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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, ...

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