fact finder could further accept the smoking policy with respect to problem areas at Sing Sing, to some extent, as an admission by defendants as both to the dangerousness of ETS and their awareness of such danger.
Nor are defendants entitled to the affirmative defense of qualified immunity. To establish the defense of qualified immunity, defendants must show either that their "conduct did not violate 'clearly established rights' of which a reasonable person would have known, or that it was 'objectively reasonable' to believe that [their] acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990); see Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Three factors are pertinent in determining whether a legal rule was "clearly established" at the time of the challenged action: (1) whether the right in question was defined with "reasonable specificity;" (2) whether the decisional law of the Supreme Court and the Second Circuit supports the existence of the right in question; and (3) whether, under preexisting law, a reasonable defendant official would have understood that his or her acts were unlawful. See Soares v. State of Connecticut, 8 F.3d 917, 922 (2d Cir. 1993).
Defendants argue that prior to the Supreme Court's decision in Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993), on June 18, 1993, no controlling case law in this Circuit or the Supreme Court held that a prison inmate's exposure to second-hand smoke could state an Eighth Amendment claim. They further argue that after Helling, it was objectively reasonable for them to believe that their actions did not and do not violate Helling.
Viewing the evidence in the light most favorable to plaintiffs and drawing all inferences favorable to plaintiffs, the Court cannot, based upon a full review of the record as it now stands, find that as a matter of law defendants conduct did not violate clearly established rights of which a reasonable person would have known or that it was objectively reasonable for them to believe that their acts did not violate such clearly established rights. Even prior to Helling, the Supreme Court has held that the Eighth Amendment applies where a claim alleges deliberate indifference to inhumane conditions of confinement or deliberate failure to attend to a prisoner's medical needs. See Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321, (1991); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976).
Defendants Keane, Greiner, Kehn, and Coughlin, as supervisors, are chargeable with knowledge of the conditions at Sing Sing, see Jemmott v. Coughlin, 85 F.3d 61, 67-68 (2d Cir. 1996), and with knowledge that at least as early as 1986, the date of Surgeon General report, second hand smoke could cause serious health problems. Thus, their failure to remedy such a condition could violate clearly established rights. Moreover, such failure, in light of the numerous commentaries and government reports concerning ETS, cannot be said to be objectively reasonable. Indeed, the smoking policy established at Sing Sing evidences, to some extent, the danger ETS poses and defendants' recognition of that danger. Whether the level of smoke permeating Sing Sing was so severe as to permit that inference is a factual question that cannot be resolved on a motion for summary judgment.
Defendants Morris and Burt, similarly, are not entitled to qualified immunity because, although they are not supervisory officials, they can be chargeable with failure to enforce prison polices regarding smoking which were already in effect. Thus, adjudication of the qualified immunity defense requires the resolution of genuinely disputed questions of fact and defendants' motion must be denied without prejudice to being renewed on a motion for a directed verdict or on a motion for judgment notwithstanding the verdict. See Warren v. Dwyer, 906 F.2d 70, 74 (2d. Cir. 1990).
For the reasons stated above, defendants' motion is denied. All parties shall complete all discovery on or before October 31, 1996, and a pre-trial conference shall be held on October 11, 1996, at 10:30 a.m. in Courtroom 705.
It is SO ORDERED.
DATED: New York, New York
September 10, 1996
John E. Sprizzo
United States District Judge