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Asthmatic South Carolina Prisoner Awarded $3,200 on ETS Claim

A federal court in South Carolina found that prison officials were deliberately indifferent to an
asthmatic prisoner's medical condition by exposing him to environmental tobacco smoke (ETS),
from February 1999 to November, 2001. The court awarded $3,200, or $100 a month, finding
that while plaintiffs injuries were not de minimis, there were not extreme.

On October 28, 1997, a South Carolina Department of Corrections' (SCDOC) doctor noted that
prisoner Milo Tudor has asthma and & should not be exposed to environmental pollutants or

On December 16, 1997, the warden at Tudors facility issued a memo announcing the opening of
a non smoking unit and that persons with medical situations such as asthma would be given
first consideration for moving. Tudor was moved to the unit December 23, 1997, based on his
asthmatic condition.

Soon after designating the unit non-smoking, the warden vitiated this development and his
December 16, 1997 memorandum by moving smokers into the unit due to overcrowding.
Smokers were placed in Tudors cell despite his requests to be placed in a non-smoking cell.

On February 19, 1999, SCDOC Medical Director Dr. Blackwell ordered that Tudor not be exposed
to environmental pollutants, allergens, chemicals or other irritants; and that he be assigned a
non-smoking room. The same day, prisoner Derrick Smith signed an affidavit stating that
plaintiff had been transferred into his cell and that Smith was addicted to smoking and could not
stop and that, while he was sensitive to [Tudor's] need to be away from ETS, he would have to
smoke in cell because that is the only area & authorized as a smoking area in the unit.

September 20, 2000 ETS readings in Tudor's cell and other areas of the unit were significantly
higher than those permitted by all recognizable standards. Tudor was transferred to a different
prison in November 2001.

Tudor filed suit seeking equitable relief in the form of an order that he be housed in a unit free
of [ETS], and seeking damages for allegedly exposing him to an unreasonable health risk. The
court denied the party's cross-motions for summary judgment, finding the presence of genuine
issues of material fact.

Following a September 26, 2005 bench trial, the court found that plaintiff  presented sufficient
evidence of his existing serious medical needs and deliberate indifference to that need before
his November 2001 transfer. However, he presented insufficient evidence after that transfer. In
other words, while he failed to prove a substantial risk of serious future harm, he did prove past
deliberate indifference.

The court rejected defendant's qualified immunity defense and awarded Tudor damages of $100
a month or $3,200, based on the February 1999 date the prison physician indicated he should be
assigned a no-smoking room, until his transfer in November 2001. The award was based upon
a finding that while plaintiff's injuries were not de minimis, they were not extreme. There has
been no showing of a shortened life-span, permanent disability, or extreme discomfort.

Defendants immediately appealed, because all previous ETS suits brought by prisoners had been
dismissed, accordingly to Corrections director Jon Ozmint.

While Ozmint noted that Tudor has had a few disciplinary problems, he did throw a rock through
a prison window once, breaking it. If he wins that $3,200, well deduct the amount for the
window from it, claimed Ozmint. The judge wont like it, but we will. See: Tudor v. Moore,
USDC D SC, Case No. 2:98-1927-RBH(D SC 2005).

Additional Sources: Associated Press, News Columnist

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Related legal case

Tudor v. Moore