The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Darryl S. Scott brings this action pursuant to 42 U.S.C. §1983. Plaintiff alleges that his health was seriously impaired by involuntary exposure to environmental tobacco smoke ("ETS") for extended periods while he was in the custody of the New York State Department of Correctional Services ("DOCS"). Plaintiff claims that defendants' deliberate indifference to his serious medical needs violated the Eighth Amendment prohibition against cruel and unusual punishment. In a Decision and Order dated February 14, 2002, the court granted in part defendants' first motion for summary judgment, dismissing plaintiff's claims under the New York State Clean Air Act and for injunctive relief, and dismissing all claims against defendants Coombe, Irvin, Bartlett, Kent, Hotchkiss, John Doe, and Jane Doe. Item 73. As a result, plaintiff's remaining Eighth Amendment claim relates to his incarceration at Oneida and Livingston Correctional Facilities. In an order entered May 23, 2002, the court granted defendants permission to file a supplemental motion for summary judgment to further isolate the issues in advance of trial. Item 78.
Defendants filed this motion for summary judgment on August 30, 2002. Item 81. They argue that plaintiff has failed to establish either an Eighth Amendment violation, that he has suffered damages as a result of exposure to ETS, or that the defendants were personally involved in the alleged constitutional violations. Defendants also argue that they are entitled to qualified immunity. Plaintiff has filed two affidavits and two memoranda of law in opposition to defendants' summary judgment motion. For the reasons that follow, defendants' motion is denied.
Plaintiff was convicted of robbery, second degree, in Erie County Court, Buffalo, New York, in 1995. He was received into the DOCS system on March 13, 1995, and was housed at Oneida Correctional Facility ("Oneida") from April 3, 1995 to September 12, 1995, and at Livingston Correctional Facility ("Livingston") from September 12, 1995 to May 30, 1996. Item 67, ¶¶ 2-4, 14. During the relevant time period, both facilities had policies which allowed smoking by inmates and staff in the living and recreation areas. Plaintiff's medical records indicate that he has a history of allergies, hay fever, headaches, heart palpitations, and sinusitis. Plaintiff is not a smoker and has never been diagnosed with a serious respiratory illness such as bronchitis or asthma.
In support of their motion for summary judgment, defendants offered a declaration of David Hughes, the plant superintendent at Oneida. Mr. Hughes stated that Oneida has a mechanical ventilation system consisting of fans that operate 24 hours per day. Item 83,
¶ 4. Air is supplied at 15 cubic feet per minute, in accordance with building codes for new buildings. Id. Fresh air is also supplied through windows and doors. During the relevant time periods, the ventilation system was fully maintained and functional. Id., ¶¶ 6-7. Mr. Hughes admitted that "[w]hile undoubtedly plaintiff would be exposed to a minimal amount of second-hand smoke due to inmates smoking on the unit, proper ventilation was always provided to insure the residents' health and safety was not jeopardized." Id., ¶12. Defendants also submitted a declaration of Kevin Fronk, maintenance supervisor at Livingston. Item 86. Mr. Fronk stated that Livingston was newly constructed and opened in 1991. Each building consists of two dormitory units, with approximately 60 inmates residing in each dormitory. Id., ¶ 2. Each building is ventilated by three exhaust fans in addition to screened windows and doors. Id., ¶ 3. During the relevant time period, the ventilation system in G-1 dormitory was fully maintained and functional and provided fresh air in excess of 10 cubic feet per minute, the standard set by the American Correctional Association. Id., ¶¶ 4-8.
In a declaration, defendant Bryington stated that he was assigned to Livingston during the time period in which plaintiff was housed there. Item 84, ¶ 1. The dormitory units consisted of rows of inmate cubicles, which housed one bed and two lockers and were separated by walls approximately four feet high. Id., ¶ 5. During the relevant time period, inmates were allowed to smoke in the dormitory units as well as the recreation and TV areas. Id., ¶ 7. Defendant Bryington stated that plaintiff never complained of cigarette smoke, and Bryington had no personal involvement in the decision to deny plaintiff a cubicle with a window. Id., ¶¶ 9, 15.
Plaintiff's medical records include numerous references to allergies, hay fever, and sinusitis, and to prior nasal surgery. See Item 82, Exhibit A. Entries indicate that plaintiff frequently complained of symptoms including wheezing, shortness of breath, sinus infections, headaches, chest pain, rapid heartbeat, and difficulty sleeping. He also complained about his exposure to ETS. Id. Dr. Frederick Grabo, a doctor at Oneida during the relevant time period, stated in a declaration that plaintiff was treated for various ailments, including chest pain, nasal congestion, headache, coughing, wheezing, allergies, and heart palpitations. Item 82. Plaintiff complained of exposure to ETS continually during his stay at Oneida. Id., ¶¶ 11, 13, 14, 18, 20, 26, 27, 28, 31, 50, 52. Plaintiff was treated with diet restrictions, vitamins, and medications such as nasal spray, cough syrup, and antacids. Id., ¶¶ 14-16, 19, 21, 26, 31, 33, 36. A chest x-ray taken in June 1995 indicated that plaintiff's lungs were normal. Id., ¶ 24. Plaintiff requested a "window cube," a cubicle in the dormitory next to a window, which was approved on May 9, 1995 for a 30-day evaluation period. Id., ¶ 39. Plaintiff remained in the window cube until August 1995, when Dr. Grabo determined that plaintiff's medical condition did not warrant a window cube. Id., ¶ 42. It was the facility policy that window cubes were assigned to inmates with "documented, severe, disabling smoke-related illness." Id., ¶ 58.
In his declaration, Dr. Benjamin Augustin stated that he is the Facility Health Services Director at Livingston and has held the position since 1991. Item 85, ¶ 1. He reviewed plaintiff's medical records and acknowledges that plaintiff has a history of complaints of headaches, allergies, and hay fever. Id., ¶ 6. On September 28, 1995 and October 4, 1995, plaintiff requested that he be moved to a window cube. Id., ¶¶ 14, 16. Dr. Augustin denied the request because plaintiff did not have a medical condition such as asthma or other respiratory illness which might warrant a change in location. Id. A chest x-ray taken on January 15, 1996 indicated that plaintiff's chest was normal. Id., ¶ 34. While at Livingston, plaintiff continually complained of ETS exposure. Id., ¶¶ 14, 15, 16, 17, 23, 24, 26, 29, 30, 33, 51.
In response to the motion, plaintiff filed an affidavit, in which he stated that the medical staffs at both Oneida and Livingston failed to accurately record his complaints about ETS. Item 102, ¶ 6. He states that his complaints of eye, nose, and throat irritation, headaches, chest and heart problems, dizziness, coughing, and shortness of breath are all consistent with excessive exposure to ETS. Id., ¶ 22. Plaintiff also states that the ventilation fans at Livingston were frequently turned off due to their noise, and that a cloud of smoke often hung in the air in the dormitory at both Livingston and Oneida. Id., ¶¶ 36, 37. Plaintiff states that at Oneida, at least half of the inmates smoked in the dormitory units. Id., ¶¶ 37-38. At Livingston, there were more smokers in the dormitories than at Oneida. Id., ¶ 41.
Defendants argue that plaintiff has failed to raise an issue of fact that he was exposed to an unreasonably high level of ETS. Item 87, pp. 4-8. They also argue that plaintiff's injuries are not sufficiently severe to form the basis of an Eighth Amendment claim (id., pp. 8-11) and that neither Dr. Grabo nor Dr. Augustin acted with deliberate indifference to plaintiff's medical needs. Id., pp. 12-13. Defendants further argue that plaintiff has shown no damages causally related to exposure to ETS (id., pp. 14-16), that defendants Hollins, McClellan, Casey, Belliner, and Bryington were not ...