exposure to ETS is not an objectively serious injury per se. Id. at 34-35; Henderson, 196 F.3d
at 846. A serious injury or medical need is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention." Henderson, 196 F.3d at 846 (quoting Gutierrez v. Peters, 111
F.3d 1364, 1373 (7th Cir. 1997)(internal citation omitted). Because Henderson has not alleged that
he has sought medical treatment for any smoke-related condition, or even that he is suffering any
medical symptoms, his complaint fails this test. Indeed, the plaintiff in Henderson failed to state
a claim even though he had alleged symptoms that might well have been related to his exposure
to smoke -- breathing problems, chest pains, dizziness, sinus problems, headaches and a loss of
energy. The Court of Appeals agreed with the district court that these symptoms were,
“objectively speaking, relatively minor." Jd. The court noted that the complaint had not alleged
that the plaintiff had been diagnosed as having a medical condition requiring a smoke-free
environment, nor had he been treated for any condition brought about by exposure to second-hand
smoke. Id.; see also Oliver v. Deen, 77 F.3d 156, 158-61 (7th Cir. 1996)(concluding that
asthmatic prisoner had failed to demonstrate a serious medical need for a non-smoking environment
even though exposure to second-hand smoke aggravated his condition).

Henderson also has failed to state a claim based on the possibility of future injury as a
consequence of his exposure to smoke. Although in Henderson this claim survived a motion to
dismiss and was resolved on summary judgment, the present case differs in two major respects.
First, the plaintiff in Henderson had alleged physical symptoms that one could infer resulted from
smoke exposure. While the Court of Appeals agreed that the symptoms did not rise to the level
of a serious medical need, they would support an inference that damage was being inflicted on the
plaintiff's body over time. Here, Henderson has alleged no symptoms at all. Second, the plaintiff

in Henderson claimed continuous exposure to excessive levels of second-hand smoke. Henderson,


problems such as ... asthma, bronchitis, emphysema and high blood pressure like plaintiff
Henderson." Jd. at 16.

Henderson filed an administrative grievance asking that the dayroom be made non-smoking
or that a separate non-smoking dayroom be provided. Cmplt. Exhs. Al-A3. In her response,
attached as an exhibit to the complaint, defendant Roberta Fews, warden of Sheridan,?’ stated that
"Dayrooms are considered a smoking area. ... "[Y]ou are not "being forced to endure this threat
to your health,’ as stated in your letter. You have an alternative choice to stay in your assigned
living area or take part in another privilege by going to gym or yard." Cmplt. Exh. AS. Her
denial of Henderson’s grievance was upheld by defendant Donald N. Snyder, Director of the
Illinois Department of Corrections (IDOC). Cmplt. Exh. A6.

An Eighth Amendment claim must contain both an objective and a subjective component.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Henderson v. Sheahan, 196 F.3d 839, 845 (7th
Cir. 1999), Henderson has satisfied the subjective prong, in that his grievances adequately
apprised the IDOC defendants of his complaints, so their refusal to change the prison’s policy was
knowing and intentional. However, "the deprivation alleged must be, objectively, ‘sufficiently
serious." Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991).
According to the Supreme Court, "[E]xtreme deprivations are required to make out a
conditions-of-confinement claim. Because routine discomfort is "part of the penalty that criminal
offenders pay for their offenses against society, only those deprivations denying the minimal
civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth
Amendment violation." Hudson v. McMillian, 503 U.S. 1, 9 (1992)(internal citations and
quotations omitted). Henderson’s allegations do not meet this test.

While exposure to ETS could, in a particular case, constitute a sufficiently serious risk to

an inmate’s health to implicate the Eighth Amendment, Helling v. McKinney, 509 U.S. 25 (1993),

2 Defendant Danny Jaimet, Jr. has replaced defendant Fews as warden of Sheridan Correctional Center.

3


196 F.3d at 843. Here, while Henderson may be required to spend some time in the dayroom,
most of the time he can, if he wishes, remain in a non-smoking area.

Absent extreme individual sensitivity, which Henderson does not allege, requiring a prisoner
to breathe smoke-polluted air occasionally does not rise to the level of cruel and unusual
punishment. The Supreme Court has noted that finding that exposure to ETS violates 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. It 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. ... [T]he prisoner must show

that the risk of which he complains is not one that today’s society chooses to tolerate.
Helling, 509 U.S. at 36. Limited exposure to second-hand smoke is a risk our society chooses to
tolerate. Although the number of smoke-free workplaces are increasing, they are not required by
law. Many Americans spend eight hours or more every day in the company of smokers, and
Henderson’s exposure is less than that. True, non-smoking workers can choose a non-smoking
workplace, while Henderson cannot go to another dayroom. But Henderson has no constitutional
right to recreation in the dayroom. To the extent Henderson is required to breathe the air in the
dayroom from time to time, the court is not prepared to view as cruel and unusual punishment
something many free persons willingly tolerate. Recently the Seventh Circuit addressed a case
involving a prison water supply containing radium in excess of EPA standards -- a condition shared
with 80 other Illinois water systems. The court observed:

Poisoning the prison water supply or deliberately inducing cancer in a prisoner
would be forms of cruel and unusual punishment, and might be even if the harm was
probabilistic or future rather than certain and immediate, Helling v. McKinney, 509
U.S. 25 (1993). But failing to provide a maximally safe environment, one completely
free from pollution or safety hazards, is not. [Citations] Many Americans live under
conditions of exposure to various contaminants. The Eighth Amendment does not
require prisons to provide prisoners with more salubrious air, healthier food, or

cleaner water than are enjoyed by substantial numbers of free Americans. [Citations]

Carroll y. DeTella,__ F.3d __, 2001 WL 747342 at *2 (7th Cir. July 3, 2001).


= Mifvie Oxtge Form (06/97)

3s- b United States District Court, Northern District of Illinois

Name of Assigned Judge or | JAMES F. HOLDERMAN Sitting Judge if Other
Magistrate Judge than Assigned Judge

CASE NUMBER 01 C 4897 DATE] august 1, 2001
CASE Robert Henderson (A-01298) v. Roberta M. Fews, et al.

TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION: nature of the motion being presented.)
DOCKET ENTRY:

(1) Qa Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) 0 Answer brief to motion due. . Reply to answer brief due

(4) a Ruling/Hearing on set for at

5) a Status hearing[held/continued to] [set for/re-set for] on set for at

(6) 0 Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) oa) Trial[set for/re-set for] on at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) Oi General Rule 21 © FRCP4i(a)(1) O FRCP41(a)(2).

102) =i [Other docket entry] | Enter Memorandum Opinion and Order. Plaintiff's motion for leave
to file in forma pauperis [3-1] is granted. The trust fund officer at plaintiff's place of incarceration
is directed to make deductions and payments as set forth in the Order. The clerk shall send a copy
of this order to the trust fund officer at Sheridan Correctional Center. This action is dismissed
pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may be granted. This
dismissal counts as one of plaintiff’s three allotted dismissals under 28 U.S.C. § 1915(g).

lt) For further detail see order attached to the original minute order.

fo notices required, advised in open court.
|No notices required. arabes of notices
INotices mailed by judge's staff.
AUG 0 2 20
INotified counsel by telephone. fac docked
Y _ [Docketing to mail notices. ;
v__ [Mail AO 450 form. x) docketing deputy initials é )
Icopy to judge/magistrate judge.
| urtroom atin eo ath GE AE date mailed notice
: X Kleputy’s Ui AUG 2 kN 8
. initials
Date/time received in
central Clerk’s Office mailing deputy initials



No doubt it would be within the power of Sheridan administrators to ban smoking, relieving
Henderson’s discomfort at the price of depriving smokers of a drug that makes more tolerable the
boredom and minor irritations of prison life. But absent a truly serious health risk, this sort of
balancing of prisoners’ interests is for prison administrators, not federal courts. This action is
accordingly dismissed, and this dismissal counts as one of plaintiff’s three allotted dismissals under
28 U.S.C. § 1915(g). The clerk shall send a copy of this order to the trust fund officer at Sheridan

Correctional Center.

IT IS SO ORDERED.

herneeT.

yh F. Holderman, Judge

ited States District Court

patep: “U7 3f- 07


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT HENDERSON (A-01298), )
)
Plaintiff, )
) No. 01 C 4897
v. )
) Judge James F. Holderman
ROBERTA M. FEWS, et al. )
)
Defendants. >) DOCKETED

AUG 0 2 2001

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Henderson, a prisoner in custody at Sheridan Correctional Center, filed this
pro se complaint under 42 U.S.C. § 1983 against various officials and employees of the Illinois
Department of Corrections (IDOC) and "unknown manufactors [sic] and distributors of tobacco
products sold to inmates at the Sheridan Correctional Center.” Henderson claims that exposure
to second-hand smoke in the prison dayroom constitutes cruel and unusual punishment in violation
of the Eighth Amendment, as applied to the states through the Fourteenth.

Although the caption of the complaint names as plaintiffs a large number of Henderson’s co-
residents at Sheridan Correctional Center, only Henderson filed an application for leave to proceed
in forma pauperis. On June 27, 2001, the court entered an order stating that unless the filing fee
was prepaid, only persons who had filed applications for leave to proceed in forma pauperis would
be counted as plaintiffs in this action. None of the other persons named as plaintiffs filed

applications, and the court accordingly treats Henderson as the sole plaintiff. Henderson is granted


leave to file in forma pauperis, and pursuant to 28 U.S.C. § 1915(b) he is required to pay the
filing fee.’

Under 28 U.S.C. § 1915A the court is to review complaints filed by prisoners against
officers or employees of governmental entities and dismiss any portion of the complaint it finds
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant immune from such relief. In determining whether the complaint states a
claim upon which relief may be granted, the court applies the standard employed in deciding a
motion to dismiss under Rule 12(b)(6), taking all well-pleaded allegations of the complaint as true
and viewing them in the light most favorable to the plaintiff. Zimmerman v, Tribble, 226 F.3d
568, 571 (7th Cir. 2000). Henderson has not alleged an Eighth Amendment claim.

Henderson is a non-smoker. Although his cell is in a non-smoking area, smoking is
permitted in the dayroom. Henderson wants the prison administration to either provide a non-
smoking recreational area, or stop the sale of smoking materials to his fellow inmates. He states
that the present policy of permitting tobacco to be sold to inmates "exposes plaintiff (and all
prisoners) to a significantly increased risk of contacting [sic] a serious latent disease." Cmplt. at
17. Failure to provide a recreational area free from environmental tobacco smoke (ETS) “poses
a significant and unreasonable risk of harm to plaintiff’s health and denies him and all non-smoking
inmates the right to safe conditions of confinement." Jd. Henderson states that he has high blood

pressure. He alleges that ETS "increases the health risks of those inmates with serious health

¥ Pursuant to 28 U.S.C. § 1915(b)(1), Henderson is assessed an initial partial filing fee of $4.52. The trust
fund officer at Henderson’s current place of incarceration is ordered to collect, when funds exist, the partial filing
fee from his trust fund account and pay it directly to the clerk of court. After payment of the initial partial filing
fee, the trust fund officer at the correctional facility where Henderson is confined is directed to collect monthly
payments from Henderson’ trust fund account in an amount equal to 20% of the preceding month’s income credited
to the account. Monthly payments collected from Henderson’s trust fund account shall be forwarded to the clerk
of court each time the amount in the account exceeds $10 until the full $150 filing fee is paid. All payments shall
be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Il. 60604, attn: Fiscal Dept., and
shall clearly identify Henderson’s name and the case number assigned to this action.

2