruled.

"Unlike individuals who voluntarily expose themselves to (secondhand smoke), a prisoner cannot simply walk out of his cell whenever he wishes," the court wrote. "When a susceptible prisoner is confined to a cell, a small and confined space, with a 'constant' smoker for an extended period of time, such symptoms may transform what would otherwise be a passing annoyance into a serious ongoing medical need."

The court's opinion, filed Tuesday, didn't directly address the legitimacy of Atkinson's claims, but upheld a lower court's decision that prison officials weren't entitled to immunity from the suit.

Prison officials, who had blamed Atkinson's discomfort on seasonal allergies, haven't decided whether to appeal, said Delaware Deputy Attorney General Gregory E. Smith. . .

Delaware's state prisons went smoke-free Nov. 1.

Since then, the state has been hit with a new round of suits from prisoners who say forcing them to quit is also unconstitutionally cruel, Smith said.

"We are damned if we do, damned if we don't," Smith said.

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Unlike individuals who voluntarily expose themselves to (secondhand smoke), a prisoner cannot simply walk out of his cell whenever he wishes. When a susceptible prisoner is confined to a cell, a small and confined space, with a 'constant' smoker for an extended period of time, such symptoms may transform what would otherwise be a passing annoyance into a serious ongoing medical need.
3rd U.S. Circuit Court of Appeals ruling in the Atkinson case.