Davis v. New York, Docket No. 01-0118.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation316 F.3d 93
Docket NumberDocket No. 01-0118.
PartiesSamuel DAVIS, Plaintiff-Appellant, v. State of NEW YORK; George Pataki, Governor; New York State Department of Correctional Services; Glenn Goord, Commissioner; Attica Correctional Facility; Walter R. Kelly, Superintendent; Officer Stachewicz, Corr. Sergeant; Ron Christen,<SMALL><SUP>1</SUP></SMALL> Correction Officer; Marty McDonald, Correction Officer; Mary Barone, Correction Officer, Defendants-Appellees.
Decision Date13 December 2002

Samuel Davis, pro se, Attica, NY.

Eliot Spitzer, Attorney General, State of New York, Victor Paladino, Nancy A. Spiegel, Assistant Solicitor Generals, on the brief, Albany, NY, for Defendants-Appellees.

Before SACK, B.D. PARKER, JOHN R. GIBSON,* Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Samuel Davis appeals from a judgment of the United States District Court for the Western District of New York (H. Kenneth Schroeder, Jr., Magistrate Judge), granting summary judgment for appellees and dismissing his 42 U.S.C. § 1983 complaint, and from interlocutory orders (Carol E. Heckman, Magistrate Judge) denying Davis's preliminary injunction motion and motion to file a supplemental complaint. Davis filed a complaint against New York State, Governor Pataki, the New York State Department of Correctional Services ("the Department"), Glenn S. Goord, its commissioner, the Attica Correctional Facility ("Attica"), Walter R. Kelly, its superintendent,2 Corrections Sergeant Stachewicz, and Corrections Officers McDonald, Christen, and Barone, and their successors, in their individual and official capacities, alleging that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by exposing him to high levels of second-hand smoke. He also alleged that defendants retaliated against him for engaging in constitutionally protected activity. The district court denied his motions for preliminary injunctive relief and to file an amended complaint, and granted summary judgment for defendants. For the reasons set forth below, we affirm in part, vacate in part, and remand for further proceedings.

I. BACKGROUND

Davis has been incarcerated at Attica since 1993. Liberally construing his pro se complaint, Davis had been concerned, throughout his incarceration, about his exposure to excessive levels of second-hand smoke while housed in various housing "blocks." He ultimately filed an inmate grievance in February 1999, complaining that he needed to minimize his exposure to the smoke-laden air by opening the window across from his cell, but Stachewicz, McDonald and Barone told him not to open the window, and threatened to move him out of the honor block, where he was housed at the time, if he opened the window. These concerns were also expressed in a letter to Goord, which was carbon copied to Kelly.

The grievance was dismissed in March 1999, because Davis had been moved out of the honor block by that time. Davis attempted to appeal. In April 1999, Davis was informed that the grievance was not appealable, because it had been dismissed rather than denied. He was further informed that he could request a review of the dismissal, but that the only review available was by the same supervisor who conducted the original investigation into the complaint, and this supervisor had no intention of reopening the complaint.

Davis filed a complaint in the United States District Court for the Western District of New York in April 1999, alleging that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by forcing him to be exposed to excessive levels of second-hand smoke on a daily basis, because he was housed in an area where a majority of the inmates smoked frequently, the ventilation was inadequate, and he was prevented from opening the window. Davis claimed that these conditions jeopardized his current and future health. He claimed to suffer from dizziness, blackouts, congestion, difficulty breathing, watery eyes, and other respiratory problems, as a result of his exposure to smoke. Davis also alleged that Pataki, Goord and Kelly acted with deliberate indifference to his rights as a non-smoker because they failed to implement policies to protect non-smokers' health, failed to train and supervise officers regarding the rights of non-smoking inmates, and failed to remedy the problem after it was brought to their attention. He further alleged that Stachewicz, Christen, McDonald and Barone retaliated against him, through harassment and threats, for complaining about violations of the Eighth and Fourteenth Amendments. Davis alleged that McDonald harassed and intimidated him, threatened to inflict physical harm, physically assaulted and verbally abused him, and that Goord and Kelly had been deliberately indifferent to this misconduct. Davis sought declaratory and injunctive relief, as well as monetary damages.

In July 1999, Davis moved for a preliminary injunction and temporary restraining order enjoining named and unnamed defendants from "assaulting, harassing, intimidating, threatening and verbally abusing" him in retaliation for exercising his constitutional rights. Davis alleged that he would suffer irreparable harm without the injunction, because the civilian employees who administered his prison work program and other Corrections officers had begun to retaliate against him because of his complaints about excessive second-hand smoke exposure. Davis alleged that a Corrections Sergeant filed a false misconduct report regarding an altercation with a fellow inmate, and that he was found guilty of the charges after a biased and procedurally defective hearing, resulting in thirty days of "keeplock" and loss of his assigned work program. Davis also filed a motion for leave to file a supplemental complaint, raising essentially the same allegations as in the motion for preliminary injunctive relief, and seeking to add Attica supervisory staff and the parties involved in the misconduct report and hearing as defendants.

The parties consented to have a magistrate judge handle all proceedings, pursuant to 28 U.S.C. § 636(c). The magistrate judge denied Davis's motion for a preliminary injunction and temporary restraining order, finding that Davis failed to show that he would suffer irreparable harm because he had no liberty interest in his work assignment or in the privileges lost while in keeplock, and that Davis would not likely succeed on the merits because he could not show that defendants had a retaliatory motive. See Davis v. State of New York, No. 99-CV-307, 1999 WL 1390253 (W.D.N.Y. Sept.29, 1999). The magistrate judge also denied Davis's motion to amend his complaint, holding that Davis's new allegations failed to state a claim upon which relief could be granted. See Davis v. State of New York, No. 99-CV-307, 1999 WL 1390247 (W.D.N.Y. Dec. 14, 1999).

In September 1999, Davis wrote to Superintendent Herbert, with a carbon copy to Goord, complaining about his medical problems due to second-hand smoke exposure, and requesting placement in a cell with an individual window. According to Davis's letter, the only housing blocks at Attica that have individual windows in each cell are blocks C and E. Davis explained that on February 28, 1999, he was transferred from the honor block to the C block due to his respiratory problems. Thereafter, he was moved to the B block from June 18 until July 13, and was finally transferred to the A block on July 21, where he remained on the waiting list to be assigned to work programs that would require him to be housed in blocks C or E.

In July 2000, Davis moved for summary judgment. He argued that he had demonstrated that his Eighth Amendment rights were violated when defendants knowingly caused him and other non-smoking inmates to be exposed involuntarily to excessive levels of second-hand smoke without adequate ventilation, jeopardizing his current and future health. Davis further contended that he had demonstrated that he was harassed, intimidated, and threatened for exercising his constitutional rights, and that such retaliation was in violation of the Eighth Amendment.

Defendants filed a cross-motion for summary judgment, arguing that Davis's Eighth Amendment rights were not violated because he did not meet the two-pronged test for establishing an Eighth Amendment claim based on second-hand smoke exposure. Defendants noted that, pursuant to Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), where the harm is allegedly due to second-hand smoke, the plaintiff must meet the objective prong by showing serious harm resulting from exposure to unreasonably high levels of smoke. In addition, defendants noted that, pursuant to Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the plaintiff must satisfy the subjective prong of the test by showing that prison officials acted with deliberate indifference to inmate health or safety.

Defendants contended that Davis did not submit evidence to establish serious injuries due to second-hand smoke, or that he was exposed to a sufficiently high level of smoke to result in serious injury. In support of their argument that Davis had no serious injuries, defendants submitted the affidavit of Dr. Takos, the health services director of Attica. According to Takos, Davis only complained of smoke-related symptoms once, in February 1999. Takos asserted that Davis's congestion was due to a deviated septum, which Davis had refused to get corrected. In Takos's opinion, there was no medical evidence that Davis exhibited intolerance to smoke, or had a condition that warranted housing in a smoke-free environment. Davis had also complained to health services about experiencing blackouts, but the Takos affidavit states that the ambulatory health records had a notation July 9, 1998 that Davis complained that said episodes occurred while laughing. A request for...

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