Opinion
97-CV-0790E (F)
September 21, 2000
Attorneys For The Plaintiff: Pro Se, North Tonawanda, N Y 14120
Attorneys For The Defendant: Ann C. Williams, Esq., Asst. Attorney General for NYS, 107 Delaware Ave., Buffalo, N Y 14202
MEMORANDUM and ORDER
Plaintiff, proceeding pro se, brings this prisoner action pursuant to 42 U.S.C. § 1983 and alleges that defendants acted in disregard of his health by depriving "plaintiff of his right to a smoke-free environment" and unlawfully retaliated against him by subjecting his living quarters to "many `random' searches" for asserting "too many grievances," this violating his civil rights under the Eighth Amendment. Am. Compl. ¶¶ 8-11. Plaintiff seeks compensatory and punitive damages, an injunction barring "present and future reprisals" and removal to "smoke-free quarters." Compl. ¶ V. Presently before this Court is defendants' motion for summary judgment dismissing plaintiff's action. Plaintiff has not filed any materials in opposition. Defendants' motion will be granted.
Plaintiff originally filed this action October 8, 1997 while he in the custody of the New York State Department of Correctional Services. He was released to parole effective May 16, 1999. Defendants' Statement of Undisputed Facts ¶ 11. The motion prompting this Memorandum and Order was filed January 28, 2000.
By Order dated January 7, 1998, this Court granted plaintiff leave to serve and file an Amended Complaint. This Order was prompted by plaintiff's desire to add Glenn S. Goord, Commissioner of the New York State Department of Correctional Services, as a named defendant herein. Upon serving and filing his Amended Complaint, it is clear that plaintiff envisioned that such would be read in tandem with his original Complaint because the Amended Complaint lacks such basic pleading necessities as a statement of jurisdiction and demand for relief. See Rule 8(a)(1) of the Federal Rules of Civil Procedure ("A pleading which sets forth a claim for relief *** shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, *** (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks."). While this improvisation might ordinarily present an obstacle, it is clear that defendants will suffer no prejudice in the instant case if this Court amalgamates plaintiff's two pleadings inasmuch as a reading of their motion papers indicates that defendants have read plaintiff's pleadings in tandem and are under no illusion that this Court would act otherwise. Accordingly, any reference to plaintiff's Amended Complaint will be construed to incorporate the contents of plaintiff's original Complaint.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment "shall be rendered forthwith" if the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A factual dispute is material if its resolution "might affect the outcome of the suit under the governing law" and is genuine if it reasonably could be resolved in favor of any party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Evidence submitted by the non-moving party is to be believed and all justifiable inferences are to be drawn in such party's favor. Anderson, at 255. If the movant demonstrates that there is no genuine issue as to any material fact, the burden then shifts to the non-moving party to show specific facts as to which there are genuine and material triable issues. Anderson, at 250. The non-moving party will not defeat a summary judgment motion "by relying on the allegations in his pleading ***, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Rather, the non-moving party must submit significant and probative supporting evidence showing that a factual dispute actually exists. Anderson, at 249; see also FRCvP 56(e) ("[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party *** must set forth specific facts showing that there is a genuine issue for trial").
This Court is also mindful of its duty to read a pro se plaintiff's papers liberally. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Nevertheless, such liberality does not mean that plaintiff is not required to respond to defendants' motion for summary judgment. Where, as here, a pro se plaintiff fails to respond to a summary judgment by filing and serving opposition materials, such motion may still be granted if the plaintiff has been given notice that "failure to respond will be deemed a default" and "the facts as to which there is no genuine dispute `show that the moving party is entitled to a judgment as a matter of law.'" Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see also FRCvP 56(e) ("If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."). Inasmuch as this Court's review of the record indicates that plaintiff was not without notice as to the potential consequences of not responding to the instant motion, this Court's inquiry focuses on whether defendants have properly "made and supported" their FRCvP 56 application.
The docket shows that, on February 1, 2000, this Court sent plaintiff notice of defendants' summary judgment motion. Such notice clearly indicated the time deadline by which his papers in opposition were to be filed. Defendants also note that, since the filing of their motion, plaintiff appears to have moved and left no forwarding address, which is evidenced by two letters being returned to them by the United States Postal Service with the notations "RETURNED TO SENDER" and "MOVED" "LEFT NO ADDRESS" stamped on the envelopes. See Williams Decl., dated April 14, 2000, Exs. A B. While such may be ascribed to a probable transient status after plaintiff's release from prison in May 1999, the undersigned notes that "[i]t is the responsibility of a pro se litigant to inform the Court of any change of address. Failure to do so may result in dismissal of the case with prejudice." Rule 5.3(d) of this Court's Local Rules of Civil Procedure. After consideration of all the circumstances, this Court determines that the plaintiff has been derelict in advising this Court of any intervening changes in his mailing address and is deemed to have received adequate notice of the instant proceedings. Accordingly, the motion will be considered on its merits.
The following facts are deemed to be admitted because plaintiff has failed to controvert defendants' Statement of Undisputed Facts ("Statement"). See Rule 56 of this Court's Local Rules of Civil Procedure ("All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party."). Plaintiff was, at all times relevant to the allegations in the complaint, a prison inmate at the Gowanda Correctional Facility ("Gowanda") wherein he was incarcerated from February 7, 1997 to October 20, 1998. Statement ¶¶ 9-10. Also during this time period, defendant Williams was Gowanda's Superintendent, defendant Tarbell was Gowanda's Supervisor of the Inmate Grievance Program and was responsible for investigating prisoner grievances on behalf of the Inmate Grievance Review Committee ("the IGRC"), defendant Jefferson was a Corrections Sergeant at Gowanda, defendant Dubay acted as a Counselor at Gowanda, defendant Goord was employed as the Commissioner of the Department of Correctional Services of the State of New York ("DOCS") and defendant Kurtz acted as Gowanda's Facility Health Services Director of the Medical Services Unit. Statement ¶¶ 2-7, 23. While incarcerated at Gowanda, plaintiff filed various grievances with the IGRC regarding alleged exposure to environmental tobacco smoke ("ETS") and sought, inter alia, a transfer to non-smoking quarters. Statement ¶¶ 12, 16, 17. At all times relevant to this action, it was the policy and practice at Gowanda to accommodate inmate requests for transfer to a non-smoking room or cell only where medically necessary. Statement ¶ 28. Under the Clean Air Policy instituted at Gowanda, smoking was not permitted in any public area or any patient care areas but was permitted in an inmate's living quarters. Statement ¶ 27, 68, 73. Despite these restrictions, plaintiff claimed that exposure to ETS caused him a plethora of maladies, including ringing in his ears, loss of equilibrium, sore glands and hearing loss. Statement ¶ 13. Defendant Tarbell's subsequent investigation — including the results from an examination performed by defendant Kurtz, a medical doctor — for the IGRC, of which she is not a member, revealed that no objective medical evidence supported plaintiff's grievances. The IGRC, which consists of two inmate representatives and three staff representatives —, none of whom is named as a defendant herein — unanimously concurred and recommended that plaintiff's request not be granted. Statement ¶¶ 14, 18, 19, 24, 25. At best, plaintiff's medical examinations revealed that he suffered from cold- and sinus-related symptoms which were found to be unrelated to any purported intolerance for smoke. Statement ¶¶ 35-36. The IGRC's recommendation ultimately resulted in the Central Office Review Committee denying plaintiff's request that he be transferred to a non-smoking room because it was not medically necessary. Statement ¶¶ 20, 21, 36, 52, 55. It is pertinent here to note that it is undisputed that defendants Williams, Goord, Jefferson and Dubay did not have personal involvement in such resolution of the plaintiff's grievances. Statement ¶¶ 30, 70, 90. It is also undisputed that defendants Williams and Goord were not made aware that ETS was allegedly harming plaintiff's health. Statement ¶ 33, 69. Finally, it is undisputed that defendants Jefferson and Dubay did not have decision-making authority regarding inmate room assignments and did not make or maintain any policy that would have governed such. Statement ¶¶ 92, 94, 95.
"The Constitution does not mandate comfortable prisons" and, for plaintiff to succeed in this action, he must show that "he [was] incarcerated under conditions posing a substantial risk of serious harm" and that prison officials were deliberately indifferent to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). "With respect to the objective factor, [plaintiff] must show that he himself is being exposed to unreasonably high levels of ETS" and that "the risk of which he complains is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. 25, 35-36 (1993). "[T]he subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct ***." Id. at 36. In light of the aforementioned uncontested facts, plaintiff fails to show either such failure or such indifference.
Internal citations and quotation marks omitted.
Quite simply, the uncontested facts show that the alleged injuries and the conditions to which he allegedly was exposed are not sufficiently serious to support an Eighth Amendment claim. See Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) (noting that "[t]he objective component of an Eighth Amendment claim is *** contextual and responsive to `contemporary standards of decency'"). In this regard, there is simply nothing in the record that specifies the exact basis of his alleged constitutional deprivations. Stated differently, plaintiff has alleged nothing by which it may be inferred that he was being exposed to unreasonably high levels of ETS. He does not argue, for example, that his cellmate was a "five-pack-a-day smoker." See Helling, at 35. All that plaintiff claims is that he "is housed in a twenty two man dormatory [sic]" and that "the other twenty one men all smoke cigarettes, and the dormatory room, as is the whole building, [is] not properly ventilated." Am. Compl. ¶ 1; Compl. Attach. ¶ 1. Such allegations are patently insufficient inasmuch as the medical evidence demonstrates that no objective medical evidence supported plaintiff's grievances. Consequently and because plaintiff has failed to show that his incarceration was under conditions posing a substantial risk of serious harm, plaintiff's Eighth Amendment claim fails. Even assuming, arguendo, that plaintiff has demonstrated facts which show that he was being exposed to unreasonably high levels of ETS, there is nothing in the record which supports an inference of deliberate indifference on the part of prison officials. As indicated above, it is undisputed that it was Gowanda's policy to attempt to accommodate inmate requests for transfer to a non-smoking room or cell where medically necessary. Inasmuch as plaintiff's medical examinations revealed nothing more than cold-type symptoms, his allegation that prison officials acted with deliberate indifference must fail because the record indicates that their actions were premised on objective medical evidence which disqualified him from being assigned to a non-smoking cell. Consequently and because plaintiff has failed to show that prison officials were deliberately indifferent, his Eighth Amendment claim fails.
Regardless of the above, plaintiff's claims against defendants Goord, Tarbell, Jefferson and Dubay must be dismissed because plaintiff has failed to show how they were personally involved in the alleged violation of constitutionally protected rights. Under section 1983, personal involvement is required for a finding of liability. See Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997). A defendant may be deemed to be personally involved where the evidence shows that "(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." Colon Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Defendants Goord, Tarbell and Dubay were named because such defendants failed to provide plaintiff with a non-smoking environment. Defendant Tarbell is mentioned only in the caption of the plaintiff's pleadings. In light of the undisputed facts, there is nothing in the plaintiff's papers which satisfies any of the aforementioned Colon criteria. There is nothing in such papers that shows that any of these defendants directly participated in plaintiff's injuries; there is nothing that shows they failed to remedy a wrong; there is nothing that shows they created or maintained a policy under which an unconstitutional practice occurred; there is nothing that shows they were grossly negligent in supervising subordinates; and there is nothing that shows that, upon receipt of plaintiff's complaints, they exhibited deliberate indifference. Moreover, the mere fact that any defendant may have held supervisory positions is not enough to generate liability, insofar as "[t]here is no respondeat superior liability in § 1983 cases." Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Plaintiff must specifically demonstrate how the personal involvement of these defendants supports his claims of liability. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). Inasmuch as plaintiff has not shown how any of these defendants was personally involved in violating plaintiff's constitutional rights, his Eighth Amendment claim against each fails.
Finally, plaintiff's claim for retaliation fails because he has made no attempt to show how "the assertion of his grievances was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline [him]." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). While plaintiff has alleged that defendants subjected his living quarters to "many `random' searches" in response to the filing of his grievances — Am. Compl. ¶ 10 —, it remains undisputed that plaintiff was not subjected to a disproportionately high number of searches and that those searches of his living quarters were, in fact, random. Statement ¶ 32;
Plaintiff's Mem. of Law, at 20. By definition, events which are random are marked by an absence of bias, thus belying any assertion that defendants "decided" to discipline plaintiff. Plaintiff's conclusory allegations aside, there is simply nothing in the record to support his version of the facts and plaintiff's claim for retaliation fails.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted, that plaintiff's case is dismissed and that this case shall be closed.