Opinion
No. 95 Civ. 3693 (JFK).
September 21, 2001
MEMORANDUM OPINION and ORDER
Procedural Factual Background
Defendants' move for summary judgment under Federal Rule of Civil Procedure 56.
Plaintiff and five others brought this action in Supreme Court, Bronx County, by filing a Notice of Petition and Petition verified on November 9, 1994, alleging various claims against the defendants, including defendants' failure to segregate smokers from non-smokers in New York City correctional facilities, thereby causing plaintiff to be exposed to second hand tobacco smoke during the period of his incarceration at the Otis Bantum Correctional Center ("OBCC"). Other cases have used the term environmental tobacco smoke ("ETS) to describe second hand smoke. OBCC is a correctional facility located on Rikers Island, operated by the New York City Department of Correction. The period complained of is from December 1993 through November 1994. Plaintiff asserts that he is a non-smoker.
Plaintiff alleges violations of his civil rights under "the Due Process Clause of the constitutions of the State of New York (Art. I, § 6) and the United States (5th and 14th Amendments)", ¶ 5 of the Verified Petition.
By Notice of Removal dated May 18, 1995, defendants removed this action to this Court. On September 28, 1999 by Stipulation and Order of Partial Settlement and Discontinuance, the parties settled all the claims except those concerning plaintiff's alleged exposure to second hand tobacco smoke. At that point, plaintiff was represented by counsel. He is now proceeding pro se.
In an Order dated March 20, 2000, the Court granted the motion of three other plaintiffs to voluntarily dismiss their remaining claims pursuant to Fed.R.Civ.P. 41(a)(2) including the second hand smoke claim.
On June 6, 2000, the Court dismissed the remaining claims of the two other plaintiffs for failure to prosecute. Based on the Orders of March 20 and June 6, 2000, the only remaining claim in this action concerns plaintiff Brown's alleged exposure to second hand tobacco smoke.
The motion for summary judgment addresses the sole remaining claim.
The plaintiff was deposed on August 1, 2000 and testified that he was then in relatively good health. His deposition transcript at p. 54 and 55 reads as follows:
Q: Prior to your arrest in December of 1993 did you suffer from any medical problems as a result of your being exposed to other people's smoke?
A: I don't know. None that I know of.
Q: Following your release in late November of 1994 have you suffered any medical problems as a result of your being exposed to other people's smoke? That's from November 1994 until the present day.
A: None that I know of.
Q: Generally speaking, would you say you're in relatively good health?
A: Generally speaking.
Q: You can qualify that, your answer, any way you want.
A: For almost a fifty-year old, yes, I'm in relatively good health.
In his February 13, 2001 affirmation in opposition to this motion, paragraph 25, plaintiff now claims to be suffering from "heart, blood pressure, throat, chest, sinus and other problems that a reasonable juror could find, when coupled with scientific and statistical evidence, are causally connected to (his) exposure." There is nothing in any medical record before the court to suggest that any health problem is related to, or caused by ETS at OBCC, or anywhere else, nor is there any scientific or statistical evidence supplied to support the claim. See p. 7 infra relative to the affirmation of February 13, 2001.
At the time of his deposition, plaintiff was incarcerated in a state correctional institution, Eastern Correctional Facility, at Napanoch, New York, where he had been housed for four months before his deposition. For the approximately two years before that and after November, 1994, he had been incarcerated at Clinton Correctional Facility. (Deposition Transcript, p. 16, 17). He had also been incarcerated in New Jersey before the period he presently complains about.
At p. 72 of his deposition, the following testimony took place:
Q: Do you recall how long you were incarcerated in New Jersey?
A: Like thirty days.
Q: During the time that you were incarcerated in New Jersey were you exposed to other people's smoke?
A: Yes.
Q: You said that was the late "70s or early "80s?
A: Yes.
At p. 49 of the deposition, Mr. Brown testified as follows:
Q: Do you recall what facility you were transferred to following your conviction [following your arrest in 1991]?
A: State?
Q: Yes, sir.
A: Ulster County, right next door, and Mid-Orange.
Q: You were exposed to cigarette and cigar smoke while you were at Ulster County?
A: Both of the facilities.
Q: Daily?
A: Daily.
Before the 1991 incarceration, he had been exposed to second hand smoke in other settings. (Deposition Transcript, p. 39, 40, 47, 48, 52, 53, 54).
At p. 42 and 43 of the deposition, plaintiff was questioned about his incarceration at the Clinton Correctional Facility:
Q: During this time you were at Clinton was smoking permitted there by the inmates?
A: Yes.
Q: Where? Which parts of the facility?
A: In housing areas. That's basically it. Not in the hallway, not in the program areas. The housing area and the yard.
Q: Did you have a cell mate while you were at Clinton?
A: I had a roommate off and on.
Q: Not the same person during those two years?
A: No. I had a number of different —
Q: Were any of those people smokers?
A: Yes.
Q: Do you recall how many?
A: Maybe two.
Q: Do you recall approximately how long you lived with a smoker while you were at Clinton?
A: Months. Two or three months.
Q: During the time you were not living with somebody who smoked while you were at Clinton was your cell also near other cells where you could smell smoke?
A: Actually, it was a dorm area. Yes, it was near where I could smell smoke.
And at p. 45:
Q: Is it fair to say that during the time you were at Clinton you were exposed to other people's smoke?
A: Yes.
Q: Was that on a daily basis?
A: Yes.
Thus, it is incontrovertible that plaintiff was exposed to second hand smoke conditions in many settings both before and after December 1993 and November 1994.
Discussion
It is axiomatic that on a motion for summary judgment all ambiguities and inferences must be resolved and drawn on behalf of the non-moving party. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128, 129 (2d Cir. 1996). Further, summary judgment is appropriate when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997). See also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
That is the case here. There is no evidence that defendants caused plaintiff any damage whatsoever. Any finding to the contrary would be purely speculative and the result of guesswork. Thus, there is no genuine issue of fact and summary judgment is appropriate.
Plaintiff has the burden of proving damages with reasonable certaintyESPN, Inc. v. Office of Commissioner of Baseball, 76 F. Supp.2d 416, 418 (S.D.N.Y. 1999), and the damages may not be speculative but must be directly traceable to defendants' alleged wrongdoing. Kenford Co. v. Erie County, 67 N.Y.2d 257, 502 N.Y.S.2d 131 (1986). There is simply no proof of damages.
Plaintiff's efforts to create a triable issue by changing his clear deposition testimony through his affirmation in opposition to this motion is rejected because "a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior testimony." Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). See also Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996), Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997) andMack v. United States, 814 F.2d 120, 124 (2d Cir. 1987)
At deposition, p. 3 supra, plaintiff testified to his "relatively good health." He cannot now, in an effort to create a factual issue, belatedly claim injury and illness.
The argument that plaintiff is somehow entitled to injunctive relief fails because it is moot. He is no longer at OBCC and we cannot presume he will go back there. O'Shea v. Littleton, 414 U.S. 488, 497 (1974),Respress v. Coughlin, 585 F. Supp. 854, 858, 859 (S.D.N.Y. 1985) andSalahuddin v. Coughlin, 591 F. Supp. 353, 362 (S.D.N.Y. 1984)
Plaintiff is now claiming he is entitled to further discovery on the ETS issue. This is not so and admittedly contradicted by his former counsel. (Cf. ¶ 23 of defendant's affirmation). Discovery issues were vigorously pursued by his former counsel.
The Court is aware of the holdings in Helling et al. v. McKinney, 509 U.S. 25, 113 S.Ct. 2475 (1993) and Warren v. Keane, 937 F. Supp. 301,aff'd 196 F.3d 330 (1999). Nothing in those cases mandates against granting summary judgment here. Helling was an 8th Amendment case and there is no 8th Amendment violation alleged by plaintiff. Warren was also an 8th Amendment case where defendants claimed qualified immunity. No such claim is raised by defendants' in this action. The Court believes that Judge Kevin T. Duffy's decision in Gill v. Bracey, et al., 99 Civ. 10429 (S.D.N Y July 11, 2001), is much closer to this case.
Summary judgment is granted for the defendants and the clerk is directed to remove this case from the docket of this court. The case is closed.
SO ORDERED.