                             In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 07-3651
FLYNT J. LEE,
                                               Plaintiff-Appellant,
                                 v.

DONALD YOUNG, MIKE HICKS, MELINDA
FIELDS, STEVEN CAGLE, and DONALD N.
SNYDER,
                                 Defendants-Appellees.
                    ____________
           Appeal from the United States District Court
              for the Southern District of Illinois.
                No. 02-CV-281—J. Phil Gilbert, Judge.
                          ____________
       ARGUED MAY 14, 2008—DECIDED JUNE 24, 2008
                          ____________


  Before BAUER, FLAUM, and MANION, Circuit Judges.
  FLAUM, Circuit Judge. Flynt Jules Lee is a former prison
inmate who suffered from asthma. During his stay at a
particular prison, he claims that he was exposed to second-
hand smoke that triggered his asthma and exacerbated
his respiratory condition. He sued prison officials under
42 U.S.C. § 1983 for exhibiting deliberate indifference to
his serious medical needs. The district court granted
summary judgment in favor of the defendant prison
2                                              No. 07-3651

officials, finding that Lee in fact could have had a
serious medical need, but that the prison officials were
not deliberately indifferent to it. We affirm.


                      I. Background
  From 1989 to 2002, Lee was an inmate in the custody
of the Illinois Department of Corrections (“IDOC”). He
was housed in the Shawnee Correctional Center (“Shaw-
nee”) from 1995 to 1996, and again from 2001 to 2002. It is
the latter portion of his stay in Shawnee that is the sub-
ject of this litigation. Lee has suffered from chronic
asthma since childhood. He claims that his condition
worsened while he was in prison due to environmental
tobacco smoke (“ETS”). In 1998, he was hospitalized for
respiratory failure that presumably arose from his asthma.
Later that year, the Acting Medical Director of the IDOC
signed a memorandum stating that Lee “has severe
asthma and may need prompt medical attention.” Two
years later, Lee was taken to a non-IDOC emergency
room for respiratory problems.
  All of this occurred before Lee arrived at Shawnee on
January 29, 2001. Upon his arrival, an IDOC health
status form was prepared and it listed “acute asthma” as
one of his “chronic conditions.” The report noted that Lee
was already taking several asthma-related medications—
namely Accolate, Albuterol, and Azmacort—and con-
tinued to participate in an asthma clinic. On February 22,
2001, he was transferred to Shawnee’s non-smoking
medical unit on account of severe abdominal pain that
also caused his asthma to “act up.” A related memoran-
dum explicitly acknowledged Lee’s “history of having
severe asthma attacks . . . .” Once his situation had stabi-
No. 07-3651                                                  3

lized soon thereafter, Lee requested to be transferred to
a non-smoking cell,1 and his request was granted.
   Unfortunately, Lee was still exposed to ETS. Shawnee did
not contain any entirely smoke-free wings (nor was it
required to), and so smoke from nearby cells would
filter into Lee’s cell. What was worse is that Lee’s cell-
mate smoked even though it was a non-smoking cell.
Lee then filed a series of grievances based on the presence
of secondhand tobacco smoke. He complained that Shaw-
nee “does not have a smoke-free living unit” and that
“being placed in a non-smoking cell does not alleviate
entirely his exposure to secondhand smoke.” On April 20,
2001, a grievance officer recommended approval of the
grievance, and the warden concurred several days later
and stated that Lee “should be moved to a non-smoking
cell.” Obviously, Lee responded and notified the warden
that he was already in a non-smoking cell, but his cell-
mate and others nearby still smoked. Since Shawnee did
not have a smoke-free wing, Lee asked to be “transferred
to another institution that has a non-smoking wing . . . .”
He filed a similar grievance a month later.
  In July 2001, a medical doctor was asked to review
Lee’s records and found no medical problem that “would
necessitate special housing placement.” Similarly, in
August and December 2001, when Lee visited the
asthma clinic, the doctor wrote that Lee had no recent
asthma attacks and that his asthma was “controlled.”


1
  In 1994, the IDOC required wardens of each facility to
designate a set of non-smoking cells. Inmates were not “permit-
ted to smoke or possess smoking materials in non-smoking
cells.” Twelve cells in nearly each of Shawnee’s Housing
Unit Wings were designated as non-smoking.
4                                                 No. 07-3651

Accordingly, Lee’s prescriptions were renewed as before.
Still, between November 2001 and December 2002, Lee
repeatedly complained about his exposure to ETS to the
medical staff. The record reflects over a dozen instances
where Lee complained of “smoking inmates,” “smoke in
his cell,” that his “cellmate smokes,” and that he had to
use his Albuterol inhaler with greater frequency. Prison
doctors took note of the fact that he used this inhaler
more often, but kept his prescriptions levels essentially
intact.2 Lee lodged his final complaint with medical staff
on December 4, 2002.3 The doctor who saw him on his
sick call concluded that Lee’s condition had “improved”
with Azmacort and that he should continue with his
current medications.
   Even though inmates at Shawnee were not permitted
to possess smoking materials in non-smoking cells, the
prison commissary unwittingly sold cigarettes to inmates
housed in non-smoking cells. Nevertheless, correctional
officers enforced the non-smoking policy by issuing
disciplinary tickets to inmates who smoked or possessed
smoking materials in non-smoking areas. At some point
during Lee’s stint at Shawnee, his cellmate was issued a
ticket for smoking in their non-smoking cell. In addition,
two other inmates were given disciplinary tickets for
possessing or using tobacco in non-smoking areas.



2
  Lee’s Accolate and Albuterol prescriptions remained at the
same strength throughout his stay at Shawnee. His Azmacort
prescription changed from two puffs, two times a day, to
four puffs, two times a day, as it had been back in Febru-
ary 2001.
3
  Lee was released from prison soon thereafter, on December 30,
2002.
No. 07-3651                                                   5

  Apart from the complaints regarding ETS, Lee also
complained about the prison ventilation system. Specifi-
cally, on July 9, 2002, he filed a grievance alleging that his
housing unit had “no ventilation system working to ex-
tract the ETS” which “endanger[ed his] overall health
and safety.” A grievance officer reported that the ex-
haust fans were subsequently repaired on August 31, 2002.
  Lee initially proceeded pro se, and filed his complaint
with the district court on April 1, 2002. His second
amended complaint was filed on August 4, 2003. He sued
defendants Donald Young, former warden at Shawnee;
Melinda Fields, former business administrator at Shawnee;
Donald Snyder,4 former director of IDOC; Mike Hicks,
commissary supervisor at Shawnee; and Steven Cagle,
housing placement officer at Shawnee. Lee alleged viola-
tions of 42 U.S.C. § 1983—grounded in his Eighth Amend-
ment right to be free from cruel and unusual punish-
ment—based on exposure to secondhand tobacco smoke.
Because of injury to his existing and future health, he seeks
compensatory and punitive damages totaling $1.575
million.
  Defendants moved for summary judgment. They
argued that the asthma was not a serious medical condi-
tion, that they did not exhibit deliberate indifference,
and that they were entitled to qualified immunity. A
magistrate judge issued a Report and Recommendation
that summary judgment be denied on the question of
whether defendants violated Lee’s Eighth Amendment
rights, and that summary judgment also be denied on
their qualified immunity claim.


4
   The district court dismissed Snyder from the suit for lack of
personal involvement, and Lee has not articulated any objec-
tion to this determination on appeal.
6                                             No. 07-3651

  On October 4, 2007, the district court entered its judg-
ment in favor of defendants on all claims and dismissed
Lee’s claims with prejudice. The trial judge accepted in
part and rejected in part the magistrate’s Report and
Recommendation. He determined that “exposure to ETS
caused Lee’s asthma to worsen to the point where it
became a ‘serious medical need.’ ” But he concluded
that “even drawing all reasonable inferences in Lee’s
favor, no reasonable trier of fact could find that defend-
ants acted with deliberate indifference to Lee’s serious
medical needs.” The district court also added that defen-
dants were entitled to qualified immunity. This appeal
followed.


                     II. Discussion
  Lee raises two issues on appeal. First, he contends
that there was a genuine issue of fact as to whether defen-
dants exhibited deliberate indifference to his serious
medical needs. Second, he argues that there was also a
genuine issue of fact as to whether defendants are entitled
to qualified immunity. We analyze each issue in turn.


                            A
  We review a district court’s decision granting sum-
mary judgment de novo. Greeno v. Daley, 414 F.3d 645,
652 (7th Cir. 2005). Summary judgment is appropriate
where the evidence demonstrates that “there is no genu-
ine issue as to any material fact and that the movant is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). All facts are construed and all inferences are drawn
in favor of the non-moving party. Greeno, 414 F.3d at 652.
No. 07-3651                                                 7

  Deliberate indifference to serious medical needs of
prisoners violates the Eighth Amendment, which applies
to the states through the Fourteenth Amendment. Walker v.
Benjamin, 293 F.3d 1030, 1036-37 (7th Cir. 2002). The
Eighth Amendment prohibits punishments that are
incompatible with “evolving standards of decency that
mark the progress of a maturing society.” Trop v. Dulles,
356 U.S. 86, 101 (1958). In order to prevail on a deliberate
indifference claim, a plaintiff must show (1) that his
condition was “objectively, sufficiently serious” and
(2) that the “prison officials acted with a sufficiently
culpable state of mind.” Greeno, 414 F.3d at 653. A med-
ical condition is serious if it “has been diagnosed by a
physician as mandating treatment or one that is so ob-
vious that even a lay person would perceive the need for
a doctor’s attention.” Id. With respect to the culpable
state of mind, negligence or even gross negligence is not
enough; the conduct must be reckless in the criminal
sense. Farmer v. Brennan, 511 U.S. 825, 836-37 (1994) (“We
hold . . . 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 infer-
ence.”).
  As a general matter, asthma “can be, and frequently is, a
serious medical condition, depending on the severity of
the attacks.” Board v. Farnham, 394 F.3d 469, 484 (7th Cir.
2005). In Board, the defendant was taken to the emergency
room on two occasions, began using a breathing machine,
and was deprived of his asthma medication which kept
8                                                 No. 07-3651

him from defending against asthma attacks. Id. at 485. But
not all cases of asthma necessarily constitute serious
medical needs. In Henderson v. Sheahan, 196 F.3d 839,
846 (7th Cir. 1999), we affirmed summary judgment in
favor of the defendant correctional officers where the
plaintiff complained of “breathing problems, chest pains,
dizziness, sinus problems, headaches, and a loss of energy”
from exposure to ETS. Here, defendants argue that this
case is analogous to Henderson: Lee did not suffer an
asthma attack during the relevant period of time, and
he complained mostly of “shortness of breath, watery
eyes, sneezing, tightening of the chest, wheezing and
coughing.” Thus, the argument goes, he did not suffer
from a serious medical condition. We disagree.
  The district court was correct to conclude that there
are enough issues of material fact with respect to the
seriousness of the medical condition to be taken to a jury.
First, the record is not clear on whether Lee actually
suffered an asthma attack while at Shawnee. He was
taken to the infirmary in February 2001 for an abdominal
problem that caused his asthma to “act up.” There is
evidence in the record that suggests that some doctors
classified his respiratory issue in this instance as a full-
blown asthma attack.5 For instance, at the asthma clinic
in February 2002, the doctor noted that Lee’s “last serious
asthma attack” was “1 yr ago.” Second, several doctors
did diagnose his asthma as “severe,” and the ETS exacer-
bated his condition. Lee was using his Albuterol inhaler
more readily, and the record implies that respiratory
examinations showed decreased lung capacity. Further,


5
 The medical records, however, do not reflect that this episode
was in any way caused by ETS.
No. 07-3651                                                9

Lee was seen repeatedly in the medical unit for breathing
problems, he complained regularly of secondhand
smoke, and the IDOC was on notice of his condition and
that he had gone to the emergency room as a result of it in
the past. We find that given this particular set of facts,
a reasonable jury could have concluded that Lee had a
serious medical need.
  Whether defendants exhibited deliberate indifference
to this potentially serious medical need is a separate
question. Lee argues that defendants’ actions here fell
short of the mark. He was placed in a non-smoking cell,
but he was still exposed to ETS on account of inmates in
nearby (smoking) cells who smoked and his own “non-
smoking” cellmate. Moreover, he brought both of these
facts to the attention of prison officials through the griev-
ance process, but the situation was not ameliorated.
Shawnee policy also gave the warden the authority to
remove smoking inmates from non-smoking cells or rooms.
Lee argues that in spite of this rule’s existence, defendants
did very little to actually enforce and implement their non-
smoking policy. Prison officials could have also, he con-
tends, been more vigilant about keeping tobacco from
being sold out of the prison commissary to inmates
housed in non-smoking cells. Finally, Lee maintains that
the nearly two months that it took to fix the exhaust fan
was too long, especially given his condition.
  Lee’s complaints, while valid, do not rise to the level
deliberate indifference or criminal recklessness on the part
of the defendants. Prison officials are expected to “act
responsibly under the circumstances that confront them”
but are not required to act flawlessly. Riccardo v. Rausch,
375 F.3d 521, 525 (7th Cir. 2004). Significantly, in deter-
mining the best way to handle an inmate’s medical needs,
10                                               No. 07-3651

prison officials who are not medical professionals are
entitled to rely on the opinions of medical professionals.
Johnson v. Doughty, 433, F.3d 1001, 1011 (7th Cir. 2006).
Here, Lee complained on many occasions to the medical
staff about his exposure to ETS, but the record does not
reveal a single instance where a prison doctor recom-
mended that Lee be transferred to a different cell,6 or
a different prison facility with an entirely non-smoking
wing. In fact, a doctor was asked to review Lee’s medical
history to ascertain whether there was any reason for
“special housing placement,” and he concluded that there
was not. In spite of Lee’s protests, not one doctor recom-
mended a shift in his living situation.7 Furthermore,
medical professionals at the asthma clinic uniformly
determined that Lee’s asthma was “controlled.”
  Quite apart from the fact that prison officials did not
contradict or ignore medical advice regarding Lee’s
housing, the record is replete with instances of concern,
not indifference. Lee was given access to doctors, the
asthma clinic, and medications prescribed by his doctors
without fail. When a prison doctor recommended that he
be moved to the medical wing, he was moved, and when
he requested a non-smoking cell, he received (an albeit
imperfect) one. In addition, when he complained that his
cellmate was smoking in their non-smoking cell, the
cellmate was issued a disciplinary ticket. Two others


6
  Lee submits affidavits from two nurses that indicate that
they called the housing placement office to have his cellmate
moved, but there is no evidence that tends to suggest that any
of the individual defendants were aware of this request.
7
  Lee has not sued any member of the medical staff—only
prison officials are a party to this suit.
No. 07-3651                                               11

were given tickets as well. Finally, when he brought the
broken ventilation system to the prison officials’ attention,
it was repaired soon thereafter.
   True, prison officials could have removed Lee’s cellmate,
ticketed every inmate who smoked in a non-smoking
cell, repaired exhaust fans immediately, and constructed
a completely non-smoking wing in the prison. But the
Eighth Amendment “forbids cruel and unusual punish-
ments; it does not require the most intelligent, progressive,
humane, or efficacious prison administration.” Anderson v.
Romero, 72 F.3d 518, 524 (7th Cir. 1995). For instance, in
Greeno, we held that an inmate who was “vomiting on a
regular basis and consuming large quantities of Maalox
in an attempt to combat his heartburn, nausea, and
vomiting” could prove deliberate indifference on the part
of a nurse who withheld Maalox and gave the plaintiff “a
medication known to aggravate his esophageal condition,”
a health services administrator who did nothing in re-
sponse to plaintiff’s complaint that he was unable to “find
food that would not irritate his stomach or cause him to
vomit,” and a doctor who refused “over a two-year period
to refer [the plaintiff] to a specialist or authorize an
endoscopy” and banned the medical staff from giving
the plaintiff any pain medication. 414 F.3d at 654-55.
While we do not comment on whether this set of facts
constitutes the floor for deliberate indifference, it is
clear that Lee’s situation is categorically distinct. If Lee
brought suit against medical staff, if prison officials
contravened doctors’ orders, and if the same officials took
no steps towards reducing Lee’s exposure to ETS, this
would be a very different case. Here, Lee brought suit
solely against prison officials who happened to follow
doctors’ orders and who made progress towards re-
12                                               No. 07-3651

ducing his exposure to ETS. Their efforts to do so and
the prison policies themselves may not have been perfect,
but at worst they can only be said to have been negligent,
not reckless in the criminal sense.


                              B
  While we agree with the district court’s overall disposi-
tion of the case, we pause to note that we explicitly do
not affirm its rulings regarding qualified immunity. We
review a district court’s determination regarding qualified
immunity de novo. Borello v. Allison, 446 F.3d 742, 746 (7th
Cir. 2006). Qualified immunity is a defense available to
government officials performing discretionary functions
that affords them protection from civil liability. Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). A two-part test is
used to ascertain whether qualified immunity exists. First,
the plaintiff must establish that the actions of the defendant
violated his constitutional rights. Triad Associates, Inc. v.
Robinson, 10 F.3d 492, 496 (7th Cir. 1993). Second, “[t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). A plaintiff must show, on some level, that
a violation of this right has been found in factually
similar cases, or that the violation was so clear that a
government official would have known that his actions
violated the plaintiff’s rights even in the absence of a
factually similar case. Borello, 446 F.3d at 750.
  The district court concluded, in error, that no factually
similar cases were on point, and so the contours of the
right at issue were not clearly defined. In Alvarado v.
Litscher, 267 F.3d 648, 653 (7th Cir. 1999), we explicitly
No. 07-3651                                              13

held that “[g]iven 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.” Since this right was clearly established in 1998-1999,
it was also clearly established during the relevant period
of time here, 2001-2002. Nevertheless, the district court
did not have to rule on the issue of qualified immunity,
and neither do we, since the first prong of the test (i.e.,
defendants violated plaintiff’s constitutional rights) has
not been met, as detailed above.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
judgment.




                   USCA-02-C-0072—6-24-08
