The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Nurideen Islam, suing under 42 U.S.C. § 1983, alleges that he was deprived of rights protected by the Eighth and First Amendments to the U.S. Constitution when he was subjected to second-hand smoke by state prison officials at the Fishkill Correctional Facility ("FCF").
Seven individuals are named as defendants: Corrections Officers Pitre and Hirsch, Sergeant Turner, Lieutenant Simmons, William Connolly, the Superintendent of FCF, Lucien J. Leclaire, the Deputy Commissioner of Facilities Operations and Acting Commissioner of the New York Department of Corrections ("DOCS") and Brian Fischer, Commissioner of DOCS.
Defendants Fischer, Leclaire and Connolly moved to dismiss on the ground that the complaint fails to allege facts against them as supervisors which are sufficient to satisfy Rule 8(a), Fed. R. Civ. P. Defendant Hirsch moved for partial dismissal of the complaint on other grounds. All defendants assert the defense of qualified immunity and also assert that all claims for money damages against them in their official capacities must be dismissed.
For the reasons set forth herein, the motion is granted in part and denied in part.
The complaint alleges that plaintiff has suffered injuries in the past and that he is at risk of serious harm in the future due to his daily exposure to dangerous levels of second-hand tobacco smoke inside the housing unit in which he resides. He further alleges that, as a result of his complaints about the indoor smoking situation, he has been subjected to threats and mistreatment by inmates and corrections officers.
Plaintiff alleges that, on October 6, 2006, he filed a grievance in which he alleged, inter alia, that he has been exposed to dangerous levels of second-hand smoke as a result of prison staff smoking indoors. Paragraph 18 of the Complaint alleges that Superintendent Connolly received plaintiff's grievance and found that there were no facts to support plaintiff's assertions. In paragraph 25, plaintiff alleges that he appealed Superintendent Connolly's decision. Superintendent Connolly is also alleged in paragraphs 46 and 59 to have denied subsequent grievances as without merit. Those decisions were also appealed. He also alleges that he wrote to Superintendent Connolly recommending that indoor air quality be tested weekly and/or monthly. Commissioner Fischer is alleged to have the responsibility of ensuring that subordinates comply with DOCS policies and procedures. He, along with all defendants, is alleged to have been indifferent to the health dangers of environmental tobacco smoke of which they were aware. Deputy Commissioner Leclaire is only mentioned in the general allegations relating to defendants and in connection with letters plaintiff received from DOCS, wherein the author states that he is responding to plaintiff's complaints at the request of Governor Pataki and Acting Commissioner Leclaire. Corrections Officer Hirsch is alleged to have smoked in the housing unit, to have failed to enforce the ban on indoor smoking, and to have incited hostility amongst the inmates and other staff members towards plaintiff. Similar allegations are lodged against non-movant defendants Simmons, Turner and Pitre.
On a motion to dismiss, a court must accept the allegations of the complaint as true and draw all reasonable inferences in the non-movant's favor. See Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007). Pro se pleadings are to be given a liberal and generous construction and are to be read to "raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Rule 8(a)(2), Fed. R. Civ. P., requires only "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in Twombly). When a defendant tests the sufficiency of a complaint by a motion under Rule 12(b)(6), Fed. R. Civ. P., "[t]o survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, 493 F.3d at 98 (quoting Twombly, 127 S.Ct. at 1965). The complaint is measured against a flexible "plausibility standard," which obligates the "pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal, 490 F.3d at 157-58. This "does not require heightened fact pleading of specifics," In re Elevator Antitrust Litig., __ F.3d __, 2007 WL 2471805, at *2 (2d Cir. Sept. 4, 2007); see Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007); however, it does "require enough facts to 'nudge [plaintiff's] claims across the line from conceivable to plausible.'" Elevator Antitrust Litig., 2007 WL 2471805, at *2 (quoting Twombly, 127 S.Ct. at 1974) (alteration in Elevator Antitrust Litig.).
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). "The personal involvement of a supervisor may be established by showing that he (1) directly participated in the violation, (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated." Iqbal, 490 F.3d at 152-53 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Liability may not be anchored in a theory of respondeat superior. Hemmings v. Gorczyk, 134 F.3d 104, 109 n.4 (2d Cir. 1998) (per curiam). "The bare fact that [a defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [a] claim." Colon, 58 F.3d at 874.
The mere receipt of a letter, complaint or grievance from an inmate is insufficient to establish a claim of personal involvement by a correctional supervisor. See Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) (collecting cases holding that ignoring prisoners' letters of protest and requests for investigation is insufficient to premise section 1983 liability); Thompson v. New York, No. 99 Civ. 9875 (GBD) (MHD), 2001 WL 636432, at *7 (S.D.N.Y. Mar. 15, 2001); Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 2000); see also Johnson v. Goord, No. 01 Civ. 9587 (PKC), 2004 WL 2199500, at *7 (S.D.N.Y. Sept. 29, 2004). However, "where a supervisory official receives and acts on a prisoner's grievance (or substantially reviews and responds to some other form of inmate complaint), personal involvement will be found under the second Colon prong: 'the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong.'" Williams v. Fisher, No. 02 Civ. 4558 (LMM), 2003 ...