Opinion
04 Civ. 3904 (PKC).
July 17, 2006
MEMORANDUM AND ORDER
This section 1983 action was brought by plaintiff Clifton Lyerly alleging that he was deprived of medical care in violation of the Eighth Amendment. In a Memorandum and Order dated July 29, 2005, I dismissed plaintiff's claim against "D.O.C.S. Movement and Control" on the ground that the entity was an agency and arm of the State of New York and thus entitled to the State's immunity from suit under the Eleventh Amendment. Lyerly v. Phillips, 2005 WL 1802972, *3 (S.D.N.Y. July 29, 2005). In addition, I dismissed the claim against all individual defendants, except Carl J. Koenigsmann, M.D., the Facility Health Services Director of the Green Haven Correctional Facility ("GHCF"), on the ground that plaintiff had not pled sufficient facts to establish their personal involvement in the alleged civil rights violation. Id. at *6-*7. However, I concluded that plaintiff had stated a claim for relief against defendant Koenigsmann and denied his motion to dismiss. In doing so, I wrote as follows:
As to Dr. Koenigsmann, it appears that defendant Phillips transmitted to him plaintiff's request for transfer to the Unit for the Physically Disabled. Dr. Koenigsmann acknowledges having conducted a "review of [plaintiff's] medical records" before determining that plaintiff was not eligible for transfer to the unit. (Memorandum of August 28, 2002). Generously construed, under the lens of [Johnson v.] Newburgh Enlarged School, [ 239 F.3d 246 (2d Cir. 2001),] there appears to be sufficient personal involvement by Dr. Koenigsmann to withstand a motion to dismiss. From the context of his memorandum, he appears to have had the power to effectuate the transfer, but concluded that plaintiff's condition did not warrant transfer. Whether Dr. Koenigsmann's conclusions were well-grounded and his actions in good faith may be assessed after discovery.Id. at *7.
As the sole remaining defendant, Dr. Koenigsmann now moves for summary judgment on all of plaintiff's claims against him. (Docket No. 24) On May 9, 2006, plaintiff submitted an affirmation in opposition to defendant's motion, as well as attached exhibits. (Docket No. 32) As a pro se litigant, plaintiff Lyerly was served with the notice required by Local Rule 56.2 informing him of the nature of a summary judgment motion and the manner in which it could be opposed. (Docket No. 25) Despite such notice, plaintiff did not respond to the defendant's statement of facts assertedly not in dispute, as required by Local Rule 56.1. Plaintiff has submitted an affirmation in opposition to the motion, and defendant Koenigsmann has offered portions of plaintiff's deposition testimony. The plaintiff also attached several exhibits to his amended complaint, and I will consider his affirmation, his deposition, as well as the exhibits to his complaint in the context of the motion. For the reasons discussed below, I grant defendant Koenigsmann's motion for summary judgment.
Summary Judgment Standard
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). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law.Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e). In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must `demonstrate more than some metaphysical doubt as to the material facts,' and come forward with `specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.
"[W]hen the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005). See also Muntaqim v. Coombe, 366 F.3d 102, 105 n. 3 (2d Cir. 2004), vacated on other grounds, 449 F.3d 371 (2006) (stating that pro se pleadings should be "read liberally and interpret[ed] to raise the strongest arguments that they suggest"). 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," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment. See Odom v. Keane, 1997 WL 576088, *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995)). Specifically, mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citingMatsushita, 475 U.S. at 587 (1986)). See also Anderson, 477 U.S. at 249-50 (noting that summary judgment may be granted if the evidence is "merely colorable" or "not significantly probative").
Facts
For the purposes of these motions, I have accepted as true plaintiff's version of the facts and such other facts offered by defendant Koenigsmann that are not disputed by plaintiff. All reasonable inferences have been drawn in plaintiff's favor. Plaintiff suffers from asthma and a lung disease called sarcoidosis. (Lyerly Dep. at 86; Koenigsmann Aff't ¶ 4) Several circumstances, including environmental tobacco smoke ("ETS"), can "trigger" an asthma attack or otherwise impede plaintiff's breathing. (Lyerly Dep. at 87-90, 92, 108)
During the approximately five years he was incarcerated at GHCF, plaintiff was hospitalized three times for asthma. (Lyerly Dep. at 91, 131-32) Although plaintiff was scheduled to be seen by his medical provider once every three months, plaintiff would sometimes be seen at monthly intervals if he was feeling sick or needed to have laboratory tests taken. (Id. at 107, 132) Plaintiff also sought breathing treatments every day and sometimes up to three times per day. (Id. at 107) Finally, plaintiff was sent to Albany Medical Hospital every three or four months to see a specialist regarding his sarcoidosis condition. (Id. at 101-03)
On August 13, 2002, while incarcerated at GHCF, plaintiff wrote to GHCF Acting Superintendent William E. Phillips — a former defendant in this action — to request that he be moved to the Unit for the Physically Disabled ("UPD"). (Koenigsmann Aff't ¶ 5) The UPD was established to provide comprehensive medical services for physically disabled inmates. (Koenigsmann Aff't ¶ 6, Ex. C at 1) To qualify for living in the UPD, an inmate generally must need assistance or special accommodations to engage in activities of daily living. (Koenigsmann Aff't ¶ 6, Ex. C at 1-2) On August 14, 2002, Phillips replied, in writing, to acknowledge receipt of plaintiff's letter and to advise him that he had forwarded the letter to defendant Koenigsmann. (Koenigsmann Aff't ¶ 5)
Before an inmate may be admitted to the UPD, the Facility's Health Services Director must complete a Long Term Care Patient Classification and Transfer Form and attach supporting documentation. (Koenigsmann Aff't ¶ 9, Ex. C at 3) The Director then forwards the completed application on to the Multidiscipline UPD Committee for review. (Koenigsmann Aff't ¶ 9) Finally, the Deputy Commission/Chief Medical Officer or his or her designee must expressly consent to the transfer of the inmate into the UPD. (Koenigsmann Aff't ¶ 9, Ex. C at 4)
On or about August 28, 2002, defendant Koenigsmann reviewed plaintiff's medical needs to determine whether to recommend plaintiff's placement in the UPD. (Koenigsmann Aff't ¶ 11) In his affidavit, Koenigsmann stated that his practice "would have been to consult with the patient's primary care provider, review pertinent areas of his medical record and review consultations by specialty providers as they related to pertinent aspects of the patient's medical conditions related to the need for UPD placement." (Id.) After doing so, defendant Koenigsmann determined that plaintiff's "medical needs were being met in the general population setting." (Id.) In that setting, GHCF has nursing staff available 24 hours per day, and defendant Koenigsmann concluded that plaintiff's medical conditions and level of activity did not necessitate either handicapped living accommodations or 24-hour nursing in the housing unit. (Id.)
Plaintiff filed the complaint in this action on May 24, 2004. (Docket No. 1) Plaintiff was released from DOCS custody on October 25, 2005. (Docket No. 33) Discussion
In his amended complaint, plaintiff asserts only one claim against Koenigsmann — that he was deprived of medical care in violation of the Eighth Amendment. In moving for summary judgment, defendant Koenigsmann asserts that plaintiff has failed to come forward with evidence from which a reasonable jury could conclude that he was deliberately indifferent to plaintiff's serious medical needs. In opposing summary judgment, plaintiff argues that defendant "failed to remedy his wrong" and thereby neglected plaintiff's medical needs. (Lyerly Affirmation at 1)
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. See Farmer v. Brennan, 511 U.S. 825 (1994) (holding that the Eighth Amendment is applicable to the treatment and conditions of confinement of prison inmates). The Supreme Court has applied this prohibition to the states through the Due Process Clause of the Fourteenth Amendment. See La. ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947).
When a prisoner-plaintiff sues under section 1983 and alleges that state officials deprived him of medical care in violation of the Eighth and Fourteenth Amendments, he must show that "the defendant acted with `deliberate indifference to serious medical needs.'" Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This standard has both an objective prong and a subjective prong.See Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
"First, the prisoner must prove that the alleged deprivation of medical treatment is, in objective terms, `sufficiently serious' — that is, the prisoner must prove that his medical need was `a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). In the Second Circuit, 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.'" Harrison, 219 F.3d at 136 (quoting Chance, 143 F.3d at 702). The prisoner's medical needs must be serious "[b]ecause society does not expect that prisoners will have unqualified access to health care." Hudson v. McMillian, 503 U.S. 1, 9 (1992). Although "[t]here is no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition," the Second Circuit has identified several factors to consider. Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Specifically, a court should inquire "whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, . . . whether the medical condition significantly affects daily activities, and . . . the existence of chronic and substantial pain." Id. (internal citations and quotations omitted).
Second, the plaintiff "must show, for each defendant, that the defendant acted with deliberate indifference to [plaintiff's] medical needs." Id. (citing Estelle, 429 U.S. at 104). This subjective prong requires that the prisoner prove that the charged 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."Farmer, 511 U.S. at 837. Mere negligence on the part of defendant officials is insufficient for the second prong. See Estelle, 429 U.S. at 105-06. See also Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) ("Mere medical malpractice is not tantamount to deliberate indifference." (internal quotations omitted)). "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, 143 F.3d at 703.
A. Sufficiently Serious Need
In moving for summary judgment, defendant Koenigsmann argues that plaintiff has failed to satisfy the objective prong of his Eighth Amendment claim. In his affirmation and deposition, plaintiff addresses his asthma, sarcoidosis and alleged exposure to ETS at GHCF. (Lyerly Affirmation; Lyerly Dep. at 86-90, 92, 107-08, 114, 140-41) Viewing the amended complaint most generously to the plaintiff, I will assume, arguendo, that he relies on all of these conditions to demonstrate that he has a sufficiently serious medical need.
With regard to his asthma and sarcoidosis, plaintiff has come forward with evidence from which a reasonable jury could conclude that his medical needs in this regard were sufficiently serious. In his deposition, plaintiff testified at length about the limitations on his ability to breathe. (Lyerly Dep. at 86-90, 92, 107-08, 114, 140-41) In moving for summary judgment, defendant has offered no evidence to question the seriousness of plaintiff's condition. For purposes of defendant's motion, a reasonable jury could find that plaintiff, based on the available evidence, has satisfied the objective prong of the Eighth Amendment analysis as to his asthma and sarcoidosis.
As to plaintiff's alleged exposure to ETS, the Supreme Court has recognized that such exposure may, in certain circumstances, satisfy the objective prong of an Eighth Amendment claim. See Helling v. McKinney, 509 U.S. 25, 31-35 (1993). In Helling, the plaintiff was an inmate in a Nevada state prison and had been double-bunked with another inmate who smoked five packs of cigarettes per day. Id. at 28. The Court held that such a plaintiff could establish an Eighth Amendment violation, even though the harm to his health might not manifest itself in the form of disease until well into the future. Id. at 35-37. In doing so, the Court rejected the prison officials' argument that the Eighth Amendment protects only those presently suffering from serious health problems.Id. at 32-33. In assessing whether the nature and extent of ETS exposure presents a sufficiently serious circumstance, I take account of this plaintiff's greater sensitivity to smoke because of his sarcoidosis and asthma.
Since Helling, the Second Circuit has recognized the viability of an Eighth Amendment claim where the plaintiff was double-bunked with a smoker and there was an insufficient or unenforced smoking policy. In Davis v. New York, 316 F.3d 93, 100-01 (2d Cir. 2002), the court reversed the grant of summary judgment in favor of prison officials where the plaintiff had produced evidence that he had been double-bunked with a smoker, that he had been "housed in areas where the majority of inmates were smokers" since arriving six years earlier, and that he was then surrounded by seven inmates who were chain smokers or heavy smokers). In contrast, in Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004), the court affirmed a district court's dismissal under Rule 12(b)(6), Fed.R.Civ.P., on the ground that three brief encounters with ETS "alleged only a de minimis injury, and, hence, did not amount to an Eighth Amendment violation."
In my earlier opinion, I recognized the possibility that this plaintiff could come forward with evidence in support of the factual allegations in his amended complaint to withstand a motion for summary judgment. Specifically, I noted that plaintiff had alleged that he informed medical staff at GHCF about his asthma and sarcoidosis and requested to not be double-bunked with a smoker. Lyerly, 2005 WL 1802972, at *5-*6 (citing Am. Compl. at 2). Despite this request, plaintiff was allegedly double-bunked "with an inmate that smoked on more than one occasion." Id. at *5 (citing Am. Compl. at 6). Plaintiff attached to his amended complaint an affidavit of his former cellmate, Jack Rotger, which stated that Rotger was a smoker.Id. at *6. I concluded that the facts set forth in the amended complaint and the Rotger Affidavit "sufficiently alleged conduct meeting the objective prong" of plaintiff's Eighth Amendment claim for purposes of defendants' motion. Id.
In the Memorandum and Order, plaintiff was placed on notice that he would need to offer evidence in addition to the Rotger Affidavit to avoid summary judgment. Id. Specifically, I noted that "[c]ertainly the Rotger incident standing alone would not be sufficient to support a claim." Id. The Rotger Affidavit merely states that the two were double-bunked on March 30, 2001 and that their first conversation revealed that Rotger smoked and that plaintiff preferred a non-smoking cellmate. (Rotger Aff't ¶¶ 3-5) Upon learning this information about each other, "[m]ovement and control was immediately notified and Mr. Lyerly was moved around the corner." (Id. ¶ 6) Neither the Rotger Affidavit nor any other evidence indicates how long plaintiff shared a cell with Rotger, whether Rotger ever actually smoked in the cell or whether plaintiff double-bunked with any another inmate who actually smoked in the cell. However, at the bottom of the Rotger Affidavit, it states, "This is a true statement of the above mentioned facts that occurred on March 30, 2001." (Rotger Aff't) If anything, this statement suggests that the time between when plaintiff and Rotger were bunked together and when plaintiff was moved to a new cell was extremely brief and perhaps less than one day. Moreover, in his deposition, plaintiff testified that he had not been double-bunked with any inmate — smoker or non-smoker — since "the early part of 2001," thus suggesting that Rotger was his last cellmate at GHCF. (Lyerly Dep. at 246)
In opposing defendant's motion for summary judgment, plaintiff attached to his affirmation a misbehavior report dated January 18, 2004, regarding an inmate observed smoking in his cell (Lyerly Affirmation Ex. C), as well as two sworn affidavits from other inmates stating that they also smoke in their cells (Lyerly Affirmation Exs. D, E). However, nothing in these documents or plaintiff's affirmation provides any connection whatsoever between these inmates and plaintiff. The evidence in this case stands in stark contrast to Helling, 509 U.S. at 25, andDavis, 316 F.3d at 93, where the plaintiffs provided evidence as to how long and to what extent they had actually been exposed to ETS. Here, no reasonable jury could conclude — based on the evidence in the record — that plaintiff was exposed to ETS to such an extent that he satisfied the objective prong of his Eighth Amendment claim.
B. Conscious Disregard
Defendant also moves for summary judgment on the ground that plaintiff has come forward with no evidence that defendant Koenigsmann acted with deliberate indifference — i.e., that defendant Koenigsmann knew of and consciously disregarded an excessive risk to plaintiff's health. In his affidavit, defendant Koenigsman does not assert that he was unaware of the fact that plaintiff suffered from asthma and sarcoidosis. Therefore, the dispositive issue in analyzing the subjective prong is whether defendant Koenigsmann's conduct exhibited a conscious disregard of an excessive risk to plaintiff's health. In opposing defendant's motion, plaintiff appears to argue that defendant Koenigsmann's decision to deny plaintiff admission to the UDP satisfies this standard because it both prevented him from receiving better medical attention and compelled him to remain in the general prison population, thereby exposing him to a dangerous level of ETS.
Assuming arguendo that the medical care in the UPD is better than in the general population, no reasonable jury could find — based on the evidence in the record — that defendant Koenigsmann or his staff neglected, in any meaningful way, plaintiff's health conditions while he was in the general prison population. Plaintiff does not dispute that the general population of inmates at GHCF had access to 24-hour nursing care, even though that care was not physically located in the housing units themselves. (Koenigsmann Aff't ¶ 11) In his deposition, plaintiff testified that he was hospitalized for his pulmonary condition when necessary (Lyerly Dep. at 91, 131-32) and would be seen more frequently by his medical provider than the normal 3-month intervals when his condition worsened. (Id. at 107, 132) In addition, plaintiff received daily breathing treatments and sometimes the treatments were received up to three times per day. (Id. at 107) Finally, plaintiff was sent to Albany Medical Hospital every three or four months to see a specialist regarding his sarcoidosis condition. (Id. at 101-03) The extent of medical care as shown by these undisputed facts does not amount to the conscious disregard of an inmate's medical needs by Koenigsmann and those under his supervision.
Plaintiff argues that defendant Koenigsmann "neglected to do his job" and was "unprofessional" in denying him admission to the UPD. (Lyerly Dep. at 155-56) Even assuming arguendo that defendant Koenigsmann's decision not to recommend the placement of plaintiff in UPD somehow constituted medical malpractice, such conduct cannot serve as the basis of an Eighth Amendment claim.See Estelle, 429 U.S. at 104-05; Chance, 143 F.3d at 703 ("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."). See Brown v. Selwin, 250 F.Supp.2d 299, 308 (S.D.N.Y. 1999) (citing cases), aff'd, 29 Fed. Appx. 762 (2d Cir. 2002); Culp v. Koenigsmann, 2000 WL 995495, *7 (S.D.N.Y. July 19, 2000) ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim.");Troy v. Kuhlmann, 1999 WL 825622, *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").
As to the prevalence of ETS at GHCF, there is evidence in the record of only one occasion in which plaintiff was involuntarily exposed to ETS in his cell — the Rotger incident discussed above. As already noted, the Rotger Affidavit states that "[m]ovement and control was immediately notified" of the problem of Rotger and plaintiff's bunking together and plaintiff was then moved to a new cell. (Rotger Aff't ¶ 6) If anything, the Rotger Affidavit suggests that defendant Koenigsmann was not personally involved in either the decision to place Rotger and plaintiff together or to move plaintiff to a new cell at his request. Even assuming defendant Koenigsmann was somehow involved in this decision, the Rotger Affidavit implies that the problem was resolved quickly.
Furthermore, there is evidence that DOCS had begun to address the problem of ETS in the general population even before plaintiff and Rotger had been bunked together. (Koenigsmann Aff't ¶ 4) In remanding the case in Helling, the Supreme Court instructed the district court to analyze the subjective prong "in light of the prison authorities' current attitudes and conduct." 509 U.S. at 36 (noting that these may have "changed considerably" since the decision of the Court of Appeals). Specifically, the Court observed that the State of Nevada had adopted a formal smoking policy in January 1992:
This policy restricts smoking in "program, food preparation/serving, recreational and medical areas" to specifically designated areas. It further provides that Wardens may, contingent on space availability, designate nonsmoking areas in dormitory settings, and that institutional classification committees may make reasonable efforts to respect the wishes of nonsmokers where double bunking obtains. . . .
. . . [T]he adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference.Id. Here, the State of New York has prohibited all indoor smoking since January 1, 2001 (Koenigsmann Aff't ¶ 4) — a policy that appears significantly more restrictive than the one discussed in Helling.
Despite the existence of this policy, plaintiff argues that it was not well-enforced. In support, plaintiff has come forward with three documents: a misbehavior report concerning an inmate who had smoked in his cell in January 2004 and two March 2006 affidavits from other GHCF inmates stating that they smoke in their cells. (Lyerly Affirmation Exs. C, D, E) However, the misbehavior report makes no mention of plaintiff, and plaintiff has offered no evidence of where he was at the time that this inmate was smoking in violation of the policy. (Lyerly Affirmation Ex. C) As to the March 2006 affidavits, it is undisputed that plaintiff was released from DOCS custody on October 25, 2005 and therefore these affidavits are relevant only if they address smoking by those individuals before that date. (Docket No. 33) In his affidavit, Shawn Mazique provides no time frame of how long he has smoked in his cell or where his cell is located in relation to plaintiff's cell. (Lyerly Affirmation Ex. D) Ronald Alston provides a time frame of his smoking but does not state, in his affidavit, where this smoking occurred in relation to plaintiff's cell. (Lyerly Affirmation Ex. E) Moreover, there is no evidence that these individuals actually shared a cell with plaintiff. Instead, as already noted, the evidence suggests that plaintiff's last cell mate was Jack Rotger. (Rotger Aff't; Lyerly Dep. at 246) At most, plaintiff's evidence reveals that there was at least one reported violation of the policy that prison officials addressed and two other inmates who state that they have violated the policy. Given the difficulty of implementing any smoking policy, let alone one in a prison, it is not surprising that there will be some violations that are discovered and others that are not.
To the extent that the policy is not perfectly implemented, plaintiff concedes that such violations could occur in the UPD as well. (Lyerly Dep. at 173) Even so, plaintiff speculates that violations of the smoking policy are less common in the UPD than in the general population because there was always a corrections officer present in the UPD, which was a smaller area than where the general population resides. (Id.) However, such speculation is insufficient to withstand a motion for summary judgment.Kulak, 88 F.3d at 71. No reasonable jury could conclude — based upon this evidence — that defendant Koenigsmann was deliberately indifferent to plaintiff's serious health needs by allowing him to remain in the general population.
Plaintiff has failed to come forward with any evidence from which a reasonable jury could conclude that he has satisfied the elements of an Eighth Amendment claim under section 1983. Summary judgment is granted in favor of defendant Koenigsmann. I need not reach the issue of qualified immunity for defendant.
CONCLUSION
For the reasons outlined above, defendant's motion for summary judgment is GRANTED. The Clerk is directed to enter judgment in favor of defendant.
SO ORDERED.