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March 16, 1996


The opinion of the court was delivered by: MCAVOY


 Plaintiff Ronald Davidson, a pro se state prison inmate, commenced this action by filing a complaint on January 6, 1992. Plaintiff raises three causes of action pursuant to 42 U.S.C. § 1983 against defendant Thomas A. Coughlin III, former Commissioner of the New York State Department of Corrections, and defendants Daniel Senkowski, Robert McClellan, Wendell Babbie, and John Andrus, officials at Auburn Correctional Facility ("Auburn"). Plaintiff alleges that defendants (1) failed to provide him with a smoke-free environment at Auburn in violation of New York state law; (2) provided inadequate cold weather clothing; (3) did nothing to correct the tainted prison water supply; and (4) allowed bird droppings to contaminate his cell when the birds entered the area through unrepaired broken windows. Defendants' failure to remedy these poor conditions constituted, in plaintiff's view, deliberate indifference to his health amounting to cruel and unusual punishment in violation of the Eighth Amendment.

 Presently before the Court is plaintiff's motion for partial summary judgment on his smoke and clothing claims pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Defendant Andrus opposes this motion and has cross moved for summary judgment in full pursuant to Rule 56(c). The remaining defendants also oppose the motion and have cross moved pursuant to Rules 12(b)(1) and 56(b) of the Federal Rules of Civil Procedure for an order dismissing the Complaint for lack of subject matter jurisdiction and granting summary judgment as a matter of law on the ground that they are entitled to qualified immunity. Because the parties to the latter cross motion have included supporting affidavits and other documents presented to and not excluded by the court, this motion will be treated as a single motion for summary judgment.



 The motions were referred by this Court to the Hon. Daniel Scanlon, Jr., United States Magistrate Judge, for a report and recommendation pursuant to a Standing Order of the Court dated November 12, 1986. Petitioner has raised objections to the Report-Recommendation issued by Judge Scanlon on December 29, 1995, which generally suggested that the Court grant defendants' motions such that only plaintiffs second cause of action against defendants Coughlin, Senkowski, McClellan, and Babbie should remain. Because dispositive motions were referred to a magistrate judge for a report and recommendation and objections have been filed, the Court "shall make a de novo determination of those portions of the which objection is made." 28 U.S.C. § 636(b)(1). After performing such review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The [Court] may also receive further evidence or recommit the matter to the magistrate with instructions." Id.

 After examining the record, the Court adopts the Report-Recommendation for the reasons stated therein with the following additions.


 The Eighth Amendment represents a general constitutional prohibition against cruel and unusual punishment. Moreover, "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993). A claim alleging that prison conditions are in violation of the Eighth Amendment must satisfy both an objective and subjective requirement: the conditions complained of must be "sufficiently serious" from an objective standpoint, and the plaintiff must demonstrate that prison officials subjectively acted with "deliberate indifference." Wilson v Seiter, 501 U.S. 294, 298 & 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The required inquiry with regard to deliberate indifference is whether "the official knows of and disregards an excessive risk to inmate safety; the official must both be aware of facts from which the inference could be drawn and must also draw that inference." Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1979 (1994).

 1. Second-Hand Smoke

 Plaintiff has failed to satisfy the Wilson two-prong test with regard to his first cause of action alleging that the defendants failed to provide him with a smoke-free environment in violation of New York state law. In Helling the Supreme Court held that a plaintiff may satisfy the objective prong of Wilson by showing that "he himself is being exposed to unreasonably high levels of ETS [environmental tobacco smoke]" and that the "risk of which he complains is not one that today's society chooses to tolerate." Helling, 113 S. Ct. at 2482. Plaintiff here has failed to meet this standard. Whereas plaintiff in Helling had been housed in a cell with an inmate who smoked five packs of cigarettes per day, plaintiff in this case was housed in his own individual cell and has not demonstrated exposure to levels of ETS comparable to those in Helling. As Judge Scanlon states in the Report-Recommendation, "...the plaintiff has not demonstrated what the level of smoke in the facility was or whether that degree of exposure would have been enough to cause or aggravate a current or future serious illness." (Report-Recommendation at 6.)

 In his first cause of action plaintiff also alleges that exposure to smoke aggravated his existing allergies. However, the Supreme Court held in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), that "deliberate indifference to serious medical needs of prisoners" constitutes "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Id. at 104. Plaintiff in this case has failed to submit any evidence in support of his medical condition, which he nevertheless claims is well documented by DOCS. Plaintiff's bare allegation is insufficient to survive summary judgement.

 If a plaintiff fails to satisfy one prong of the Wilson test "...the court may give judgement ...without taking further evidence." Helling, 113 S. Ct. at 2482. The Court would like to note, however, that plaintiff also has failed to satisfy the second prong of the test. With regard to the subjective factor, the Helling court held that the "adoption of a smoking policy will bear heavily on the inquiry of deliberate indifference." Id. Defendants here have implemented a smoking policy in compliance with the Clean Air Act, similar to the prison officials in Helling, so the Court does not believe ...

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