The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Anthony Gillsepie alleges that his constitutional rights were violated when he was exposed to second-hand smoke, also known as environmental tobacco smoke ("ETS"), in the dormitory bathroom at Gouverneur Correctional Facility. Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 50.) For the reasons that follow, I recommend that Defendants' motion be granted.
I. FACTUAL AND PROCEDURAL SUMMARY
Plaintiff, a state prisoner, was housed at Gouverneur Correctional Facility in 2006 and 2007. In a medical history form completed on September 20, 2006, Plaintiff indicated that he had suffered hypertension, chicken pox, and vision impairment in the past and that he currently suffered chronic back pain for which he was taking pain medication. He denied suffering from asthma in the past. (Dkt. No. 50-3, Ex. B.)
Plaintiff was housed in a dormitory from October 2006 to February 2007. (Dkt. No. 50-2 ¶ 10.) Plaintiff claims that in October 2006, he complained several times to Defendant Correction Officer Cocoa about high levels of second hand smoke in the dormitory bathroom. Plaintiff said that the smoke posed an unreasonable risk to his health and asked Defendant Cocoa to enforce the facility ban on smoking. She did not do so. (Dkt. No. 1 (Facts) ¶ 9.) On other occasions in October and November 2006, Plaintiff asked Defendant Cocoa and Defendant Correction Officer Hicks to enforce the ban. (Dkt. No. 1 (Facts) ¶ 11.)
On October 29, 2006, Plaintiff wrote a letter to Defendant Justin Taylor, the superintendent of Gouverneur, regarding his concerns about the second hand smoke in the dormitory bathroom. (Dkt. No. 1 (Facts) ¶ 10.) Plaintiff stated that the smoke exposed him to "an unreasonable risk of harm to my health" and that he should not have to "suffer from the smell of tobacco smoke when I use the dorm bathroom." (Dkt. No. 1, Ex. A.) Plaintiff did not state that he suffered from asthma.
Plaintiff filed a formal grievance regarding the smoke in the dormitory bathroom. (Dkt. No. 1, Ex. A.) The inmate grievance resolution committee ("IGRC") denied the grievance on November 21, 2006. (Dkt. No. 1, Ex. A.) The IGRC stated that Plaintiff "will not be removed from his present dorm, also this facility will continue to follow the no smoking and hazzard policy." Id. Plaintiff appealed to Defendant T. Eagan, the director of the inmate grievance program. (Dkt. No. 1 (Facts) ¶ 16, Ex. B.) Plaintiff did not state that he suffered from asthma. The central office review committee denied the appeal on December 20, 2006, advising Plaintiff "to address his concerns to the area supervisor for the most expeditious means of resolution." (Dkt. No. 1 (Facts) ¶ 17, Ex. C.)
Plaintiff filed the complaint in this action on June 29, 2007. (Dkt. No. 1.) The complaint alleges that Plaintiff suffered light headaches, dizziness, and shortness of breath as a result of exposure to ETS. (Dkt. No. 1 (Facts) ¶ 13.) The complaint does not mention the word "asthma." Plaintiff requests damages, a "stronger policy on inmates violating the no smoking policy," and an order requiring "all defendants and officials to enforce the no smoking policy with zero tolerance." (Dkt. No. 1 (Causes of Action) ¶ 7.)
Defendants now move for summary judgment. (Dkt. No. 50.) Plaintiff has opposed the motion. (Dkt. No. 51.)
II. APPLICABLE LEGAL STANDARDS
A. Legal Standard Governing Motions for Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is warranted if "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008). Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts."*fn1 Rather, "[a] dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."*fn2 In determining whether a genuine issue of material*fn3 fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party.*fn4
B. Legal Standard Governing Motion to Dismiss for Failure to State a Claim
To the extent that a defendant's motion for summary judgment under Federal Rule of Civil Procedure 56 is based entirely on the allegations of the plaintiff's complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). As a result, "[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment." Schwartz v. Compagnise General Transatlantique, 405 F.2d 270, 273-74 (2d Cir. 1968) [citations omitted]; accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) ("This Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties."). Moreover, even where a defendant has not advanced such a failure-to-state-a-claim argument on a motion for summary judgment, a district court may, sua sponte, ...