Sаmuel Davis appeals from a judgment of the United States District Court for the Western District of New York (H. Kenneth Schroeder, Jr., Magistrate Judge), granting summary judgment for appellees and dismissing his 42 U.S.C. § 1983 complaint, and from interlocutory orders (Carol E. Heckman, Magistrate Judge) denying Davis’s preliminary injunction motion and motion to file a supplemental complaint. Davis filed a complaint against New York State, Governor Pataki, the New York State Department of Correctional Services (“the Department”), Glenn S. Goord, its commissioner, the Attica Correсtional Facility (“Attica”), Walter R. Kelly, its superintendent,
I. BACKGROUND
Davis has been incarcerated at Attica since 1993. Liberally construing his fro se complaint, Davis had been concerned, throughout his incarceration, about his exposure to excessive levels of second-hand smoke while housed in various housing “blocks.” He ultimately filed an inmate grievance in February 1999, complaining that he needed tо minimize his exposure to the smoke-laden air by opening the window across from his cell, but Stachewicz, McDonald and Barone told him not to open the window, and threatened to move him out of the honor block, where he was housed at the time, if he opened the window. These concerns were also expressed in a letter to Goord, which was carbon copied to Kelly.
The grievance was dismissed in March 1999, because Davis had been moved out of the honor block by that time. Davis attempted to appeal. In April 1999, Davis was informed that the grievance was not appealable, because it had been dismissed rather than denied. He was further informed that he could request a review of the dismissal, but that the only review available was by the same supervisor who conducted the original investigation into the complaint, and this supervisor had no intention of reopening the complaint.
Davis filed a complaint in the United States District Court for the Western District of New York in April 1999, alleging that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by forcing him to be exposed to excessive levels of secondhand smoke on a daily basis, because he was housed in an area where a majority of the inmates smoked frequently, the venti
In July 1999, Davis moved for a preliminary injunction and temporary restraining order enjoining named and unnamed defendants from “assaulting, harassing, intimidating, threatening and verbally abusing” him in retaliation for exercising his constitutiоnal rights. Davis alleged that he would suffer irreparable harm without the injunction, because the civilian employees who administered his prison work program and other Corrections officers had begun to retaliate against him because of his complaints about excessive secondhand smoke exposure. Davis alleged that a Corrections Sergeant filed a false misconduct report regarding an altercation with a fellow inmate, and that he was found guilty of the charges after a biased and prоcedurally defective hearing, resulting in thirty days of “keeplock” and loss of his assigned work program. Davis also filed a motion for leave to file a supplemental complaint, raising essentially the same allegations as in the motion for preliminary injunctive relief, and seeking to add Attica supervisory staff and the parties involved in the misconduct report and hearing as defendants.
The parties consented to have a magistrate judge handle all proceedings, pursuant to 28 U.S.C. § 636(c). The magistrate judge deniеd Davis’s motion for a preliminary injunction and temporary restraining order, finding that Davis failed to show that he would suffer irreparable harm because he had no liberty interest in his work assignment or in the privileges lost while in keeplock, and that Davis would not likely succeed on the merits because he could not show that defendants had a retaliatory motive. See Davis v. State of New York, No. 99-CV-307,
In September 1999, Davis wrote to Superintendent Herbert, with a carbon copy to Goord, complaining about his medical problems due to second-hand smoke exposure, and requesting placement in a cell with an individual window. According to Davis’s letter, the only housing blocks at Attica that have individual windows in each cell are blocks C and E. Davis explained that on February 28, 1999, he was transferred from the honor block to the C block due to his respiratory problems. Thereafter, he was moved to the B bloсk from June 18 until July 13, and was finally
In July 2000, Davis moved for summary judgment. He argued that he had demonstrated that his Eighth Amendment rights were violated when defendants knowingly caused him and other non-smoking inmates to be exposed involuntarily to excessive levels of second-hand smoke without adequate ventilation, jeopardizing his current and future health. Davis further contended that he had demonstrated that he was harassed, intimidated, and threatened for exercising his constitutional rights, and that such retaliation was in violation of the Eighth Amendment.
Defendants filed a cross-motion for summary judgment, arguing that Davis’s Eighth Amendment rights were not violated because he did not meet the two-pronged test for establishing an Eighth Amendment claim based on second-hand smoke exposure. Defendants noted that, pursuant to Helling v. McKinney,
Defendants contended that Davis did not submit evidence to establish serious injuries due to second-hand smoke, or that he was exposed to a sufficiently high level of smoke to result in serious injury. In support of them argument that Davis had no serious injuries, defendants submitted the affidavit of Dr. Takos, the health services director of Attica. According to Takos, Davis only complained of smoke-related symptoms once, in February 1999. Takos asserted that Davis’s congestion was due to a deviated septum, which Davis had refused to get corrected. In Takos’s opinion, there was no medical evidence that Davis exhibited intolerance to smoke, or had a condition that warranted housing in a smoke-free environment. Davis had also complained to health services about experiencing blackouts, but the Takos affidavit states that the ambulatory health records had a notation July 9, 1998 that Davis complained that said episodes occurred while laughing. A request for consultation of that date recites that there were two such episodes in the past two weeks “following ‘laughing episodes.’ ” These particular entries contain no mention of exposure to second-hand smoke.
Defendants also asserted that the exposure to second-hand smoke was not substantial. They claimed that Davis’s complaint focused only on the time period during which Davis, housed in a single cell honor block, was not allowed to have the window open. Although there were no non-smoking units at Attica, defendants claimed that Davis should have asked to transfer within the honor block if the smoke in his area was bothering him, and that the transfer would have been granted.
Defendants also argued they did not act with deliberate indifference to the effects of tobacco smoke or Davis’s health. They cited Attica’s smoking policy, which prohibits smoking in common areas but permits smoking in residential areas, as evidence of their good faith. They also noted that a new smoking policy was being phased in, and effective in June 2001, it was “contemplated” that smoking would not be permitted inside any of the Depart-
In the rеmainder of their summary judgment brief, defendants argued that: (1) Pataki, Goord, and Kelly were not personally involved in the alleged constitutional violations, so they could not be liable in the § 1983 action; (2) Davis could not establish the retaliation claim; (3) Davis’s physical assault, harassment, and intimidation claims should be dismissed because the alleged conduct did not rise to the level of a constitutional violation; (4) the court lacked subject matter jurisdiction over the claims against agencies of the State of New York and individuаl defendants in their official capacities, by virtue of the Eleventh Amendment; and (5) the defendants have qualified immunity from liability because the right to be free from second-hand smoke is not clearly established, and the defendants’ actions were reasonable because (a) the Department had a smoking policy that complied with the New York Clean Air Act, and also accounted for the unique nature of the prison environment, in which it is not reasonable to prohibit smoking entirely or have separate, non-smoking housing units, and (b) there is no case law supporting an Eighth Amendment violation based on secondhand smoke exposure where an inmate is housed in a single cell.
In opposition to defendants’ summary judgment motion, Davis argued that defendants did not dispute that he had been exposed, in his open cell with only bars as barriers, to the second-hand smoke of chain smokers in surrounding cells, without adequate ventilation. Davis asserted that the evidence, viewed in the light most favorable to him, afforded a rational basis for a factfinder to conclude that his confinement exposed him to unreasonably high levels of second-hand smoke.
Davis also disputed statements in the Corrections officers’ affidavits regarding the ventilation and degree of smoke in the housing unit, whether the windows were allowed to be kept open on cold days, whether other inmates had complained of being cold, and whether he had always been housed in a single cell. He asserted that from January 1996 to March 1997, he was housed in a double-bunk cell with a cellmate who smoked. Davis also disputed the validity of Dr. Takos’s findings, asserting that he complained of conditions caused by second-hand smoke several times, but not all of the inmates’ complaints become part of their medical record, and Dr. Takos is not a specialist in such conditions. Davis attacked the viability of the new smoking policy, asserting that it is not effective or enforceable, because officers and inmates continue to smoke inside.
The magistrate judge granted defendants’ summary judgment motion as to Governor Pataki based on his lack of personal involvement, then denied Davis’s summary judgment motion, and granted summary judgment for defendants. The magistrate judge concluded that, although the Supreme Court held in Helling that an inmate could state an Eighth Amendment claim for cruel and unusual punishment by showing unreasonable exposure to secondhand smoke, Davis failed to provide evidence that was sufficient to prove, as a matter of law, that he was exposed to unreasonably high levels of second-hand smoke, or that there wеre material issues of triable fact regarding his exposure.
The magistrate judge’s conclusion was based on the following “facts”: (1) Davis’s
II. DISCUSSION
A. Justiciability and mootness
We first consider whether Davis’s claim for permanent injunctive relief is justiciable, or whether the claim is moot, as Davis was transferred to a different housing block, and Attica implemented a new smoking policy. Under Article III, section 2 of the Constitution, federal courts lack jurisdiction to decide questions that cannot affect the rights of litigants in the case before them. See DeFunis v. Odegaard,
Here, Davis’s claim for injunctive relief is not moot because Davis indicates that his problems with second-hand smoke are ongoing. Despite defendants’ contention that Davis does not complain of ongoing exposure to excessive amounts of secondhand smoke, the most recent information on record indicates that Davis is housed in a block without individual cell windows, in conditions similar to those he experienced prior to being transferred out of the honor block. Moreover, although defendants have implemented a new, restrictive smoking policy, Davis asserts that the policy is not being enforced, and that inmates and Corrections officers are still smoking inside. Therefore, Davis’s claim fоr permanent injunctive relief is not moot, and we may consider these issues.
B. Summary judgment
We review orders granting summary judgment de novo and determine whether
In Helling, the Supreme Court, identifying both the objective and subjective components of the Eighth Amendment violation, determined that a plaintiff “states a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.”
The magistrate judge evaluated the summary judgment motions as if Davis had only produced evidence indicating that he was exposed to unreasonable levels of second-hand smoke on the three occasions, between October 1998 and February 1999, when he was required to close the window. However, our de novo examination of the record demonstrates that Davis’s evidence encompassed more than the district court identified. For example, Davis indicated that he had previously been housed in a double-bunk cell with a smoker, and he never alleged that the second-hand smoke problem was limited to the times when he was required to shut the window. Instead, he asserted that, during the time he had been at Attica since arriving in June 1993, he had always been housed in areas where the majority of inmates were smokers, and that, in the honor block area, he was surrounded by seven inmates who were chain smokers or frequent smokers, such that “the smell of smoke fills the air and enters] my cell in a manner as though I was myself smoking.” Complaint, Ex. A (letter to Goord). Davis further alleged that the
We note that it is possible that Davis did not exhaust administrative remedies, pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), with respect to complaints about excessive second-hand smoke levels prior to, and following, the time period examined by the district court. See Porter v. Nussle,
We decline to address whether Davis raised a genuine issue of material fact as to the defendants’ deliberate indifference, as the magistrate judge did not reach the subjective prong of the Eighth Amendment claim. We uphold summary judgment with respect to some of the defendants on alternate grounds. See Johnson v. Nyack Hosp.,
C. Interlocutory orders
Davis also appeals the magistrate judge’s intermediate decisions, which include, in addition to the dismissal of Davis’s claim against Pataki, the denial of Davis’s motion for a preliminary injunction, and the denial of his motion to amend his complaint.
This Court reviews district court denials of preliminary injunctions and motions to amend a complaint for abuse of discretion. See No Spray Coalition, Inc. v. City of New York,
III. CONCLUSION
For the foregoing reasons, we affirm, in part, the magistrate judge’s grant of summary judgment for defendants and the magistrate judge’s dismissal of Davis’s claims against Pataki, the State of New York, the Department, and Attica, and the dismissal of Davis’s damages claims against Goord, Kelly, Stachewicz, Christen, McDonald, and Barone, in their official capacities. However, we reverse the magistrate judge’s grant of summary judgment in all other respects, and remand for further proceedings. On remand, the district court should cоnsider (1) whether Davis properly exhausted his administrative remedies with regard to his claims with respect to the defendants’ behavior between January 1993 and October 1998, or whether the defendants waived compliance with the exhaustion requirement by failing to raise it, and if so, (2) whether the inclusion of Davis’s claims regarding this time period creates a genuine issue of material fact as to whether Davis was exposed to unreasonable levels of second-hand smoke. In addition, on remand the district court may reach thе retaliation claims it did not reach earlier. Finally, the district court should consider appointing counsel to assist Davis with the ongoing proceedings.
Notes
. Kelly retired in May 1999, and appears to have been replaced by Superintendent Herbert.
. The magistrate judge observed in a footnote that, in his opposition to defendants’ motion, Davis alleged that he had been subjected to second-hand smoke prior to the time he originally specified in his complaint. However, the magistrate judge concluded that "this cannot be construed in any way to be a part of the instant complaint. The allegations in the complaint clearly relate to a time period wherein plaintiff was housed in Honor Block, Company 43 and further relate to those times where the window was required to be closed.” Decision and Order of Mar. 29, 2001 at 7 n. 1.
. The Supreme Court uses the acronym "ETS" for environmental tobacco smoke. See Helling,
. Although Davis's notice of appeal indicated that he was appealing all intermediate district court orders, the issue of whether the district court erred in denying his appointment of counsel motion is waived because Davis did not discuss it in his appellate brief. See LoSacco v. City of Middletown,