Can an inmate who is not suffering from a pre-existing condition sue for cruel and unusual punishment under the Eighth Amendment for exposure to ETS?

MultiRegion, United States of America

The following excerpt is from McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1990):

In this circuit, it is established that exposure to ETS by people who are sensitive to ETS because of pre-existing conditions may constitute cruel and unusual punishment. In Franklin v. State of Oregon, 662 F.2d 1337, 1346-47 (9th Cir.1981), we held that housing an inmate suffering from throat cancer with a smoker may violate the Eighth Amendment. We have not examined the question whether an inmate who is not suffering from a pre-existing condition may state a valid cause of action under the Eighth Amendment by alleging that continual involuntary exposure to ETS poses an unreasonable risk of harm to his health.

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