Denis v. N.Y.S. Department of Correctional Services

Full title: JEAN DENIS, Plaintiff, v. N.Y.S. DEPARTMENT OF CORRECTIONAL SERVICES, et…

Court: United States District Court, S.D. New York

Date published: Jan 30, 2006

05 Civ. 4495 (LAK) (AJP) (S.D.N.Y. Jan. 30, 2006)

Opinion

05 Civ. 4495 (LAK) (AJP).

January 30, 2006

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Lewis A. Kaplan, United States District Judge:

Pro se plaintiff Jean Denis brings this action, pursuant to 42 U.S.C. § 1983, against defendants for deliberate indifference to his serious medical needs, claiming that environmental tobacco smoke ("ETS"), also known as second hand smoke, has caused him to develop sinusitis and exposes him to the future risk of cancer. (See generally Dkt. No. 1: Compl.) The defendants are the New York State Department of Correctional Services ("DOCS"), DOCS' Commissioner (Glenn S. Goord), DOCS' Associate Commissioner of Health Services (Dr. Lester Wright), and the Superintendents of the Cayuga (Joseph McCoy), Oneida (Melvin Hollins) and Mid-Orange (Susan Schultz) Correctional Facilities where Denis has been incarcerated. (Id.)

Presently before the Court is defendants' summary judgment motion. (Dkt. No. 26: Defs. Notice of Motion; see also Dkt. Nos 27-36, 42-44.) Denis opposes the motion. (See Dkt. Nos. 38-39.)

For the reasons set forth below, defendants' motion for summary judgment should be granted as to defendants DOCS, McCoy and Wright and denied as to defendants Goord, Hollins and Schultz because of disputed issues of material fact as to the degree of second hand smoke in DOCS' facilities, despite DOCS' Smoke Free Policy that prohibits indoor smoking (but allows outdoor smoking), although inmates still smoke indoors in violation of the rules.

FACTS

DOCS' Smoking Policy

DOCS adopted a system-wide smoking policy in June 1999, effective July 1, 1999, which provided that smoking would be incrementally banned from inside facility buildings but inmates and staff would be permitted to smoke outside in recreation yards. (Dkt. No. 36: Defs. Rule 56.1 Stmt. ¶ 4; Dkt. No. 38: Denis Rule 56.1 Stmt. ¶ 4;¹ Dkt. No. 32: McCoy Aff. ¶ 4 Ex. A: DOCS' Smoke Free Policy.)

1 Denis' Rule 56.1 Stmt. is contained starting at page 4 of Denis' affidavit, Dkt. No. 38.

DOCS' Smoke Free Policy was implemented in four phases: (1) July 1, 1999 to December 31, 1999, inmates and staff were notified about the plan; (2) January 1, 2000 through June 30, 2000, smoking was limited to the confines of housing units and, in medium (and minimum) security facilities, smoking was prohibited in "common" rooms like day rooms and television rooms; (3) July 1, 2000 through December 31, 2000, smoking was permitted only in assigned sleeping areas, and (4) January 1, 2001 to June 30, 2001, and thereafter, smoking was prohibited within all facility buildings, but smoking was allowed in outside recreation yards. (Defs. Denis Rule 56.1 Stmts. ¶¶ 4-6; McCoy Aff. ¶¶ 4-5 Ex. A: DOCS' Smoke Free Policy.) Denis contends, however, that DOCS' smoking policy "has never been strictly enforced." (See Denis Rule 56.1 Stmt. ¶ 5.)

The DOCS policy noted that at the end of Phase IV (i.e., June 30, 2001):

[T]he overall effectiveness and success of the indoor smoking ban will be evaluated. In the event that problems persist with the enforcement of the indoor smoking ban, then the Department will be forced to consider a change that would prohibit smoking entirely and ban all forms of tobacco and tobacco products.

(McCoy Aff. Ex. A: DOCS' Smoke Free Policy at pp. 000325, 000331;see Denis Rule 56.1 Stmt. ¶¶ 5-6.) Denis claims that prisoners and staff "continue to violate DOCS's Smoking Policy since its inception and the said policy has been proven unenforceable." (Denis Rule 56.1 Stmt. ¶¶ 5-6.) DOCS' policy, however, remains as it was after Phase IV, i.e., no indoor smoking but outdoor smoking is allowed. (See Defs. Rule 56.1 Stmt. ¶ 6; Dkt. No. 30: Hollins Aff. Ex. B.)

Denis' Incarceration at Cayuga, Oneida and Mid-Orange Correctional Facilities Cayuga

Denis entered Cayuga Correctional Facility on September 15, 1999. (Defs. Denis Rule 56.1 Stmts. ¶ 7; Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis.)

Denis originally was housed in cell C-27 at Cayuga, in which he was double bunked. (Defs. Rule 56.1 Stmt. ¶ 9; Lee Aff. Ex. A: Denis Dep. at 90.) After a few months, at his request, Denis was moved to cell C-6, a single "cube" in the dormitory, with a window. (Defs. Rule 56.1 Stmt. ¶ 9; Denis Dep. at 90-91, 95.) According to Denis, however, inmates in the dormitory regularly smoked, and he could not complain or ask guards to open the window without being considered a "snitch." (Denis Dep. at 92-96.) Inmates concealed their smoking from the guards, and generally if caught smoking the first few times, would be given clean up work to do as opposed to getting a "ticket," i.e., a misbehavior report. (Denis Dep. at 93-94.) A few correction officers smoked in Denis' housing unit at Cayuga. (Denis Dep. at 97-99; Denis Rule 56.1 Stmt. ¶ 12.)²

2 While Denis asked one guard to stop, and he did, Denis was afraid that if he asked the other guards to stop smoking, they would retaliate by writing up misbehavior reports for minor things. (Denis Dep. at 97-98.)

At Cayuga, Denis played soccer. (Defs. Denis Rule 56.1 Stmts. ¶ 11; Denis Dep. at 55-59.) He worked as a recreation aide for approximately twenty hours a week and studied computer repair for approximately ten hours a week. (Defs. Denis Rule 56.1 Stmts. ¶ 10; Denis Dep. at 55-58.) Denis was not prevented from participating in this programming at Cayuga based on his medical condition, except once when he could not breathe and collapsed as he was taken to the infirmary for about two hours for observation. (Defs. Denis Rule 56.1 Stmts. ¶ 10; Denis Dep. at 190-92.)

Superintendent McCoy "instructed staff and inmate population [at Cayuga] to follow the [DOCS' Smoke Free] policy and advised that non-compliance would lead to disciplinary measures." (Dkt. No. 32: McCoy Aff. ¶ 6.) Of the 800-1,000 inmates at Cayuga, in 2001, "more than 250 inmates were charged with violating the smoking policy and more than 240 were found guilty." (Id.;see McCoy Aff. Ex. B: Computer Printout, Inmates Disciplined for Smoking Violations.)³ Those numbers were cut in half in 2002 and thereafter. (Id.) Superintendent McCoy did not discipline any staff for smoking violations because he was "never presented with credible charges from either staff or inmates that a staff member had violated Cayuga's smoking policy." (McCoy Aff. ¶ 7.)⁴

3 Denis notes that "the population in any given state prison may turn over 2-3 times per year." Denis Rule 56.1 Stmt. ¶ 25.) Denis claims that 250 tickets out of a population of 1,600 to 3,000 (i.e., 800-1,000 inmates times 2-3 turnover factor) is a very small percent. (See id.) The Court further notes that the statistics show the number of disciplinary tickets issued, not the number of inmates disciplined. Thus, one inmate may have received more than one ticket for smoking.

4 Superintendent McCoy's affidavit stated:

Disciplinary action against staff is rare in general and I was never presented with credible charges from either staff or inmates that a staff member had violated Cayuga's smoking policy. Had credible information been so presented, however, I would not have hesitated to impose discipline on a member of my staff.

(McCoy Aff. ¶ 7.) Superintendents Hollins and Schultz made virtually identical statements in their affidavits. (Dkt. No. 30: Hollins Aff. ¶ 6; Dkt. No. 31: Schultz Aff. ¶ 6.)

According to Superintendent McCoy and DOCS' records, Denis did not complain to him about non-enforcement of the smoking policy. (McCoy Aff. ¶ 8.) From January 1, 2001 until he retired in July 2004, there were no inmate complaints to Superintendent McCoy about enforcement of DOCS' non-smoking policy at Cayuga. (McCoy Aff. ¶ 8; see Defs. Denis Rule 56.1 Stmts. ¶ 28.)⁵ "If plaintiff or any other inmate or staff had complained about non-enforcement of the facility's smoking policy, [Superintendent McCoy] would have either conducted a thorough investigation or referred the matter to one of [his] staff to conduct a thorough investigation." (McCoy Aff. ¶ 8.) Superintendent McCoy asserts that he thus "was not personally involved in any of the alleged wrongdoing contained in plaintiff's complaint. This lawsuit is the first instance in which [Superintendent McCoy] became aware of [Denis'] claims." (McCoy Aff. ¶ 9.)

5 Denis asserts that the absence of inmate complaints at Cayuga, and the low number of such complaints at Oneida and Mid-Orange, "is a testament to not only a total lack of enforcement of the smoking ban" and a result of "the repressive and threatening environment fostered by corrections officials." (Denis Rule 56.1 Stmt. ¶¶ 28-30.)

Oneida

Denis was transferred from Cayuga to Oneida Correctional Facility on December 4, 2001. (Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis.)

At Oneida, Denis was originally housed in L-Dorm in 21-cube toward the back of the dormitory, but was transferred at his request to 11-cube at the front of the dormitory, where there was less smoking. (Defs. Denis Rule 56.1 Stmts. ¶ 13; Denis Dep. at 118.) Nevertheless, according to Denis, that did not help him because inmates still smoked, in the housing unit, in the bathroom and in the day room. (Denis Rule 56.1 Stmt. ¶ 13; Denis Dep. at 127, 140.) While only a few officers smoked at Oneida, Denis asserts that they were the officers assigned to his housing unit, so he was subjected to both inmates and guards smoking on a daily basis. (Defs. Denis Rule 56.1 Stmts. ¶ 14; Denis Dep. at 141-47.)

Denis complained to one guard, who spoke to the inmates in the unit and said that if he caught inmates smoking, he would write them up, but Denis never actually saw any inmate get written up. (Denis Dep. at 124-25.) Denis complained to certain guards about their smoking, without result, and did not complain to other guards for fear of retaliation. (Denis Dep. at 125-26, 142-46.) Denis wrote to Superintendent Hollins "three times about the smoking that was going on in the unit," and Superintendent Hollins suggested he live in the clinic, which Denis found unacceptable because of AIDS patients in the clinic. (Denis Dep. at 126.)

At Oneida, Denis continued to play soccer. (Defs. Denis Rule 56.1 Stmts. ¶ 17; Denis Dep. at 61-62.) At Oneida, Denis studied general business and worked in the law library and medical clinic, totaling over forty hours per week. (Defs. Denis Rule 56.1 Stmts. ¶ 15; Denis Dep. at 59-60.) Denis was never prevented by any medical condition from participating in these programming activities at Oneida. (Defs. Denis Rule 56.1 Stmts. ¶ 16; Denis Dep. at 192.)

Defendant Hollins was Superintendent at Oneida from before Denis' arrival in December 2001 through Superintendent Hollins' retirement on May 25, 2003. (Dkt. No. 30: Hollins Aff. ¶¶ 1, 3.) Superintendent Hollins "instructed staff and the inmate population [at Oneida] to follow the [DOCS Smoke Free] policy and advised that non-compliance would lead to disciplinary measures." (Hollins Aff. ¶ 5.) The inmate population at Oneida was approximately 1,200 inmates at any time. (Hollins Aff. ¶ 5.) From January 2002 through May 2003, "more than 840 inmates were charged with violating the smoking policy and more than 750 were found guilty." (Hollins Aff. ¶ 5 Ex. A: Computer Printout, Inmates Disciplined for Smoking Violations; but see page 5 n. 3 above.) Like Superintendent McCoy, Superintendent Hollins did not discipline any staff member for smoking violations. (Hollins Aff. ¶ 6; see page 5 n. 4 above.)

Denis complained to Superintendent Hollins two times about non-enforcement of the smoking policy. (See Hollins Aff. ¶ 7.) In response to Denis' February 18, 2002 letter, Superintendent Hollins informed Denis that he had referred the matter to supervisory security staff, and that "no violations of departmental policy regarding indoor smoking will be tolerated." (Hollins Aff. ¶ 7 Ex. B: Hollins 2/22/02 Memo to Denis.) Superintendent Hollins also recommended that Denis review his medical concerns, and available options, with the medical staff. (Id.)

Superintendent Hollins responded to Denis' January 12, 2003 letter, stating that Denis would be interviewed by a Security Supervisor, and that "documented violation of the departmental prohibition on indoor smoking is being treated even more seriously all the time, in the case of repeated offenders. . . ." (Hollins Aff. ¶ 8 Ex. B: Hollins 1/17/03 Memo to Denis.) Superintendent Hollins also reminded Denis to discuss his health-related concerns with the medical staff. (Id.) Denis complains that while Superintendent Hollins' responses to his complaints were prompt, they failed to remedy the problem. (Denis Rule 56.1 Stmt. ¶ 32.)

"Since DOCS' smoking policy was fully implemented on January 1, 2001 until [Superintendent Hollins] retired in May, 2003, no more than 20 inmates complained to [him] about enforcement of DOCS' smoking policy. Each of these complaints, like plaintiff's complaints, was fully and fairly investigated by [Superintendent Hollins] or [his] staff." (Hollins Aff. at ¶ 9; see Defs. Denis Rule 56.1 Stmts. ¶ 29; see page 5 nn. 3-4 above.)

Mid-Orange

On January 20, 2004, Denis was transferred from Oneida to Mid-Orange Correctional Facility, where he remains today. (Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis.)

Denis has been housed in the same dormitory his entire time at Mid-Orange. (Defs. Denis Rule 56.1 Stmts. ¶ 18; Denis Dep. at 158-59.) While there is less smoke at Mid-Orange than at Cayuga and Oneida, according to Denis, inmates smoke "everday" in the housing unit, as well as in bathrooms throughout the facility. (Denis Rule 56.1 Stmt. ¶ 19; Denis Dep. at 154-55, 159-63.) Denis observed only one correction officer smoking at Mid-Orange, and that officer stopped smoking indoors after Denis spoke to him, which was after this lawsuit began. (Denis Dep. at 163-65; Defs. Denis Rule 56.1 Stmts. ¶ 19.)

Denis previously studied horticulture and now studies theology, as well as working as a library clerk at Mid-Orange, for a total of 30 hours a week. (Defs. Denis Rule 56.1 Stmts. ¶ 20; Denis Dep. at 62-63.) Denis no longer plays soccer, but that is because he injured his right knee. (Defs. Denis Rule 56.1 Stmts. ¶ 22; Denis Dep. at 180-81.) Denis has not missed any programming because of sinusitis or breathing problems. (Defs. Denis Rule 56.1 Stmts. ¶ 21; Denis Dep. at 192-93.)

There are approximately 750 inmates at Mid-Orange at any time. (Dkt. No. 31: Schultz Aff. ¶ 3.) From January 2001 until April 2005, "more than 60 inmates were charged with violating the facility smoking policy and more than 50 were found guilty of such charge." (Schultz Aff. ¶ 5 Ex. A; but see page 5 n. 3 above.) Superintendent Schultz did not discipline any staff for smoking violations. (Schultz Aff. ¶ 6; see page 5 n. 4 above.)

Based on Mid-Orange's records, Denis never complained to Superintendent Schultz about smoking issues. (Schultz Aff. ¶ 7.) From January 1, 2001 through April 2005, only twelve inmates complained to Superintendent Schultz about enforcement of DOCS' smoking policy. (Schultz Aff. ¶ 7; see Defs. Denis Rule 56.1 Stmts. ¶ 30; see also page 5 n. 4 above.) Each of those complaints was "fully and fairly investigated." (Schultz Aff. ¶ 7.)

On May 24, 2004, Denis filed a grievance, seeking (1) a total ban on the sale and use of tobacco in DOCS' facilities, and (2) in the interim, stricter enforcement of existing rules. (Schultz Aff. ¶ 8 Ex. B: 5/24/04 Denis Grievance.) Sgt. Fitzgerald investigated Denis' complaint and informed Denis that a decision to ban tobacco could not be made at the facility level, but that he would instruct the staff to make more frequent rounds of the inmate bathrooms and make sure inmates smoke outside. (Schultz Aff. ¶ 8 Ex. B: 6/7/04 Investigative Report.) Denis appealed to Superintendent Schultz, who upheld Sgt. Fitzgerald's decision. (Schultz Aff. ¶ 8 Ex. B: 6/14/04 Supt. Decision.) Denis appealed to the Central Office Review Committee ("CORC"), which upheld the facility's decision. (Schultz Aff. ¶ 8 Ex. B: 7/21/04 CORC Decision.) CORC further advised Denis "to address [specific] violations of the smoking policy to the officer or area supervisor for corrective action." (Id.) Denis asserts that increased supervision of the inmate bathrooms did not occur until after he brought this lawsuit and that it was a response to the suit. (Denis Rule 56.1 Stmt. ¶ 31.)

Commissioner Goord Deputy Commissioner Dr. Wright

Defendant Glenn Goord is the Commissioner of DOCS, which is DOCS' CEO. (Dkt. No. 33: Goord Aff. ¶¶ 1, 3.) Commissioner Goord's office routinely receives several thousand letters a year from inmates. (Goord Aff. ¶ 4.) One of his secretaries routes each letter to the appropriate DOCS' division or bureau for response. (Goord Aff. ¶¶ 4-6.)

Denis sent a letter to Commissioner Goord on September 24, 2001 asking for a "full investigation" of the denial of his grievance about second hand smoke and his sinusitis condition. (Goord Aff. ¶ 4 Ex. A: Denis 9/24/01 Letter.) Deputy Commissioner Bernardi responded on October 19, 2001, referring to the grievance procedures and that any questions should be addressed to the IGP Supervisor. (Goord Aff. Ex. A: 10/19/01 Bernardi Letter to Denis.)

On October 7, 2003, Denis wrote to Dr. Wright, with a copy to Commissioner Goord, seeking either a ban of tobacco sales and use or creation of a non-smoking housing unit. (Goord Aff. Ex. A: 10/7/03 Denis Letter.) Denis' letter was responded to by Oneida's then-Superintendent Connell, who noted that Denis refused to give specifics to the security supervisor who interviewed him; Superintendent Connell added, however, that "the goal of the facility is to strictly enforce the no smoking policy [as] evidenced in the amount and severity of the disciplinary sanctions imposed for violations." (Goord Aff. Ex. A: 10/27/03 Connell Memo to Denis.)

Finally, Commissioner Goord notes that to the extent Denis is complaining about the lack of enforcement of DOCS' Smoke Free Policy at the facility level (Cayuga, Oneida and Mid-Orange), Denis' "complaints are best addressed to the respective Superintendents" since ordinarily DOCS' "Central Office will not intervene in the enforcement of an individual facility's smoking policy." (Goord Aff. ¶ 8.)

Defendant Dr. Lester Wright is Deputy Commissioner of DOCS and its Chief Medical Officer. (Dkt. No. 34: Wright Aff. Ex. 1.) His duties "include the development and implementation of medical policies and practices for inmates in the custody of DOCS." (Wright Aff. ¶ 3.) The day-to-day medical operation of each correctional facility is overseen by the facility medical director, who reports to the regional medical director, who reports to Dr. Wright. (Wright Aff. ¶ 4.)

As Chief Medical Officer, Dr. Wright's office "routinely receives thousands of letters per year" from inmates, which letters are read by his staff and forwarded to the appropriate person for response. (Wright Aff. ¶ 5.) Denis' only letter to Dr. Wright was responded to by Oneida Superintendent Connell. (Wright Aff. ¶ 7 Ex. A; see page 11 above.)

DOCS' Smoking Policy was formulated by DOCS' "Smoking Committee." (Wright Aff. ¶ 8.) Dr. Wright "was not a member of DOCS' Smoking Committee" and "did not participate in the formulation, review or approval of DOCS' system-wide smoking policy," nor does he have any involvement in enforcement of the current policy. (Wright Aff. ¶¶ 9-10.)

Denis' Sinusitis and Medical Treatment Cayuga

Beginning in January 2000, Denis complained about difficulty breathing at night because of smoke in the dorms. (Dkt. No. 29: Dr. Schluger Aff. ¶ 6 Ex. B: Denis' Medical Records ["MR"] at 00064, 00100.) In March 2000, Denis complained of red, irritated eyes from smoke in the dorms; he was prescribed a nasal saline spray and Visine. (Dr. Schluger Aff. ¶ 6 MR 00063.) On June 2, 2000, Cayuga medical staff noted that Denis suffered from persistent sinus congestion. (Dr. Schluger Aff. ¶ 6 MR 00062.) On November 27, 2000, Denis complained of nasal congestion and was prescribed a nasal spray. (Dr. Schluger Aff. ¶ 6 MR 00059.)

In February 2001, Denis again complained of nasal congestion and again was prescribed a nasal spray. (Dr. Schluger Aff. ¶ 7 MR 00056.) On July 12, 2001, Denis complained that the medication previously prescribed for his sinus congestion was not working, and the Cayuga medical staff ordered a sinus x-ray. (Dr. Schluger Aff. ¶ 7 MR 00052.) An x-ray of Denis' sinuses on July 12, 2001 indicated that he had left maxillary sinus disease. (Dr. Schluger Aff. ¶ 7 MR 00052.)

On August 3, 2001, Denis complained that his sinus medications were not working and he was prescribed a different medication. (Dr. Schluger Aff. ¶ 8 MR 00052.) On August 6, 2001, Cayuga medical staff noted that Denis was still congested and scheduled an ear, nose and throat ("ENT") specialist consultation. (Dr. Schluger Aff. ¶ 8 MR 00051.) On August 7, 2001, Denis was brought to the infirmary by van because of trouble breathing, but on arrival was found to be in no apparent distress and he had "good airation." (MR 00051.)

On August 29, 2001, Denis was seen by an ENT specialist, Dr. Kern, who recommended a CT exam to confirm sinusitis and who prescribed a saline spray. (Dr. Schluger Aff. ¶ 8 MR 00083.) On October 2, 2001, a CT was performed, and the "clinical indication was chronic sinusitis with a history of left maxillary opacification." (Dr. Schluger Aff. ¶ 8 MR 00012.)

On November 7, 2001, Denis was again examined by an ENT specialist, who prescribed Flonase and recommended that Denis receive another CT in 2-3 months. (Dr. Schluger Aff. ¶ 8 MR 00079.)

Oneida

On December 21, 2001, medical staff at Oneida noted that Denis had a documented chronic sinus congestion with red, itchy eyes, and issued a permit to move him to a more open area in the dormitory. (Dr. Schluger Aff. ¶ 8 MR 00046.)

On March 27, 2002, a follow-up CT was performed and sinusitis was the conclusion. (Dr. Schluger Aff. ¶ 9 MR 00011.) On April 24, 2002, Denis received an otolaryngology consult and an additional nasal spray was prescribed for him. (Dr. Schluger Aff. ¶ 9 MR 00074.)

On September 6, 2002, a chest x-ray showed that Denis' lungs and chest wall were "unremarkable." (Dr. Schluger Aff. ¶ 9 MR 00010.) On November 15, 2002, Denis complained of nasal discharge and was prescribed Allegra and nasal spray. (Dr. Schluger Aff. ¶ 9 MR 00040.)

On May 1, 2003, Denis complained of allergies and was told to continue taking Allegra. (Dr. Schluger Aff. ¶ 10 MR 00033.) On August 29, 2003, Denis complained of nasal stuffiness. (Dr. Schluger Aff. ¶ 10 MR 00031.)

On January 5, 2004, Denis complained of a cold; medical staff noted his long history of sinus problems, and that his overuse of nasal spray caused a worsening of his sinus condition. (Dr. Schluger Aff. ¶ 10 MR 00024.) Oneida's "out-going draft" note to Mid-Orange indicated that Denis had a history of abusing nasal spray. (Dr. Schluger Aff. ¶ 10 MR 00023.) Mid-Orange

On January 3, 2005, about a year after his transfer to Mid-Orange (see page 8 above), Denis' medical records reflect his first Mid-Orange complaint of sinus problems, for which he was prescribed Sudafed. (Dr. Schluger Aff. ¶ 11 MR 00133.) On April 22, 2005, Denis complained of red, itchy eyes and was prescribed eye drops. (Dr. Schluger Aff. ¶¶ 11 MR 00126.) On June 1, 2005, Denis' Flonase prescription was renewed. (Dr. Schluger Aff. ¶ 11 MR 00121.) The last medical information in the record is that on August 4, 2005, Denis complained of nasal congestion and was given a nasal decongestant. (Dr. Schluger Aff. ¶ 11 MR 00118.)

Defendants' Medical Expert Testimony

Defendants proferred Dr. Neil Schluger as an expert witness. (See generally Dkt. No. 29: Schluger Aff.) Dr. Schluger is the Clinical Chief of Pulmonary, Allergy and Critical Care at the Columbia-Presbyterian Medical Center. (Dr. Schluger Aff. ¶ 2.) Based on Dr. Schluger's review of Denis' medical records, Dr. Schluger concluded that Denis has "chronic sinusitis." (Dr. Schluger Aff. ¶ 12.) Dr. Schluger testified that sinusitis is a common nagging condition, effectively treated with antihistamines and nasal spray:

12. Mr. Denis' medical records indicate that he has chronic sinusitis which was confirmed by x-rays and CT scans of his sinuses. Sinusitis is an extremely common nagging condition that manifests itself in nasal congestion, nasal discharge, irritated and red eyes, occasional sinus headaches, and other symptoms. It is often caused/aggravated by allergies as well as by superimposed infection. The National Institute of Allergy and Infectious Diseases estimates that approximately 37 million Americans are affected by sinusitis each year and there are approximately 32 million cases of chronic sinusitis each year. . . .

13. Mr. Denis's condition was effectively treated with anti-histamines (Allegra, Claritin), nasal spray (Flonase) and other common medication such as Sudafed and met acceptable standards of medical care. Mr. Denis' sinusitis had no effect on his activities of daily living and did not cause chronic pain. It can best be described as a nagging condition that is exacerbated by colds, viruses or other infections and which can be ameliorated by nasal spray, anti-histamines or other conservative treatments. There is no procedure available to completely cure Mr. Denis' chronic sinusitis.

(Dr. Schluger Aff. ¶¶ 12-13.)

Dr. Schluger further opined that while second-hand smoke is a carcinogen, it neither caused nor exacerbated Denis' sinusitis:

15. Environmental tobacco smoke has been classified by the Environmental Protection Agency as a carcinogen. Reputable health studies have identified environmental tobacco smoke as a known risk factor for lung cancer. Other research suggests a possible connection between environmental tobacco smoke and cancer of the cervix, breast, bladder and sinuses. Most studies of environmental tobacco smoke have focused on its link causing or exacerbating cancer, mainly lung cancer. There are few compelling studies of the effect of environmental tobacco smoke on noncancerous conditions and the link between environmental tobacco smoke and noncancerous conditions is tenuous. . . .

16. I can say with a reasonable degree of medical certainty based on my review of academic literature and my experience as a practicing physician that I am unaware of any connection between environmental tobacco smoke and sinusitis. I can say with a reasonable degree of medical certainty that second hand smoke did not cause Mr. Denis' sinusitis and did not exacerbate this condition in any meaningful way. In fact, Mr. Denis' sinusitis condition is best categorized as not serious. It is extremely common. It does not affect any activity of daily living. It does not cause chronic pain. It does not present a risk of death or other serious bodily harm or even a future risk of such. It is a nagging problem that is exacerbated by infection and can be treated with nasal sprays, anti-histamines and other pain relievers such as Tylenol.

(Dr. Schluger Aff. ¶¶ 15-16.)

The Court notes, however, that both Dr. Schluger's medical literature exhibits (Dr. Schluger Aff. Exs. C-D) refer to sinusitis being exacerbated by cigarette smoke. The National Institutes of Health January 2005 literature about "Sinusitis" states that "[i]f you are prone to getting sinus disorders, especially if you have allergies, you should avoid cigarette smoke and other air pollutants." (Dr. Schluger Aff. Ex. C at 6.) And the NIH February 2005 Fact Sheet about Second Hand Smoke notes that "[s]econd hand smoke is also associated with the following noncancerous conditions: . . . eye and nose irritation." (Dr. Schluger Aff. Ex. D.)

Plaintiff's Federal Complaint

Plaintiff's complaint in this case is dated March 16, 2005 and was received by the Court's Pro Se Office on April 15, 2005. (Dkt. No. 1: Compl., 1st last pages.) The complaint asserts three causes of action pursuant to 28 U.S.C. § 1983 for Eighth Amendment deliberate indifference to plaintiff's medical needs. (Compl. ¶ 53-63.) Plaintiff's first cause of action relates to past and present injury, i.e., Denis' sinusitis, from ETS. (Compl. ¶¶ 53-56.) The second cause of action is for "serious risk of 'future' harm." (Compl. ¶¶ 57-61.) Denis seeks compensatory and punitive damages. (Compl., Wherefore ¶¶ i-ii.) The third cause of action seeks a permanent injunction prohibiting Denis' exposure to ETS while incarcerated and an injunction banning the sale and use of tobacco in DOCS' facilities. (Compl. ¶¶ 62-63 Wherefore ¶ iii.)

After the close of discovery, defendants moved for summary judgment. (Dkt. No. 26; see also Dkt. Nos. 27-36, 42-44.) Denis opposed the motion. (Dkt. Nos. 38-39.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN SECTION 1983 CASES ⁶

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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); see also, e.g., Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513; see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v.Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

"The Court recognizes that it must 'extend extra consideration' to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v.Coughlin, 999 F. Supp. at 535 (citations internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").⁷ Moreover, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See, e.g., Irby v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001) ("[W]e remind the district courts of this circuit, as well as summary judgment movants, of the necessity that pro se litigants have actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with the requirements of Rule 56. . . . [E]ither the district court or the moving party is to supply the pro se litigant with notice of the requirements of Rule 56. . . . In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic."); McPherson v.Coombe, 174 F.3d at 280-81 ("'[t]he failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.'") (citations omitted).⁸ Defendants here served the appropriate notices on Denis. (Dkt. No. 27: Defs. Rule 56.2 Notice.)

7 See also, e.g., Commer v. American Fed'n of State, County Mun. Employees, 272 F. Supp. 2d 332, 335 (S.D.N.Y. 2003) ("[T]he Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held to 'less stringent standards than formal pleadings drafted by lawyers. . . .'"),aff'd, 390 F.3d 203 (2d Cir. 2004); Douglas v. Portuondo, 232 F. Supp. 2d 106, 113 (S.D.N.Y. 2002).

8 See also, e.g., Trammell v. Coombe, No. 97-2622, 201 F.3d 432 (table), 1999 WL 1295856 at *2 (2d Cir. Dec. 23, 1999); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see generally S.D.N.Y. Local Civil Rule 56.2 (requiring service of notice explaining the requirements of Rule 56 on litigant proceeding pro se).

"Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v.Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see also, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug 15, 2002) (Peck, M.J.); Smith v. Planas, 975 F. Supp. 303, 305 n. 2 (S.D.N.Y. 1997). II. DENIS' CLAIMS FOR EVENTS PRIOR TO MARCH 16, 2002 SHOULD BE DISMISSED AS TIME BARRED

The statute of limitations for a § 1983 action is three years.See, e.g., Walker v. Jastremski, 430 F.3d 560, 561 (2d Cir. 2005); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2005); Warren v. Altieri, No. 02-69, 59 Fed. Appx. 426, 427, 2003 WL 1191173 at *1 (2d Cir. Mar. 13, 2003) (plaintiff's "§ 1983 action is governed by New York's three-year statute of limitations as set out in N.Y.C.P.L.R. § 214, the provision applicable to actions for personal injury."); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002), cert. denied, 123 S.Ct. 1574 (2003); Paige v. Police Dep't, 264 F.3d 197, 199 n. 2 (2d Cir. 2001); Connolly v. McCall, 254 F.3d 36, 40-41 (2d Cir. 2001).⁹

9 See also, e.g., Diallo v. Williams, 04 Civ. 4556, 2006 WL 156158 at *2 (S.D.N.Y. Jan. 20, 2006); Allan v. City of New York, 386 F. Supp. 2d 542, 548 (S.D.N.Y. 2005);Mitchell v. Home, 377 F. Supp. 2d 361, 371 (S.D.N.Y. 2005);Dawkins v. Jones, 03 Civ. 0068, 2005 WL 196537 at *8 (S.D.N.Y. Jan. 31, 2005) (Peck, M.J.); Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *18 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Bristow v. Smith, 03 Civ. 2663, 2003 WL 21437005 at *1 (S.D.N.Y. June 18, 2003) (Peck, M.J.); cf. Noguera v.Hasty, 99 Civ. 8786, 2000 WL 1011563 at *12 (S.D.N.Y. July 21, 2000) (Peck, M.J.) report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.).

Denis' complaint was received by the Court's Pro Se Office on April 15, 2005, but it is dated March 16, 2005. (Dkt. No. 1: Compl., 1st last pages.) In the absence of any other indication, the Court assumes that Denis gave the complaint to prison officials on March 16, 2005, and thus under the prison mailbox rule, that date is deemed the date the complaint was filed. See, e.g., Hardy v. Conway, No. 04-0934, 2006 WL 93083 at *1 (2d Cir. Jan. 12, 2006) ("[I]n the absence of contrary evidence, district courts in this circuit have tended to assume that prisoners' papers were given to prison officials on the date of their signing.") (citing cases); Walker v. Jastremski, 430 F.3d at 562-63; Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *14 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (under the "federal 'prisoner mailbox rule,'" incarcerated pro se litigants are deemed to have filed their federal civil complaints and federal habeas petitions on the date the papers were handed to prison officials for mailing) (citing Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988)).¹⁰

10 See also, e.g., United States v. Montoya, 335 F.3d 73, 75-76 (2d Cir. 2003); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 534 U.S. 886, 122 S. Ct. 197 (2001); Hill v. Senkowski, No. 01-CV-6280, ___ F. Supp. 2d ___, 2006 WL 148931 at *4 (W.D.N.Y. Jan. 20, 2006); Bordas v.Greiner, 04 Civ. 8904, 2005 WL 3071461 at *2 (S.D.N.Y. Nov. 14, 2005); Shomo v. City of New York, 03 Civ. 10213, 2005 WL 756834 at *3 (S.D.N.Y. Apr. 4, 2005); Dawkins v. Jones, 2005 WL 196537 at *8; Coble v. Stinson, No. 97-CV-0717, 2004 WL 1454392 at *1 n. 4 (W.D.N.Y. Jun. 23, 2004); Moreno-Castillo v.United States, 02 Civ. 2858, 2003 WL 23109747 at *1 n. 1 (S.D.N.Y. Dec. 31, 2003).

Accordingly, Denis' claims for the period prior to March 16, 2002 are time barred. Because Denis was incarcerated at Cayuga Correctional Facility from September 15, 1999 until his transfer to Oneida on December 4, 2001 (Dkt. No. 35: Lee Aff. Ex. B: Inmate Locator Records for Denis; see pages 3, 6 above), his claims against Cayuga's Superintendent McCoy are dismissed in their entirety. In addition, Denis' claims against the other defendants that predate March 16, 2002 are dismissed. III. DENIS' CLAIMS FOR DAMAGES AGAINST DOCS AND HIS CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITIES ARE DISMISSED ON ELEVENTH AMENDMENT GROUNDS

"'It is black letter law that a suit against a state official in his official capacity seeking damages is barred by the Eleventh Amendment. . . .'" Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *1 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.) (quoting Jackson v. Johnson, 30 F. Supp. 2d 613, 618 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) ( cases cited therein); accord, e.g., Dunn v. Carrier, No. 03-253, 137 Fed. Appx. 387, 389, 2005 WL 1332761 at *2 (2d Cir. June 7, 2005); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003);Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (second hand smoke case); Johnson v. Goord, 01 Civ. 9587, 2004 WL 2199500 at *4 (S.D.N.Y. Sept. 24, 2004) ("Employees of DOCS and its facilities, when sued in their official capacities, have been held to be subject to the state's Eleventh Amendment immunity. Thus, to the extent that these plaintiffs assert section 1983 damage claims against defendants in their official capacities, they are dismissed from this action.") (citations omitted);Baker v. Welch, 03 Civ. 2267, 2003 WL 22901051 at *6 (S.D.N.Y. Dec. 10, 2003) (Peck, M.J.); Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *5 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.).

Suit against DOCS, a State agency, for money damages also is barred by the Eleventh Amendment. See, e.g., Davis v. New York, 316 F.3d at 101; Odom v. New York State Dep't of Corr. Servcs., No. 94-2746, 122 F.3d 1057 (table), 1995 WL 595550 at *2 (2d Cir. Sept. 22, 1995) ("[T]he district court properly found that the Eleventh Amendment bars suit against DOCS . . ."); Lee v. Delfavero, No. 9:04 CV 382, 2005 WL 2387820 at *2 n. 3 (N.D.N.Y. Sept. 28, 2005); Nevelle v. N.Y.S.D.O.C.S., No. 05-CV-4071, 2005 WL 2305005 at *2 (E.D.N.Y. Sept. 21, 2005);Johnson v. Goord, 2004 WL 2199500 at *4 ("DOCS, an agency and arm of the State, is also dismissed on the section 1983 claim by reason of the State's immunity.").

Accordingly, Denis' claims against DOCS and his claims for damages against the individual defendants in their official capacities are dismissed. Denis' claims against the remaining individual defendants in their official capacities for injunctive relief and in their individual capacities for damages, which are not barred by the Eleventh Amendment, are addressed below. See, e.g., Davis v. New York, 316 F.3d at 101-02 (Eighth Amendment deliberate indifference "claims for declaratory and injunctive relief and damages against defendants, in their individual capacities" for exposure to ETS not barred by Eleventh Amendment); Johnson v. Goord, 2004 WL 2199500 at *4 ("The Eleventh Amendment does not bar the claims against defendants in their official capacities for declaratory and injunctive relief."). IV. LEGAL STANDARDS GOVERNING § 1983 EIGHTH AMENDMENT DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS CLAIMS ¹¹

11 For additional decisions by this Judge discussing the governing standard in § 1983 deliberate medical indifference claims, in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Doe v. Goord, 04 Civ. 0570, 2005 WL 3116413 at *10-13 (S.D.N.Y. Nov. 22, 2005) (Peck, M.J.); Dawkins v. Jones, 03 Civ. 0068, 2005 WL 196537 at *13-15 (S.D.N.Y. Jan. 31, 2005) (Peck, M.J.);Doe v. Goord, 04 Civ. 0570, 2004 WL 2829876 at *12-13 (S.D.N.Y. Dec. 10, 2004) (Peck, M.J.); Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *4-7 (S.D.N.Y. May 13, 2004) (Peck, M.J.); Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *10-13 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.); Espinal v.Goord, 00 Civ. 2242, 2001 WL 476070 at *7-10 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *7-8 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5-6 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *6-7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5-6 (S.D.N.Y. June 13, 2000) (Peck, M.J.).

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law.See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere."Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749 (1994).

The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." E.g., Hudson v. McMillan, 503 U.S. 1, 5, 8, 112 S. Ct. 995, 998, 1000 (1992); Wilson v.Seiter, 501 U.S. 294, 297, 308, 111 S. Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S. Ct. 285, 290, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925 (1976).

To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs.E.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. at 291.¹²

12 See also, e.g., Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003); Selby v. Coombe, No. 00-172, 17 Fed. Appx. 36 (table), 2001 WL 964195 at *1 (2d Cir. Aug. 20, 2001) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); Perkins v. Obey, 00 Civ. 1691, 2004 WL 238036 at *8 (S.D.N.Y. Feb. 10, 2004).

As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).¹³ "Objectively, the alleged deprivation must be 'sufficiently serious.'" Hathaway v. Coughlin, 99 F.3d at 553; see, e.g., Hudson v. McMillian, 503 U.S. at 9, 112 S. Ct. at 1000 ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious'"); Smith v.Carpenter, 316 F.3d at 183-84 ("The objective "medical need' element measures the severity of the alleged deprivation . . .").¹⁴ "'The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves. . . .'" Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). "[O]nly those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v.Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991) (citation omitted); see also, e.g., Dean v. Coughlin, 804 F.2d at 215 ("'[T]he essential test is one of medical necessity and not one simply of desirability.'"). Thus, Eighth Amendment protection is limited to "'a condition of urgency' that may result in 'degeneration' or 'extreme pain.'" Chance v.Armstrong, 143 F.3d at 702;¹⁵ accord, e.g., Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002);Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical condition exists where 'the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'").

13 Accord, e.g., Smith v. Carpenter, 316 F.3d at 183;Selby v. Coombe, 2001 WL 964195 at *1; Chance v.Armstrong, 143 F.3d at 702.

14 See also, e.g., Selby v. Coombe, 2001 WL 964195 at *1; Chance v. Armstrong, 143 F.3d at 702; Lumaj v.Williams, 03 Civ. 1849, 2004 WL 1207894 at *4 (S.D.N.Y. June 2, 2004); Torres v. Mazzuca, 246 F. Supp. 2d 334, 339 (S.D.N.Y. 2003).

15 The Second Circuit in Chance v. Armstrong identified several factors that are relevant in determining whether a serious medical condition exists, including "'[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" 143 F. 3d at 702.

"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553; accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("[T]he subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind."); Selby v. Coombe, 2001 WL 964195 at *1; Chance v. Armstrong, 143 F.3d at 702. "The required state of mind, equivalent to criminal recklessness, is that the official '"knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quotingHathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v.Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994))).¹⁶

16 See also, e.g., Smith v. Carpenter, 316 F.3d at 184; Selby v. Coombe, 2001 WL 964195 at *1; Chance v.Armstrong, 143 F.3d at 702; LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate indifference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger."); Lumaj v.Williams, 2004 WL 1207894 at *5.

Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison [officials or] guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. at 291 (fn. omitted); accord, e.g., Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir. 1991) ("Cruel and unusual punishment may consist of prison officials delaying an inmate access to needed medical care.").¹⁷ However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. at 105-06, 97 S. Ct. at 292; accord, e.g., Burton v. New York State Dep't of Corr., 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid . . . under the Eighth Amendment." Estelle v.Gamble, 429 U.S. at 106, 97 S. Ct. at 292.¹⁸ As the Supreme Court has stated, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S. Ct. at 292; accord, e.g., Smith v. Carpenter, 316 F.3d a 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation."); Hathaway v. Coughlin, 99 F.3d at 553; Burton v. New York State Dep't of Corr., 1994 WL 97164 at *2.

17 See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (delay for more than two years in removing broken pins from prisoner's hip despite nearly seventy complaints of pain), cert. denied, 513 U.S. 1154, 115 S. Ct. 1108 (1995);Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 1990) (failure to provide medical attention to a delirious inmate for three days); Archer v. Dutcher, 733 F.2d 14, 15-17 (2d Cir. 1984) (denying summary judgment where plaintiff "identifie[d] intentional efforts on the part of defendants to delay her access to medical care at a time [when] she was in extreme pain");Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974).

18 Accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Felipe v. New York State Dep't of Corr. Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. Apr. 10, 1998) (Pooler, D.J.).

An act of malpractice will amount to deliberate indifference only if "the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces 'a conscious disregard of a substantial risk of serious harm.'"Chance v. Armstrong, 143 F.3d at 703 (quoting Hathaway v.Coughlin, 99 F.3d at 553); Harrison v. Barkley, 219 F.3d at 139 ("We agree that the mere malpractice of medicine in prison does not amount to an Eighth Amendment violation. . . . This principle may cover a delay in treatment based on a bad diagnosis or erroneous calculus of risks and costs, or a mistaken decision not to treat based on an erroneous view that the condition is benign or trivial or hopeless, or that treatment is unreliable, or that the cure is as risky or painful or bad as the malady. . . . [But] [c]onsciously disregarding an inmate's legitimate medical needs is not 'mere medical malpractice.'"); Hathaway v.Coughlin, 37 F.3d at 66 ("Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.").

"It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance v. Armstrong, 143 F.3d at 703;accord, e.g., Hathaway v. Coughlin, 37 F.3d at 70 (Jacobs, C.J., dissenting) ("'We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.'"); Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim."); see also, e.g., Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim"); Brown v. Selwin, 250 F. Supp. 2d 299, 308 (S.D.N.Y. 1999) (citing cases), aff'd, No. 01-0144, 29 Fed. Appx. 762, 2002 WL 355901 (2d Cir. Mar. 6, 2002); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999);Espinal v. Coughlin, 98 Civ. 2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).¹⁹

19 Furthermore, a delay in medical treatment does not necessarily invoke the Eighth Amendment:

Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, this Court has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a "life-threatening and fast-degenerating" condition for three days; or delayed major surgery for over two years. No such circumstances are present here. At no point was [plaintiff's] condition "fast-degenerating" or "life-threatening," and there is no indication that [defendant] delayed treatment in order to punish him. Moreover, any delay in treatment in this case does not rise to the egregious level identified in Hathaway. That [plaintiff] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim.

Demata v. New York State Corr. Dep't of Health Servs., No. 99-0066, 198 F. 3d 233 (table), 1999 WL 753142 at *2 (2d Cir. Sept. 17, 1999) (citations omitted) (summary judgment for defendants where plaintiff complained of knee injury in February 1994 and surgery not performed until March 1997); accord, e.g., Smith v. Carpenter, 316 F.3d at 185 ("When the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the person's underlying medical condition alone in analyzing whether the alleged deprivation is, in 'objective terms, sufficiently serious,' to support an Eighth Amendment claim.") (emphasis in original);Freeman v. Strack, 2000 WL 1459782 at *9 (no Eighth Amendment claim against nurse who scheduled inmate with appendicitis requiring appendectomy for appointment two hours later rather than seeing inmate immediately where "[t]here was nothing in [the inmate]'s medical history which would have put [the nurse] on notice that [plaintiff] was suffering from the onset of appendicitis . . . and there is no evidence that [the officer] gave [the nurse] any reason to believe that there was an emergency on hand"); Culp v. Koenigsmann, 2000 WL 995495 at *7-8 (rejecting claim based on fact that one doctor recommended arthroscopic surgery for knee injury in April 1999, while another doctor concluded that surgery was not warranted until more conservative measures like physical therapy had been tried and failed).

"Just as the relevant 'medical need' can only be identified in relation to the specific factual context of each case, the severity of the alleged denial of medical care should be analyzed with regard to all relevant facts and circumstances. The absence of adverse medical effects or demonstrable physical injury is one such factor that may be used to gauge the severity of the medical need at issue. Indeed, in most cases the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Smith v. Carpenter, 316 F.3d at 187 (citations omitted).

A risk of future harm also is actionable under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33-36, 113 S. Ct. 2475, 2480-82 (1993) (exposure to second hand smoke);Warren v. Keane, 196 F.3d 330, 332-33 (2d Cir. 1999) (same). Determining whether "conditions of confinement violate the Eighth Amendment 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 the exposure to [the harmful condition]. It also requires a court to 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. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. at 36, 113 S. Ct. at 2482. The threatened health problems must be "'sufficiently imminent' and 'sure or very likely to cause serious illness and needless suffering in the next week or month or year.'" Atkins v. County of Orange, 372 F. Supp. 2d 377, 408 (S.D.N.Y. 2005).

V. DENIS' SECOND HAND SMOKE/ETS CLAIMS RAISE DISPUTED ISSUES OF FACT PRECLUDING SUMMARY JUDGMENT A. Legal Background Regarding Second Hand Smoke/ETS Claims

In Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475 (1993), the Supreme Court held that an inmate "states a cause of action under the Eighth Amendment by alleging that [defendants] have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health." Id. at 35, 113 S. Ct. at 2481. In remanding to allow the inmate to prove his claim, the Supreme Court made clear that the inmate needs to prove both the subjective and objective elements of an Eighth Amendment deliberate indifference claim. "With respect to the objective factor, [the inmate] must show that he himself is being exposed to unreasonably high levels of ETS." Id., 113 S. Ct. at 2482. Relevant factors include whether the inmate is exposed to smoke in his cell, and prison policies that restrict smoking. Id. at 35-36, 113 S. Ct. at 2482. Noting that the prison had instituted a new policy restricting areas in which smoking was allowed, the Supreme Court stated that "[i]t is possible that the new policy will be administered in a way that will minimize the risk to [the inmate] and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction." Id. at 36, 113 S. Ct. at 2482. The Supreme Court further stated that:

Also with respect to the objective factor, determining whether [the inmate's] conditions of confinement violate the Eighth Amendment 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. It also requires a court to 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. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.

On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument [the inmate's] counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that prison authorities are ignoring the possible dangers posed by exposure to ETS. The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration.

Id. at 36-37, 113 S. Ct. at 2482.

In Warren v. Keane, 196 F.3d 330 (2d Cir. 1999), the Second Circuit held "that after Helling, 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." Id., 196 F.3d at 333. The Second Circuit noted that "[g]iven the known dangers of ETS, we conclude that a reasonable person would have understood that exposing an inmate to high levels of ETS could violate the Eighth Amendment." Id. The Second Circuit therefore upheld the district court's denial of defendants' qualified immunity and denial of defendants' summary judgment motion. Id.

In Davis v. New York, 316 F.3d 93 (2d Cir. 2002), the Second Circuit vacated the district court's grant of summary judgment to defendants and remanded for further findings. Specifically, while the district court had found the three occasions of exposure to ETS between October 1998 and February 1999 insufficient to fulfill the objective prong of the deliberate indifference test, the Second Circuit found the record showed a broader period of exposure to ETS, which included a period when the inmate had been double-bunked with a smoker and that he had always been surrounded by chain-smokers in his unit such that he experienced respiratory problems, dizziness, difficulty breathing and blackouts. See id. at 100-01. "These assertions are not mere conclusory allegations, but may be sufficient to create an issue of fact as to the level of smoke to which [the inmate] was exposed and, thus, whether his Eighth Amendment rights were violated." Id., 316 F.3d at 101. The Second Circuit in Davis — thus directed the district court on remand to determine whether the inclusion of the broader period of time would create a genuine issue of material fact as to whether the inmate was exposed to unreasonable ETS levels.Id. ²⁰

20 The time periods in Davis spanned different phases of DOCS' Smoke Free Policy but did not include the post-January 2001 period. Defendants in Davis had argued, inter alia, that the new smoking policy was being phased in and that once Phase IV began in 2001, they "contemplated" that smoking inside the facility would be prohibited. Id. at 98.

The Court recognizes that the majority of ETS rulings by district courts within this Circuit have granted summary judgment to defendant prison officials. But most of those cases arose prior to the post-January 2001 phase of the Smoke Free Policy (or do not discuss the effect of the Smoke Free Policy on ETS levels). Compare, e.g., Johnson v. Goord, 01 Civ. 9587, 2005 WL 2811776 at *5-8 (S.D.N.Y. Oct. 27, 2005) (granting defendants summary judgment on plaintiffs' pre-2001 claim for failure to establish sufficiently serious conditions where their smoke-related complaints at most caused temporary discomfort and failed subjective prong because no-smoking policy that was being phased in could not in and of itself constitute deliberate indifference; additionally, plaintiffs failed to show personal involvement of defendants); Kendall v. Kittles, 03 Civ. 628, 2004 WL 1752818 at *6 (S.D.N.Y. Aug. 4, 2004) (post-January 2001 with no discussion of smoking policy: summary judgment granted to defendants where asthmatic pre-trial detainee's request of transfer to non-smoking housing based on complaints of swelling due to second-hand smoke exposure were not substantiated by his medical records which showed the swelling he complained of had subsided and he had no further breathing difficulties, and therefore he failed to show sufficiently serious medical condition); Zaire v. Artuz, 99 Civ. 9817, 2003 WL 230868 at*5-7 (S.D.N.Y. Feb. 3, 2003) (summary judgment granted to defendants where inmate alleged that prison officials violated his Eighth Amendment rights by failing to enforce the partial smoking ban as it existed in 1997-1998 but his exposure to tobacco smoke was only for six weeks and only periodic and he had never sought medical treatment in connection with ETS exposure; inmate could not show personal involvement or deliberate indifference of the Superintendent based solely on his grievance letters); Gill v. Bracey, 99 Civ. 10429, 2001 WL 34045758 at *4 (S.D.N.Y. July 17, 2001) (summary judgment granted to defendants because inmate failed to establish objective element of an Eighth Amendment violation where inmate's exposure to four and a half hours of ETS per day for two months while at programming, and he had a single cell that was smoke-free, and there was no medical record that his pre-existing sinus conditions were exacerbated by his exposure to ETS); LaCroix v.Williams, No. 97-CV-0790, 2000 WL 1375737 at *2-3 (W.D.N.Y. Sept. 21, 2000) (defendants' unopposed summary judgment motion granted where inmate alleged he suffered from "cold- and sinus-related symptoms which were found to be unrelated to any purported intolerance for smoke" and where inmate's request for transfer to non-smoking cell was denied based on facility policy to only transfer inmates to non-smoking cells where medically necessary, inmate failed to allege unreasonable exposure to ETS);Blyden v. Bartlett, No. 95-CV-1071, 1997 WL 584308 at *2 (W.D.N.Y. Sept. 9, 1997) (summary judgment for defendants where inmate plaintiff did not submit any affidavits or supporting documents in response to defendants' motion, inmate failed to show his injuries were sufficiently serious where his complaint alleged he suffered headaches, nausea and irritability but medical records did not substantiate his claims); Davidson v. Coughlin, 920 F. Supp. 305, 309 (N.D.N.Y. 1996) (summary judgment for defendants because inmate failed to demonstrate the level of smoke in the facility or "whether that degree of exposure would have been enough to cause or aggravate a current or future serious illness"); with McPherson v. Coombe, 29 F. Supp. 2d 141, 145-46 (W.D.N.Y. 1998) (summary judgment denied even though inmate had not suffered physical injury due to smoke because there was question of fact whether risk of future harm caused by ETS exposure was unreasonable where inmate was housed in "a poorly ventilated housing unit with 41 other inmates [and] [s]moking was allowed at all times.").²¹

21 See also Lyerly v. Phillips, 04 Civ. 3904, 2005 WL 1802972 at *5-6 (S.D.N.Y. July 29, 2005) (defendants' motion to dismiss denied where inmate asserts he was double-bunked with an inmate that smoked and his medical records showed that he had asthma and a low-functioning lung; post-January 2001 Smoke Free Policy but no mention of policy); Ahlers v. Goord, No. 00 CV 1221, 2001 WL 477238 at *4-5 (E.D.N.Y. Feb. 16, 2001) (defendants' motion to dismiss denied where inmate with documented medical history of treatment for allergies to tobacco smoke adequately pled Eighth Amendment violation for unreasonable exposure to tobacco smoke and risk of increased exposure in the future due to policy that confined smoking to the living units, with Court advising parties to update it on implementation of post-January 2001 phase which could render case moot);Candelaria v. Greifinger, No. 96-CV-0017, 1998 WL 187383 at *2 (N.D.N.Y. Apr. 15, 1998) (Pooler, D.J.) (denying defendants' motion to dismiss inmate's ETS exposure claim, but noting that implementation of the pre-2001 partial smoking ban could pose obstacle to inmate establishing the subjective prong of the Eighth Amendment test); Giglieri v. New York City Dep't of Corr., 95 Civ. 6853, 1997 WL 419250 at *3 (S.D.N.Y. July 25, 1997) (defendants' motion to dismiss granted where pretrial detainee's ETS exposure was forty-five minutes for a few times for only a month was not sufficient to show danger of future harm).

The one case which specifically deals with the post-January 2001 phase, Johnson v. Goord, 01 Civ. 9587, 2004 WL 2199500 (S.D.N.Y. Sept. 29, 2004), discussed in depth below, granted summary judgment because the plaintiffs failed to show a triable issue of fact as to a lack of enforcement, while Denis has presented evidence as to extensive lack of enforcement.

B. Application to Denis' Claims 1. The Objective Prong

As to the objective prong of the test, it is undisputed that Denis suffers from chronic sinusitis. (See pages 13-16 above.) Defendants' expert Dr. Schluger has argued that "second hand smoke did not cause Mr. Denis' sinusitis (Dkt. No. 29: Dr. Schluger Aff. ¶ 16), and Denis has offered no admissible evidence to the contrary. However, while Dr. Schluger also opined that second hand smoke "did not exacerbate" Denis' sinusitis "in any meaningful way" (id.), there is evidence to the contrary: the very National Institutes of Health brochure on sinusitis that Dr. Schluger attached to his affidavit stated that one "prone to getting sinus disorders . . . should avoid cigarette smoke and other air pollutants." (Dr. Schluger Aff. Ex. C: NIH Brochure on Sinusitis, at p. 6.) And the NIH 2005 Fact Sheet on Second Hand Smoke, again attached by Dr. Schluger to his affidavit, states that "second hand smoke is also associated with . . . eye and nose irritations." (Dr. Schluger Aff. Ex. D: NIH Second Hand Smoke Fact Sheet.) Moreover, Denis' medical records, summarized at pages 12-15 above, reflect numerous visits by Denis to the infirmary because of nasal congestion and eye irritation, and complaints to medical staff and filing of grievances that his condition was exacerbated by smoke. (See also Dkt. No. 38: Denis Rule 56.1 Stmt. ¶ 41, citing his medical records.) Moreover, Denis has testified that his "sinusitis has caused him chronic pain in [the] form of associated sinus headaches, nasal discomfort." (Denis Rule 56.1 Stmt. ¶ 42.)

Denis testified that inmates smoked "everyday" in the housing units he was housed in throughout the period, and particularly in the inmate bathrooms. (See Denis Dep. at 92, 94, 98, 101, 127-29, 140-41, 154-55, 159-62.) Thus, Denis' evidence — if believed by the jury — would establish a pervasive amount of smoking, despite DOCS' no indoor smoking policy. Here, as inJohnson v. Goord, 01 Civ. 9587, 2004 WL 2199500 at *15 (S.D.N.Y. Sept. 29, 2004), defendants have presented no evidence "as to the level of ETS in plaintiffs' housing unit." Thus, in light of Denis' diagnosed chronic sinusitis and claims of "chronic pain," and evidence of pervasive ETS (but without any information about the level of ETS), "[a]t this stage, there is a triable issue of fact whether the exposure of inmates with demonstrated respiratory problems to ETS meets the objective prong." Johnson v. Goord, 2004 WL 2199500 at *15. The Court's conclusion is further supported by the Second Circuit's finding of possible fact issues in Davis v. New York, 316 F.3d 93, 100-01 (2d Cir. 2002). In Davis, the Second Circuit reversed the district court's grant of summary judgment for defendants, finding that the inmate's allegations that "he had always been housed in areas where the majority of inmates were smokers. . . . such that 'the smell of smoke fills the air and enter[s] [the inmate's] cell in a manner as though [he] was [him]self smoking,'" and the ETS causd respiratory problems" could create fact issues. Id. Here, as in Davis, Denis alleges that inmates smoked "everyday" in the housing unit and bathrooms, and that the ETS exacerbated his chronic sinusitis and caused him constant pain. (See pages 9, 12-15 above.) Denis, like Davis, satisfies the objective prong sufficient to preclude summary judgment for defendants.

Moreover, while Denis may not be able to prove that his exposure to ETS will actually cause cancer in the future, as required by Helling (see pages 33-35 above), the fact that his sinusitis is chronic and painful and, according to Denis' evidence, will persist indefinitely if his conditions of incarceration persist as they are now, provides the basis for this Court to find a triable issue of fact on the objective prong not only as to his present injuries but as to the likelihood of future injuries as well.²² 2. The Subjective Prong

22 The Seventh Circuit, in Henderson v. Sheahan, 196 F.3d 839 (7th Cir.), cert. denied, 530 U.S. 1244, 120 S. Ct. 2691 (2000), addressed the issue that arises in cases alleging future injury of whether the plaintiff can show a sufficient causal relationship between the harm and the damages incurred in the future. In Henderson, the Seventh Circuit court granted defendants' summary judgment in an ETS case because the pretrial detainee failed to "proffer competent and reliable expert medical testimony that there was a reasonable medical certainty the he himself faces some defined level of increased risk of developing a serious medical condition and that this increased risk was proximately caused by his exposure to second-hand smoke while detained at the Cook County jail." Id. at 852. Instead, the Seventh Circuit found the detainee's "claimed increased risk of developing atherosclerosis or some other serious injury is too attenuated and speculative to properly support an award of present monetary damages." Id. at 853. Here, the concern expressed by the Seventh Circuit in Henderson is not in issue because the Court finds Denis' chronic sinusitis to provide a sufficient basis for him to prove possible injury in the future. Moreover, Henderson was addressing the issue of damages only, since the inmate was no longer in the county jail and thus injunctive relief was unavailable. Id. at 848 n. 3. Here, in contrast, Denis remains incarcerated at Mid-Orange and, even if damages could not be awarded for concerns about future harm, he would be entitled to injunctive relief.

"In order to satisfy the subjective prong, [Denis] must prove deliberate indifference, taking into account prison officials' 'current attitudes and conduct and any policies that have been enacted.'" Johnson v. Goord, 2004 WL 2199500 at *16 (quotingWarren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999). "The adoption of a smoking policy, if enforced, 'will bear heavily on the inquiry into deliberate indifference.'" Johnson v. Goord, 2004 WL 2199500 at *16 (quoting Helling v. McKinney, 509 U.S. 25, 36-37, 113 S. Ct. 2475, 2482 (1993)).

It is undisputed that DOCS adopted a Smoke Free Policy such that, since January 2001, smoking indoors by inmates and staff is prohibited. (See pages 2-3 above.) The only information about the history of the Smoke Free Policy submitted in this case is that it was in response to the State Clean Indoor Air Act. N.Y. Pub. Health Law § 1399-o. In Johnson v. Goord, the State submitted additional information about the history behind DOCS' smoking policies, from Thomas Eagen, Director of the DOCS Inmate Grievance Program and a member of DOCS' Smoking Committee:

Eagen attests that, in developing its smoking policy, DOCS considered prohibiting smoking altogether or creating separate housing units for non-smokers, and concluded that neither alternative was feasible at the time. It took account of the unique nature of a prison environment. DOCS concluded that a "sudden complete ban" on tobacco products in its facilities could have resulted in serious unrest among inmates and put both inmates and staff at risk. The creation of separate smoking and non-smoking housing units would, according to Eagen, have eliminated the flexibility necessary to managing inmate assignments and transfers and enabled inmates to manipulate their placements for a variety of improper reasons, including to enable them to get closer to other inmates for the purpose of engaging in illegal activities and/or causing physical harm to other inmates. Johnson v. Goord, 01 Civ. 9587, 2005 WL 2811776 at *4 (S.D.N.Y. Oct. 27, 2005). Nevertheless, when DOCS implemented its four phase policy leading up to a ban on indoor smoking, it stated that it would evaluate the effectiveness of the indoor smoking ban and if problems persist, might ban all smoking and smoking products. (McCoy Aff. Ex. A: DOCS' Smoke Free Policy at pp. 000305, 000331, quoted at page 3 above.)

There is no evidence in the record, however, as to whether DOCS made any such evaluation or, if it did, the result.

Thus, it is undisputed that senior DOCS officials recognized the need to prohibit smoking indoors to protect inmates from ETS, and recognized that there might be compliance problems.

In Johnson v. Goord, Judge Castel granted summary judgment for defendants as to post-January 2001 events because of DOCS' no indoor smoking policy where plaintiffs only offered anecdotal evidence of continued smoking in violation of the policy. 2004 WL 2199500 at *17. Here, in contrast, Denis testified at his deposition to smoking "everyday" in his housing units and in inmate bathrooms throughout the facilities. (Denis Dep. at 92, 94, 98, 101, 127-28, 140-41, 151, 154-55, 159-62.) Judge Castel in Johnson v. Goord also relied on the disciplinary proceedings information from Green Haven, showing 72 disciplinary proceedings in 2002. Johnson v. Goord, 2004 WL 2199500 at *16. Judge Castel concluded that while this data "demonstrates that inmate compliance with the ban was not universal, it also shows that supervisory personnel at Green Haven were hardly indifferent to the enforcement of the policy." Id.

In this case, in contrast, the disciplinary statistics are different. At Oneida, from January 2002 to May 2003, 840 "inmates" were infracted for smoking violations, out of a population of 1,200. (See page 7 above.) Assuming each infraction was to a different inmate, and that the population turned over completely in that period (i.e., 2,400 different inmates), it would mean that one in every three inmates was disciplined for smoking. At Mid-Orange, from January 2001 until April 2005, over 60 inmates (out of a population of 750) were charged with smoking violations. (See page 9 above.) Perhaps this explains why, as Denis testified, there was less environmental smoke at Mid-Orange than at Oneida. (See page 9 above.) But another interpretation could be that Mid-Orange did not adequately enforce the smoking ban, since Denis still testified that smoking went on every day at Mid-Orange, in the housing unit and inmate bathrooms. (Denis Dep. at 151, 154-55, 159-62.)²³

23 Denis' evidence of the large number of disciplinary tickets issued separates this case from those in which other Circuits have granted summary judgment due, in part, to the inmate's failure to proffer sufficient evidence of a failure to enforce. See, e.g., Kelley v. Hicks, 400 F.3d 1282, 1285 (11th Cir. 2005) (affirming district court's grant of summary judgment where prison had no-smoking policy, defendants explained that "any inmate caught smoking inside would be disciplined," where inmate failed to proffer any evidence that the ventilation was in fact improper, where inmate had been released from prison and therefore could no longer claim exposure to ETS, and, finally, where inmate offered no evidence to show his headaches were causally linked to his ETS exposure. Moreover, inmate failed the subjective prong because at most his "personal observations" established mere negligent enforcement by defendants of the no-smoking policy.); Weaver v. Clarke, 120 F.3d 852, 854 (8th Cir. 1997) (affirming district court's grant of summary judgment to defendants because inmate could not establish the subjective prong of Eighth Amendment test where prison had smoking ban and prison officials took "reasonable steps" to insure the inmate's cellmate observed the no-smoking policy by "searching the cell for tobacco products, and by advising [the inmate] that he should contact the managers of the housing unit for an investigation."),cert. denied, 522 U.S. 1098, 118 S. Ct. 898 (1998).

The Court thus finds material issues of fact as to whether the smoking prohibition sufficiently resolved the ETS problem, and whether DOCS adequately enforced the no smoking policy.

In short, there are material issues of fact as to the effectiveness of DOCS' policy and whether DOCS adequately enforced the policy, sufficient to satisfy Denis' burden as to the subjective prong sufficient to defeat defendants' summary judgment motion.

The Court also notes that neither party has submitted any evidence as to changes in societal tolerance for smoking. The Court takes judicial notice that New York City used to require restaurants to have smoking and non-smoking sections, but that effective March 30, 2003, smoking was banned in all restaurants and bars in the City. N.Y.C. Admin. Code § 17-503; see generally Lily Koppel Jim Rutenberg, As Air Clears, Even Smokers are Converted, N.Y. Times, Feb. 6, 2005, at 2005 WLNR 1656128. Smoking also is now banned in sports stadiums and arenas and other public buildings in New York City. N.Y.C. Admin. Code § 17-503. Smoking in airplanes followed a similar history — first smoking and non-smoking sections, now bans on smoking on all domestic flights. These bans are not limited to airplanes and New York City, but are in place in eleven states, including New York, Connecticut and New Jersey in our region. See generally Josh Benson Richard Lezin Jones, Legislators Pass Smoking Ban in New Jersey, N.Y. Times, Jan. 10, 2006, at B1 ("New Jersey would become the 11th state" to ban smoking in all indoor public places including bars, restaurants, casinos.); Gerry Doyle Dave Wischnowsky, Other Cities' Bans Didn't Kill Business; Tribune Survey Finds 1st Shock Sort-Lived, Chicago Tribune, Dec. 7, 2005, at C16 ("About 2,000 American cities have imposed some type of smoking ban."). In short, based on the increase in the number of states and cities that have imposed smoking bans in public places, societal tolerance for exposure to ETS has decreased significantly since Helling was decided in 1993, providing additional support for the need for prisons to not only have a policy against indoor smoking, but to effectively implement and enforce such a policy.

C. Personal Involvement of the Individual Defendants

Defendants contend that they lacked personal involvement and are entitled to summary judgment on that ground. (Dkt. No. 28: Defs. Br. at 17-20; Dkt. N. 43: Defs. Reply Br. at 5-7.)

The five different ways a supervisor can be found to be personally involved in a § 1983 violation are described in the leading Second Circuit case of Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), as follows:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Accord, e.g., Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004); Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003); Hernandez v.Keane, 341 F.3d 137, 145 (2d Cir. 2003), cert. denied, 125 S. Ct. 971 (2005); Dawkins v. Jones, 03 Civ. 0068, 2005 WL 196537 at *11 (S.D.N.Y. Jan. 31, 2005) (Peck, M.J.); Hall v.Perilli, 03 Civ. 4635, 2004 WL 1068045 at *9 (S.D.N.Y. May 13, 2004) (Peck, M.J.).

Defendants, however, largely focus on defendants' responses to Denis' grievances or complaint letters, as opposed to the other factors.

Commissioner Goord, as DOCS' CEO, has responsibility for DOCS' Smoke Free Policy. If the policy (as opposed to its lack of enforcement at the facility level) is constitutionally lacking (e.g., because it is sufficiently unenforceable that a total ban on possession of tobacco is necessary), Commissioner Goord is responsible for the creation or continuance of that policy. That is sufficient personal involvement.

Superintendents Hollins and Schultz, on the other hand, do not appear to have been on DOCS' Smoking Committee (although that is more an inference than a fully documented fact) and appear to have had no involvement in creating or continuing DOCS' Smoke Free Policy. Indeed, the record reflects that the facilities could not have a different (stricter) smoking policy than DOCS' overall policy. (See page 10 above.) However, it is clear that if the problem is not with DOCS' Smoke Free Policy but rather the failure to adequately enforce it at the facility level, then the Superintendents would be liable.²⁴

24 The Court notes a "Catch 22" argument in defendants' papers. Defendants assert that "defendants McCoy, Hollins and Schultz did not create DOCS' system wide smoking policy and had no role in deciding whether the state wide policy would continue," and thus had no personal involvement. (Defs. Br. at 20.) On the other hand, Commissioner Goord's affidavit states that "to the extent that Mr. Denis complains about lack of enforcement of various facilities' (Cayuga, Oneida and Mid-Orange) smoking policies, these complaints are best addressed to the respective Superintendents of each facility. Under ordinary circumstances, Central Office will not intervene in the enforcement of an individual facility's smoking policy." (Dkt. No. 33: Goord Aff. ¶ 8.)

Surprisingly in a deliberate medical indifference case, the one defendant without personal liability is defendant Deputy Commissioner Dr. Lester Wright, DOCS' Chief Medical Officer. Denis does not complain about the medical care he has received for his sinusitis — he was seen regularly at the clinic as well as by specialists — but rather about the ETS in DOCS' facilities and its effect on his present and/or future medical conditions. Dr. Wright "was not a member of DOCS' Smoking Committee" and "did not participate in the formulation, review or approval of DOCS' system-wide smoking policy," nor does he have "any involvement in the formulation, approval, implementation or enforcement of DOCS' current smoking policy." (Dkt. No. 34: Wright Aff. ¶¶ 8-9.)

Accordingly, Dr. Wright is entitled to summary judgment for lack of personal involvement. Defendants Goord, Hollins and Schultz are denied summary judgment on the issue of personal involvement.²⁵

25 The defendants also have moved for summary judgment on qualified immunity grounds. (Dkt. No. 28: Defs. Br. at 20-22; Dkt. No. 43: Defs. Reply Br. at 7-7.) Issues of fact prevent granting summary judgment on qualified immunity grounds. The Second Circuit in Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999), unequivocally held "that after Helling, 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 [present and] future harm to the inmate's health." Defendants' claim of qualified immunity is based on their claim that Denis has not established that he was exposed to unreasonably high levels of ETS, that is, that since Denis loses on the merits, they have qualified immunity. But as discussed above, this Court has concluded that material issues of fact exist that preclude summary judgment for defendants. Those same factual issues — as to the sufficiency of DOCS' Smoke Free Policy and its enforcement or lack thereof at the facility level — preclude summary judgment on the issue of qualified immunity.
Denis claims that summary judgment should be denied because he needs more discovery. (Dkt. No. 39: Denis Br. at 13-14.) Denis had an opportunity for discovery before the discovery cutoff date. Moreover, the only material he specifically identifies is photographs of the three facilities. In fact, he sought that in discovery and this Court upheld defendants' objections, which were that they did not have such photographs, had no obligation to create them for Denis, and even if they had photographs, there would be security concerns in producing them to a pro se inmate. The Court understands Denis wants these photographs to show the "open" nature of the medium security housing units in which he was and is incarcerated. The Court understands Denis' claims with regard to the open nature of the housing units and does not need photographs to understand Denis' arguments.

CONCLUSION

For the reasons discussed above, the defendants' summary judgment motion should be granted in part and denied in part. Specifically: 1. DOCS is entitled to summary judgment on Eleventh Amendment grounds.

2. The individual defendants are entitled to summary judgment on Eleventh Amendment grounds for Denis' claims for damages in their official capacities.

3. Defendant Superintendent McCoy is entitled to summary judgment on statute of limitations grounds, and Denis' claims against the other defendants for the period before March 16, 2002 also should be dismissed on statute of limitations grounds.

4. Defendant Dr. Wright is entitled to summary judgment for lack of personal involvement.

5. Defendant Hollins, who has retired, is entitled to summary judgment on Denis' claim for injunctive relief (but not for damages).

6. Defendants' summary judgment motion should be DENIED as to Denis' claims for damages against defendants Goord, Hollins and Schultz in their personal capacities, and Denis' claims for injunctive relief against defendants Goord and Schultz, because of material issues of disputed facts.

The Court suggests that Denis try to obtain counsel for purposes of trial (perhaps by contacting the American Cancer Society or other entities that oppose smoking), and that if he is unable to do so on his own, he apply to the Court for appointment of pro bono counsel for purposes of trial. Because of this, the Court defers the deadline for the parties to prepare the Pretrial Order until March 31, 2006 (or further order by Judge Kaplan).

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6 (e).