- From LexisNexis® Mealey’s™ Daily Legal News.
A pro se prisoner’s constitutional rights were not violated by secondhand smoke from prison staff, according to a judge in the U.S. District Court for the Eastern District of Wisconsin, who said March 8 that the prisoner could have avoided the smoke by closing the window in his cell, granting summary judgment (Jonathan David Wilke v. Charles Cole, et al., No. 11-CV-1069, E.D. Wis.;2013 U.S. Dist. LEXIS 32188).
Jonathan David Wilke was housed in the Wisconsin Department of Corrections’ (DOC) Kettle Moraine Correctional Institution (KMCI), Judge J.P. Stadtmueller said. Wilke was assigned to a medium-security prison, the judge said, because he was under sentence for a violent robbery and had been disruptive in prison.
Wilke sued the DOC and employees, alleging that exposure to unreasonably high levels of environmental tobacco smoke (ETS) violated his Eighth Amendment right against cruel and unusual punishments.
“[A] smoke free environment is not constitutionally required,” Judge Stadtmueller said, citing Oliver v. Deen (77 F.3d 156, 158-61 [7th Cir. 1996]), in which the plaintiff was denied relief through summary judgment notwithstanding that his exposure to secondhand smoke “aggravated his asthmatic condition, causing chest pains, difficulty breathing, dizziness, nausea, and other signs of discomfort.”
No Present Injury
In this case, Judge Stadtmueller said, Wilke claimed no present injury but only fear that exposure would make him more susceptible to future injury.
“Here, the facts demonstrate that all smoking defendants followed KMCI policy by smoking in designated smoking areas, except for two defendants,” Judge Stadtmueller said. “One of the defendants smoked in a non-designated area once and the other defendant did so multiple times, although it is not clear how many times the plaintiff was directly affected by the smoking. In any event, the plaintiff has not shown that he faces any level of increased risk of developing a serious medical condition and that such risk was proximately caused by his ETS exposure at KMCI.”
The DOC and prison employees are represented by Melissa R Schaller of the Wisconsin Department of Justice, Office of the Attorney General in Madison, Wis.