Atkinson v. Taylor

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

1-21-2003

Atkinson v. Taylor

Precedential or Non-Precedential: Precedential

Docket 01-2955

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PRECEDENTIAL

Filed January 21, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2955

ROGER ATKINSON

v.

STANLEY TAYLOR, Commissioner;

RAPHAEL WILLIAMS, Warden; PERRY PHELPS, Major;

BRADLEY LEE, Captain; PARKER, Sgt.; FRED WAY,

C/O, in his individual and official capacity;

STATE OF DELAWARE DEPARTMENT OF CORRECTIONS;

ANDRE GREEN, Cpl., in his/her individual and

official capacity,

Appellants

Appeal from the United States District Court

for the District of Delaware

(C.A. No. 99-cv-562)

District Judge: Honorable Joseph J. Farnan, Jr.

Argued

April 18, 2002

Before: NYGAARD and AMBRO, Circuit Judges,

and O’NEILL, District Judge*

(Filed: January 21, 2003)

_________________________________________________________________

* Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United

States District Court for the Eastern District of Pennsylvania, sitting by

designation.

Gregory E. Smith (Argued)

Stuart B. Drowos, Esq.

Deputy Attorney General

Carvel State Building, 6th Floor

820 North French Street

Wilmington, Delaware 19801

Counsel for Appellants

Richard H. Morse (Argued)

Young, Conaway, Stargatt &

Taylor, LLP

The Brandywine Building

1000 West Street, 17th Floor

Wilmington, DE 19899

Counsel for Appellee

OPINION OF THE COURT

O’NEILL, District Judge:

This is an appeal from the District Court’s denial of

appellants’ motion for summary judgment based on

qualified immunity. Appellee, an inmate of the Delaware

Department of Correction, asserted civil rights infractions

under 42 U.S.C. S 1983, claiming that appellants 1) violated

the Eighth Amendment’s prohibition on cruel and unusual

punishment by exposing him to environmental tobacco

smoke ("ETS") that created a serious medical need and

posed an unreasonable risk of harm (Count I) and 2)

retaliated and used excessive force against him for filing his

ETS lawsuit (Counts III and IV). Appellants1 raise three

issues on appeal: 1) whether appellants are entitled to

qualified immunity for the ETS claims; 2) whether

appellants are entitled to qualified immunity on the

_________________________________________________________________

1. The appellants are Stanley Taylor (Commissioner of the Department of

Correction), Warden Raphael Williams, Major Perry Phelps, Sergeant

Phillip Parker, Correctional Officer Fred Way, and Corporal Andre Green.

All ranks are those held by appellants at the time of filing of the

complaint.

2

retaliation and excessive force claims; and 3) whether

appellants in supervisory positions are entitled to qualified

immunity on all claims because they lacked notice of the

underlying events. As to the first two issues, we will affirm

the District Court’s denial of summary judgment. We

conclude that we lack jurisdiction to decide the third issue.

I. BACKGROUND2

Appellee Roger Atkinson is a blind, diabetic prisoner who

was housed at Delaware’s Multi-Purpose Criminal Justice

Facility ("MPCJF "). Although a former one-pack-per-day

smoker, appellee quit in 1995 after receiving surgery for a

pituitary adenoma.

Atkinson’s ETS claims arise under the Eighth and

Fourteenth Amendments of the United States Constitution.

He asserts that from November, 1998, until November,

1999, appellants subjected him to cruel and unusual

punishment by exhibiting deliberate indifference to his

claims that he was being involuntarily exposed to high

levels of second-hand smoke, which forced him to endure

severe allergic reactions to ETS and posed an unreasonable

risk of future harm to his health. According to his answers

to interrogatories, during a seven-month incarceration at

MPCJF he shared a cell with two inmates, each of whom

smoked "constantly" while in the cell. Appellee shared

another cell with a constant smoker for six weeks, and later

with a cellmate who smoked ten cigarettes per day.

Appellee also claims that he has been exposed to other

smoking cellmates on various occasions.

Shortly after being exposed to ETS and suffering

symptoms from it, appellee complained to the medical staff

at MPCJF and Sergeant Sonata. Atkinson alleges that when

he tried to seek help at the prison infirmary, the treating

nurse responded that she was unable to transfer him to a

cell with a nonsmoking roommate. Although Sonata moved

appellee to a smoke-free area, Way later returned him to a

smoking environment. Thereafter appellee wrote letters to

Williams, Captain Lee, Phelps, Parker, and Taylor about his

exposure to ETS. The exposure did not cease.

_________________________________________________________________

2. We accept the facts as the District Court stated them in its opinion.

3

Appellee twice complained to Parker, the supervisor of

Pods 1F and 1E, about his exposure to ETS, but Parker

refused to move him to a smoke-free area. Appellee also

complained to Green and requested that he be removed

from exposure but was not moved.

Atkinson’s amended complaint alleges that he was

exposed, with deliberate indifference, to constant smoking

in his cell for over seven months and as a result suffered

nausea, an inability to eat, headaches, chest pains,

difficulty breathing, numbness in his limbs, teary eyes,

itching, burning skin, dizziness, a sore throat, coughing

and production of sputum. Albert A. Rizzo, M.D., a

pulmonary specialist who examined appellee concluded

that there was a "reasonable medical probability" that these

symptoms were precipitated by second-hand smoke.

However, in an affidavit, prison physician Dr. Keith Ivens

disputed Dr. Rizzo’s evaluation and contended that

Atkinson’s symptoms arose from seasonal allergies. A.

Judson Wells, Ph.D. stated in an expert report:"I would say

that for Mr. Atkinson to continue in a smoke filled cell

would increase his risk of death or non-fatal heart attack or

stroke."

Appellee also asserts that MPCJF officials subjected him

to a variety of abuses in retaliation for filing his lawsuit. He

contends that Way told him that if he had not complained

about ETS he would not have been placed in administrative

segregation. On repeated occasions, Way read appellee’s

personal mail over the prison’s intercom so that other

inmates could hear it. On or before May 4, 2000, notes

relating to appellee’s ETS case were taken from his cell and

were read over the intercom by Way and Officer Johnson.

Way withheld papers that appellee requested from the law

library. On other occasions, Way refused to permit appellee

to make telephone calls to his attorney. Way also cursed

appellee and made derogatory comments about his

blindness. When appellee asked Way to stop harassing him,

Way again cursed him and stated that Way was above the

law. Parker was aware of these actions but failed to stop

them. Way and Parker placed appellee in solitary

confinement during recreation periods, thereby depriving

him of the assistance of people able to read his mail or help

4

him with legal work, allegedly for the purpose of preventing

him from proceeding with his civil action. On October 5,

2000, Way prevented appellee from receiving his one hour

of recreation and falsely wrote in the prison log that he had

refused recreation.

Additionally, appellee either received or was threatened

with physical retaliation for filing his lawsuit. In January or

February of 1999, Way entered appellee’s cell while he was

sleeping, grabbed him by the leg and pulled appellee from

his bed, stating that he thought appellee was dead. On

March 29, 2000, Way threatened to attack appellee and

took appellee’s clothing, leaving appellee without clothing

for over ten hours. On another occasion, Way entered

appellee’s cell and threatened to smash his face into the

wall. Another time, Way stated that he would hang

appellee. On multiple occasions, Way prevented appellee

from receiving his medications or tampered with his food.

Way and Parker have threatened appellee and told him that

he would never make it to court. Various times Way told

appellee that Way would "kick [his] ass," that his privileges

would be taken away, and that there was nothing that he

could do about it. On December 26, 2000, appellee was

attacked by Green, who struck him in the face and head.

This incident was investigated by the FBI, apparently

because of complaints made by appellee’s mother.

Thereafter, Way told appellee over the intercom that he

would regret bringing the FBI into the matter and that Way

would make him pay. When appellee was leaving an

interview room Way ordered appellee to take off his

clothing. After appellee disrobed, Way kicked his clothing

around and said that he had to make sure that appellee

was not a woman because women were sent to another

facility. On December 27, 2000, Green refused to bring

appellee his breakfast and lunch trays. On February 16,

2001, when appellee returned from a court appearance, he

was strip searched in booking, which is standard

procedure. Appellee then returned to Pod 1F and for no

reason Way made him strip again.

According to appellee, he has written to Williams, Phelps,

Taylor, and Parker, and spoken to Green, about the

harassment he received from Way.

5

II. STANDARD OF REVIEW

Review by this Court is plenary when a denial of qualified

immunity turns solely on a question of law. Brown v.

Armenti, 247 F.3d 69, 72 (3d Cir. 2001). We recently

reiterated that this Court lacks jurisdiction to evaluate the

sufficiency of the evidence when reviewing a denial of

summary judgment based on a lack of qualified immunity.

Walker v. Horn, 286 F.3d 705, 710 (3d Cir. 2002) ("[W]e

must adopt the facts assumed by the District Court."); see

also Johnson v. Jones, 515 U.S. 304, 319 (1995) (no

interlocutory appeal from denial of summary judgment

based on remaining genuine issues of material fact).

Although we may not evaluate the sufficiency of the

evidence to prove the facts allegedly giving rise to a

constitutional claim, we may determine whether the facts

identified by the District Court constitute a violation of a

clearly established constitutional right. See Ziccardi v. City

of Philadelphia, 288 F.3d 57, 61 (3d. Cir. 2002).

III. QUALIFIED IMMUNITY

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court explained the two-part inquiry a court must make in

order to determine whether a state official is entitled to

qualified immunity:

A court required to rule upon the qualified immunity

issue must consider, then, this threshold question:

Taken in the light most favorable to the party asserting

the injury, do the facts alleged show the officer’s

conduct violated a constitutional right? . . .

If no constitutional right would have been violated

were the allegations established, there is no necessity

for further inquiries concerning qualified immunity. On

the other hand, if a violation could be made out on a

favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly

established.

Id. at 201.

To be clearly established "[t]he contours of the right must

be sufficiently clear that a reasonable official would

6

understand that what he is doing violates that right."

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The

Saucier Court further explained the latter prong of the test:

This inquiry, it is vital to note, must be undertaken

in light of the specific context of the case, not as a

broad general proposition; and it too serves to advance

understanding of the law and to allow officers to avoid

the burden of trial if qualified immunity is applicable

. . . .

This is not to say that the formulation of a general

rule is beside the point, nor is it to insist the courts

must have agreed upon the precise formulation of the

standard. Assuming, for instance, that various courts

have agreed that certain conduct is a constitutional

violation under facts not distinguishable in a fair way

from the facts presented in the case at hand, the officer

would not be entitled to qualified immunity based

simply on the argument that courts had not agreed on

one verbal formulation of the controlling standard.

Saucier, 533 U.S. at 201, 203.

A. The ETS claims

Atkinson asserts two separate Eighth Amendment claims

against defendants stemming from his involuntary exposure

to ETS: 1) a claim for potential future harm arising from his

exposure to ETS; and 2) a present injury claim stemming

from deliberate indifference to existing medical needs

caused by ETS. We will sequentially address whether

defendants are entitled to qualified immunity for each

claim.

1. Future Injury Claim

With respect to the future injury claim, Helling v.

McKinney, 509 U.S. 25 (1993), established the

constitutional right required by the first prong of the

Saucier test for qualified immunity. In Helling, the Supreme

Court determined that a cause of action exists under the

Eighth Amendment when a prisoner alleges that prison

officials have exposed him, with deliberate indifference, to

levels of ETS that pose an unreasonable risk of harm to his

7

future health. Id. at 35 (concluding that prisoner stated a

claim where he was forced to share a cell with a five-pack-

per-day smoker). As to the second part of the Saucier

inquiry, the Helling Court clearly established the elements

of a two-part test that a plaintiff must meet to state a valid

claim under the Eighth Amendment.

The Court explained that the first prong of the Helling

test is an objective one: "[The prisoner] must show that he

himself is being exposed to unreasonably high levels of

ETS." Id. at 35. With respect to the objective factor, the

Court noted that beyond a scientific and statistical inquiry

into the seriousness of the potential harm and the

likelihood that such injury to health will actually be caused

by exposure to ETS, the Eighth Amendment requires"a

court to assess whether society considers the risk that the

prisoner complains of to be so grave that it violates

contemporary standards of decency to expose anyone

unwillingly to such a risk." Id. at 36 (emphasis in original).

The Court stated: "In other words, the prisoner must show

that the risk of which he complains is not one that today’s

society chooses to tolerate." Id.

The second prong of the Helling test is a subjective one:

whether prison officials were deliberately indifferent to a

serious risk of harm. Id. at 36. The Supreme Court has

held that "a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference." Farmer

v. Brennan, 511 U.S. 825, 837 (1994).

In concluding, the Helling Court held that the prisoner

had properly claimed that the level of ETS to which he was

exposed unreasonably endangered his future health.

Helling, 509 U.S. at 35. The Court remanded the case so

that the prisoner could attempt to prove the objective and

subjective elements necessary to establish a violation of the

Eighth Amendment. Id.

Since 1993, almost every Court of Appeals that has

8

addressed this issue has recognized that a prisoner’s right

to be free from levels of ETS that pose an unreasonable risk

of future harm was clearly established by Helling.3 See

Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir. 2001)

(affirming District Court’s denial of Rule 12(b)(6) motion to

dismiss based on qualified immunity where a prisoner

asserted that ETS exacerbated severe chronic asthma);

Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999) (denying

prison officials’ motion for summary judgment based on

qualified immunity in an ETS case); Whitley v. Hunt, 158

F.3d 882, 887-88 (5th Cir. 1998) (concluding ETS claim

was wrongly dismissed as frivolous where prison doctor

issued report noting that prisoner required nonsmoking

quarters), overruled on other grounds by Booth v. Churner,

532 U.S. 731, 735 (2001); Rochon v. City of Angola,

Louisiana, 122 F.3d 319, 320 (5th Cir. 1997) (affirming

District Court’s denial of a Rule 12(b)(6) motion to dismiss

based on qualified immunity where prisoner asserted that

he was forced to live and work in an environment filled with

tobacco smoke, even though the smoke had not yet harmed

his health but allegedly posed a threat to his health in the

future); Jacobs v. Young, No. 94-3241, 1995 WL 150402, at

**2 (6th Cir. April 5, 1995) (unpublished opinion)

(concluding prisoner’s right to be free from harmful levels of

ETS was clearly established in 1993); see also Weaver v.

Clarke, 45 F.3d 1253, 1256 (8th Cir. 1995) (affirming

District Court’s denial of a Rule 12(b)(6) motion to dismiss

based on qualified immunity where a prisoner alleged

_________________________________________________________________

3. Instead of relying upon cases that directly deal with the question of

whether prison officials should be afforded qualified immunity in ETS

suits, the dissent cites to cases which in our view are inapplicable. See

Henderson v. Sheahan, 196 F.3d 839, 853 (7th Cir. 2000); Oliver v.

Deen, 77 F.3d 156, 159 (7th Cir. 1996). The Henderson and Oliver

Courts did not consider the issue of qualified immunity but affirmed

grants of summary judgment to the defendants based on a lack of

evidence. See Henderson, 196 F.3d at 853; Oliver, 77 F.3d at 159.

Moreover, in a later case the Court of Appeals for the Seventh Circuit

arguably made the strongest ruling that ETS claims are clearly

established for the purposes of qualified immunity:"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."

Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir. 2001).

9

severe headaches, dizziness, nausea, vomiting, and

breathing difficulties from rooming with "heavy smoker");

but see Mills v. Clark, No. 99-6334, 2000 WL 1250781, at

**4 (4th Cir. Sept. 5, 2000) (unpublished opinion) (reversing

District Court’s denial of qualified immunity on summary

judgment for prison officials because it was not clearly

established level of ETS in dormitories posed any

unreasonable risk of future harm).4

In a case identical in facts and procedural posture to the

present one, the Court of Appeals for the Second Circuit

held that a District Court correctly denied prison officials’

summary judgment motion based on qualified immunity

where prisoners claimed to be suffering from sinus

problems, headaches, dizziness, nausea, shortness of

breath, chest pains and asthma from cellmates’ smoking in

_________________________________________________________________

4. The dissent distinguishes ETS cases that survive a motion to dismiss

from those involving a denial of summary judgment by noting that the

former require no evidentiary support for a plaintiff ’s claims: "motions to

dismiss [are submitted at] a much easier stage to survive than summary

judgment because, unlike summary judgment, motions to dismiss

require no evidentiary support for the plaintiffs’ claims." In making this

argument the dissent appears to be evaluating the underlying evidence.

This is the exercise that Ziccardi forbids us from undertaking on this

appeal:

As we understand Johnson, if a defendant in a constitutional tort

case moves for summary judgment based on qualified immunity and

the district court denies the motion, we lack jurisdiction to consider

whether the district court correctly identified the set of facts that the

summary judgment record is sufficient to prove; but we possess

jurisdiction to review whether the set of facts identified by the

district court is sufficient to establish a violation of a clearly

established constitutional right.

288 F.3d at 61; see also Sanders v. Brundage, 60 F.3d 484, 487-88 (8th

Cir. 1995) (refusing to consider "insufficient evidence" argument on

appeal from denial of qualified immunity on a motion for summary

judgment for prisoner’s ETS claim). The present appeal from appellants’

denial of summary judgment, however, is interlocutory in nature and

based on a denial of qualified immunity. Because the Supreme Court’s

ruling in Johnson prevents us from weighing the evidence, the present

case is more analogous to a 12(b)(6) motion, where we would not

evaluate the underlying evidence to support the plaintiff ’s claims which

the District Court chose to accept. See Ziccardi , 288 F.3d at 61.

10

Sing Sing prison. Warren, 196 F.3d at 333. The Warren

Court held that after Helling "it was clearly established that

prison officials could violate the Eighth Amendment

through deliberate indifference to an inmate’s exposure to

levels of ETS that posed an unreasonable risk of future

harm to the inmate’s health."5Id. Moreover, the Warren

Court concluded that it would be unreasonable for prison

officials to believe that they were not violating the prisoners’

Eighth Amendment rights where the District Court

determined that "[p]laintiffs’ allegations, if believed,

overwhelmingly describe a prison environment permeated

with smoke resulting from, inter alia, under-enforcement of

inadequate smoking rules, overcrowding of inmates, and

poor ventilation." Id.

In the present case, without weighing the underlying

evidence with respect to Atkinson’s claim, we conclude that

appellants are not entitled to qualified immunity on the

ETS claim of future harm. As the Warren Court recognized,

the Helling decision established the constitutional right

required by the first prong of the Saucier test. Warren, 196

F.3d at 333; see also Helling, 509 U.S. at 35. Atkinson

invokes the constitutional right claimed by the Helling

prisoner: alleging that he was unwillingly exposed to levels

of ETS that pose an unreasonable risk of future harm.

Similarly, Atkinson has satisfied the second prong of the

Saucier test. The right recognized by the Helling decision is

"clearly established" so that a reasonable prison official

would know when he is violating that right. See, e.g.,

Alvarado, 267 F.3d at 653 ("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."); Warren, 196 F.3d at 333 ("We

_________________________________________________________________

5. The dissent characterizes Warren as a cursory opinion lacking

persuasive value that is not binding on this Court. However, the dissent

fails to acknowledge that Warren is directly on-point. See Warren, 196

F.3d at 333 ("We hold that after Helling, it was clearly established that

prison officials could violate the Eighth Amendment through deliberate

indifference to an inmate’s exposure to levels of ETS that posed an

unreasonable risk of future harm to the inmate’s health."). The facts and

procedural posture of the Warren decision, a denial of qualified immunity

on summary judgment, are a carbon copy of the present case.

11

hold that after Helling, it was clearly established that prison

officials could violate the Eighth Amendment through

deliberate indifference to an inmate’s exposure to levels of

ETS that posed an unreasonable risk of future harm to the

inmate’s health."). The facts of Helling are similar to the

facts presented by the appellee. In Helling a prisoner was

housed with a five-packs-per-day smoker and complained

of "certain health problems." Id. at 28. Here, appellee

Atkinson was housed for over seven months with "constant"

smokers.

As to future harm Atkinson has offered some proof for

each element of the alleged Eighth Amendment violation: 1)

evidence that he was exposed to unreasonably high levels of

ETS, the risk of which is not one that today’s society

chooses to tolerate; and 2) evidence that prison officials

knew of and disregarded an excessive risk to his health or

safety. As to the first element, appellee’s deposition and

interrogatory answers state that he was subjected to

continuous smoking for at least seven months.

Demonstrating a risk of future harm, A. Judson Wells,

Ph.D. provided statistics and opined in his expert report

that "for Mr. Atkinson to continue in a smoke filled cell

would increase his risk of death or non-fatal heart attack or

stroke." With respect to the causal link between ETS and

appellee’s symptoms, Dr. Rizzo’s letter concluded that there

was a "reasonable medical probability" that appellee’s

symptoms (itchy and burning eyes, chest pains, a sore

throat, a persistent cough with sputum production,

paroxysms of coughing and resulting headaches) were

precipitated by second-hand smoke. Although other Courts

of Appeals have affirmed a grant of summary judgment to

prison officials on similar evidence as "too speculative,"6 we

_________________________________________________________________

6. For an example, see Henderson, 196 F.3d at 853. The procedural

posture of Henderson, an appeal from a grant of summary judgment to

prison officials for lack of evidence of future harm, allowed the Court of

Appeals to evaluate the sufficiency of the evidence. See id. If appellee can

produce evidence of future harm, he may be able to recover monetary

damages. See Fontroy, 150 F.3d at 244. However, the problematic

quantification of those future damages is not relevant to the present

inquiry concerning whether the underlying constitutional right was

clearly established so that a reasonable prison official would know that

12

are deciding the issue of qualified immunity, and cannot

evaluate the sufficiency of the evidence. See Johnson, 515

U.S. at 319. In addition, appellee has presented evidence

that society has become unwilling to tolerate the imposition

on anyone of continuous unwanted risks of second-hand

smoke, citing Executive Order 71, in which the Governor of

Delaware banned smoking in state buildings except in

certain designated areas.7 As to the second Helling element,

defendants’ answers to Atkinson’s interrogatories and the

depositions of Way, Phelps, and Parker demonstrate that

appellants knew tobacco smoke was dangerous.

Additionally, the District Court relied upon Atkinson’s

statements that he either spoke or wrote to all appellants

regarding unreasonable ETS he was experiencing.

2. Present Injury Claim

Atkinson’s present injury claim for ETS exposure also is

grounded in a clearly established constitutional right.

Although Helling dealt only with prisoner’s risk of future

harm, the Supreme Court clearly established the framework

_________________________________________________________________

he subjected appellee to the risk of future harm. Moreover, even if

appellee is unable to establish a right to compensatory damages, he may

be entitled to nominal damages. See Pryer v. C.O. 3 Slavic, 251 F.3d 448,

453 (3d Cir. 2001) ("Where a constitutional deprivation has not caused

actual injury, an award of nominal damages may be appropriate.").

7. The dissent characterizes this reference as an attempt to form a

societal consensus from a single state regulation. However, we refer to

the regulation merely to show that Atkinson has offered some proof of a

societal consensus. Proof of a national consensus might include, inter

alia, the federal regulation which protects the public and federal

employees from ETS in all federal workplaces:

Pursuant to Executive Order 13058, "Protecting Federal Employees

and the Public From Exposure to Tobacco Smoke in the Federal

Workplace" (3 CFR, 1997 Comp., p. 216), it is the policy of the

executive branch to establish a smoke-free environment for Federal

employees and members of the public visiting or using Federal

facilities. The smoking of tobacco products is prohibited in all

interior space owned, rented, or leased by the executive branch of

the Federal Government, and in any outdoor areas under executive

branch control in front of air intake ducts.

41 CFR S 101-20.105-3(a).

13

for analyzing claims of present harm in Estelle v. Gamble,

429 U.S. 97 (1976). See Weaver, 45 F.3d at 1256. In

Weaver, a case directly on-point, the Court of Appeals for

the Eighth Circuit held that Estelle clearly established that

prison officials could not be deliberately indifferent to a

prisoner’s existing serious medical needs caused by ETS.

Id. at 1256. In affirming the District Court’s denial of

qualified immunity to the prison officials the Weaver Court

stated, "Such claims were first recognized by the Supreme

Court almost two decades ago." Id. at 1256.

In Estelle, the Supreme Court concluded that deliberate

indifference to serious medical needs of prisoners

constitutes the unnecessary and wanton infliction of pain,

which violates the Eighth Amendment. 429 U.S. at 104.

The Estelle Court recognized that even in less serious

cases, where the prisoner does not experience severe

torment or a lingering death, the infliction of unnecessary

suffering is inconsistent with standards of decency. See id.

at 103. Specifically, the Supreme Court stated:"In order to

state a cognizable claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs. It is only such

indifference that can offend ‘evolving standards of decency’

in violation of the Eighth Amendment." Id. at 106.

Atkinson has alleged a serious medical need to which

appellants were deliberately indifferent. As this Court

explained in Monmouth County Correctional Institutional

Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987),"The

standard enunciated in Estelle is two-pronged: ‘[i]t requires

deliberate indifference on the part of the prison officials and

it requires the prisoner’s medical needs to be serious.’ " Id.

at 346, quoting West v. Keve, 571 F.2d 158, 162 (3d 1978).

Although this Court has defined a medical need as serious

if it has been diagnosed by a physician as requiring

treatment, we also have recognized: "Estelle makes clear

that if ‘unnecessary and wanton infliction of pain,’ . . .

results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious

nature contemplated by the Eighth Amendment." Id. at

347. Needless suffering resulting from a denial of simple

medical care, which does not serve any penological

14

purpose, is inconsistent with contemporary standards of

decency and thus violates the Eighth Amendment. See id.

In Weaver, the Court of Appeals for the Eighth Circuit

specifically recognized that severe headaches, dizziness,

nausea, vomiting, and breathing difficulties stemming from

exposure to ETS constituted a serious medical need, which

required removal of the prisoner from a smoking

environment under the Eighth Amendment. Id. at 1254.

Similarly, other Courts of Appeals have recognized that an

illness arising from an inmate’s exposure to ETS can

constitute a serious medical condition. See, e.g., Alvarado,

267 F.3d at 651 ("[Prisoner]’s complaint stated an Eighth

Amendment claim when he alleged that because of the

prison officials’ deliberate indifference, he was being

exposed to levels of ETS which aggravated his chronic

asthma, thereby endangering his existing health, a claim

recognized as an Eighth Amendment violation twenty-five

years ago in Estelle v. Gamble . . . ."); 8 Hunt v. Reynolds,

_________________________________________________________________

8. The dissent points out that the Seventh Circuit decisions of Henderson

and Oliver rejected present injury claims similar to Atkinson’s because

the prisoners in those cases were unable to prove that their medical

needs were sufficiently serious. See Henderson , 196 F.3d at 846; Oliver,

77 F.3d at 161. Again, in our view the dissent engages in the sort of

evidence weighing that we are forbidden from undertaking by Johnson,

515 U.S. at 313. See Ziccardi, 288 F.3d at 61; see also Sanders, 60 F.3d

487-88 (refusing to consider "insufficient evidence" argument on appeal

from denial of qualified immunity on motion for summary judgment for

prisoner’s ETS claim). Moreover, the Oliver Court did not conclude that

such symptoms were insufficiently serious as a matter of law. See Oliver,

77 F.3d at 161 ("On this record, Oliver has not demonstrated that he

was subjected to cruel and unusual punishment."). As the dissent in

Oliver clearly explained, the entire panel agreed that the prisoner’s

allegations (which are similar to Atkinson’s) satisfied the requirements of

Estelle:

No one disputes that Oliver’s allegations were enough to satisfy

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976),

Farmer and the other Eighth Amendment cases. Both here and in

the lower court the issue has been instead whether there were

disputed issues of fact. Viewed in this light, it is clear that there is

a material dispute of fact about the severity of Oliver’s asthma

problem, which in turn raises a material dispute of fact about

15

974 F.2d 734, 735-36 (6th Cir. 1992). The Hunt Court

determined that:

"Medical consequences of tobacco smoke do not differ

from other medical problems. Prisoners allergic to the

_________________________________________________________________

whether the prison officials were deliberately indifferent to his

serious medical needs.

Oliver, 77 F.3d at 161 (Wood, J., dissenting) (emphasis in original).

Although the Court of Appeals found the Henderson prisoner’s

allegations insufficient as a matter of law, we believe it is clear that

breathable air that will not constantly subject a susceptible prisoner to

severe allergic reactions is the sort of "minimal civilized measure of life’s

necessities" that the Eighth Amendment protects. See Farmer, 511 U.S.

at 834. Therefore, we refuse to hold as a matter of law that Atkinson’s

symptoms were insufficiently serious.

The dissent cites to other decisions to support its general proposition

that the tide has turned against ETS claims in the Courts of Appeals.

See Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001) (affirming

District Court’s dismissal of prisoner’s ETS claim as "frivolous"); Scott v.

District of Columbia, 139 F.3d 940, 944 (D.C. Cir. 1998) (reversing

District Court’s injunction mandating smoke-free environments for

plaintiffs). Both cases are distinguishable from the present one. In

Richardson, the prisoner’s exposure was at best de minimis and the

Court of Appeals for the Fifth Circuit clearly set it apart from cases

where prisoners were housed in a severe ETS environment:

[T]he two Fifth Circuit cases that have recognized a potential ETS-

based Eighth Amendment claim, the exposure to second-hand

smoke was substantially more severe and sustained than that

alleged by Richardson. See Whitley v. Hunt, 158 F.3d 882, 888 (5th

Cir. 1998) (the prisoner shared living quarters with a smoker);

Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997) (the

inmate was "required to live and work in ‘environments filled with

tobacco smoke’ "). In contrast, Richardson does not share living

quarters with a smoker, nor does he work in a smoke-filled

environment. He only alleges that he had to sit near some smokers

during a bus ride on "several occasions." We do not believe that

society considers this treatment to "violate[ ] contemporary

standards of decency."

260 F.3d at 498-99. Unlike Richardson and Scott, the issue in this case

does not involve a complete ban on all ETS exposure. Such a ban may

be impractical (or impossible) for prison officials to implement. Here, we

merely conclude that the District Court correctly determined that the

level of ETS to which Atkinson claims he was exposed and his symptoms

justify the denial of qualified immunity.

16

components of tobacco smoke, or who can attribute

their serious medical conditions to smoke, are entitled

to appropriate medical treatment, which may include

removal from places where smoke hovers" . . . . Thus

we will adhere to the position, adopted by every circuit

to address the issue, that the Eighth Amendment’s

objective component is violated by forcing a prisoner

with a serious medical need for a smoke-free

environment to share his cell with an inmate who

smokes.

Id., quoting Steading v. Thompson, 941 F.2d 498, 500 (7th

Cir. 1991).

We cannot conclude that appellants are entitled to

qualified immunity. Atkinson has fulfilled Saucier’s first

prong for denying qualified immunity by alleging a violation

of a clearly established constitutional right. As both the

Weaver and Alvarado Courts point out the Constitutional

right alleged by Atkinson was established over two decades

ago by the Supreme Court in Estelle. See Alvarado, 267

F.3d at 651; Weaver, 45 F.3d at 1256. Atkinson’s amended

complaint alleges that he was exposed, with deliberate

indifference, to constant smoking in his cell for over seven

months and as a result suffered nausea, an inability to eat,

headaches, chest pains, difficulty breathing, numbness in

his limbs, teary eyes, itching, burning skin, dizziness, a

sore throat, coughing and production of sputum. The

dissent describes these symptoms as "causing discomfort

somewhere between that of hay fever and the common cold"

and notes that "millions of people not in prison voluntarily

tolerate similar levels of risk every day from second-hand

smoke and numerous other sources." However, unlike

individuals who voluntarily expose themselves to ETS, 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. Additionally, Atkinson has

fulfilled the second prong of Saucier’s test by demonstrating

that the constitutional right was clearly established by the

Hunt, Weaver and Estelle Courts on or before his own claim

17

arose in 1998-1999. See Estelle, 429 U.S. at 104 ("We

therefore conclude that deliberate indifference to serious

medical needs of prisoners constitutes the ‘unnecessary

and wanton infliction of pain,’ . . . proscribed by the Eighth

Amendment."); Weaver, 45 F.3d at 1256 (recognizing that

severe headaches, dizziness, nausea, vomiting, and

breathing difficulties stemming from exposure to ETS

constitutes a serious medical need, which requires removal

of the prisoner from a smoking environment under the

Eighth Amendment); Hunt, 974 F.2d 735-36 (concluding

prisoner could state a present injury claim for ETS

exposure); see also Alvarado, 267 F.3d at 651-52

("[Prisoner]’s complaint stated an Eighth Amendment claim

when he alleged that because of the prison officials’

deliberate indifference, he was being exposed to levels of

ETS which aggravated his chronic asthma, thereby

endangering his existing health, a claim recognized as an

Eighth Amendment violation twenty-five years ago in Estelle

v. Gamble . . . .").9 Moreover, Dr. Rizzo, an examining

physician, has concluded that these symptoms possibly

were precipitated by Atkinson’s exposure to ETS. 10 The

_________________________________________________________________

9. Although Alvarado postdates the time when Atkinson’s cause of action

accrued, we cite to that case to demonstrate that, as the Court of

Appeals for the Seventh Circuit recognized, the constitutional right

which Atkinson asserts was clearly established over twenty-five years ago

in Estelle.

10. The dissent contends that Dr. Rizzo’s affidavit undermines Atkinson’s

claim. Aside from the matter that the dissent is weighing the evidence

supporting the District Court’s determination in contravention of

Ziccardi, the dissent misconstrues Dr. Rizzo’s statements. Dr. Rizzo

noted the following:

Roger Atkinson is a former cigarette smoker who was diagnosed

with childhood asthma and may have symptoms of persistent

reactive nasal passages and airways based on his response to

exposure to seasonal changes in temperature and air quality. His

spirometry is currently normal, but this does not preclude the

presence of airway sensitivity.

(A. 127). If anything, this notation supports Atkinson’s claim that he is

particularly sensitized to air quality and that ETS seriously exacerbates

his underlying condition. The dissent also points out that the affidavit of

Dr. Keith Ivens weakens Atkinson’s claim. This, however, takes this

Court into the forbidden territory of evidence weighing.

18

District Court found that deliberate indifference to these

alleged symptoms constituted a violation of clearly

established law, and we agree. Atkinson alleges that when

he tried to seek help at the prison infirmary the treating

nurse responded that she was unable to transfer him to a

cell with a nonsmoking roommate. Similarly, Atkinson has

produced evidence that after telling prison officials about

his sensitivity to ETS no change was made in housing

conditions. This evidence demonstrates deliberate

indifference on the part of prison officials. See Farmer, 511

U.S. at 837 ("[A] prison official cannot be found liable under

the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety

. . . .").

B. The Retaliation Claim

Appellee asserts that appellants harassed him in

retaliation for filing his ETS lawsuit. Appellants contend

that they are entitled to qualified immunity.11

With respect to this claim, the right implicated under the

first prong of the Saucier test for qualified immunity is the

First Amendment right of prisoners to petition the court.

See Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d

Cir.1981). In Milhouse, this Court held that a prisoner

alleging that he was subjected to a series of conspiratorially

planned disciplinary actions in retaliation for filing a civil

rights suit against prison officials stated a cause of action

for infringement of the prisoner’s First Amendment right.

Id. Here, appellee’s complaint states a similar claim, and

_________________________________________________________________

11. The basis for their claim is not clear. In their brief, appellants admit

that the law regarding retaliation is clearly established: "It is well-settled

law that correctional officials cannot retaliate against inmates due to the

inmate’s filing of lawsuits with the court." (Appellants’ Br. at 22.)

Appellants point to evidence and admissions by appellee that contradict

his retaliation claims. However, we lack jurisdiction to weigh the

evidence because the District Court’s determination that the summary

judgment record in this case raised a genuine issue of material fact was

not a final decision as required by 28 U.S.C. S 1291. See Johnson, 515

U.S. at 313.

19

therefore meets the first part of the Saucier test by alleging

a violation of a recognized constitutional right.

As to the second part of the Saucier inquiry, the Milhouse

Court clearly established a prisoner’s right to access the

courts so that a reasonable prison official would know that

he violates this right if he retaliates against a prisoner for

filing a lawsuit. The Milhouse Court stated:"The right of

access to the courts must be ‘adequate, effective and

meaningful,’ . . . and must be freely exercisable without

hindrance or fear of retaliation." Id. at 374 (internal citation

omitted), quoting Bounds v. Smith, 430 U.S. 817, 822

(1977). In Milhouse, the prisoner alleged that prison officials

were violating his rights by preventing him from celebrating

religious holidays. Id. at 372. Thereafter, prison officials

allegedly transferred the prisoner to a less desirable cell

house and committed other acts of revenge against him for

filing the lawsuit. Id. Although the District Court dismissed

the First Amendment retaliation claim, this Court reversed

stating: "If [the prisoner] were able to prove an infringement

of his first amendment right of access to the courts, he

would successfully state a cause of action arising under the

constitution." Id. at 374.

Appellee has asserted a claim similar to that in Milhouse,

that prison officials took retaliatory actions against him for

filing a civil rights lawsuit against them. Appellee claims

that he was moved to administrative segregation,

humiliated by being forced to disrobe unnecessarily, denied

food and access to legal materials and advice, and

threatened and subdued by the use of excessive force, all in

revenge for filing his ETS claim. Milhouse clearly

established that such retaliatory actions, if proven, are not

legal. Thus, Saucier’s second prong is satisfied and

appellants are not entitled to qualified immunity.

C. The Supervisory Appellants

Supervisory appellants Parker, Phelps, Williams, and

Taylor contend that appellee failed to present evidence

sufficient to demonstrate personal involvement in or actual

knowledge by them of the alleged constitutional torts

allegedly committed by appellants Way and Green, and

20

therefore that they are entitled to qualified immunity. See

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

("A defendant in a civil rights action must have personal

involvement in the alleged wrongs; liability cannot be

predicated solely on the operation of respondeat superior

. . . . Personal involvement can be shown through

allegations of personal direction or of actual knowledge and

acquiescence . . . ."). In Rode, a civilian employee of the

Pennsylvania State Police joined Governor Thornburgh and

State Attorney General Zimmerman as defendants in a

S 1983 retaliation suit against her superiors. This Court

affirmed the District Court’s determination that grievances

filed with state officials’ offices were insufficient to prove

actual knowledge and acquiescence by the state officials.

See id. at 1208 ("In a large state employing many

thousands of employees, a contrary holding would subject

the Governor to potential liability in any case in which an

aggrieved employee merely transmitted a complaint to the

Governor’s office of administration . . . .").

Appellants suggest that the deposition and interrogatory

answers of a single prisoner are not sufficient to establish

a genuine issue of material fact as to whether the

supervisory appellants had actual knowledge of and

acquiesced in the commission of the alleged constitutional

torts. Although appellants couch this argument as one

relating to qualified immunity, this is the sort of evidence

weighing that we cannot entertain given our limited

jurisdiction on this appeal. See Johnson, 515 U.S. at 313.

In the present case, the District Court concluded that there

is sufficient evidence that appellee either wrote or spoke to

each supervisory defendant regarding both his exposure to

ETS and the retaliatory harassment by appellant Way. We

lack jurisdiction to evaluate the sufficiency of this evidence.

See id.

Alternatively, appellants contend that Rode requires us to

rule as a matter of law that such correspondences or

conversations do not constitute sufficient evidence of actual

knowledge and acquiescence. We, conclude however, that

Rode is factually distinguishable from the present case. The

Governor and the Attorney General in that case were much

farther removed from the state officials committing the

21

alleged constitutional torts than the supervisory appellants

in this case. Here, only Taylor holds a state-wide office.

Moreover, a governor heads the entire executive branch of

a state’s government; Taylor is charged with oversight of a

specific state entity responsible for housing prisoners. The

scope of his responsibilities are much more narrow than

that of a governor or state attorney general, and logically

demand more particularized scrutiny of individual

complaints. Similarly, the other supervisory appellants have

even narrower responsibilities as links in a chain of

command within a single prison. We cannot say as a matter

of law that the supervisory appellants did not have actual

knowledge when appellee has produced evidence that they

did.

IV. CONCLUSION

We express no view as to whether appellee will be able to

establish the objective and subjective elements of his ETS

claims or prove his other claims.

For the foregoing reasons, we affirm the District Court’s

denial of appellants’ motion for summary judgment with

respect to Atkinson’s ETS and retaliation and excessive

force claims. The appeal of the supervisory appellants is

dismissed for lack of jurisdiction.

22

AMBRO, Circuit Judge, Dissenting in Part:

I agree with my colleagues that appellants are not

entitled to qualified immunity on Atkinson’s retaliation and

excessive force claims, and that we lack jurisdiction to

decide whether appellants in supervisory positions are

entitled to qualified immunity on all claims because they

lacked notice of the underlying events. I part on but one

issue. The majority holds that prison officials are not

entitled to qualified immunity after housing an inmate in a

prison where he is exposed to second-hand smoke, causing

discomfort somewhere between that of hay fever and the

common cold. Further, the majority calls this conclusion

"clearly established" federal law, meaning that a reasonable

prison official should have known that we would decide the

case this way, even though the circuit courts have reached

numerous differing results on this issue and there is no

controlling precedent. The majority misconstrues the

Supreme Court’s Eighth Amendment jurisprudence, and, a

fortiori, wrongly deems its outcome "clearly established" for

purposes of qualified immunity. I respectfully dissent from

the reasoning and holding on this issue.

The plaintiff in this case has alleged that his exposure to

second-hand cigarette smoke was cruel and unusual

punishment in violation of the Eighth Amendment. The

Supreme Court has recognized that a prisoner may, in the

right circumstance, bring such a claim in federal court. The

Court also recognized, however, that prison officials are

entitled to qualified immunity from suit unless their actions

violated a clearly established constitutional right of the

plaintiff. Because the record with respect to this issue does

not support denying the defendants’ motion for qualified

immunity, I would reverse the decision of the District Court

on Atkinson’s Eighth Amendment claim.

Qualified Immunity

The majority states the correct test for qualified immunity

from Saucier v. Katz, 533 U.S. 194, 200-01 (2001). We ask

first whether the plaintiff alleges facts that state a

constitutional violation. If the answer is yes, we ask

whether the right claimed is clearly established, meaning

23

that "it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted." Id. at

202. Notwithstanding its accurate statement of this test,

the majority misapplies it.

I. Step One: Do the Facts Allege an Eighth Amendment

Violation?

A. The Eighth Amendment Standard

The Eighth Amendment prohibits punishments

inconsistent with "evolving standards of decency that mark

the progress of a maturing society." Estelle v. Gamble, 429

U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86,

101 (1958)). Conditions of prison confinement violate the

Eighth Amendment only if they "deprive inmates of the

minimal civilized measure of life’s necessities." Rhodes v.

Chapman, 452 U.S. 337, 347 (1981). Thus, for example, a

prison in which inmates are recruited to serve as armed

guards, four to eleven inmates are crowded into windowless

8È x 10È cells during periods of punitive isolation, those

inmates sleep on floor mattresses infested with hepatitis

and other infectious diseases, and the inmates receive only

1,000 calories of "grue" to eat each day, violates the Eighth

Amendment. Hutto v. Finney, 437 U.S. 678, 682-83 (1978).

On the other hand, a prison in which inmates have less

living space than experts deem appropriate for their

physical and mental health, and the prison houses more

inmates than it was designed to hold, does not violate the

Eighth Amendment. Rhodes, 452 U.S. at 348-49. As the

Supreme Court has said, "the Constitution does not

mandate comfortable prisons." Id. at 349.

In deciding whether a particular condition violates the

Eighth Amendment, we must not look first to our subjective

judgments. See Coker v. Georgia, 433 U.S. 584, 592 (1977)

(plurality opinion) ("Eighth Amendment judgments should

not be, or appear to be, merely the subjective views of

individual Justices; judgment should be informed by

objective factors to the maximum possible extent."). The

best indication that a condition is "cruel and unusual" is a

consensus among the state legislatures. See Atkins v.

Virginia, 122 S.Ct. 2242, 2247 (2002) ("[T]he ‘clearest and

most reliable objective evidence of contemporary values is

24

the legislation enacted by the country’s legislatures.’ ")

(citation omitted). Only where there is a consensus may we

consider whether our own judgment tips the balance

towards finding a constitutional violation. Id. ("Thus, in

cases involving a consensus, our own judgment is‘brought

to bear.’ ") (citation omitted).

Subpar medical care does not automatically violate the

Eighth Amendment. "Medical malpractice does not become

a constitutional violation merely because the victim is a

prisoner." Estelle, 429 U.S. at 106. To be "cruel and

unusual," medical care, like other prison conditions, must

contravene "evolving standards of decency." Id. Thus, only

"acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs" can violate

the Eighth Amendment. Id. This test contains objective and

subjective components.

Objectively, the prisoner must present "serious medical

needs." A serious medical need is "one that has been

diagnosed by a physician as requiring treatment or one that

is so obvious that a lay person would easily recognize the

necessity for a doctor’s attention." Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)

(citation omitted). A medical need is also serious where the

denial of treatment would result in the "unnecessary and

wanton infliction of pain," Estelle, 429 U.S. at 103, or a

"life-long handicap or permanent loss," Lanzaro, 834 F.2d

at 347.

Subjectively, prison officials must exhibit "deliberate

indifference" to those needs. Under that standard,

a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of

and disregards an excessive risk to inmate health or

safety; the official must both be aware of facts from

which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the

inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

B. Environmental Tobacco Smoke ("ETS") Claims

Occasionally prisoners bring Eighth Amendment suits

alleging that their exposure in prison to second-hand

25

smoke, known as environmental tobacco smoke ("ETS"),

constitutes "cruel and unusual punishment." These ETS

claims, as they are called, come in two varieties-- present

injury claims and future injury claims -- and are measured

by different standards. Atkinson’s suit involves both.

1. Requirements for Present Injury Claims

A present injury claim alleges that exposure to ETS poses

a risk to a prisoner’s existing medical needs. It is a

standard condition-of-confinement claim governed by the

principles the Supreme Court established in Estelle and

Farmer. Thus, a prisoner must allege a sufficiently serious

medical need (the objective component) and deliberate

indifference by prison officials in response (the subjective

component).

2. Requirements for Future Injury Claims

A future injury claim alleges that an inmate’s ETS

exposure is creating a risk of future medical harm so grave

that society will not condone its prisoners (or anyone else)

being exposed to it. Helling v. McKinney, 509 U.S. 25, 36

(1994). Helling analyzed only future injury ETS claims.1 An

inmate whose cellmate smoked five packs of cigarettes a

day sued under the Eighth Amendment for injunctive relief

and compensatory damages, alleging that his constant

exposure to ETS damaged his health. Id. at 28. The

Magistrate entered a directed verdict for the prison officials.

He reasoned that although the plaintiff could hypothetically

prevail on his claims by showing serious medical needs and

deliberate indifference to those needs, he could not support

either prong with sufficient evidence. The Court of Appeals

reversed in part, finding that the Magistrate properly

rejected the present injury claim but should have allowed

_________________________________________________________________

1. The complaint in Helling alleged present and future injuries, but the

Supreme Court focused on the future injury claim. See 509 U.S. at 31

(stating "the primary question on which certiorari was granted" to be

"whether the court below erred in holding that McKinney had stated an

Eighth Amendment claim on which relief could be granted by alleging

that his compelled exposure to ETS poses an unreasonable risk to his

health.") (emphasis added).

26

the plaintiff ’s suit to proceed on the theory that the level of

ETS to which he was exposed posed an intolerable risk to

his future health, i.e. a future injury claim. Id. at 28-29.

The Supreme Court affirmed. It held that, in theory, a

prisoner forced to inhale five packs a day of second-hand

smoke conceivably might face future health risks

sufficiently serious to violate the Eighth Amendment. It

observed, for example, that in Hutto v. Finney , 437 U.S. at

682, the high risk that prisoners would eventually contract

hepatitis and venereal disease from their communal floor

mats helped to support a finding of an Eighth Amendment

violation. Helling, 509 U.S. at 33. Similarly, unreasonably

high ETS levels could create a condition of confinement

that "is sure or very likely to cause serious illness and

needless suffering the next week or month or year." Id. In

light of this possibility, the Court remanded for the District

Court to evaluate the plaintiff ’s future injury claim on the

merits. Id. at 35 ("We cannot rule at this juncture that it

will be impossible for McKinney, on remand, to prove an

Eighth Amendment violation based on exposure to ETS.").

Helling established a strict test for Eighth Amendment

ETS claims. The Court stated that on remand the plaintiff

was required to "prove both the subjective and objective

elements necessary to prove an Eighth Amendment

violation." Id. at 35. As the Court’s opinion reveals, a

prisoner bears significant burdens in establishing a viable

claim, and a district court must undertake a number of

inquiries to determine whether a plaintiff has produced

sufficient evidence to support a future injury claim.

As to the first -- the objective factor -- a plaintiff "must

show that he himself is being exposed to unreasonably high

levels of ETS." Id. For example, in the circumstances of the

case before the Helling Court, "[p]lainly relevant to this

determination is the fact that [the prisoner] has been moved

[from one prison to another] and is no longer the cellmate

of a five-pack-a-day smoker." Id. Also, the fact that the

director of the Nevada state prison system subsequently

had adopted a formal smoking policy meant that

[i]t is possible that the new policy will be administered

in a way that will minimize the risk to [the prisoner]

27

and make it impossible for him to prove that he will be

exposed to unreasonable risk with respect to his future

health or that he is now entitled to an injunction.

Id. at 36. In addition, "determining whether [the prisoner’s]

conditions of confinement violate the Eighth Amendment

requires more than a scientific and statistical inquiry into

the seriousness of the potential harm and the likelihood

that such injury to health will actually be caused by

exposure to ETS." Id. Courts must "assess whether society

considers the risk that the prisoner complains of to be so

grave that it violates contemporary standards of decency to

expose anyone unwillingly to such a risk." Id. Stated

another way, "the prisoner must show that the risk of

which he complains is not one that today’s society chooses

to tolerate." Id.

As to the second factor -- the subjective factor known as

deliberate indifference -- the district court should make its

conclusions "in light of the prison authorities’ current

attitudes and conduct, which may have changed

considerably since the judgment of the Court of Appeals."

Id. In Helling, the Supreme Court noted that because

Nevada had adopted a smoking policy for its prisons, this

"will bear heavily on the inquiry into deliberate

indifference," possibly making it more difficult to show that

prison officials are not responding to the dangers of ETS,

and reducing inmates’ exposure as a result. Finally,"[t]he

inquiry into this factor also would be an appropriate vehicle

to consider arguments regarding the realities of prison

administration." Id.

C. Application of the Law to Atkinson’s Case

This case in my view is underwhelming with regard to

either the present or future injury claims.2 Atkinson’s

_________________________________________________________________

2. The majority repeatedly scolds my dissent for entering the "forbidden

territory" of evidence-weighing. This assertion is contradicted by the very

language the majority cites for support. In Ziccardi v. City of

Philadelphia, 288 F.3d 57, 61 (3d Cir. 2002), we stated that

we lack jurisdiction to consider whether the district court correctly

identified the set of facts that the summary judgment record is

sufficient to prove; but we possess jurisdiction to review whether the

28

allegations of "constant" exposure to ETS for approximately

seven months theoretically may present a viable claim, but

the evidence identified by the District Court is insufficient

to establish an Eighth Amendment violation. Atkinson

cannot show that his current condition creates a"serious

medical need," or that, following a scientific and statistical

inquiry, his risk of future harm is "so grave that it violates

contemporary standards of decency to expose anyone

unwillingly to such a risk." Id. at 34, 36.

The majority decides what conditions society will not

tolerate in its prisons without considering what society

itself -- primarily through the decisions of its local

legislators and politicians -- has said on the topic. The

majority’s attempt to assemble a societal consensus

consists of its citing an executive order by the then-

Governor of Delaware restricting smoking in some state

buildings, but exempting prisons. Del. Exec. Order 71, at

P 6 (Apr. 4, 1989). Even without the prison exemption, a

single executive order from one state is obviously

inadequate evidence of a national consensus.3 Moreover, in

_________________________________________________________________

set of facts identified by the district court is sufficient to establish

a violation of a clearly established constitutional right.

In other words, Ziccardi instructs that in cases where the district court

denied summary judgment by finding genuine issues of material fact, the

appeals court does not have jurisdiction to review questions of fact (e.g.,

did the plaintiff request, and the defendant refuse, a transfer to a

nonsmoking cell), but it does have jurisdiction to review questions of law

(e.g., on the basis of the facts identified by the district court, did the

plaintiff adequately allege the violation of a clearly established

constitutional right).

Here, the District Court concluded that "genuine issues of material fact

exist as to: (1) whether Plaintiff was exposed to unreasonably high levels

of ETS; and (2) whether it is contrary to current standards of decency for

anyone to be exposed to sufficient environmental tobacco smoke to cause

the symptoms Plaintiff suffered." The District Court’s findings that the

levels of ETS to which Atkinson was exposed may have been both

unreasonable and contrary to current standards of decency thus fall

within our appellate jurisdiction "to review whether the set of facts

identified by the district court is sufficient to establish a violation of a

clearly established constitutional right."

3. In May 2002 the Delaware General Assembly passed significantly

tightened restrictions on smoking in public spaces. 16 Del. C. S 2903,

29

light of the prison exemption, the majority’s extrapolation of

any (let alone a national) consensus is a generous view of

Delaware’s status as a bellwether of public opinion. 4

1. Present Injury Claim

Atkinson has failed to present evidence from which a jury

reasonably could find a serious medical need. His physical

condition belies any harm. For example, Atkinson does not

suffer asthma attacks in response to ETS.5 He does not

seem to require medical treatment. Indeed, no doctor has

ordered that Atkinson be placed in a non-smoking area.

Further undermining Atkinson’s present injury claim is

the dearth of medical evidence in his favor. The report from

Atkinson’s doctor, Dr. Rizzo, is so lacking that it might as

well have been written for the defendants. It says that

Atkinson’s 1995 pituitary surgery, not second-hand smoke,

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amended by 2002 Delaware Laws Ch. 275 (S.B. 99) (effective late

November 2002). It is certainly possible that other states will do the

same. According to the Centers for Disease Control, however, as of

October 16, 2002, only California has eliminated smoking from virtually

all its public places, including bars and restaurants. See Exposure to

Environmental Tobacco Smoke and Cotinine Levels--Fact Sheet, http://

www.cdc.gov/tobacco/research_data/environmental/factsheet_ets.htm

(last visited January 2, 2003). Nevertheless, Delaware’s statute covers

only "any indoor enclosed area to which the general public is invited or

in which the general public is permitted," and therefore clearly not

prisons. Moreover, the public smoking laws of a few states do not

amount to a national consensus. With regard to the second prong of the

Saucier test, even if these laws did represent a new national consensus,

they do nothing to make that consensus "clearly established" in 1998

and 1999 when the events in this case took place.

4. The majority’s statement in footnote 7 that"[p]roof of a national

consensus might include, inter alia, the federal regulation which protects

the public and federal employees from ETS in all federal workplaces" lays

out just how speculative the majority’s rationale is. That the District

Court might have found evidence of a societal consensus on ETS within

the Code of Federal Regulations is not to say that it did.

5. Atkinson does hint that he is asthmatic or that he had "childhood

asthma," but neither he nor his doctors contend that the evidence could

support a claim that he suffers from asthma now.

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causes his chronic headaches. It also observes that

Atkinson smoked for twenty-seven years, and that his

symptoms did not change during the year he was isolated

from second-hand smoke in prison. It concludes that

Atkinson has "symptoms of persistent reactive nasal

passages and airways based on his response to exposure to

seasonal changes in temperature and air quality" and that

Atkinson’s "spirometry [lung function] is currently normal."

(Emphasis added.)

The only statement in the report conceivably supporting

Atkinson’s claim is Dr. Rizzo’s ambivalent "impression" that

"it is within reasonable medical probability that symptoms

of itchy and burning eyes, chest pains, sore throat,

persistent cough with sputum production, paroxysms of

coughing and resultant headaches would all [be]

precipitated by exposure to second-hand smoke." An

impression is not a diagnosis. Even if it were, it is

unavailing for Atkinson. Not only does the report not

suggest that Atkinson’s symptoms constitute "serious

medical needs," it does not even say that ETS caused them,

only that it is "within reasonable medical probability" that

these symptoms would be caused by exposure to ETS.

Instead of "it is reasonably medically certain" -- or even "it

is reasonably medically probable," Dr. Rizzo writes as if it

is possible that Atkinson’s symptoms fall within the larger

set of medical probability.

The affidavit from the prison medical director, Dr. Keith

Ivens, weakens Atkinson’s claim even further. Dr. Ivens

writes that Atkinson never complained to him of second-

hand smoke during several examinations, that Atkinson’s

symptoms are consistent with "seasonal allergies," and that

they are, in fact, likely caused by allergies because the unit

where he "has resided for more than the past year (1-F) is

a smoke-free environment." Dr. Ivens concludes:"I can see

no medical evidence that second-hand smoke is adversely

affecting the health of Roger Atkinson."

Fully accepting the District Court’s findings, Atkinson’s

symptoms cannot be the predicate for a present injury

Eighth Amendment violation. They are not severe enough to

constitute a serious medical need. Every prisoner faces

discomforts in prison that he would rather avoid, but that

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nonetheless do not violate the Constitution. See Rhodes,

452 U.S. at 349.

2. Future Injury Claim

Atkinson’s future injury claim fares no better. As already

mentioned, Helling held that a successful ETS claim under

the Eighth Amendment must meet two objective criteria. It

requires "more than a scientific and statistical inquiry into

the seriousness of the potential harm and the likelihood

that such injury to health will actually be caused by

exposure to ETS." 509 U.S. at 36. "[I]t also requires a court

to assess whether society considers the risk that the

prisoner complains of to be so grave that it violates

contemporary standards of decency to expose anyone

unwillingly to such a risk. In other words, the prisoner

must show that the risk of which he complains is not one

that today’s society chooses to tolerate." Id.

The District Court’s "scientific and statistical inquiry" is

a generic letter from A. Judson Wells, Ph.D., about the

dangers of ETS. That letter summarizes several recent

studies demonstrating a link between second-hand smoke

and increased risk of heart disease and lung cancer. Those

studies have nothing to do with prison settings or with

Atkinson’s particular case. The letter concludes:"Overall, I

would say that for Mr. Atkinson to continue in a smoke

filled cell would increase his risk of death, or non-fatal

heart attack or stroke. Lung cancer risk develops more

slowly."

This letter does not satisfy Helling. Dr. Wells did not

study Atkinson himself to determine his particular

increased risk of future disease; he merely generalized

based on a selected set of studies from medical journals.

The Seventh Circuit has specifically rejected the

substitution of generalized medical knowledge for a specific

medical examination. See Henderson v. Sheahan , 196 F.3d

839, 852 (7th Cir. 1999) ("To avoid having damages

awarded on the basis of mere speculation or conjecture, it

only makes sense that the medical expert should be able to

testify to a reasonable degree of medical certainty that the

particular plaintiff himself faces the increased risk of harm

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whatever that level of risk."). Here, when Dr. Wells

attempted to extrapolate the results of outside studies to

Atkinson, he did not even venture to suggest a level of

increased risk for heart disease or stroke. And his

prediction for lung cancer risk is even more ambiguous.

That risk, he says cryptically, "develops more slowly."

Moreover, Helling requires "more than a scientific and

statistical inquiry into the seriousness of the potential harm

and the likelihood that such injury to health will actually

be caused by exposure to ETS." 509 U.S. at 36 (emphasis

added). The risk must "be so grave that it violates

contemporary standards of decency to expose anyone

unwillingly to such a risk." Id. Here, we do not know the

risk, but even the studies Dr. Wells cites make it obvious

that Atkinson is by no means likely to develop heart disease

or lung cancer because he lived with a smoking cellmate (or

cellmates) for several months. It thus appears a leap of

logic to conclude that society finds this risk to exceed

"contemporary standards of decency." After all, millions of

people not in prison voluntarily tolerate similar levels of

risk every day from second-hand smoke and numerous

other sources. (Indeed, millions more smoke themselves.) In

this context, Atkinson cannot state an Eighth Amendment

claim based on his risk of future injury caused by ETS.6

As with the present injury claim, the majority’s analysis

on this issue is unconvincing. The majority says nary a

word about Atkinson’s failure to provide scientific or

statistical evidence in support of his claim, as Helling

expressly requires. And it offers no reason to believe that

the risks to which Atkinson alleges he was exposed are so

grave that it violates contemporary standards of decency to

expose anyone to them unwillingly.

II. Step Two: Is the Right Clearly Established?

Because Atkinson does not state an Eighth Amendment

violation on either his present injury or future injury

_________________________________________________________________

6. Because Atkinson cannot satisfy the objective requirements of showing

a serious medical need or an unreasonably grave risk of injury on either

his present injury or future injury claims, we do not need to consider

whether prison officials demonstrated deliberate indifference.

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claims, we do not have to consider whether his rights under

the Eighth Amendment were clearly established. See

Saucier, 533 U.S. at 201 ("If no constitutional right would

have been violated were the allegations established, there is

no necessity for further inquiries concerning qualified

immunity."). Nonetheless, the majority’s analysis on this

point merits a response.

A right is clearly established if "it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted." Id. at 202. Qualified immunity

"operates ‘to ensure that before they are subjected to suit,

officers are on notice their conduct is unlawful.’ " Hope v.

Pelzer, 122 S.Ct. 2508, 2515 (2002) (citation omitted).

Accordingly, if our Court has not decided a particular

question (which is the case here) and several other courts

have reached inconsistent outcomes on relatively similar

facts (which is also the case here7), the right at issue

cannot be clearly established. See Donovan v. City of

Milwaukee, 17 F.3d 944, 953 (7th Cir. 1994) ("Because only

two circuits had considered cases on point, reaching

opposite results, we conclude that ‘the relevant case law

was still developing [and] the key issue in this case had not

been clearly settled.’ ") (citation omitted); see also Wilson v.

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7. The majority cites a number of opinions in support of its assertion

that prisoners have a clearly established right to be free from

unreasonable levels of ETS. In most of these decisions the court made

little effort to determine whether the circumstances represented an

unacceptable risk to prisoners’ health, presumably because most of the

cases involved appeals from rulings on motions to dismiss, a much

easier stage to survive than summary judgment because, unlike

summary judgment, motions to dismiss require no evidentiary support

for the plaintiffs’ claims. Ultimately, ETS claims for either present or

future injuries rarely succeed unless the exposure is obviously

intolerable. See, e.g., Richardson v. Spurlock , 260 F.3d 495 (5th Cir.

2001); Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 1999); Scott v.

District of Columbia, 139 F.3d 940 (D.C. Cir. 1998); Oliver v. Deen, 77

F.3d 156 (7th Cir. 1996); Mills v. Clark, 229 F.3d 1143, 2000 WL

1250781 (4th Cir. Sept. 5, 2000) (unpublished). Granted, some of these

decisions were appeals from decisions on the merits, not interlocutory

appeals of qualified immunity determinations. Nevertheless, they

demonstrate that many courts have rejected prisoner ETS claims and

that plainly the circuits differ in their amenability to these suits.

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Layne, 526 U.S. 603, 618 (1999) ("If judges thus disagree

on a constitutional question, it is unfair to subject police to

money damages for picking the losing side of the

controversy."); Rogers v. Pendleton, 249 F.3d 279, 288 (4th

Cir. 2001) ("[I]f there are no cases of controlling authority in

the jurisdiction in question, and if other appellate federal

courts have split on the question of whether an asserted

right exists, the right cannot be clearly established for

qualified immunity purposes.").

To demonstrate that Atkinson’s right to be shielded from

ETS was clearly established, the majority merely invokes

Helling -- without any accompanying analysis-- and cites

a number of other cases that do the same.8 Saucier

mandates that the inquiry into whether a right was clearly

established for the purposes of granting qualified immunity

"must be undertaken in light of the specific context of the

case, not as a broad general proposition; and it too serves

to advance understanding of the law and to allow officers to

avoid the burden of trial if qualified immunity is

applicable." 533 U.S. at 201. The majority simply passes on

the mandatory examination into whether this plaintiff

under the circumstances of this case had a clearly

established Eighth Amendment right to not be exposed to

this level of ETS. See Mills, 229 F.3d at 1143, 2000 WL

1250781, at *5 ("Helling does not guarantee plaintiff a

smoke free environment.").

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8. For example, the majority relies primarily on Warren v. Keane, 196

F.3d 330 (2d Cir. 1999), in which the Second Circuit found that inmates

could survive summary judgment on their future injury ETS claim by

alleging that their confinement "creates serious long-term health risks."

Id. at 332. The cursory, four-page Warren opinion did not consider

whether the facts plaintiffs alleged stated an Eighth Amendment

violation, did not mention the level of smoke exposure or why that level

might be unreasonably high under Helling, and referenced neither the

required "scientific and statistical inquiry" nor any support for the

proposition that society would find the ETS levels in that case --

whatever they might have been -- intolerable for its prisoners.

Contrary to the majority’s assertion, I do not fail to recognize that

Warren is factually and procedurally analogous. Warren lacks persuasive

value not because it is distinguishable, but rather because it fails to

perform the analysis mandated by a prisoner ETS claim.

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* * * * *

On the present injury claim, considering the lack of

medical evidence in Atkinson’s favor, no reasonable prison

official could have predicted that Atkinson’s relatively minor

symptoms (which appear to have been caused by seasonal

allergies) would support an Eighth Amendment suit. The

majority cites no case to the contrary, and certainly not the

"consensus of cases," Rogers, 249 F.3d at 287-88, needed

to overcome qualified immunity.

On the future injury claim, neither the Supreme Court

nor any other court has stated that a particular level of ETS

violates the Eighth Amendment. Helling did not conclude

that the level of ETS exposure in that case -- five packs a

day in a two-person cell -- was cruel and unusual; the

Supreme Court remanded for the trial court to make this

determination following a fact-intensive inquiry. Our

jurisdiction is limited to reviewing whether the set of facts

identified by the District Court is sufficient to establish a

violation of a clearly established constitutional violation.

The facts identified by the District Court’s analysis in this

case do not.

For these reasons, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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