An opinion issued today by the U.S. Court of Appeals for the 7th circuit, Thomas v. Illinois Department of Corrections (PDF), (citations omitted), addressed whether creation of a mere hazard to health, as opposed to an actual impairment of health, can ever be a harm sufficient to support an Eighth Amendment violation claim. Spoiler alert: the answer is yes. From the opinion, authored by Judge Richard Posner:
The potential psychological harm from living in a small cell infested with mice and cockroaches is pretty obvious. Regarding physical harm from involuntary cohabitation with these vermin, we note that cockroaches can transmit bacteria that aggravate asthma and cause other disease and that inhaling microscopic particles of saliva, droppings, or urine from mice infected with hantavirus can infect a person with potentially fatal Hantavirus Pulmonary Syndrome (sometimes called HPS); rodent contact can cause other fatal diseases as well (famously, but not currently, Bubonic Plague). HPS and Plague show that rodents can kill you without biting you (so much for the notion, which we tried to scotch in Washington v. Hively, supra, that all cruel and unusual punishments in a prison setting must involve the exertion of force against the body). Assuming the applicability of the “loss of a chance” theory of damages, heavy, protracted infestation of a prisoner’s cell with such pests might be found to be a compensable hazard even if the prisoner plaintiff had been lucky and escaped disease and had had sufficient psychological fortitude (or ignorance) to avoid suffering mental distress whether from knowledge that he might become seriously ill as a consequence of the conditions in his cell or from sheer disgust.
Art: From the Garden of Earthly Delights, Hieronymus Bosch
