Pack v. Artuz

Decision Date27 September 2004
Docket NumberNo. 99 CIV. 4604(VM).,99 CIV. 4604(VM).
PartiesCharles PACK, Plaintiff, v. Christopher ARTUZ, Superintendent of Green Haven Corr. Fac., Gayle Haponick, Deputy Superintendent of Administration, Jeff Richards, Plant Superintendent, Dan Gastin, Asbestos Control Supervisor, Defendants.
CourtU.S. District Court — Southern District of New York

Mr. Charles Pack, Long Island City, NY, for Plaintiff.

Michael J. Keane, Esq., Assistant Attorney General for the State of New York City, for Defendants.


MARRERO, District Judge.

Plaintiff, Charles Pack ("Pack"), pro se, brought this action pursuant to 42 U.S.C. § 1983 against the Superintendent and other employees of the Green Haven Correctional Facility ("Green Haven") of the New York State Department of Correctional Services ("DOCS"). Pack claims that DOCS officials subjected him to exposure to potentially dangerous levels of asbestos in the course of his custody at Green Haven, and that this conduct constituted violations of the First and Eighth Amendments of the United States Constitution. DOCS moved for summary judgment and Pack responded. Magistrate Judge Michael H. Dolinger, to whom this Court referred the matter, issued a Report and Recommendation (the "Report") dated September 2, 2004, recommending that DOCS's motion be granted and that Pack's claims be dismissed in their entirety. The Report is incorporated and attached hereto. To date Pack has filed no objections.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court may accept, reject, or modify the findings and recommendation contained in the Magistrate Judge's Report. The Court has reviewed the full record of this case, including each of the claims Pack raises, the parties' papers submitted in connection with DOCS's motion for summary judgment and the analysis and conclusions with respect thereto contained in Magistrate Judge Dolinger's Report. On this basis the Court finds that the factual findings and the legal principles and authorities relied upon by Magistrate Judge Dolinger in recommending the granting of DOCS's motion are sufficiently compelling to support the recommendation of the Report in its entirety. Accordingly, the Court accepts the Report.


For the reasons discussed above, it is hereby

ORDERED that the motion of defendants herein for summary judgment dismissing the complaint of Plaintiff Charles Pack in its entirety is granted.

The Clerk is directed to close this case.



DOLINGER, United States Magistrate Judge.

Pro se plaintiff Charles Pack commenced this action, pursuant to 42 U.S.C. § 1983, against four employees of the Department of Correctional Services ("DOCS"), all of whom work at Green Haven Correctional Facility. Plaintiff claims that defendants failed to protect him from exposure to potentially dangerous levels of asbestos during his incarceration at Green Haven, in violation of his First and Eighth Amendment rights.

Defendants now move for summary judgment on Pack's Eighth Amendment claim, principally on the grounds that plaintiff has failed to establish a constitutional violation and that, in any event, defendants are entitled to qualified immunity. For the following reasons we recommend that the motion be granted.1


Pack filed this action on May 10, 19992, alleging that during his incarceration at Green Haven between August 8, 1991 and November 24, 1998, defendants failed to protect him from exposure to friable asbestos, in violation of his First and Eighth Amendment rights. (Doc. # 2, Form Complaint ("Compl.") at ¶¶ IV(1) & (9)-(11); Plaintiff's Statement of Facts ("Pltff's Facts") at ¶ 1).3 Specifically plaintiff alleges that he was exposed to friable asbestos in four areas of the Green Haven facility — the prison mosque known as Sankore at Taubah-Masjid, the J-School Counseling Unit, the Law Library, and Blocks A, E, F, and H of the inmate housing units. (Compl. at ¶¶ IV(18)-(25)). As a result of this alleged exposure, Pack contends that he suffered pulmonary problems, consisting of sharp pains in his chest, shortness of breath, wheezing, reduced lung capacity and gastroenteritis. (See Compl. at ¶ IV-A; Pltff's Facts at ¶¶ 12-19; Plaintiff's Statement Pursuant to Rule 56.1 at ¶ 3; Defts' 56.1 Exhibit G, November 26, 2002 Deposition of Charles Pack ("Pack Dep.") at pp. 20-21, 68).

Plaintiff contends that all four defendants had knowledge of the asbestos exposure but "jointly, and separately, failed to exercise due regard for [his] safety and health ... by willfully allowing [him] to enter and remain in an area of [Green Haven], wherein [he] was continuously exposed to airborne asbestos, for a period of seven years." (Compl. at ¶¶ IV(26)). Pack now seeks three million dollars in compensatory damages and an equal amount in punitive damages. (See id. at ¶ V).

Pack's allegations in this action are substantially similar to those that he made in a negligence lawsuit filed against the State of New York on September 30, 1996 in the New York State Court of Claims. In that action, which was still pending when he brought the current lawsuit, he alleged that he had been exposed to friable asbestos as a result of inadequate asbestos maintenance and removal procedures at Green Haven. (See Defts' Ex. C).4 Plaintiff received some discovery in the state case, and a very brief trial was held on November 17, 1999, at the conclusion of which the judge dismissed the complaint. (See Deft's Ex. D, Court of Claims Trial Transcript ("Tr.") at 8). This ruling was based upon the court's determination that plaintiff had failed to proffer evidence that he had been, or was likely to be, injured as a result of his alleged exposure to asbestos. (Tr. at 7-8).5

On December 24, 1999, defendants filed a motion in the current action that was denominated as one for summary judgment but which this Court analyzed as a motion to dismiss. (See R & R at p. 1). Defendants argued: (1) that plaintiff's claims for asbestos exposure were barred by the prior adjudication in the New York Court of Claims; (2) that plaintiff's claims were barred by the Eleventh Amendment; (3) that plaintiff's allegations did not state a claim of constitutional magnitude; (4) that plaintiff had failed to allege and could not prove personal involvement on the part of defendant Christopher Artuz, the Superintendent of Green Haven; and (5) that all defendants were entitled to qualified immunity. Despite adequate notice, plaintiff did not respond to defendants' motion. (See R & R at pp. 1-2).

The District Court denied defendants' motion on August 21, 2001. (See Order of Marrero, J., adopting Sept. 5, 2000 R & R).6 A period of discovery followed. On April 16, 2003, defendants filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56(c). This motion substantially reiterates the grounds argued in their previous motion, but also adds a body of evidentiary facts pertinent to the viability of plaintiff's claims. Plaintiff in turn has submitted papers in opposition.

I. Prior Adjudication by Court of Claims

Defendants contend that the prior adjudication of plaintiff's negligence claims in the New York State Court of Claims bars Pack from bringing the current action. Specifically, they assert that the doctrines of collateral estoppel and res judicata prohibit Pack from litigating his section 1983 Eighth Amendment claim because, defendants argue, the factual issues presented by his federal complaint were previously determined by the Court of Claims. Defendants contend this to be the case despite the fact that Pack's Eighth Amendment claim against state officials in their individual capacities could not have been heard in the prior suit. (See Defts' Memo of Law at pp. 22-24).7

This defense was previously asserted by defendants on the motion to dismiss, and the District Court squarely rejected it. Defendants do not explain why that ruling is not dispositive as law of the case. In any event, their arguments are meritless for the reasons outlined in our prior Report and Recommendation. Nonetheless, we again review the issue in some detail.

A federal court assessing the effect of a state-court judgment looks to the law of the state in which the judgment was entered. See, e.g., Allen v. McCurry, 449 U.S. 90, 99, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.1999); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Accordingly, we look to New York law on res judicata and collateral estoppel.

A. Res Judicata/Claim Preclusion

New York has adopted a transactional approach to the doctrine of res judicata, so that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 285 (2d Cir.2000) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)) (emphasis added); Cowan v. Ernest Codelia, P.C., 2001 WL 856606, at *4 (S.D.N.Y. July 30, 2001); Waterman v. Transport Workers' Union Local 100, 8 F.Supp.2d 363, 367 (S.D.N.Y.1998), aff'd, 176 F.3d 150 (2d Cir.1999). "[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy." Cox, 1998 WL 148424, at *4 (quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688-89 (1981)). See Smith v. Russell Sage College, 54 N.Y.2d 185, 192, 445 N.Y.S.2d 68, 71, 429 N.E.2d 746 (1981) (noting that res judicata applies where different legal theories of relief are grounded on the same "congeries of facts," even when the different legal theories "depend on different shadings of the facts, or would emphasize different elements of the facts or would call for different measures of liability or different kinds of relief" (quo...

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