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United States District Court, Southern District of New York

February 3, 2003


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


David Zaire ("Plaintiff"), an inmate proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 against defendant Christopher Artuz ("Defendant"), former Superintendent of Green Haven Correctional Facility, alleging that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendant failed to enforce prison smoking policies promulgated pursuant to the New York State Clean Indoor Air Act ("NYSCIAA"), N.Y. Pub. Health Law § 1399. Plaintiff asserts that Defendant was deliberately indifferent to Plaintiff's exposure to second-hand cigarette smoke, also known as environmental tobacco smoke ("ETS"), and that Plaintiff, as a result, suffered injuries that included stress, nausea, anxiety and future health risks. Plaintiff seeks punitive and compensatory damages. The Court has jurisdiction of Plaintiff's federal claims under 28 U.S.C.A. sections 1343 and 1331 (West 2000).

Defendant has moved for summary judgment on the grounds that Plaintiff has failed to demonstrate Defendant's deliberate indifference and personal involvement in the alleged violations, and that he cannot be held liable for the alleged violations because he is entitled to qualified immunity as a state official. In addition, Defendant argues that Plaintiff cannot prove that he suffered a compensable injury. Plaintiff opposes Defendant's motion. For the reasons set forth below, the motion for summary judgment is granted.


Plaintiff was an inmate at Green Haven Correctional Facility ("Green Haven") from November 1997 until April 1998. Since March 1997, Green Haven has had a smoking policy in effect for the purpose of complying with the NYSCIAA. From November 1997 to about January 1998, Plaintiff was housed in Housing Block E and Housing Block B of the prison. From January 1998 to April 1998, Plaintiff was housed in Housing Block J of the prison. Plaintiff's cell in Housing Block J consisted of four walls, one of which contained a door with a window. The J Block cell also had a window that opened to the outside of the building, permitting air to enter the cell.

Plaintiff claims that his ETS exposure was the same in Housing Blocks E and B due to their similar construction, both cell blocks having windows on the walls opposite the cells. (Pl.'s Deposition, Ex. E to Deft.'s Mot. for Sum m. J., at pp. 60-62, 66. ("Pl.'s Dep.").) According to Plaintiff's descriptions, the only difference between Blocks E and B was that, while he was in Block E, staff and corrections officers sometimes congregated to smoke cigarettes in the corridor. (See Compl. ¶ 3.) Plaintiff asserts that, when he lived in Block E, he was periodically exposed to second-hand smoke in his cell when other inmates or staff who were smoking cigarettes would walk by his cell, because the bars allowed smoke to pass through into the cell. (Compl. ¶ 3.) When Plaintiff resided in Block J (a period of about four months), he was not exposed to ETS while in his room. He contends, however, that in traveling each day to the dining hall from Block J, and to the industry work site from the dining hall, he was required to stand in company formation in the presence of other prisoners who were smoking cigarettes. (Compl. ¶ 6.) Plaintiff contends that, in Block J, a common lavatory was designated as a smoking area and that he was exposed to ETS there as well. (Compl. ¶ 8.) Plaintiff also alleges that he was subjected to ETS in the gymnasium and auditorium, where staff imposed no restrictions on cigarette smoking. (Compl. ¶ 5.)

During the time period at issue in this action, the Green Haven Correctional Facility Smoking Guidelines, which prohibited smoking in all common areas of the facility but permitted smoking in designated limited areas, were in effect. (Sofield Aff. ¶ 7; Smoking Guidelines, Ex. F to Def.'s Mot. ("Guidelines").) The policy behind the Smoking Guidelines, which were applicable to all employees and inmates, was to be in compliance with the NYSCIAA. (Guidelines.) In addition to the Smoking Guidelines at Green Haven, the New York State Department of Correctional Services was scheduled to implement a four-phase policy designed to make all its institutions smoke-free by June 30, 2001.*fn2 (Smoke-Free Policy, Ex. H to Deft.'s Mot.)

On December 9, 1997, Plaintiff filed a grievance to report non-compliance of Green Haven inmates and staff with the N.Y. SCIAA and requested that Defendant issue a memorandum to ensure compliance. (Grievance, Ex. G to Deft.'s Not. of Mot. ("Grievance").) On December 29, 1997, Green Haven staff responded with a written statement indicating that the grievance was granted to the extent that it was expected that the facility comply with the Smoking Guidelines, and advising Plaintiff to bring violations to the attention of the appropriate area supervisor. (Id.) On December 31, 1997, Plaintiff completed another grievance form, requesting enforcement of the Smoking Guidelines and Green Haven's compliance with the NYSCIAA. (Inmate Grievance Complaint, Ex. A to Deft's Reply Mem. of Law in Supp. of Mot. for Summ. J.) No response was made or action taken in connection with the December 31, 1997 grievance. (Deft.'s Reply Mem. at 6 n. 5.)*fn3 On January 5, 1998, Plaintiff appealed the response to his first grievance, contending that Defendant "cannot shift his legal burden" of enforcing the Smoking Guidelines onto Plaintiff and thereby subject him to a risk of retaliation from the staff and inmates, and further requesting that signs prohibiting smoking be posted in all appropriate areas, with fines and/or disciplinary penalties to be imposed on those who refused to comply. (Grievance at 3.) It appears from the record that a response, dated January 28, 1998, was issued, upholding the initial response to Plaintiff's first grievance. It is unclear whether Defendant was made personally aware of Plaintiff's grievances.

In the course of this litigation, counsel for Defendant requested that Plaintiff authorize the release of his medical records. Plaintiff refused such authorization and instead conceded, in a letter to Defendant's counsel, that his medical records contain no reports of any injuries or treatment sought in connection with the claims raised in his complaint. Plaintiff emphasizes, however, that his admission regarding the contents of his medical records reflects his refusal to seek any treatment from correctional services medical staff because of a history of "negative experiences" with them. (Pl.'s Aff. ¶ 1(C).) Plaintiff does not contend that he suffers from any current health ailments or illnesses, such as asthma, bronchitis or heart disease. Plaintiff has never been diagnosed with asthma or bronchitis and has not sought medical or psychiatric treatment in connection with the ETS exposure. During the relevant period, Plaintiff exercised every day, and his physical activity included calisthenics and approximately three hours of basketball daily. (Pl.'s Dep. at 107-09.)

Plaintiff nonetheless alleges that he experienced stress, anxiety and nausea from the odor of the cigarette smoke and that, on several occasions, he came close to having physical altercations with inmates who smoked, because of disputes over the smoking. (Compl. ¶ 9; Pl.'s Aff.


Summary judgment shall be granted in favor of a moving party when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to demonstrate that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The "standard provides that the mere existence of some alleged factual dispute will not defeat" a summary judgment motion, but, rather, that there must be a genuine issue of material fact. Id. at 245 (emphasis in original). Governing substantive law determines which facts are material to the issue. Id. at 248. If the moving party satisfies its burden, the burden shifts to the nonmoving party who then "must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If there is any evidence on the basis of which a reasonable jury could return a verdict for the nonmoving party, then summary judgment is improper. Anderson, 477 U.S. at 248.

The Court reviews pro se pleadings carefully and construes them liberally. See Haines v. Kerner, 404 U.S. 519, 596 (1972) (holding pro se complaint to "less stringent standards than formal pleadings drafted by lawyers"); Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998) (allowing pro se plaintiff greater "degree of flexibility in pleading his action," looking beyond the complaint to determine what claims are presented and interpreting the papers to raise the strongest arguments they suggest). The Second Circuit has emphasized that "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (citing cases).

Having reviewed Plaintiff's claims carefully and sympathetically, the Court concludes that summary judgment in Defendant's favor is appropriate with respect to Plaintiff's Eighth Amendment claim. The factual record provides no basis for a finding that Defendant's actions constituted deliberate indifference to Plaintiff's medical needs. Furthermore, Plaintiff has failed to show Defendant's personal involvement in Plaintiff's ETS exposure.

Eighth Amendment Claim

"It is undisputed that 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, 31 (1993); see also Rhodes v. Chapman, 452 U.S. 337, 351 (1981). The Supreme Court has determined that the accidental or inadvertent failure to provide adequate medical care is not violative of prisoners' Eighth Amendment rights. See Estelle v. Gamble, 429 U.S. 97 (1976). Rather, "deliberate indifference to serious medical needs of prisoners," Estelle, 429 U.S. at 104, as well as failure to provide for prisoners' "basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety transgress the substantive limits on state action set by the Eighth Amendment . . . ." DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 200 (1989). A prisoner may assert a cause of action under the Eighth Amendment for deliberate indifference to a serious risk of future harm despite the absence of any symptoms stemming from the subject conditions. See Helling, 509 U.S. at 32-34 (rejecting argument that exposure to ETS cannot constitute violation of the Eighth Amendment where prisoner did not display medical problems resulting therefrom and discussing cases where plaintiffs successfully asserted Eighth Amendment claims despite absence of current symptoms).

The Supreme Court has adopted a two-part test for reviewing claims under the Eighth Amendment's cruel and unusual punishment clause. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Helling, 509 U.S. at 25; Hudson v. McMillian, 503 U.S. 1, 7 (1992). The test encompasses an objective and a subjective prong, with the former requiring Plaintiff to show that the "deprivation alleged . . . be, objectively, `sufficiently serious,'" Farmer, 511 U.S. at 836 (internal citation omitted), and the latter asking whether the prison official acted with a "sufficiently culpable state of mind," Farmer, 511 U.S. at 834.

To satisfy the first, objective, prong of the test "the deprivation alleged must be sufficiently serious." Farmer, 511 U.S. at 834 (quoting Wilson v. Sieter, 501 U.S. 294, 298 (1991)). When the claim is (like Plaintiff's) "based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. The alleged deprivation must be reviewed in its context to determine whether the condition meets "contemporary standards of decency." Hudson, 503 U.S. at 8.

The second part of the test, the subjective component, requires a showing of deliberate indifference to an inmate's health or safety. Farmer, 511 U.S. at 834. Specifically, whether a prison official is deliberately indifferent rests in whether the official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837.

The two-prong test is appropriate for Eighth Amendment claims in which a plaintiff challenges conditions of confinement based on ETS exposure. See Helling, 509 U.S. 25 (applying two-prong test where plaintiff, who was housed in cell with inmate who smoked five packs of cigarettes a day, brought cause of action based on ETS exposure). The Supreme Court has held that to satisfy the objective prong — a showing of a sufficiently serious deprivation — the plaintiff must demonstrate exposure to ETS that poses "an unreasonable risk of serious damage to his future health," and that the risk "is not one that today's society chooses to tolerate." Helling, 509 U.S. at 35-6. Significantly, however, "the Constitution does not mandate comfortable prisons." Rhodes, 452 U.S. at 349 (finding that practice of housing two inmates in a single cell, or double-celling, was not unconstitutional).

The Two-Prong Test and Plaintiff's Claims

Plaintiff asserts that he was exposed to ETS in various areas during his stay at Green Haven, which lasted approximately five months. In sum, Plaintiff complains that, while living in Housing Blocks E and B from November 24, 1997 to January of 1998, he was exposed to ETS primarily while inmates and officers traveled back and forth to various prison program s. Plaintiff concedes, as previously noted, that there was no ETS exposure in his room in Housing Block J. He asserts, however, that he was exposed to ETS in the recreation areas, including the gymnasium, and in the industry work site.

Unlike the plaintiff in Helling, who lived with a cell mate who smoked five packs of cigarettes per day, and the plaintiffs in Warren, who were exposed to ETS over a period of five years in unventilated cells, Plaintiff was housed in single occupancy cells and his stay at Green Haven was relatively brief. Although smoke may have passed through the bars across the front of the cells in Housing Blocks B and E, Plaintiff resided there only for a period of approximately six weeks and acknowledges that he was only "periodically" exposed as inmates traveled to or returned from facility programs. (Pl.'s Dep. at 62.) The cell in Housing Block J, where Plaintiff lived for approximately four months, contained a door with a small window. Plaintiff acknowledges that his cell in Block J was a "sanctuary" from the ETS exposure.

Defendant asserts that Plaintiff's exposure was significantly lower than that experienced by the plaintiff in Helling, and did not involve unreasonably high levels of ETS. The Court agrees that the undisputed facts so indicate. Although Plaintiff was exposed in varying degrees to ETS in Green Haven, the levels were not unreasonably high when compared with those found to violate the Eighth Amendment in Helling. Plaintiff was housed at Green Haven for only five months. For most of that time, he was in Housing Block J, where he could retreat to the "sanctuary" of his room and choose to be away from ETS exposure for long periods of time.

Likewise, Plaintiff did not suffer exposure to unreasonable levels of ETS when compared with the plaintiffs in Warren, in which it was held that unreasonable levels of ETS exposure were demonstrated where inmates lived for five years in a poorly ventilated and overcrowded correctional facility where smoking was permitted in every area, including cells and common areas. See Warren, 196 F.3d at 332.

Plaintiff's alleged ETS exposure occurred primarily in common areas of Green Haven. Plaintiff asserts that he was exposed to ETS while in the television area of the gymnasium, in recreation areas and at the industry work site. Even when reviewed in its totality, the alleged exposure fails to rise to a level that a reasonable jury could find "repugnant to the conscience of mankind," Estelle v. Gamble, 429 U.S. 97, 106 (1976) or "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk," Helling, 509 U.S. at 36. See generally Lacroix v. Williams, et. al., No. 97 Civ. 0790, 2000 WL 1375737 (W.D.N.Y. Sept. 21, 2000) (ETS exposure not unreasonably high where inmate was housed in a poorly ventilated 22-man dormitory where 21 men smoked); Davidson v. Coughlin, 920 F. Supp. 305, 307 (N.D.N.Y. 1996) (unreasonable levels of ETS exposure not demonstrated where inmate was housed in his own, individual cell). Plaintiff was not required to enter the common areas where he alleges ETS exposure and indicated that he visited the television area, where the alleged the exposure was particularly great, approximately three times per week. Plaintiff has thus failed to satisfy the objective prong of the two-part test set forth in Helling and Farmer.

As Plaintiff has failed to satisfy one prong of the test, it is within the discretion of this Court to grant Defendant's motion on that basis; nonetheless, in light of Plaintiff's pro se status, the Court will consider whether he satisfied the second prong, or subjective component, of the test. See Helling, 509 U.S. at 35. As noted, Plaintiff must show deliberate indifference, which, in the context of a challenge to conditions of confinement, includes conduct that evinces "more than ordinary lack of due care for the prisoner's interests or safety," but does not require that the conduct be aimed to cause harm. See Farmer, 511 U.S. at 835. The Court must determine whether Defendant "kn[ew] of and disregard[ed] an excessive risk" posed by the alleged ETS exposure. Farmer, 511 U.S. at 835, 837.

Plaintiff fails to provide any evidence that Defendant had knowledge of an excessive risk which he then disregarded. Plaintiff filed two grievances, dated December 2, 1997 and December 31, 1997, respectively, and appealed the decisions on both. His grievances requested that Defendant "issue a policy memorandum enjoining mandatory compliance by staff and inmates with the NYCIAA, in relation to all corridors . . . as well as other required areas." (Grievance.) Although Plaintiff received a written response, which came from the Superintendent's office and was signed by an unidentified employee, there is no evidence that Defendant was personally aware of Plaintiff's ETS exposure or that Defendant had any knowledge of the conditions that Plaintiff complained of.*fn4 Plaintiff acknowledges that he does not know whether Defendant was made personally aware of his grievance complaints.

Even assuming Plaintiff had shown that Defendant was aware of the ETS exposure, Plaintiff has made an insufficient showing of Defendant's disregard of Plaintiff's serious needs. Green Haven instituted its first smoking policy on March 10, 1997. In Helling, the Supreme Court noted that "the adoption of a smoking policy . . . will bear heavily on the inquiry into deliberate indifference." Id. at 36. The response to Plaintiff's grievance advised him to "bring violations to the attention of the appropriate area supervisor," but there is no evidence that Plaintiff did so. (Grievance.) Furthermore, in his grievance, Plaintiff did not allege any harm that he suffered from the ETS exposure. The Defendant, even if he was aware of the grievance, was not required to infer that Plaintiff was suffering or was worried about his future health; the grievance could easily be read as seeking to remedy a merely annoying condition of confinement.

Defendant's Personal Involvement

Defendant argues that a showing of his personal involvement is required before the Court can award any damages under 42 U.S.C. § 1983, and that Plaintiff has failed to make such showing. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Moffit v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991).

Supervisory officials cannot be held liable under Section 1983 for the acts of their subordinates. See Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). They may, however, be found personally involved upon evidence of their (1) direct participation in the alleged constitutional violation; (2) failure to remedy a wrong after learning of it; (3) creation or maintenance of a policy under which unconstitutional violations occurred; (4) gross negligence in managing subordinates who committed the unconstitutional acts; or (5) deliberate indifference by failing to act on information indicating that constitutional violations were occurring. See Colon, 58 F.3d at 873.

As explained above, Plaintiff has failed to present any evidence that Defendant was personally involved in the alleged violation. In addition, there is no evidence that Defendant was grossly negligent. That Plaintiff sent two grievances does not, by itself, establish personal involvement on the part of Defendant sufficient to impose liability. See Kinch v. Artuz, No. 97 Civ. 2419, 1997 WL 576038 (S.D.N.Y. Sept. 15, 1997) (finding that grievance letter to Superintendent was insufficient to impose personal liability); Garrido v. Coughlin, 716 F. Supp. 98, 100 (S.D.N.Y. 1989) (insufficient evidence for personal involvement where defendant ignored plaintiff's grievance letters and request for investigation). Cf. McPherson v. Coombe, 29 F. Supp.2d 141, 144 (W.D.N.Y. 1998) (denying defendant's motion for summary judgment because she received and denied the inmate's grievance regarding ETS exposure and was personally involved in decisions, but granting summary judgment in favor of other defendants who demonstrated that they did not create a policy under which a violation occurred).

Plaintiff's State Law Claim

Plaintiff also asserts a pendent state law claim, alleging that Defendant violated New York state law by failing to enforce Green Haven's smoking policy pursuant to the NYCIAA. The Court lacks supplemental jurisdiction of this claim. W here, as here, a plaintiff alleges that a state actor has failed to comply with state law, but does not challenge the law itself, a federal district court does not have authority to order that actor to conform his actions to state law. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 106 (1984) ("it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law"); Cappello v. New York, 125 F. Supp.2d 75, 80 (S.D.N.Y. 2000) ("[f]ederal interpretation of state law, vis a vis the conduct of a state official, is . . . prohibited by the Eleventh Amendment . . ." (emphasis in original)); Concourse Rehab. & Nursing Ctr. Inc. v. Wing, 945 F. Supp. 740 (S.D.N.Y. 1996), aff'd, 150 F.3d 185 (2d Cir. 1998). In suits brought against state actors, federal district courts are constrained by the principle of sovereign immunity. See Pennhurst, 465 U.S. at 101; Concourse Rehab. & Nursing Ctr. Inc. v. Wing, 150 F.3d 185 (2d Cir. 1998); New Holland Village Condo. v. DeStaso Enter. Ltd., No. 00 Civ. 9431, 2001 WL 401477, at *2 (S.D.N.Y. Apr. 18, 2001); see generally Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990) (claims against a state university are barred by the Eleventh Amendment); Cappello, 125 F. Supp.2d at 80 (claims against a state and a state grievance committee are "prohibited" and "absolutely barred" by the Eleventh Amendment); Weinstein v. Albright, No. 00 Civ. 1193, 2000 WL 1154310, at *10 (S.D.N.Y. Aug. 14, 2000) (claim against a state agency is prohibited, absent a waiver or statutory abrogation of sovereign immunity). Therefore, the claim that Defendant violated New York state law by failing adequately to enforce the NYCIAA must be dismissed.


For the foregoing reasons, summary judgment is hereby granted in favor of Defendant on Plaintiff's Section 1983 claim, and Plaintiff's state law claim is dismissed for lack of subject matter jurisdiction.


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