In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3959

CHAD J. ALVARADO,

Plaintiff-Appellee,

v.

JON E. LITSCHER, Secretary, JANE
GAMBLE, B. MCCREEDY, et al.,

Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 0676--Barbara B. Crabb, Chief Judge.

ARGUED April 18, 2001--DECIDED September 28, 2001



  Before HARLINGTON WOOD, JR., DIANE P. WOOD,
and WILLIAMS, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. Chad
J. Alvarado filed a complaint pursuant to
42 U.S.C. sec. 1983 against Jon E.
Litscher, Secretary of the Wisconsin
Department of Corrections, Jane Gamble,
warden of Kettle Moraine Correctional
Institution ("KMCI"), and B. McCreedy,
health services manager at KMCI
(collectively referred to as "the
defendants"). The district court denied
the defendants’ motion to dismiss under
Fed. R. Civ. P. 12(b)(6) and on the
ground of qualified immunity. The
defendants filed a timely appeal as to
the qualified immunity issue only.

I.   BACKGROUND

  On October 10, 1999, Alvarado, acting
pro se, filed a complaint stating the
defendants deprived him of his Eighth
Amendment constitutional right in
violation of 42 U.S.C. sec. 1983. The
complaint alleged that Alvarado, a
twenty-seven-year-old male, suffers from
severe chronic asthma, which is made
worse by exposure to environmental
tobacco smoke ("ETS"). Medical
documentation submitted with the
complaint supports this allegation and
defendants do not dispute that Alvarado’s
asthma is severe. Letters and records
dating back to 1982 state that Alvarado
"is allergic to . . . smoke," and that he
has "a long history of perennial asthma."
The term "severe asthma" is also used,
and the records indicate multiple
hospitalizations and trips to the
emergency room for asthma-related
problems.

  Alvarado maintains that while he was
processed at the Dodge Correctional
Institution in Waupun, Wisconsin, he
suffered exposure to ETS, causing his
asthma to worsen. Alvarado claims his
asthma continued to worsen after being
transferred to KMCI in Plymouth,
Wisconsin. Despite his placement in
KMCI’s non-smoking unit with a non-
smoking roommate, Alvarado claims that
other prisoners in the unit smoked in
violation of prison policy because the
guards were frequently not at their post
to enforce the smoking ban. Alvarado also
states that because smoking is permitted
in the common areas of the prison, he is
unable to participate in programs that
would enhance his chances of being
paroled. He alleges that his health
deteriorated as a result of his exposure
to ETS and he was forced to increase his
daily asthma medication dosages. He
maintains the defendants acted with
deliberate indifference to his complaints
about his exposure to ETS./1 Alvarado
filed multiple griev-ances within the
prison system regarding his ETS exposure
which were rejected or dismissed.
Alvarado also alleges that the medical
staff was going to put him in the
infirmary, but he chose not go because
such an action would have resulted in his
being withdrawn from a program for early
release.

  Under the initial screening requirement
with an in forma pauperis proceeding,/2
the district court entered an order on
November 9, 1999, finding that Alvarado
had stated a claim upon which relief may
be granted, allowing Alvarado to proceed
with his complaint. The defendants then
filed a Rule 12(b)(6) motion to dismiss
for failure to state a claim for which
relief may be granted and asserted a
defense of qualified immunity. The
district court denied their motion to
dismiss, but, according to the court,
through an oversight, failed to address
the issue of qualified immunity.
Defendants appealed the denial, but the
case was remanded to allow the district
court to correct the error.

  On October 13, 2000, the district court
issued its order explaining the denial of
defendants’ qualified immunity.
Specifically, the district court found
that the complaint stated a violation of
Alvarado’s Eighth Amendment right due to
the defendants alleged indifference to
Alvarado’s existing and future health by
allowing him to be exposed to ETS, and
that the right was clearly established at
the time of the violation. However, the
district court refused to decide the
factual issue of whether the exposure
reached a level sufficiently high enough
to violate contemporary standards of
decency as interpreted under the Eighth
Amendment.

II.   ANALYSIS

  "This Court reviews de novo the district
court’s denial of defendant’s motion to
dismiss on grounds of qualified
immunity." Milazzo v. O’Connell, 108 F.3d
129, 131 (7th Cir. 1997). When reviewing
a motion to dismiss, "We accept all the
factual allegations in the complaint and
draw all reasonable inferences from these
facts in favor of the plaintiff." Arazie
v. Mullane, 2 F.3d 1456, 1465 (7th Cir.
1993). A claim may be dismissed only if
"it appears beyond doubt that the
plaintiff can prove no set of facts in
support of his claim which would entitle
him to relief." Conley v. Gibson, 355
U.S. 41, 45-46 (1957). Allegations of a
pro se complaint are held "to less
stringent standards than formal pleadings
drafted by lawyers . . . ." Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per
curiam). Accordingly, pro se complaints
are liberally construed. See Wilson v.
Civil Town of Clayton, Ind., 839 F.2d
375, 378 (7th Cir. 1988).

  In order to state a cause of action
under 42 U.S.C. sec. 1983, the Supreme
Court requires only two elements: "First,
the plaintiff must allege that some
person has deprived him of a federal
right. Second, he must allege that the
person who has deprived him of the right
acted under color of state . . . law."
Gomez v. Toledo, 446 U.S. 635, 640
(1980). These elements may be put forth
in a "short and plain statement of the
claim showing that the pleader is
entitled to relief . . . ." Fed. R. Civ.
P. 8(a)(2). In reviewing the complaint on
a motion to dismiss, "no more [is
required] from plaintiff[’s] allegations
of intent than what would satisfy Rule
8’s notice pleading minimum and Rule
9(b)’s requirement that motive and intent
be pleaded generally." Triad Assoc., Inc.
v. Robinson, 10 F.3d 492, 497 (7th Cir.
1993).

  Alvarado’s complaint stated an Eighth
Amendment claim when he alleged that
because of the prison officials’ deliber
ate 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, 429 U.S.
97 (1976). Id. at 104 (holding that in
order to state a violation of the Eighth
Amendment, an inmate must demonstrate
that prison officials showed "deliberate
indifference to serious medical needs").
He also stated a valid claim as to his
future health under Helling v. McKinney,
509 U.S. 25 (1993). Id. at 35 (holding
that an inmate stated a cause of action
under the Eighth Amendment by alleging
that prison officials had, with
deliberate indifference, exposed him to
levels of ETS that posed an unreasonable
risk of serious damage to his future
health); Oliver v. Deen, 77 F.3d 156,
159-60 (7th Cir. 1996). Alvarado’s
complaint sufficiently alleged
deprivation of federal rights by one
acting under color of state law.

  In addressing the district court’s
denial of defendants’ motion to dismiss
based on qualified immunity, we note that
a complaint is generally not dismissed
under Rule 12(b)(6) on qualified immunity
grounds. See Jacobs v. City of Chicago,
215 F.3d 758, 765 n.3 (7th Cir. 2000).
Because an immunity defense usually
depends on the facts of the case,
dismissal at the pleading stage is
inappropriate: "[T]he plaintiff is not
required initially to plead factual
allegations that anticipate and overcome
a defense of qualified immunity." Id. As
noted in Jacobs’ concurrence, "Rule
12(b)(6) is a mismatch for immunity and
almost always a bad ground for dismissal.
. . . and when defendants do assert
immunity it is essential to consider
facts in addition to those in the
complaint." Id. at 775 (Easterbrook, J.,
concurring).

  Qualified immunity protects government
officials from civil liability when
performing discretionary functions so
long as "their conduct does not violate
clearly established statutory or
constitutional rights of which a
reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). To overcome a defense of
qualified immunity, the plaintiff must
first allege the deprivation of an actual
constitutional right, and second, show
that the right was clearly established at
the time of the alleged violation. See
Wilson v. Layne, 526 U.S. 603, 609
(1999). Because we have found that
Alvarado alleged the deprivation of valid
constitutional rights as to his existing
and future health, he has met the first
prong.

  Under the second prong, as previously
noted, the danger to a prisoner’s
existing health needs has long been
recognized under Estelle. The remaining
question is whether the constitutional
right as to Alvarado’s future health was
clearly established in 1998-99 when the
violations occurred. To invoke a "clearly
established" right, the Supreme Court has
explained that the right must be
"particularized" to the extent that
"[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).
Although the petitioner does not need to
point to a case identical to his own, he
must show that, "in light of pre-existing
law," a reasonable defendant would have
known that his actions were unlawful.
Id.; Nabozny v. Podlesny, 92 F.3d 446,
456 (7th Cir. 1996) ("Under the doctrine
of qualified immunity, liability is not
predicated upon the existence of a prior
case that is directly on point.").

  The threat to future health was clearly
established in 1993 when the Supreme
Court held that a prisoner "states a
cause of action under the Eighth
Amendment by alleging that [prison
officials] have, with deliberate
indifference, exposed him to levels of
ETS that pose an unreasonable risk of
serious damage to his future health."
Helling, 509 U.S. at 35. In Helling, the
Supreme Court found that the prisoner had
stated a valid cause of action under the
Eighth Amendment and that the district
court had erred in ordering a directed
verdict in favor of the prison officials;
"We cannot rule at this juncture that it
will be impossible for McKinney . . . to
prove an Eighth Amendment violation based
on exposure to ETS. . . . [and] remand to
the district court to provide an
opportunity for McKinney to prove his
allegations . . . ." Id.

  Since 1993, this circuit has addressed
ETS in the prison context on several
occasions. See Henderson v. Sheahan, 196
F.3d 839 (7th Cir. 1999); Oliver, 77 F.3d
156; Goffman v. Gross, 59 F.3d 668 (7th
Cir. 1995); Beauchamp v. Sullivan, 21
F.3d 789 (1994) (noting the Supreme Court
has recognized that "prison officials may
have a constitutional duty to protect
inmates from high levels of ambient ciga
rette smoke"). The petitioner in
Henderson failed to state a claim under
sec. 1983 because he had never been
diagnosed as having a medical condition
that necessitated a smoke-free
environment nor had he been treated for
any medical problems brought about by his
exposure to ETS. 196 F.3d at 846. In
Oliver, 77 F.3d at 160, the prison
medical director stated that Oliver
suffered from mild asthma which did not
require him to be placed in a cell with
only nonsmokers. Unlike the petitioners
in Henderson and Oliver, Alvarado
presented evidence of chronic, severe
asthma from childhood, which was worsened
by ETS. Although no case in our circuit
has previously addressed this issue on
point, Oliver’s focus on the seriousness
of the inmate’s medical condition under
the Helling analysis supports the
district court’sinterpretation. See id.
at 160; see also Hunt v. Reynolds, 974
F.2d 734, 735-36 (6th Cir. 1992) (finding
that Eighth Amendment 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").

  Under the reasonable person standard of
Harlow and Anderson, it is not
unreasonable to assume that in 1998-99,
five years after the decision in Helling,
prison officials knew or should have
known that even though Alvarado was
housed with a non-smoking cellmate on a
non-smoking unit, in light of his severe
asthmatic condition, an environment in
which ambient tobacco smoke is present
could pose a serious risk to his future
health, thereby constituting a violation
of the Eighth Amendment. Like the
complaint in Helling, Alvarado’s
complaint, liberally construed, alleges
that defendants’ deliberate failure to
enforce smoking rules is resulting in his
exposure to levels of ETS that are posing
an unreasonable threat to his future
health. See 509 U.S. at 28, 36. 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.
Both prongs of the Wilson test have been
met to defeat defendants’ qualified
immunity defense at this time.

III.   CONCLUSION

  For the above-stated reasons, we affirm
the district court’s denial of
defendants’ Rule 12(b)(6) motion to
dismiss on the ground of qualified
immunity.

FOOTNOTES

/1 Defendants argue at length that Alvarado never
alleged "deliberate indifference" on their part.
However, Alvarado’s original complaint alleges,
"The defendants in this action are actin [sic]
with deliberate indeference [sic] towards our
numerous request [sic] to remain smoke free,"
Conclusion of Statement of Claim by Plaintiffs,
para. 6, and the first paragraph of his memoran-
dum of Supporting Case Law filed with the com-
plaint, states, "Eighth Amendment protection
against against [sic] deliberate indeference
[sic] to prison health problems extends to condi-
tions that threaten to cause health problems in
the future, as eell [sic] current serious health
problems. Helling v. McKinney, 113 S.Ct. 2475 at
2480 (1993)."

/2 28 U.S.C. sec. 1915A provides in pertinent part:

(a) Screening.--The court shall review, before
docketing, if feasible or, in any event, as soon
as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress
from a governmental entity or officer or employee
of a government entity.

(b) Grounds for Dismissal.--On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if
the complaint--

(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is
immune from such relief.
