The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this pro se prisoner civil rights action filed by Kenneth Ward ("Plaintiff") against nine employees of the New York State Department of Correctional Services ("Defendants") pursuant to 42 U.S.C. § 1983 are (1) Defendants' motion for summary judgment (Dkt. No. 85), (2) United States Magistrate Judge Randolph F. Treece's Report- Recommendation recommending that Defendants' motion be granted in part and denied in part (Dkt. No. 97), and (3) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 99). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendants' motion for summary judgment is granted in part and denied in part.
A. Plaintiff's Amended Complaint
On January 28, 2008, Plaintiff filed his Amended Complaint. (Dkt. No. 64.) Construed with the utmost of liberality, Plaintiff's Amended Complaint alleges that, between approximately May 2006 and January 2008, while he was incarcerated at Franklin Correctional Facility in Malone, New York ("Franklin C.F."), his civil rights were violated in the following manner: (1) Defendants Dutil, Sears, Demars, Habeck, Rock, Goord, Fischer, and LeClaire were deliberately indifferent to the conditions of his confinement in violation of the Eighth Amendment; (2) Defendants Dumas, Rock, and the medical staff of Franklin C.F.*fn1 were deliberately indifferent to his medical needs in violation of the Eighth Amendment; (3) Defendant Dumas and the medical staff retaliated against him in violation of the First Amendment; (4) Defendant Demars denied him due process by failing to address his request for a reasonable accommodation pursuant to the Americans with Disabilities Act ("ADA"), in violation of the Fourteenth Amendment; (5) the Franklin medical staff conspired to violate his constitutional rights; and (6) all of the named Defendants violated various articles of the New York State Constitution and other New York statutes. (See generally, Dkt. No. 64 [Plf.'s Am. Compl.].)
More specifically, Plaintiff alleges as follows: (1) Defendants failed to enforce the New York State Department of Correctional Services' ("DOCS") smoking policy at Franklin C.F., thereby exposing him to high levels of environmental tobacco smoke ("ETS") that caused his asthma condition to deteriorate and placed him at risk for more serious diseases, such as cancer; (2) Defendants conspired to "cover up" their failure to enforce the smoking rules; (3) Defendant Dumas and the medical staff at Franklin C.F. improperly took and tracked his vital signs when he received medical treatment, made him wait for up to an hour before receiving treatment for his asthma, and he did not allow him to see a doctor from July 17 through September 4, 2007; (4) the medical staff delayed providing him with medical treatment and failed to document his medical records because he filed grievances and complaints; and (5) Defendant J.D. Demars denied his request for a reasonable accommodation to participate in services, including showering, which he was not able to participate in because of the environment. (Id.)
For a more detailed recitation of the factual allegations giving rise to Plaintiff's claims, the Court refers the reader to the Amended Complaint in its entirety, and Magistrate Judge Treece's Report-Recommendation in its entirety. (Dkt. Nos. 64, 97.)
B. Defendants' Motion for Summary Judgment and Plaintiff's Response
On September 15, 2008, Defendants filed a motion for summary judgment seeking dismissal of all of Plaintiff's claims. (Dkt. No. 85.) In their motion, Defendants argue as follows: (1) Plaintiff has failed to state a claim under the Fourth and Fifth Amendments for unreasonable search and seizure, or a compulsion to give self-incriminating evidence, because he has failed to allege facts plausibly suggesting such a violation; (2) Plaintiff's claims under New York law should be dismissed for failure to state a claim because a violation of state law does not give rise to claim under 42 U.S.C. § 1983; (3) Plaintiff has failed to state a claim against Defendants Fischer, LeClaire, Rock, Sears, and Habeck because he has failed to allege facts plausibly suggesting, and/or adduce admissible record evidence establishing, that those supervisors were personally involved in the constitutional violations he alleges; (4) Plaintiff has failed to establish an Eighth Amendment claim for deliberate indifference to serious medical needs because he has failed to adduce admissible record evidence establishing that he experienced a serious medical need during the time in question, and/or that Defendants acted with criminal recklessness in disregard of any such need; (5) Plaintiff has failed to establish an Eighth Amendment claim for inadequate prison conditions based on his exposure to ETS, because he has failed to adduce admissible record evidence establishing a causal connection between his filing of grievances and the adverse action that he allegedly experienced; (7) Plaintiff has failed to establish a Fourteenth Amendment claim for violation of his procedural due process rights because he has failed to adduce admissible record evidence establishing that he suffered an atypical and significant hardship in relation to the ordinary incidents of prison life; (8) Plaintiff's claim under the ADA should be dismissed because he has failed to adduce admissible record evidence establishing that he suffered from a "disability" under the ADA; (9) Plaintiff has failed to state a claim for conspiracy because he has failed to allege facts plausibly suggesting that there was a meeting of the minds between Defendants to act together to inflict an unconstitutional injury on Plaintiff, and that they took an act in furtherance of such an agreement; and (10) based on the current record, Defendants are entitled to qualified immunity as a matter of law. (Dkt. No. 85, Attach. 14, at 11-24.)
On February 17, 2009, after a three-and-one-half-month deadline extension was granted to Plaintiff by the Court, Plaintiff submitted his response in opposition to Defendants' motion for summary judgment. In his response, Plaintiff argues as follows: (1) supervisory officials Fischer, Goord, LeClaire, Sears, Rock and Habeck should not be dismissed as Defendants from this action because the record contains evidence that they were personally involved in the alleged constitutional violations; (2) the record contains evidence in support Plaintiff's Eighth Amendment claim for deliberate indifference to his serious medical needs; (3) the record contains evidence in support Plaintiff's Defendants retaliated against him in violation of the First Amendment; (4) Defendant Demars violated Plaintiff's due process rights, because Demars failed to follow the procedure created by the State of New York through its implementation of DOCS Directive 2614; and (5) based on the current record, Defendants are not entitled to qualified immunity as a matter of law. (Dkt. No. 94, at 2-10.)
C. Magistrate Judge Treece's Report-Recommendation
On September 16, 2009, Magistrate Judge Treece issued a Report-Recommendation recommending as follows: (1) that Plaintiff's Eighth Amendment conditions-of-confinement claim against Defendants Sears, Demars, Habeck, Rock, Goord, Fischer, and LeClaire be dismissed; (2) that Plaintiff's Eighth Amendment deliberate-indifference claim against Defendants Dumas, Rock, and the medical staff of Franklin C.F. be dismissed; (3) that Plaintiff's First Amendment retaliation claim against Defendant Dumas and the medical staff be dismissed; (4) that Plaintiff's Fourteenth Amendment procedural due process claim against Defendant Demars be dismissed; (5) that Plaintiff's conspiracy claim against the Franklin medical staff be dismissed; (6) that Plaintiff's claims under the New York State Constitution and other New York statutes against all Defendants be dismissed; and (7) that Plaintiff's Eighth Amendment conditions of confinement claim against Defendant Dutil not be dismissed pursuant to Fed. R. Civ. P. 56 due to the existence of genuine issues of material fact regarding this claim. (Dkt. No. 97, at 9-29.)
D. Plaintiff's Objections
On November 5, 2009, after an extension of time was granted by the Court, Plaintiff filed his Objections to the Report-Recommendation, arguing, inter alia, that Magistrate Judge Treece improperly recommended the dismissal of Defendants LeClaire, Jr., Sears, Demars, Goord, Fischer, and Dumas. (Dkt. No. 99.) More specifically, Plaintiff argues, inter alia, as follows: (1) there is no right to privacy in the correctional facility, which makes it difficult for corrections officers to enforce a smoking ban; (2) Defendants failed to consider and implement any of Plaintiff's proposed solutions to the smoking problem; (3) the smoking violation reports provided by Defendants, which the Court relied on, in part, in making its determinations, are incomplete; (4) because Defendants Fischer, LeClaire received and acted on his grievances and complaints, they were personally involved in the constitutional violations; (5) as a result of his complaints, Defendants' subordinates repeatedly delayed his receipt of medical treatment and failed to properly ...