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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 91-1958
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DONALD L. HELLING, et al., PETITIONERS v.
WILLIAM McKINNEY
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 18, 1993]

  Justice White delivered the opinion of the Court.
  This case requires us to decide whether the health risk
posed by involuntary exposure of a prison inmate to
environmental tobacco smoke (ETS) can form the basis of
a claim for relief under the Eighth Amendment.

                            I
  Respondent is serving a sentence of imprisonment in the
Nevada prison system.  At the time that this case arose,
respondent was an inmate in the Nevada State Prison in
Carson City, Nevada.  Respondent filed a pro se civil
rights complaint in United States District Court under
Rev. Stat. 1979, 42 U. S. C. 1983, naming as defend-
ants the director of the prison, the warden, the associate
warden, a unit counselor, and the manager of the prison
store.  The complaint, dated December 18, 1986, alleged
that respondent was assigned to a cell with another
inmate who smoked five packs of cigarettes a day.  App.
6.  The complaint also stated that cigarettes were sold to
inmates without properly informing of the health hazards
a nonsmoking inmate would encounter by sharing a room
with an inmate who smoked, Id., at 7-8, and that certain
cigarettes burned continuously, releasing some type of
chemical, Id., at 9.  Respondent complained of certain
health problems allegedly caused by exposure to cigarette
smoke.  Respondent sought injunctive relief and damages
for, inter alia, subjecting him to cruel and unusual
punishment by jeopardizing his health.  Id., at 14.
  The parties consented to a jury trial before a magis-
trate.  The magistrate viewed respondent's suit as present-
ing two issues of law: (1) whether respondent had a
constitutional right to be housed in a smoke-free environ-
ment, and (2) whether defendants were deliberately
indifferent to respondent's serious medical needs.  App. to
Pet. for Cert. D2-D3.  The magistrate, after citing applica-
ble authority, concluded that respondent had no constitu-
tional right to be free from cigarette smoke: while -society
may be moving toward an opinion as to the propriety of
non-smoking and a smoke-free environment,- society
cannot yet completely agree -on the resolution of these
issues.-  Id., at D3, D6.  The magistrate found that
respondent nonetheless could state a claim for deliberate
indifference to serious medical needs if he could prove the
underlying facts, but held that respondent had failed to
present evidence showing either medical problems that
were traceable to cigarette smoke or deliberate indifference
to them.  Id., at D6-D10.  The magistrate therefore
granted petitioners' motion for a directed verdict and
granted judgment for the defendants.  Id., at D10.
  The Court of Appeals affirmed the magistrate's grant of
a directed verdict on the issue of deliberate indifference
to respondent's immediate medical symptoms, McKinney
v. Anderson, 924 F. 2d 1500, 1512 (CA9 1991).  The Court
of Appeals also held that the defendants were immune
from liability for damages since there was at the time no
clearly established law imposing liability for exposing
prisoners to ETS.  Although it agreed that respondent
did not have a constitutional right to a smoke-free prison
environment, the court held that respondent had stated
a valid cause of action under the Eighth Amendment by
alleging that he had been involuntarily exposed to levels
of ETS that posed an unreasonable risk of harm to his
future health.  Id., at 1509.  In support of this judgment,
the court noticed scientific opinion supporting respondent's
claim that sufficient exposure to ETS could endanger one's
health.  Id., at 1505-1507.  The court also concluded that
society's attitude had evolved to the point that involuntary
exposure to unreasonably dangerous levels of ETS violated
current standards of decency.  Id., at 1508.  The court
therefore held that the magistrate erred by directing a
verdict without permitting respondent to prove that his
exposure to ETS was sufficient to constitute an unreason-
able danger to his future health.
  Petitioners sought review in this Court.  In the mean-
time, this Court had decided Wilson v. Seiter, 501 U. S.
___ (1991), which held that, while the Eighth Amendment
applies to conditions of confinement that are not formally
imposed as a sentence for a crime, such claims require
proof of a subjective component, and that where the claim
alleges inhumane conditions of confinement or failure to
attend to a prisoner's medical needs, the standard for that
state of mind is the -deliberate indifference- standard of
Estelle v. Gamble, 429 U. S. 97 (1976).  We granted
certiorari in this case, vacated the judgment below, and
remanded the case to the Court of Appeals for further
consideration in light of Seiter.  502 U. S. ___ (1991).
  On remand, the Court of Appeals noted that Seiter
added an additional subjective element that respondent
had to prove to make out an Eighth Amendment claim,
but did not vitiate its determination that it would be cruel
and unusual punishment to house a prisoner in an
environment exposing him to levels of ETS that pose an
unreasonable risk of harming his health-the objective
component of respondent's Eighth Amendment claim.
McKinney v. Anderson, 959 F. 2d 853, 854 (1992).  The
Court of Appeals therefore reinstated its previous judg-
ment and remanded for proceedings consistent with its
prior opinion and with Seiter.  Ibid.
  Petitioners again sought review in this Court, contend-
ing that the decision below was in conflict with the en
banc decision of the Court of Appeals for the Tenth
Circuit in Clemmons v. Bohannon, 956 F. 2d 1523 (1992).
We granted certiorari, 505 U. S. ___ (1992).  We affirm.

                           II
  The petition for certiorari which we granted not only
challenged the Court of Appeals' holding that respondent
had stated a valid Eighth Amendment claim, but also
asserted, as did its previous petition, that it was improper
for the Court of Appeals to decide the question at all.
Pet. for Cert. 25-29.  Petitioners claim that respondent's
complaint rested only on the alleged current effects of
exposure to cigarette smoke, not on the possible future
effects; that the issues framed for trial were likewise
devoid of such an issue; and that such a claim was not
presented, briefed or argued on appeal and that the Court
of Appeals erred in sua sponte deciding it.  Ibid.  Brief for
Petitioners 46-49.  The Court of Appeals was apparently
of the view that the claimed entitlement to a smoke-free
environment subsumed the claim that exposure to ETS
could endanger one's future health.  From its examination
of the record, the court stated that -[b]oth before and
during trial, McKinney sought to litigate the degree of his
exposure to ETS and the actual and potential effects of
such exposure on his health,- 924 F. 2d, at 1503; stated
that the magistrate had excluded evidence relating to the
potential health effects of exposure to ETS; and noted that
two of the issues on appeal addressed whether the magis-
trate erred in holding as a matter of law that compelled
exposure to ETS does not violate a prisoner's rights and
whether it was error to refuse to appoint an expert
witness to testify about the health effects of such expo-
sure.  While the record is ambiguous and the Court of
Appeals might well have affirmed the magistrate, we
hesitate to dispose of this case on the basis that the court
misread the record before it.  We passed over the same
claim when we vacated the judgment below and remanded
when the case was first before us, Pet. for Cert., O.T.
1991, No. 91-269, pp. 23-26, and the primary question on
which certiorari was granted, and the question to which
petitioners have devoted the bulk of their briefing and
argument, is whether the court below erred in holding
that McKinney had stated an Eighth Amendment claim
on which relief could be granted by alleging that his
compelled exposure to ETS poses an unreasonable risk to
his health.
                           III
  It is undisputed that the treatment a prisoner receives
in prison and the conditions under which he is confined
are subject to scrutiny under the Eighth Amendment.  As
we said in DeShaney v. Winnebago County Dept. of Social
Services, 489 U. S. 189, 199-200 (1989):
-[W]hen  the State takes a person into its custody
and holds him there against his will, the Constitution
imposes upon it a corresponding duty to assume some
responsibility for his safety and general well
being. . . . The rationale for this principle is simple
enough: when the State by the affirmative exercise of
its power so restrains an individual's liberty that it
renders him unable to care for himself, and at the
same time fails to provide for his basic human
needs--e.g., food, clothing, shelter, medical care, and
reasonable safety--it transgresses the substantive
limits on state action set by the Eighth Amend-
ment. . . .-
Contemporary standards of decency require no less.
Estelle v. Gamble, supra, at 103-104.  In Estelle, we
concluded that although accidental or inadvertent failure
to provide adequate medical care to a prisoner would not
violate the Eighth Amendment, -deliberate indifference to
serious medical needs of prisoners- violates the Amend-
ment because it constitutes the unnecessary and wanton
infliction of pain contrary to contemporary standards of
decency.  429 U. S., at 104.  Wilson v. Seiter, 501 U. S.
___ (1991), later held that a claim that the conditions of
a prisoner's confinement violate the Eighth Amendment
requires an inquiry into the prison officials' state of mind.
-`Whether one characterizes the treatment received by [the
prisoner] as inhuman conditions of confinement, failure to
attend to his medical needs, or a combination of both, it
is appropriate to apply the -deliberate indifference- stan
dard articulated in Estelle.'- Id., at ___ (slip op., at 9).
  Petitioners are well aware of these decisions, but they
earnestly submit that unless McKinney can prove that he
is  currently suffering serious medical problems caused by
exposure to ETS, there can be no violation of the Eighth
Amendment.  That Amendment, it is urged, does not
protect against prison conditions that merely threaten to
cause health problems in the future, no matter how grave
and imminent the threat.
  We have great difficulty agreeing that prison authorities
may not be deliberately indifferent to an inmate's current
health problems but may ignore a condition of confinement
that is sure or very likely to cause serious illness and
needless suffering the next week or month or year.  In
Hutto v. Finney, 437 U. S. 678, 682 (1978), we noted that
inmates in punitive isolation were crowded into cells and
that some of them had infectious maladies such as hepati-
tis and venereal disease.  This was one of the prison
conditions for which the Eighth Amendment required a
remedy, even though it was not alleged that the likely
harm would occur immediately and even though the
possible infection might not affect all of those exposed.
We would think that a prison inmate also could success-
fully complain about demonstrably unsafe drinking water
without waiting for an attack of dysentery.  Nor can we
hold that prison officials may be deliberately indifferent
to the exposure of inmates to a serious, communicable
disease on the ground that the complaining inmate shows
no serious current symptoms.
  That the Eighth Amendment protects against future
harm to inmates is not a novel proposition.  The Amend-
ment, as we have said, requires that inmates be furnished
with the basic human needs, one of which is -reasonable
safety.-  DeShaney, supra, at 200.  It is -cruel and un-
usual punishment to hold convicted criminals in unsafe
conditions.-  Youngberg v. Romeo, 457 U. S. 307, 315-316
(1982).  It would be odd to deny an injunction to inmates
who plainly proved an unsafe, life-threatening condition
in their prison on the ground that nothing yet had
happened to them.  The Courts of Appeals have plainly
recognized that a remedy for unsafe conditions need not
await a tragic event.  Two of them were cited with
approval in Rhodes v. Chapman, 452 U. S. 337, 352, n. 17
(1981).  Gates v. Collier, 501 F. 2d 1291 (CA5 1974), held
that inmates were entitled to relief under the Eighth
Amendment when they proved threats to personal safety
from exposed electrical wiring, deficient firefighting
measures, and the mingling of inmates with serious
contagious diseases with other prison inmates.  Ramos v.
Lamm, 639 F. 2d 559, 572 (CA10 1980), stated that a
prisoner need not wait until he is actually assaulted
before obtaining relief.  As respondent points out, the
Court of Appeals cases to the effect that the Eighth
Amendment protects against sufficiently imminent dangers
as well as current unnecessary and wanton infliction of
pain and suffering are legion.  See Brief for Respondent
24-27.  We thus reject petitioners' central thesis that only
deliberate indifference to current serious health problems
of inmates is actionable under the Eighth Amendment.
  The United States as amicus curiae supporting petition-
ers does not contend that the Amendment permits -even
those conditions of confinement that truly pose a signifi-
cant risk of proximate and substantial harm to an inmate,
so long as the injury has not yet occurred and the inmate
does not yet suffer from its effects.-  Brief for United
States as Amicus Curiae 19.  Hutto v. Finney, the United
States observes, teaches as much.  The Government
recognizes that there may be situations in which exposure
to toxic or similar substances would -present a risk of
sufficient likelihood or magnitude-and in which there is
a sufficiently broad consensus that exposure of anyone to
the substance should therefore be prevented-that- the
Amendment's protection would be available even though
the effects of exposure might not be manifested for some
time.  Brief for United States as Amicus Curiae 19.  But
the United States submits that the harm to any particular
individual from exposure to ETS is speculative, that the
risk is not sufficiently grave to implicate a -`serious
medical nee[d],'- and that exposure to ETS is not contrary
to current standards of decency.  Id., at 20-22.  It would
be premature for us, however, as a matter of law to
reverse the Court of Appeals on the basis suggested by
the United States.  The Court of Appeals has ruled that
McKinney's claim is that the level of ETS to which he has
been involuntarily exposed is such that his future health
is unreasonably endangered and has remanded to permit
McKinney to attempt to prove his case.  In the course of
such proof, he must also establish that it is contrary to
current standards of decency for anyone to be so exposed
against his will and that prison officials are deliberately
indifferent to his plight.  We cannot rule at this juncture
that it will be impossible for McKinney, on remand, to
prove an Eighth Amendment violation based on exposure
to ETS.
                           IV
  We affirm the holding of the Court of Appeals that
McKinney states a cause of action under the Eighth
Amendment by alleging that petitioners have, with
deliberate indifference, exposed him to levels of ETS that
pose an unreasonable risk of serious damage to his future
health.  We also affirm the remand to the District Court
to provide an opportunity for McKinney to prove his
allegations, which will require him to prove both the
subjective and objective elements necessary to prove an
Eighth Amendment violation.  The District Court will
have the usual authority to control the order of proof, and
if there is a failure of proof on the first element that it
chooses to consider, it would not be an abuse of discretion
to give judgment for petitioners without taking further
evidence.  McKinney must also prove that he is entitled
to the remedy of an injunction.
  With respect to the objective factor, McKinney must
show that he himself is being exposed to unreasonably
high levels of ETS.  Plainly relevant to this determination
is the fact that McKinney has been moved from Carson
City to Ely State Prison and is no longer the cellmate of
a five-pack-a-day smoker.  While he is subject to being
moved back to Carson City and to being placed again in
a cell with a heavy smoker, the fact is that at present he
is not so exposed.  Moreover, the Director of the Nevada
State Prisons adopted a formal smoking policy on January
10, 1992.  This policy restricts smoking in -program, food
preparation/serving, recreational and medical areas- to
specifically designated areas.  It further provides that
Wardens may, contingent on space availability, designate
nonsmoking areas in dormitory settings, and that institu-
tional classification committees may make reasonable
efforts to respect the wishes of nonsmokers where double
bunking obtains.  See App. to Brief for United States as
Amicus Curiae A1-A2.  It is possible that the new policy
will be administered in a way that will minimize the risk
to McKinney and make it impossible for him to prove that
he will be exposed to unreasonable risk with respect to

his future health or that he is now entitled to an injunc-
tion.
  Also with respect to the objective factor, determining
whether McKinney's conditions of confinement violate 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.  In other words, the prisoner
must show that the risk of which he complains is not one
that today's society chooses to tolerate.
  On remand, the subjective factor, deliberate indifference,
should be determined in light of the prison authorities'
current attitudes and conduct, which may have changed
considerably since the judgment of the Court of Appeals.
Indeed, the adoption of the smoking policy mentioned
above will bear heavily on the inquiry into deliberate
indifference.  In this respect we note that at oral argu-
ment McKinney's counsel was of the view that depending
on how the new policy was administered, it could be very
difficult to demonstrate that prison authorities are ignor-
ing the possible dangers posed by exposure to ETS.  Tr.
of Oral Arg. 33.  The inquiry into this factor also would
be an appropriate vehicle to consider arguments regarding
the realities of prison administration.

                            V
  The judgment of the Court of Appeals is affirmed and
the case is remanded for further proceedings consistent
with this opinion.
                                            So ordered.