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WARREN v. KEANE

September 10, 1996

VINCE WARREN, TYRONE BENTON, JOHN MURRAY, Plaintiffs, against JOHN P. KEANE, SUPERINTENDENT, DEPUTY SUPERINTENDENT CHARLES GREINER, DEPUTY SUPERINTNEDENT BRYANT KEHN, FIRE AND SAFETY OFFICER NOEL MORRIS, THOMAS A. COUGHLIN 3RD COMMISSIONER OF CORRECTIONS AND OFFICER J. BURT. 1 Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J. :

 Pursuant to 42 U.S.C. § 1983, plaintiffs Vince Warren, Tyrone Benton, and John Murray (together "plaintiffs") allege that defendants John P. Keane, Charles Greiner, Brent Kehn, Noel Morris, Thomas A. Coughlin III, and J. Burt (together "defendants") violated their Eighth Amendment rights by subjecting them to unreasonably dangerous levels of environmental tobacco smoke ("ETS" or "second hand smoke"). Pursuant to Federal Rule of Civil Procedure 56(c), defendants move for summary judgment. For the reasons that follow, defendants' motion is denied.

 BACKGROUND

 Plaintiffs are New York State prison inmates in the custody of the New York State Department of Correction Services ("DOCS") who are, or have at one time been, confined at Ossining State Correctional Facility ("Sing Sing"). See Defendants' Statement Pursuant to Local Rule 3(g) dated May 10, 1996 ("Defts. Rule 3(g) Stmt.") PP 1-3. All have been housed for at least part of their confinement in Cell Block A and complain of smoke-related discomfort and other maladies. Id. PP 9, 13-15.

 Defendants are State of New York prison officials. Thomas Coughlin III was Commissioner of DOCS at the time the complaint was filed but has since retired from that position. Defts. Rule 3(g) Stmt. P 5. John Keane is Superintendent of Sing Sing. Id. P 4. Charles Greiner was Deputy Superintendent for Security at Sing Sing at the time the complaint was filed and has recently been promoted to First Deputy Superintendent. Id. P 6. Brent Kehn is Deputy Superintendent for Programs at Sing Sing. Id. P 7. Fire and Safety Officer Noel Morris and Correction Officer J. Burt were DOCS employees at Sing Sing during the relevant time period. Id. P 8.

 Plaintiffs allege that they have been subjected to ETS in smoking and no smoking areas throughout Sing Sing and within their own cells in Cell Block A which, when magnified by inadequate ventilation and large numbers of inmates who smoke, may cause health problems and/or lead to their early deaths. *fn2" See Amended Complaint ("Amend. Compl.") PP 12, 20. Plaintiffs assert that in areas such as the chapel, auditorium, gym and gallery recreational area they must hold wet handkerchiefs over their noses and mouths to avert the constant barrage of cigarette smoke that overwhelms them. Id. P 21. Warren, who has been confined in Cell Block A for the past five years, indicates that he suffers from sinus problems, headaches, dizziness, asthma, and hepatitis B and C. See Defts. Rule 3(g) Stmt. PP 1, 13. Benton, who was confined in Cell Block A from September, 1989, until December, 1993, states that he suffered from nausea, headaches, and shortness of breath. Id. PP 2, 14. Murray, who also was confined in Cell Block A for five years but has since been relocated to a cell with a window, suffered from dizziness, shortness of breath, chest pains, and tuberculosis. *fn3" Id. PP 3, 15, 29.

 In or about June, 1993, Warren filed a grievance addressed at the prevalence of inmate smoking in the prison gym. Defts. Rule 3(g) Stmt. P 17. Plaintiffs also sent a petition to, inter alia, Keane, the Governor and Coughlin concerning their exposure to second hand smoke in various areas at Sing Sing. Id. P 18; Defendants' Notice of Motion dated May 10, 1996, Exh. 3. Coughlin responded by writing to Warren. Id. Keane and Sing Sing's executive staff responded by posting "no smoking" signs in the gym and increasing enforcement of DOCS's no smoking policy in that area. See Defts. Rule 3(g) Stmt. P 18.

 In or about July, 1993, Warren filed a second grievance complaining about smoking in the cell blocks and poor ventilation. Defts. Rule 3(g) Stmt. P 19. Murray also filed a grievance about a single incident of an officer smoking in the gym. Id. P 20. In response, a sergeant investigated Murray's complaint about the officer and found no one smoking there. Id.

 On August 25, 1993, plaintiffs, proceeding pro se, *fn4" filed the instant action alleging that defendants violated their Eighth Amendment rights by subjecting them to unreasonably dangerous levels of ETS. On November 14, 1995, plaintiffs filed an amended complaint addressing in more detail these claims and seeking compensatory damages of $ 2,000,000 against each defendant, punitive damages of no less than $ 50,000 against each defendant, attorneys fees and such other relief as plaintiffs may be entitled to. *fn5"

 In June, 1994, after the instant action was filed, Warren complained to Officer Morris about inmates smoking in the common areas of the cell block. Defts. Rule 3(g) Stmt. P 22. Morris responded by explaining to Warren that the Superintendent's policy was to enforce current no smoking rules, but not to restrict smoking in other areas of the facility. Id. Dissatisfied with Morris' explanation, Warren filed another grievance and received no response. Id. P 23. In January, 1995, Warren wrote to Keane regarding smoking in the gym. Id. P 24. Keane responded in writing. Id. In July, 1995, Warren wrote to Keane regarding a correction officer's refusal to stop smoking as Warren entered the chapel. Id. P 25. Defendants assert that since this lawsuit was filed, Sing Sing's enforcement of smoking restrictions has become more rigorous, with an increasing number of disciplinary warnings and citations being given to inmates for policy violations. Id. P 26.


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