The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #28.
Plaintiff, an inmate of the New York State Department of Correctional Services ("DOCS"), at the Attica Correction Facility ("Attica"), alleges that the defendants, Commissioner Glenn S. Goord; Superintendent Walter R. Kelly; Sergeant Eugene Stachewicz; Corrections Officer ("C.O."), Ronald Christensen; C.O. Martin McDonald; and C.O. Mary Barone, violated his Eighth Amendment right to be free from cruel and unusual punishment by routinely exposing him to excessive levels of second hand or environmental tobacco smoke ("ETS"), and threatened, intimidated, and harassed him in retaliation for his complaints regarding such exposure. Dkt. #1. This Court's prior order granting defendants' motion for summary judgment dismissing the complaint was reversed, in part, by the Court of Appeals for the Second Circuit. See Davis v. New York, 316 F.3d 93 (2d Cir. 2002).
Currently before the Court is defendants' motion for summary judgment (Dkt. #108), dismissing plaintiff's complaint for failure to establish the subjective component of an Eighth Amendment violation. Dkt. #109. Defendant Goord also seeks summary judgment on the basis of lack of personal involvement. Dkt. #109. Defendants McDonald, Christiansen and Barone also seek summary judgment on the ground that plaintiff failed to exhaust his allegations of physical assault, which do not rise to the level of excessive force in any event. Dkt. #109. Each of the defendants also seeks summary judgment on the ground of qualified immunity. Dkt. #109. For the following reasons, defendants' motion is denied in part and granted in part.
Plaintiff was transferred to Attica on January 26, 1993. Dkt. #116, ¶ 4. He is a non-smoker. Dkt. #116, ¶ 14. When exposed to ETS, plaintiff alleges that he suffers from "watery eyes, severe congestion, allergic reactions, dizziness, and blackouts." Dkt. #116, ¶ 15. He also fears that he "will eventually develop a more serious and life-threatening illness or disease as a result of [his] prolonged forced exposure to excessive levels of second hand smoke while in the custody of DOCS." Dkt. #116, ¶ 16.
As of March 21, 1994, Attica established a Clean Air Policy prohibiting smoking in all public areas of the facility. Dkt. #117, Exh. W. The policy recognized that The U.S. Department of Health and Human Services has estimated that 30% of all cancers and 85% of all lung cancers are caused by smoking. Further, more than 80% of severe lung diseases such as emphysema and chronic bronchitis are linked to smoking. Risks associated with "passive smoking" are becoming more precisely identified as evidence accumulated [sic]. Studies have demonstrated higher rates of cancer among non-smokers who are exposed to smoke from tobacco used by smokers.
Dkt. #117, Exh. W, p.1. The policy allowed inmates to smoke in their cells and in the recreation yard, but not in congregate areas. Dkt. #117, Exh. S, p.9; Dkt. #117, Exh. T, pp.43-46; Dkt. #117, Exh. V, p.26. Corrections officers were permitted to smoke anywhere that inmates were permitted to smoke. Dkt. #117, Exh. V, pp.30-31.
Beginning January 23, 1996, plaintiff resided in the honor block, a housing area which affords certain privileges to inmates with exemplary conduct records. Dkt. #116, ¶ 7. For example, honor block cells are larger and inmates residing within honor block have access to cooking stations and a separate day room and recreation yard, have fewer restrictions on their movement and are generally only confined to their cells at night. Dkt. #116, Exh. R, pp.18, 36; Dkt. #117, Exh. U, p.5; Dkt. #117, Exh. V, pp.15-16, 23.
Many of the inmates housed on honor block smoke. Dkt. #116, ¶ 20; Dkt. #117, Exh. T, p.70. C.O. Barone testified at her deposition that the smell of cigarettes could generally be detected upon approach of the cell of an inmate who was smoking, but denied that the smell was pervasive. Dkt. #117, Exh. V, p.33. To accommodate plaintiff's request for a cell in an area with less smokers, C.O. McDonald moved him to 43 company, cell 19, on March 3, 1997. Dkt. #116, ¶ 18 & Exh. R, pp.44-45, 69. 43 company is comprised of 22 honor block cells located against an interior wall with cell doors which exit to a gallery with 17 exterior windows. Dkt. #116, ¶ 13.
On January 1, 1998, plaintiff alleges that C.O. McDonald physically assaulted, threatened, and verbally abused him on the stairway between the first and second floor of honor block. Dkt. #116, ¶ 54. On January 3, 1998, plaintiff claims that C.O. McDonald "deliberately came across the corridor out of his way and physically assaulted me by bumping into me as I was walking down the corridor heading toward D-block." Dkt. #116, ¶ 55. "Because of this persistent course of intimidation and harassment by defendant McDonald, by letter dated January 19, 1998, [plaintiff] wrote the Inspector General's office complaining about his conduct and asking for an investigation." Dkt. #116, ¶ 56.
To minimize his exposure to ETS, plaintiff kept the gallery window across from his cell open. Dkt. #116, ¶ 17. Generally speaking, inmates were permitted to open and close the windows at will as weather conditions allowed. Dkt. #117, Exh. T, pp.54-55; Dkt. #117, Exh. V, pp.24-25, 38. However, C.O. Barone testified at her deposition that inmates were not permitted to "wedge" the windows open with towels or other objects in an attempt to keep the wind from blowing them shut. Dkt. #117, Exh.
V, pp.36-38. C.O. Barone specifically told plaintiff to stop wedging the windows open despite plaintiff's complaint that the gallery smelled of body odor, grease, cooking and cigarettes. Dkt. #117, Exh. V, p.38. C.O. Christensen also acknowledged at his deposition that plaintiff explained that he wanted the windows open because of the secondhand smoke and that he complained about secondhand smoke. Dkt. #117, Exh. T, pp.59-60, 64.
C.O. McDonald testified at his deposition that the inmates were complaining to him that it was too cold because plaintiff was opening all of the windows on the gallery. Dkt. #116, Exh. R, pp.48-49. C.O. McDonald testified that he approached plaintiff twice on a one-to-one basis and said:
Mr. Davis, you can't be opening these windows. You are creating a disturbance with the people. The thing he explained to me was he has problems breathing, difficulty breathing and I advised him again to go to sick call.
Dkt. #116, Exh. R, p.49. Plaintiff continued opening the windows and the other inmates continued to complain, so C.O. McDonald went to his supervisor, Sgt. Stachewicz. Dkt. #116, Exh. R, p.50. C.O. McDonald testified that Mr. Davis, I think for the third time, approached me about difficulty breathing, that's why he has to have the windows open and I explained to him that you cannot continue this behavior. I said you are creating a disturbance and I would be forced to move you out of the honor block.
On December 29, 1998, plaintiff alleges that C.O. McDonald and Sgt. Stachewicz informed him that he would be moved out of honor block if he continued to open the window across the gallery in front of his cell. Dkt. #116, ¶ 25. Although plaintiff protested that other inmates opened their windows, Sgt. Stachewicz allegedly informed plaintiff that "the only complaints I have received are about the windows across from your cell being opened." Dkt. #116, ¶ 27. Plaintiff alleges that he told C.O. McDonald and Sgt. Stachewicz that he opened the window because otherwise,
There's smoke in there. Those guys are smoking in there, I don't want to smell all that smoke. McDonald said ...