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Denis v. N.Y.S. Department of Correctional Services

January 30, 2006

JEAN DENIS, PLAINTIFF,
v.
N.Y.S. DEPARTMENT OF CORRECTIONAL SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:

REPORT AND RECOMMENDATION

To the Honorable Lewis A. Kaplan, United States District Judge:

Pro se plaintiff Jean Denis brings this action, pursuant to 42 U.S.C. § 1983, against defendants for deliberate indifference to his serious medical needs, claiming that environmental tobacco smoke ("ETS"), also known as second hand smoke, has caused him to develop sinusitis and exposes him to the future risk of cancer. (See generally Dkt. No. 1: Compl.) The defendants are the New York State Department of Correctional Services ("DOCS"), DOCS' Commissioner (Glenn S. Goord), DOCS' Associate Commissioner of Health Services (Dr. Lester Wright), and the Superintendents of the Cayuga (Joseph McCoy), Oneida (Melvin Hollins) and Mid-Orange (Susan Schultz) Correctional Facilities where Denis has been incarcerated. (Id.)

Presently before the Court is defendants' summary judgment motion. (Dkt. No. 26: Defs. Notice of Motion; see also Dkt. Nos 27-36, 42-44.) Denis opposes the motion. (See Dkt. Nos. 38-39.)

For the reasons set forth below, defendants' motion for summary judgment should be granted as to defendants DOCS, McCoy and Wright and denied as to defendants Goord, Hollins and Schultz because of disputed issues of material fact as to the degree of second hand smoke in DOCS' facilities, despite DOCS' Smoke Free Policy that prohibits indoor smoking (but allows outdoor smoking), although inmates still smoke indoors in violation of the rules.

FACTS

DOCS' Smoking Policy

DOCS adopted a system-wide smoking policy in June 1999, effective July 1, 1999, which provided that smoking would be incrementally banned from inside facility buildings but inmates and staff would be permitted to smoke outside in recreation yards. (Dkt. No. 36: Defs. Rule 56.1 Stmt. ¶ 4; Dkt. No. 38: Denis Rule 56.1 Stmt. ¶ 4;*fn1 Dkt. No. 32: McCoy Aff. ¶ 4 & Ex. A: DOCS' Smoke Free Policy.)

DOCS' Smoke Free Policy was implemented in four phases: (1) July 1, 1999 to December 31, 1999, inmates and staff were notified about the plan; (2) January 1, 2000 through June 30, 2000, smoking was limited to the confines of housing units and, in medium (and minimum) security facilities, smoking was prohibited in "common" rooms like day rooms and television rooms; (3) July 1, 2000 through December 31, 2000, smoking was permitted only in assigned sleeping areas, and (4) January 1, 2001 to June 30, 2001, and thereafter, smoking was prohibited within all facility buildings, but smoking was allowed in outside recreation yards. (Defs. & Denis Rule 56.1 Stmts. ¶¶ 4-6; McCoy Aff. ¶¶ 4-5 & Ex. A: DOCS' Smoke Free Policy.) Denis contends, however, that DOCS' smoking policy "has never been strictly enforced." (See Denis Rule 56.1 Stmt. ¶ 5.)

The DOCS policy noted that at the end of Phase IV (i.e., June 30, 2001):

[T]he overall effectiveness and success of the indoor smoking ban will be evaluated. In the event that problems persist with the enforcement of the indoor smoking ban, then the Department will be forced to consider a change that would prohibit smoking entirely and ban all forms of tobacco and tobacco products. (McCoy Aff. Ex. A: DOCS' Smoke Free Policy at pp. 000325, 000331; see Denis Rule 56.1 Stmt. ¶¶ 5-6.) Denis claims that prisoners and staff "continue to violate DOCS's Smoking Policy since its inception and the said policy has been proven unenforceable." (Denis Rule 56.1 Stmt. ¶¶ 5-6.) DOCS' policy, however, remains as it was after Phase IV, i.e., no indoor smoking but outdoor smoking is allowed. (See Defs. Rule 56.1 Stmt. ¶ 6; Dkt. No. 30: Hollins Aff. Ex. B.)

Denis' Incarceration at Cayuga, Oneida and Mid-Orange Correctional Facilities

Cayuga

Denis entered Cayuga Correctional Facility on September 15, 1999. (Defs. & Denis Rule 56.1 Stmts. ¶ 7; Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis.)

Denis originally was housed in cell C-27 at Cayuga, in which he was double bunked. (Defs. Rule 56.1 Stmt. ¶ 9; Lee Aff. Ex. A: Denis Dep. at 90.) After a few months, at his request, Denis was moved to cell C-6, a single "cube" in the dormitory, with a window. (Defs. Rule 56.1 Stmt. ¶ 9; Denis Dep. at 90-91, 95.) According to Denis, however, inmates in the dormitory regularly smoked, and he could not complain or ask guards to open the window without being considered a "snitch." (Denis Dep. at 92-96.) Inmates concealed their smoking from the guards, and generally if caught smoking the first few times, would be given clean up work to do as opposed to getting a "ticket," i.e., a misbehavior report. (Denis Dep. at 93-94.) A few correction officers smoked in Denis' housing unit at Cayuga. (Denis Dep. at 97-99; Denis Rule 56.1 Stmt. ¶ 12.)*fn2

At Cayuga, Denis played soccer. (Defs. & Denis Rule 56.1 Stmts. ¶ 11; Denis Dep. at 55-59.) He worked as a recreation aide for approximately twenty hours a week and studied computer repair for approximately ten hours a week. (Defs. & Denis Rule 56.1 Stmts. ¶ 10; Denis Dep. at 55-58.) Denis was not prevented from participating in this programming at Cayuga based on his medical condition, except once when he could not breathe and collapsed as he was taken to the infirmary for about two hours for observation. (Defs. & Denis Rule 56.1 Stmts. ¶ 10; Denis Dep. at 190-92.)

Superintendent McCoy "instructed staff and inmate population [at Cayuga] to follow the [DOCS' Smoke Free] policy and advised that non-compliance would lead to disciplinary measures." (Dkt. No. 32: McCoy Aff. ¶ 6.) Of the 800-1,000 inmates at Cayuga, in 2001, "more than 250 inmates were charged with violating the smoking policy and more than 240 were found guilty." (Id.; see McCoy Aff. Ex. B: Computer Printout, Inmates Disciplined for Smoking Violations.)*fn3 Those numbers were cut in half in 2002 and thereafter. (Id.) Superintendent McCoy did not discipline any staff for smoking violations because he was "never presented with credible charges from either staff or inmates that a staff member had violated Cayuga's smoking policy." (McCoy Aff. ¶ 7.)*fn4

According to Superintendent McCoy and DOCS' records, Denis did not complain to him about non-enforcement of the smoking policy. (McCoy Aff. ¶ 8.) From January 1, 2001 until he retired in July 2004, there were no inmate complaints to Superintendent McCoy about enforcement of DOCS' non-smoking policy at Cayuga. (McCoy Aff. ¶ 8; see Defs. & Denis Rule

56.1 Stmts. ¶ 28.)*fn5 "If plaintiff or any other inmate or staff had complained about non-enforcement of the facility's smoking policy, [Superintendent McCoy] would have either conducted a thorough investigation or referred the matter to one of [his] staff to conduct a thorough investigation." (McCoy Aff. ¶ 8.) Superintendent McCoy asserts that he thus "was not personally involved in any of the alleged wrongdoing contained in plaintiff's complaint. This lawsuit is the first instance in which [Superintendent McCoy] became aware of [Denis'] claims." (McCoy Aff. ¶ 9.)

Oneida

Denis was transferred from Cayuga to Oneida Correctional Facility on December 4, 2001. (Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis.)

At Oneida, Denis was originally housed in L-Dorm in 21-cube toward the back of the dormitory, but was transferred at his request to 11-cube at the front of the dormitory, where there was less smoking. (Defs. & Denis Rule 56.1 Stmts. ¶ 13; Denis Dep. at 118.) Nevertheless, according to Denis, that did not help him because inmates still smoked, in the housing unit, in the bathroom and in the day room. (Denis Rule 56.1 Stmt. ¶ 13; Denis Dep. at 127, 140.) While only a few officers smoked at Oneida, Denis asserts that they were the officers assigned to his housing unit, so he was subjected to both inmates and guards smoking on a daily basis. (Defs. & Denis Rule 56.1 Stmts. ¶ 14; Denis Dep. at 141-47.)

Denis complained to one guard, who spoke to the inmates in the unit and said that if he caught inmates smoking, he would write them up, but Denis never actually saw any inmate get written up. (Denis Dep. at 124-25.) Denis complained to certain guards about their smoking, without result, and did not complain to other guards for fear of retaliation. (Denis Dep. at 125-26, 142-46.) Denis wrote to Superintendent Hollins "three times about the smoking that was going on in the unit," and Superintendent Hollins suggested he live in the clinic, which Denis found unacceptable because of AIDS patients in the clinic. (Denis Dep. at 126.)

At Oneida, Denis continued to play soccer. (Defs. & Denis Rule 56.1 Stmts. ¶ 17; Denis Dep. at 61-62.) At Oneida, Denis studied general business and worked in the law library and medical clinic, totaling over forty hours per week. (Defs. & Denis Rule 56.1 Stmts. ¶ 15; Denis Dep. at 59-60.) Denis was never prevented by any medical condition from participating in these programming activities at Oneida. (Defs. & Denis Rule 56.1 Stmts. ¶ 16; Denis Dep. at 192.)

Defendant Hollins was Superintendent at Oneida from before Denis' arrival in December 2001 through Superintendent Hollins' retirement on May 25, 2003. (Dkt. No. 30: Hollins Aff. ¶¶ 1, 3.) Superintendent Hollins "instructed staff and the inmate population [at Oneida] to follow the [DOCS Smoke Free] policy and advised that non-compliance would lead to disciplinary measures." (Hollins Aff. ¶ 5.) The inmate population at Oneida was approximately 1,200 inmates at any time. (Hollins Aff. ¶ 5.) From January 2002 through May 2003, "more than 840 inmates were charged with violating the smoking policy and more than 750 were found guilty." (Hollins Aff. ¶ 5 & Ex. A: Computer Printout, Inmates Disciplined for Smoking Violations; but see page 5 n.3 above.) Like Superintendent McCoy, Superintendent Hollins did not discipline any staff member for smoking violations. (Hollins Aff. ¶ 6; see page 5 n.4 above.)

Denis complained to Superintendent Hollins two times about non-enforcement of the smoking policy. (See Hollins Aff. ¶ 7.) In response to Denis' February 18, 2002 letter, Superintendent Hollins informed Denis that he had referred the matter to supervisory security staff, and that "no violations of departmental policy regarding indoor smoking will be tolerated." (Hollins Aff. ¶ 7 & Ex. B: Hollins 2/22/02 Memo to Denis.) Superintendent Hollins also recommended that Denis review his medical concerns, and available options, with the medical staff. (Id.)

Superintendent Hollins responded to Denis' January 12, 2003 letter, stating that Denis would be interviewed by a Security Supervisor, and that "documented violation of the departmental prohibition on indoor smoking is being treated even more seriously all the time, in the case of repeated offenders. . . ." (Hollins Aff. ¶ 8 & Ex. B: Hollins 1/17/03 Memo to Denis.) Superintendent Hollins also reminded Denis to discuss his health-related concerns with the medical staff. (Id.) Denis complains that while Superintendent Hollins' responses to his complaints were prompt, they failed to remedy the problem. (Denis Rule 56.1 Stmt. ¶ 32.)

"Since DOCS' smoking policy was fully implemented on January 1, 2001 until [Superintendent Hollins] retired in May, 2003, no more than 20 inmates complained to [him] about enforcement of DOCS' smoking policy. Each of these complaints, like plaintiff's complaints, was fully and fairly investigated by [Superintendent Hollins] or [his] staff." (Hollins Aff. at ¶ 9; see Defs. & Denis Rule 56.1 Stmts. ¶ 29; see page 5 nn.3-4 above.)

Mid-Orange

On January 20, 2004, Denis was transferred from Oneida to Mid-Orange Correctional Facility, where he remains today. (Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis.)

Denis has been housed in the same dormitory his entire time at Mid-Orange. (Defs. & Denis Rule 56.1 Stmts. ¶ 18; Denis Dep. at 158-59.) While there is less smoke at Mid-Orange than at Cayuga and Oneida, according to Denis, inmates smoke "everday" in the housing unit, as well as in bathrooms throughout the facility. (Denis Rule 56.1 Stmt. ¶ 19; Denis Dep. at 154-55, 159-63.) Denis observed only one correction officer smoking at Mid-Orange, and that officer stopped smoking indoors after Denis spoke to him, which was after this lawsuit began. (Denis Dep. at 163-65; Defs. & Denis Rule 56.1 Stmts. ¶ 19.)

Denis previously studied horticulture and now studies theology, as well as working as a library clerk at Mid-Orange, for a total of 30 hours a week. (Defs. & Denis Rule 56.1 Stmts. ¶ 20; Denis Dep. at 62-63.) Denis no longer plays soccer, but that is because he injured his right knee. (Defs. & Denis Rule 56.1 Stmts. ¶ 22; Denis Dep. at 180-81.) Denis has not missed any programming because of sinusitis or breathing problems. (Defs. & Denis Rule 56.1 Stmts. ¶ 21; Denis Dep. at 192-93.)

There are approximately 750 inmates at Mid-Orange at any time. (Dkt. No. 31: Schultz Aff. ¶ 3.) From January 2001 until April 2005, "more than 60 inmates were charged with violating the facility smoking policy and more than 50 were found guilty of such charge." (Schultz Aff. ¶ 5 & Ex. A; but see page 5 n.3 above.) Superintendent Schultz did not discipline any staff for smoking violations. (Schultz Aff. ¶ 6; see page 5 n.4 above.)

Based on Mid-Orange's records, Denis never complained to Superintendent Schultz about smoking issues. (Schultz Aff. ¶ 7.) From January 1, 2001 through April 2005, only twelve inmates complained to Superintendent Schultz about enforcement of DOCS' smoking policy. (Schultz Aff. ¶ 7; see Defs. & Denis Rule 56.1 Stmts. ¶ 30; see also page 5 n.4 above.) Each of those complaints was "fully and fairly investigated." (Schultz Aff. ¶ 7.)

On May 24, 2004, Denis filed a grievance, seeking (1) a total ban on the sale and use of tobacco in DOCS' facilities, and (2) in the interim, stricter enforcement of existing rules. (Schultz Aff. ¶ 8 & Ex. B: 5/24/04 Denis Grievance.) Sgt. Fitzgerald investigated Denis' complaint and informed Denis that a decision to ban tobacco could not be made at the facility level, but that he would instruct the staff to make more frequent rounds of the inmate bathrooms and make sure inmates smoke outside. (Schultz Aff. ¶ 8 & Ex. B: 6/7/04 Investigative Report.) Denis appealed to Superintendent Schultz, who upheld Sgt. Fitzgerald's decision. (Schultz Aff. ¶ 8 & Ex. B: 6/14/04 Supt. Decision.) Denis appealed to the Central Office Review Committee ("CORC"), which upheld the facility's decision. (Schultz Aff. ¶ 8 & Ex. B: 7/21/04 CORC Decision.) CORC further advised Denis "to address [specific] violations of the smoking policy to the officer or area supervisor for corrective action." (Id.) Denis asserts that increased supervision of the inmate bathrooms did not occur until after he brought this lawsuit and that it was a response to the suit. (Denis Rule 56.1 Stmt. ¶ 31.)

Commissioner Goord & Deputy Commissioner Dr. Wright

Defendant Glenn Goord is the Commissioner of DOCS, which is DOCS' CEO. (Dkt. No. 33: Goord Aff. ¶¶ 1, 3.) Commissioner Goord's office routinely receives several thousand letters a year from inmates. (Goord Aff. ¶ 4.) One of his secretaries routes each letter to the appropriate DOCS' division or bureau for response. (Goord Aff. ¶¶ 4-6.)

Denis sent a letter to Commissioner Goord on September 24, 2001 asking for a "full investigation" of the denial of his grievance about second hand smoke and his sinusitis condition. (Goord Aff. ¶ 4 & Ex. A: Denis 9/24/01 Letter.) Deputy Commissioner Bernardi responded on October19, 2001, referring to the grievance procedures and that any questions should be addressed to the IGP Supervisor. (Goord Aff. Ex. A: 10/19/01 Bernardi Letter to Denis.)

On October 7, 2003, Denis wrote to Dr. Wright, with a copy to Commissioner Goord, seeking either a ban of tobacco sales and use or creation of a non-smoking housing unit. (Goord Aff. Ex. A: 10/7/03 Denis Letter.) Denis' letter was responded to by Oneida's then-Superintendent Connell, who noted that Denis refused to give specifics to the security supervisor who interviewed him; Superintendent Connell added, however, that "the goal of the facility is to strictly enforce the no smoking policy [as] evidenced in the amount and severity of the disciplinary sanctions imposed for violations." (Goord Aff. Ex. A: 10/27/03 Connell Memo to Denis.)

Finally, Commissioner Goord notes that to the extent Denis is complaining about the lack of enforcement of DOCS' Smoke Free Policy at the facility level (Cayuga, Oneida and Mid-Orange), Denis' "complaints are best addressed to the respective Superintendents" since ordinarily DOCS' "Central Office will not intervene in the enforcement of an individual facility's smoking policy." (Goord Aff. ¶ 8.)

Defendant Dr. Lester Wright is Deputy Commissioner of DOCS and its Chief Medical Officer. (Dkt. No. 34: Wright Aff. Ex. 1.) His duties "include the development and implementation of medical policies and practices for inmates in the custody of DOCS." (Wright Aff. ¶ 3.) The day-to-day medical operation of each correctional facility is overseen by the facility medical director, who reports to the regional medical director, who reports to Dr. Wright. (Wright Aff. ¶ 4.)

As Chief Medical Officer, Dr. Wright's office "routinely receives thousands of letters per year" from inmates, which letters are read by his staff and forwarded to the appropriate person for response. (Wright Aff. ¶ 5.) Denis' only letter to Dr. Wright was responded to by Oneida Superintendent Connell. (Wright Aff. ¶ 7 & Ex. A; see page 11 above.)

DOCS' Smoking Policy was formulated by DOCS' "Smoking Committee." (Wright Aff. ΒΆ 8.) Dr. Wright "was not a member of DOCS' Smoking Committee" and "did not participate in the formulation, review or approval of DOCS' system-wide smoking policy," nor does he have any ...


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