08-5602-pr
T aylor v. C onw ay



                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18th day of June, two thousand ten.

PRESENT:
            RALPH K. WINTER,
            PETER W. HALL,
                  Circuit Judges,
            MIRIAM GOLDMAN CEDARBAUM,*
                  District Judge.
_______________________________________________

David Paul Taylor,

                              Plaintiff-Appellant,

                      v.                                                  08-5602-pr

Matt Conway, et al.,

                              Defendants-Appellees.

______________________________________________


FOR PLAINTIFF-APPELLANT:                     David Paul Taylor, pro se, Suffield, CT.




           *
        The Honorable Miriam Goldman Cedarbaum of the United States District Court for the
Southern District of New York, sitting by designation.
FOR DEFENDANTS-APPELLEES:                             Robert B. Fiske, Attorney General’s Office,
                                                      State of Connecticut, Hartford, CT.

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND
DECREED that the judgment of the district court is AFFIRMED.
       Plaintiff-Appellant David Paul Taylor, pro se and incarcerated, appeals from the
judgment of the United States District Court for the District of Connecticut (Underhill, J.),
granting summary judgment to Appellees on Appellant’s 42 U.S.C. § 1983 claims. We assume
the parties’ familiarity with the facts and procedural history.
        We review orders granting summary judgment de novo and focus on whether the district
court properly concluded that there was no genuine issue as to any material fact and the moving
party was entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir. 2003). Having conducted an independent and de novo review, we find,
for substantially the same reasons as the district court, that Appellant failed to demonstrate his
exposure to environmental tobacco smoke (“ETS”) was “unreasonably high” such that it
constituted a violation of the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 35
(1993); see also Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (reversing grant of
summary judgment where plaintiff was able to show he was exposed to high levels of ETS by
being bunked in his cell with a smoker and surrounded by seven inmates who were chain
smokers or frequent smokers); Warren v. Keane, 196 F.3d 330, 331, 333 (2d Cir. 1999) (denying
qualified immunity where the plaintiffs alleged that inmates had smoked “freely in their cells,”
and there had been “under-enforcement of inadequate smoking rules, overcrowding of inmates[,]
and poor ventilation” ).
       We further conclude, for substantially the same reasons as the district court, that
Appellant was unable to sustain a retaliation claim under § 1983. See Purcell v. Coughlin, 790
F.2d 263, 265 (2d Cir. 1986) (holding verbal harassment is not actionable under § 1983);
Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (explaining that “the defendants had met
their burden because it was undisputed that [the prisoner] had in fact committed the prohibited
conduct” that led to the issuance of a misbehavior report against him); Cutter v. Wilkinson, 544
U.S. 709, 725 n.13 (2005) (stating that “prison security is a compelling state interest, and that
deference is due to institutional officials’ expertise in this area”).
        For the reasons stated above, the judgment of the district court is AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk
