                                                                                                                           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Precedential or Non-Precedential: Precedential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,
_________________________________________________________________

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.

                                 30


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

                                31


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

                                32


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.

                                33


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.
_________________________________________________________________

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.

                                34


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.").
_________________________________________________________________

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.

                                35


* * * * *
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

                                36
