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finding that inmate did not establish a First Amendment retaliation claim based on correctional officer's threat to retaliate against all prison library workers unless inmate dropped his grievance regarding officer's smoking in law library because, even assuming inmate suffered "great stress and depression," inmate did not withdraw his grievance, which was thoroughly investigated and appealed to the highest level
Summary of this case from Johnson v. BrownOpinion
9:00-CV-1905 (FJS/GJD)
July 11, 2003
ANTHONY G. GILL, Five Points Correctional Facility, Romulus, New York, for Plaintiff Pro se.
MARIA MORAN, AAG, Syracuse, New York, for Defendant.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff filed the instant civil rights action pursuant to 42 U.S.C. § 1983 on December 11, 2000. He asserts that Defendant violated his Eighth Amendment right to be free from cruel and unusual punishment by exposing him to environmental tobacco smoke and by continuing the exposure with the knowledge that it adversely impacted his health. In addition, Plaintiff claims that Defendant threatened retaliation against the library staff unless Plaintiff dropped his complaint, in violation of his First and Eighth Amendment rights.
To support his claims, Plaintiff alleges that Defendant smoked while on duty within the law library, the general library, while at his assigned post, while traversing in and about the prison's media center, and while at the law library desk. Plaintiff further states that, on numerous occasions, he requested that Defendant not smoke cigarettes in the law library or general library areas because he suffered from chronic asthma and breathing conditions, which cigarette smoke aggravated, and that, on each occasion, Defendant ignored Plaintiff's requests to stop.
Plaintiff filed an institutional grievance against Defendant for smoking while on duty and alleges that Defendant then threatened to retaliate against all of the law library workers unless Plaintiff withdrew his grievance. Plaintiff asserts that Defendant's threat of retaliation created a hostile personal work environment and that the library staff alienated and treated him indifferently, resulting in great stress and depression.
On April 10, 2002, Defendant moved for summary judgment on the grounds (1) that Plaintiff failed to establish a constitutional cause of action under § 1983, (2) that Plaintiffs pendent state law claims should be dismissed, and (3) that qualified immunity barred Plaintiffs claims. Plaintiff cross-moved for summary judgment, contending that he had established a prima facie cause of action under § 1983.
On December 10, 2002, Magistrate Judge DiBianco issued a Report-Recommendation in which he recommended that the Court grant Defendant's motion for summary judgment and deny Plaintiffs cross-motion. Specifically, Magistrate Judge DiBianco found (1) that Plaintiffs Eighth Amendment claim based upon his exposure to environmental tobacco smoke failed because Plaintiff had not established that he was exposed to unreasonably high levels of cigarette smoke and (2) that Plaintiffs First Amendment retaliation claim failed because the threats that Defendant allegedly made did not deter Plaintiff from exercising his First Amendment rights.
Magistrate Judge DiBianco also recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims based upon his recommendation that the Court dismiss Plaintiff's federal claims.
Presently before the Court are Plaintiff's objections to Magistrate Judge DiBianco's Report-Recommendation.
II. DISCUSSION
A. Standard of review
The Court reviews de novo those findings and recommendations in a magistrate judge's report-recommendation to which a party has filed timely objections and for clear error those parts of the report-recommendation to which a party does not object. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72; Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).
A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)).
B. Plaintiff's Eighth Amendment claim
To establish an Eighth Amendment violation, a plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm and that prison officials acted with "deliberate indifference." See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). To establish deliberate indifference, a plaintiff must demonstrate that prison officials actually knew of and disregarded an excessive risk of harm to his health and safety. See id. at 837.
Specifically, in the case of exposure to environmental tobacco smoke ("ETS"), a plaintiff must satisfy the objective prong of an Eighth Amendment claim by showing that he was exposed to unreasonably high levels of ETS. See Helling v. McKinney, 509 U.S. 25, 35 (1993). Determining the objective factor "requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS." Id. at 36. The court also must assess "whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id.
In addition to the objective prong, a plaintiff must satisfy the subjective requirement of an Eighth Amendment claim by showing that the defendant was deliberately indifferent to the plaintiffs medical needs or safety in exposing him to ETS, "determined in light of the prison authorities' current attitudes and conduct[.] Id.
In Helling, the plaintiff alleged that he was assigned to a cell with an inmate who smoked five packs of cigarettes per day and further asserted a variety of health problems allegedly caused by his exposure to ETS. See Helling, 509 U.S. at 28. Based upon these facts, the Supreme Court held that the plaintiff had stated a valid cause of action under the Eighth Amendment and that there were issues of fact regarding both the subjective and objective elements required to prove an Eighth Amendment violation that precluded summary judgment. See id. at 35.
Likewise, in Warren v. Keane, 937 F. Supp. 301 (S.D.N.Y. 1996), the court held that summary judgment was not appropriate because there was a question of fact as to whether the levels of ETS to which the plaintiffs were exposed violated contemporary standards of decency. See id. at 305. In that case, the jail's policy allowed for smoking within the cells as well as in the recreation room, and the plaintiffs alleged that exposure to that level of ETS in unventilated cells and common areas at the prison for five years created a serious long-term health risk. See id. at 303. Moreover, they asserted that the prison authorities did not enforce the non-smoking policies that did exist in certain areas. See id.; see also McPherson v. Coombe, 29 F. Supp.2d 141 (W.D.N.Y. 1998) (denying summary judgment where the plaintiff was housed with forty-one smokers in a poorly ventilated housing unit because of factual questions as to whether smoke conditions in the prison violated contemporary standards of decency and whether prison officials were aware of potential risks to the plaintiff's future health). But see Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996) (granting summary judgment where the plaintiff, a mild asthmatic, was housed with a smoker for 133 days).
Although the asthmatic plaintiff's involuntary exposure to ETS was greater in Oliver than in the present case, Oliver is still distinguishable because it was decided more than seven years ago. As the courts have noted, society's attitude toward exposure to ETS is evolving. See Helling, 509 U.S. at 29 (stating that standards of decency are evolving on the issue of involuntary exposure to ETS); see also McPherson, 29 F. Supp.2d at 145 (stating that there is a growing recognition of the health risk posed by exposure to ETS). Thus, while this decision remains good law, it may not provide the current and accurate parameters for judging what levels of exposure to ETS are sufficient to support an Eighth Amendment claim.
In Davidson v. Coughlin, 920 F. Supp. 305 (N.D.N.Y. 1996), Judge McAvoy granted summary judgment for the defendant because the plaintiff failed to provide any evidence about the level of smoke in the facility, the degree of exposure, or any medical problems associated with exposure to ETS. See id. at 309. Similarly, in Lacroix v. Williams, No. 97-CV-0790E(F), 2000 WL 1375737 (W.D.N.Y. Sept. 21, 2000), the plaintiff alleged that he was housed in a poorly ventilated 22-bed dormitory, which he shared with twenty-one smokers. See id. at *3. The court held that this, without any documentation to support the alleged resulting medical problems, was insufficient to support an Eighth Amendment claim and granted the defendant's motion for summary judgment. See id.; see also Zaire v. Artuz, No. 99 Civ. 9817, 2003 WL 230868, *5-*6 (S.D.N.Y. Feb. 3, 2003) (granting summary judgment where the plaintiff failed to provide evidence of the levels of ETS to which he was exposed and any resulting medical problems); Blyden v. Bartlett, No. 95-CV-1071E(F), 1997 WL 584308, *2 (W.D.N.Y. Sept. 9, 1997) (granting summary judgment where the plaintiff failed to demonstrate that his alleged injuries — headaches, irritability and nausea — resulting from his exposure to ETS were sufficiently severe to implicate a violation of his Eighth Amendment rights).
Based upon the facts of this case, Magistrate Judge DiBianco concluded that Plaintiff had failed to establish the objective prong of the Eighth Amendment test; i.e., that he was exposed to unreasonably high levels of cigarette smoke. Accordingly, Magistrate Judge DiBianco recommended that the Court grant Defendant's motion for summary judgment with respect to Plaintiff's Eighth Amendment claim based upon his involuntary exposure to ETS.
Based upon his determination that Plaintiff had failed to establish the objective prong of his Eighth Amendment claim, Magistrate Judge DiBianco did not address the subjective prong of this claim; i.e., that Defendant acted with deliberate indifference.
Plaintiff objects to Magistrate Judge DiBianco's conclusion, contending that he has established a valid claim under the Eighth Amendment. Specifically, Plaintiff asserts that Magistrate Judge DiBianco misinterpreted the standards set forth in Helling, Plaintiff asserts that he can meet the objective prong of this test by demonstrating that his exposure to ETS, and the risk of the future harm he faces, is one that society chooses not to tolerate. Furthermore, Plaintiff argues that a factfinder could conclude that Defendant acted in deliberate indifference to the known risk, as demonstrated by the fact that he continued to smoke despite Plaintiff's requests that he stop, the Auburn facility's no-smoking policy, and the surgeon general's warning regarding exposure to ETS.
As in Helling and Warren, Plaintiff has provided evidence of his involuntary exposure to ETS as well as medical records to support his claims of harm. He alleges, and affidavits support, that he was exposed to ETS when he went to the law library during scheduled call outs, from 1:30 p.m. to 4:30 p.m. and 7:00 p.m. to 9:30 p.m. daily, at those times when Defendant was on duty. See Affidavit of Colon Toledo, sworn to December 11, 2000 ("Toledo Aff."), at ¶ 6; Affidavit of Hizbullahankhamon Qabail, sworn to January 21, 2001 ("Qabail Aff."), at ¶ 3; Affidavit of Jean Belot, Jr., sworn to November 21, 2000 ("Belot Aff."), at ¶ 5. Further, Plaintiff has provided medical records to show that he does have asthma; and he specifically documented an asthma attack after an alleged visit to the law library during which he asserts that Defendant was smoking. See Plaintiff's Response and Cross Motion, Exhibits "E" "F" (Plaintiffs medical records).
In response, Defendant asserts that, although he worked four days per week in the media center, where the law library is located, from 12:15 p.m. to 8:30 p.m., he did not smoke in the buildings at Auburn. See Affidavit of Gregory E. Smith, sworn to April 9, 2002 ("Smith Aff."), at ¶¶ 3-5. In addition, Laurence M. Cheney, the Liaison Officer at Auburn Correctional Facility, stated that Plaintiff was disciplined several times during his two and one-half year stay at the prison, resulting in periods of time during which he was confined to his cell and, thus, did not have the opportunity to attend the media center. See Affidavit of Laurence M. Cheney, sworn to April 4, 2002 ("Cheney Aff."), at ¶ 3 Exhibit "A" (Plaintiff's transfer history). Moreover, during the year 2000, Plaintiff's disciplinary history indicates that he was not allowed to go to the media center for approximately three and one-half months. See id. Thus, Defendant argues that, even if he did smoke, Plaintiffs limited exposure to ETS fails to rise to the levels of unreasonable exposure set forth in Helling and Warren.
Viewing the evidence in the light most favorable to Plaintiff, the Court finds that there are material issues of fact as to whether Defendant smoked while on duty and, if he did, whether, given his knowledge of Plaintiff s medical condition, the level of ETS to which he allegedly exposed Plaintiff violated "contemporary standards of decency." Helling, 509 U.S. at 35. Davidson and Williams further support a denial of Defendant's motion for summary judgment. In contract to those cases, where the plaintiffs failed to provide evidence as to their level of exposure to ETS or any resulting medical problems, Plaintiff has provided evidence concerning the level of his alleged exposure to ETS and the asserted medical problems which resulted. Although Plaintiff may have trouble establishing whether his involuntary exposure to ETS is beyond the bounds of what society is willing to tolerate, this issue as well as the issue of whether Defendant smoked while he was on duty, are questions of fact for the jury to determine.
As noted, Magistrate Judge DiBianco did not address the subjective prong of Plaintiff s Eighth Amendment claim. However, a review of the record demonstrates that Plaintiff has provided evidence to meet the subjective requirement that Defendant acted with deliberate indifference. Specifically, Plaintiff cites Auburn's no-smoking policy as confirmation that Defendant knew of the risk of exposure to ETS. As the Warren court found, a rational factfinder could accept the smoking policy as evidence of "an admission by defendants both to the dangerousness of ETS and their awareness of such danger." Warren, 2931 F. Supp. at 306. Plaintiff further alleges that he made individual requests to Defendant that he stop smoking due to Plaintiff's health problems. If a reasonable factfinder concludes that Defendant did smoke while on duty and that the level of Plaintiffs exposure to ETS was beyond the bounds which society is willing to tolerate, Defendant's failure to respond to Plaintiff's repeated requests is further evidence from which a reasonable factfinder could conclude that Defendant acted with deliberate indifference to Plaintiff's medical needs in exposing him to ETS.
In sum, Plaintiff has come forward with sufficient evidence to create an issue of fact with respect to both the objective and subjective prongs of his Eighth Amendment claim. Accordingly, the Court denies Defendant's motion for summary judgment with respect to Plaintiff's Eighth Amendment claim. C. Plaintiff's First Amendment retaliation claim
Plaintiff also alleges that, in addition to violating his First Amendment rights, Defendant's threat of retaliation affected his own safety and thus violated his Eighth Amendment rights. Magistrate Judge DiBianco concluded that, even if Defendant made a verbal threat, it would not rise to the level of a constitutional violation of the Eighth Amendment. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (holding that verbal abuse, vulgarity and even threats are insufficient to rise to the level of a constitutional violation); Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996) (holding that threats of verbal harassment without injury, `" although indefensible and unprofessional, `" do not rise to the level of constitutional violations (quotation and other citation omitted)).
To survive summary dismissal of a First Amendment retaliation claim, the plaintiff must advance non-conclusory allegations establishing (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech (or conduct) and the adverse action. See Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) (quotation and other citations omitted).
Plaintiff alleges that Defendant threatened to retaliate against all of the library workers unless he dropped his grievance. Magistrate Judge DiBianco concluded, however, that, because Plaintiff did not withdraw his grievance, whatever threats Defendant allegedly made did not deter Plaintiff from exercising his First Amendment rights. Accordingly, he recommended that the Court grant Defendant's motion for summary judgment with respect to this claim. Plaintiff raises no objections to Magistrate Judge DiBianco's conclusion with respect to this claim. Since Defendant's verbal threats, although unprofessional, did not deter Plaintiff from proceeding with his grievance, the Court grants Defendant's motion with respect to this claim. D. Defendant's qualified immunity defense
Magistrate Judge DiBianco did not address Defendant's argument regarding qualified immunity because he found that Plaintiff had failed to meet the objective prong of his Eighth Amendment claim.
The doctrine of qualified immunity protects government officials from suits for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations and footnote omitted). Thus, defendant officials are entitled to qualified immunity if (1) their actions did not violate clearly established law, or (2) it was objectively reasonable for them to believe that their actions did not violate such law. See Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996) (citations omitted). To determine whether a right is clearly established, the court must consider "(1) whether the right in question was defined with `reasonable specificity'; (2) whether the decisional law of the Supreme Court and the [Second Circuit] support[s] the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991) (citation omitted). "`Where the circumstances are in dispute, and contrasting accounts present factual issues as to . . . [the] reasonableness [of a defendant's actions], a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity.'" Curry v. City of Syracuse, 2316 F.3d 324, 334 (2d Cir. 2003) (quoting Mickle, 297 F.3d at 122 (internal citations and quotation marks omitted)).
Following the Supreme Court's decision in Helling, the Second Circuit held that "it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate's exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate's health." Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999) (citation omitted). Thus, deliberate indifference to an inmate's exposure to an unreasonable level of ETS violates "clearly established" law. See id.; see also Atkinson v. Taylor, 316 F.3d 257, 268 (3d Cir. 2003) (holding that the right of a prisoner not to be subjected to unreasonable risk of injury from ETS was clearly established).
Since exposing Plaintiff to an unreasonable level of ETS would violate a "clearly established" right, the issue of qualified immunity turns on whether it was objectively reasonable for Defendant to believe that his actions did not violate that right. Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor, the Court concludes that there exists an issue of fact as to whether reasonable correctional officers in a similar situation could disagree that the actions which allegedly occurred violated Plaintiff's right to be free from involuntary exposure to unreasonable levels of ETS, particularly given that the no-smoking policy at the Auburn Correctional Facility evidences both the danger that ETS poses and Defendant's knowledge of that danger. Accordingly, the Court denies Defendant's motion for summary judgment based upon the defense of qualified immunity.
Magistrate Judge DiBianco recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims in light of his recommendation that the Court grant Defendant's motion for summary judgment with respect to Plaintiff's federal claims. Since the Court disagrees with Magistrate Judge DiBianco's conclusion with respect to Plaintiff's Eighth Amendment claim, the Court will exercise supplemental jurisdiction over Plaintiffs state law claims.
III. CONCLUSION
After carefully considering Magistrate Judge DiBianco's Report-Recommendation, Plaintiff's objections, the relevant parts of the record, and the applicable law, and for the reasons stated herein, the Court herebyORDERS that Magistrate Judge DiBianco's Report-Recommendation dated December 10, 2002 is ADOPTED IN PART AND REJECTED IN PART; and the Court further
ORDERS that Defendant's motion for summary judgment is GRANTED with respect to Plaintiff's First Amendment retaliation claim; and the Court further
ORDERS that Defendant's motion for summary judgment is DENIED in all other respects; and the Court further
ORDERS that Plaintiff's cross-motion for summary judgment is DENIED.
IT IS SO ORDERED.