Gill v. Smith, 9:00-CV-1905(FJS/GJD).

• Decision Date: 11 July 2003
• Docket Number: No. 9:00-CV-1905(FJS/GJD).,9:00-CV-1905(FJS/GJD).
• Citation: 283 F.Supp.2d 763
• Parties: Anthony GILL, Plaintiff, v. Gregory SMITH, Correctional Officer, Auburn Correctional Facility, Defendant.
• Court: U.S. District Court — Northern District of New York

Page 763

283 F.Supp.2d 763

Anthony GILL, Plaintiff, v.Gregory SMITH, Correctional Officer, Auburn Correctional Facility, Defendant.

No. 9:00-CV-1905(FJS/GJD).

United States District Court, N.D. New York.

July 11, 2003.

COPYRIGHT MATERIAL OMITTED

Anthony G. Gill, Five Points Correctional Facility, Romulus, NY, Pro se.

Office of the New York, State Attorney General, Syracuse, NY, Maria Moran, AAG, of Counsel, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

SCULLIN, Chief Judge.

I.INTRODUCTION

Plaintiff filed the instant civil rights action pursuant to 42 U.S.C. § 1983 on December 11, 2000.He asserts that Defendant violated his Eighth Amendment right to be free from cruel and unusual punishment by exposing him to environmental tobacco smoke and by continuing the exposure with the knowledge that it adversely impacted his health.In addition, Plaintiff claims that Defendant threatened retaliation against the library staff unless Plaintiff dropped his complaint, in violation of his First and Eighth Amendment rights.

To support his claims, Plaintiff alleges that Defendant smoked while on duty within the law library, the general library, while at his assigned post, while traversing in and about the prison's media center, and while at the law library desk.Plaintiff further states that, on numerous occasions, he requested that Defendant not smoke cigarettes in the law library or general library areas because he suffered from chronic asthma and breathing conditions, which cigarette smoke aggravated, and that, on each occasion, Defendant ignored Plaintiff's requests to stop.

Plaintiff filed an institutional grievance against Defendant for smoking while on duty and alleges that Defendant then threatened to retaliate against all of the law library workers unless Plaintiff withdrew his grievance.Plaintiff asserts that Defendant's threat of retaliation created a hostile personal work environment and that the library staff alienated and treated him indifferently, resulting in great stress and depression.

On April 10, 2002, Defendant moved for summary judgment on the grounds (1) that Plaintiff failed to establish a constitutional cause of action under § 1983, (2) that Plaintiff's pendent state law claims should be dismissed, and (3) that qualified immunity barred Plaintiff's claims.Plaintiff cross-moved for summary judgment contending that he had established a prima facie cause of action under § 1983.

On December 10, 2002, Magistrate Judge DiBianco issued a Report-Recommendation in which he recommended that the Court grant Defendant's motion for summary judgment and denyPlaintiff's cross-motion.Specifically, Magistrate Judge DiBianco found (1) that Plaintiff's Eighth Amendment claim based upon his exposure to environmental tobacco smoke failed because Plaintiff had not established that he was exposed to unreasonably high levels of cigarette smoke and (2) that Plaintiff's First Amendment retaliation claim failed because the threats that Defendant allegedly made did not deter Plaintiff from exercising his First Amendment rights.¹

Presently before the Court are Plaintiff's objections to Magistrate Judge DiBianco's Report-Recommendation.

II.DISCUSSION

A.Standard of review

The Court reviews de novo those findings and recommendations in a magistrate judge's report-recommendation to which a party has filed timely objections and for clear error those parts of the report-recommendation to which a party does not object.See28 U.S.C. § 636(b)(1)(C);Fed. R.Civ.P. 72;Thomas E. Hoar, Inc. v. Sara Lee Corp.,900 F.2d 522, 525(2d Cir.1990).

A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law."Bryant v. Maffucci,923 F.2d 979, 982(2d Cir.1991)(citingCelotex Corp. v. Catrett,477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265(1986)).In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party.Seeid.(citingUnited States v. Diebold, Inc.,369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176(1962)(per curiam)).

B.Plaintiff's Eighth Amendment claim

To establish an Eighth Amendment violation, a plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm and that prison officials acted with "deliberate indifference."SeeFarmer v. Brennan,511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811(1994)(citations omitted).To establish deliberate indifference, a plaintiff must demonstrate that prison officials actually knew of and disregarded an excessive risk of harm to his health and safety.Seeid. at 837, 114 S.Ct. 1970.

Specifically, in the case of exposure to environmental tobacco smoke ("ETS"), a plaintiff must satisfy the objective prong of an Eighth Amendment claim by showing that he was exposed to unreasonably high levels of ETS.SeeHelling v. McKinney,509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22(1993).Determining the objective factor "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."Id. at 36, 113 S.Ct. 2475.The court also must 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."Id.

In addition to the objective prong, a plaintiff must satisfy the subjective requirement of an Eighth Amendment claim by showing that the defendant was deliberately indifferent to the plaintiff's medical needs or safety in exposing him to ETS, "determined in light of the prison authorities' current attitudes and conduct[.]"Id.

In Helling,the plaintiff alleged that he was assigned to a cell with an inmate who smoked five packs of cigarettes per day and further asserted a variety of health problems allegedly caused by his exposure to ETS.SeeHelling,509 U.S. at 28, 113 S.Ct. 2475.Based upon these facts, the Supreme Court held that the plaintiff had stated a valid cause of action under the Eighth Amendment and that there were issues of fact regarding both the subjective and objective elements required to prove an Eighth Amendment violation that precluded summary judgment.Seeid. at 35, 113 S.Ct. 2475.

Likewise, in Warren v. Keane,937 F.Supp. 301(S.D.N.Y.1996), the court held that summary judgment was not appropriate because there was a question of fact as to whether the levels of ETS to which the plaintiffs were exposed violated contemporary standards of decency.Seeid. at 305.In that case, the jail's policy allowed for smoking within the cells as well as in the recreation room, and the plaintiffs alleged that exposure to that level of ETS in unventilated cells and common areas at the prison for five years created a serious long-term health risk.Seeid. at 303.Moreover, they asserted that the prison authorities did not enforce the non-smoking policies that did exist in certain areas.Seeid.;see alsoMcPherson v. Coombe,29 F.Supp.2d 141(W.D.N.Y.1998)(denying summary judgment where the plaintiff was housed with forty-one smokers in a poorly ventilated housing unit because of factual questions as to whether smoke conditions in the prison violated contemporary standards of decency and whether prison officials were aware of potential risks to the plaintiff's future health).But seeOliver v. Deen,77 F.3d 156(7th Cir.1996)(granting summary judgment where the plaintiff, a mild asthmatic, was housed with a smoker for 133 days).²

In Davidson v. Coughlin,920 F.Supp. 305(N.D.N.Y.1996), Judge McAvoy granted summary judgment for the defendant because the plaintiff failed to provide any evidence about the level of smoke in the facility, the degree of exposure, or any medical problems associated with exposure to ETS.Seeid. at 309.Similarly, in LaCroix v. Williams,No. 97-CV-0790E(F), 2000 WL 1375737(W.D.N.Y.Sept.21, 2000), the plaintiff alleged that he was housed in a poorly ventilated 22-bed dormitory, which he shared with twenty-one smokers.Seeid. at *3.The court held that this, without any documentation to support the alleged resulting medical problems, was insufficient to support an Eighth Amendment claim and granted the defendant's motion for summary judgment.Seeid.;see alsoZaire v. Artuz,No. 99 Civ 9817, 2003 WL 230868, *5-*6(S.D.N.Y.Feb.3, 2003)(granting summary judgment where the plaintiff failed to provide evidence of the levels of ETS to which he was exposed and any resulting medical problems);Blyden v. Bartlett,No. 95-CV-1071E(F), 1997 WL 584308, *2(W.D.N.Y.Sept.9, 1997)(granting summary judgment where the plaintiff failed to demonstrate that his alleged injuries—headaches, irritability and nausea—resulting from his exposure to ETS were sufficiently severe to implicate a violation of his Eighth Amendment rights).

Based upon the facts of this case, Magistrate Judge DiBianco concluded that Plaintiff had failed to establish the objective prong of the Eighth Amendment test; i.e., that he was exposed to unreasonably high levels of cigarette smoke.³Accordingly, Magistrate Judge DiBianco recommended that the Court grant Defendant's motion for summary judgment with respect to Plaintiff's Eighth Amendment claim based upon his involuntary exposure to ETS.

Plaintiff objects to Magistrate Judge DiBianco's conclusion, contending that he has established a valid claim under the Eighth Amendment.Specifically, Plaintiff asserts that Magistrate Judge DiBianco misinterpreted the standards set forth in Helling.Plaintiff asserts that he can meet the objective prong of this test by demonstrating that his exposure to ETS, and the risk of the future harm he faces, is one that society chooses not to tolerate.F...