UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------------------------------x 

NURIDEEN ISLAM, 

Plaintiff, 07 Civ. 3225(PKC) 

 

-against- 

 MEMORANDUM 

 AND ORDER

BRIAN FISCHER, et al., 

Defendants. 

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P. KEVIN CASTEL, District Judge: 

Plaintiff Nurideen Islam, suing under 42 U.S.C. § 1983, alleges that he was 

deprived of rights protected by the Eighth and Fourteenth Amendments to the U.S. Constitution 

when he was subjected to second-hand smoke by state prison officials at the Fishkill Correctional 

Facility (“FCF”). 

Seven individuals were named as defendants in this action: Corrections Officers 

Petrie (incorrectly spelled “Pitrie”) and Hirsch, Sergeant Turner, Lieutenant Simmons, 

William Connolly, the Superintendent of FCF, Lucien J. Leclaire, the Deputy Commissioner of 

Facilities Operations and Acting Commissioner of the New York Department of Corrections 

(“DOCS”) and Brian Fischer, Commissioner of DOCS. 

On January 9, 2008, the Court granted in part a motion to dismiss filed by 

Defendants Fischer, Leclaire, Connolly, Hirsch and Simmons. 

Defendants Petrie and Turner subsequently brought a motion to dismiss, making 

many of the same arguments which had been made by their co-defendants. Petrie moved to 

dismiss all claims asserted against him, on the grounds that plaintiff did not allege that Petrie was 

personally involved in any wrongdoing. (Def. Mem. 2-3.) Turner sought to dismiss all claims 

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asserted against him except the claim that he disregarded the ban on indoor smoking at FCF. 

(Def. Mem. 4.) 

For the reasons set forth herein, the motion is granted. 

I. 

The Complaint alleges that plaintiff has suffered injuries in the past and that he is 

at risk of serious harm in the future due to his daily exposure to dangerous levels of second-hand 

tobacco smoke inside the housing unit in which he resides. He further alleges that, as a result of 

his complaints about the indoor smoking situation, he has been subjected to threats and 

mistreatment by inmates and corrections officers. 

Plaintiff alleges in the Complaint that all defendants were indifferent to the health 

dangers of environmental tobacco smoke of which they were aware and that they acted with 

deliberate indifference to plaintiff’s rights. (Cmplt. ¶¶ 104-06, 109.) Plaintiff directs no other 

allegations at Defendant Petrie. As to Sergeant Turner, plaintiff alleges that, on October 6, 2006, 

he filed a grievance in which he alleged, inter alia, that, without provocation, Sergeant Turner 

“used profanity at him.” (Id. ¶ 12.) Plaintiff asserted that “if Sergeant Turner could legislate it, 

inmates would not have basic liberties such as constitutional or human rights.” (Id. ¶ 14.) He 

requested that “any unusual incident(s) targeted at [plaintiff] be closely monitored.” (Id.) On 

November 6, 2006, Plaintiff filed another grievance against Hirsch, Officer S. Lucas, Turner and 

Simmons, in which he asserted, inter alia, that Hirsch and Turner had engaged in “guerrilla 

warfare” against plaintiff. (Id. ¶ 38.) Plaintiff asserted that, on October 16, 2006, he was 

“abducted from his room” by Hirsch and Turner and that Turner “escorted plaintiff to Lieutenant 

Simmons’ [o]ffice and interrogated plaintiff about his [October 6] grievance . . . .” (Id. ¶ 16.) 

Plaintiff claimed that, during the interrogation, Turner threatened him. (Id.) Specifically, 

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plaintiff alleged that, “Turner told plaintiff that he could have inmates and officers take care of 

the situation.” (Id. ¶ 39.) Superintendent Connolly concluded that plaintiff’s grievances against 

Turner were without merit. (Id. ¶¶ 18, 46.) Plaintiff appealed both grievances to the prison’s 

Central Office Review Committee (“CORC”). (Id. ¶¶ 25, 47.) CORC denied plaintiff’s appeals. 

(Id. ¶¶ 42, 53.) 

Plaintiff also alleges that “the supervisors outlined in this civil complaint” were 

responsible for ensuring that subordinates comply with DOCS policies and procedures. (Id.

¶¶ 104-05.) 

II. 

On a motion to dismiss, a court must accept the allegations of the complaint as 

true and draw all reasonable inferences in the non-movant’s favor. See Iqbal v. Hasty, 490 F.3d 

143 (2d Cir. 2007), cert. granted, Ashcroft v. Iqbal, 76 U.S.L.W. 3417, 76 U.S.L.W. 3649, 76 

U.S.L.W. 3654 (No. 07-1015) (U.S. Jun. 16, 2008). Pro se pleadings are to be given a liberal 

and generous construction and are to be read “to raise the strongest arguments that they suggest.” 

Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). 

Rule 8(a)(2), Fed. R. Civ. P., requires only “‘a short and plain statement of the 

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 

what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, __ U.S. 

__, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration 

in Twombly). When a defendant tests the sufficiency of a complaint by a motion under 

Rule 12(b)(6), Fed. R. Civ. P., “[t]o survive dismissal, the plaintiff must provide the grounds 

upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above 

the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 

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2007) (quoting Twombly, 127 S. Ct. at 1965). The complaint is measured against “a flexible 

‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations 

in those contexts where such amplification is needed to render the claim plausible.” Iqbal, 490 

F.3d at 157-58 (emphasis in original). This “does not require heightened fact pleading of 

specifics,” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); see Erickson v. Pardus, 

__ U.S. __, 127 S. Ct. 2197, 2200 (2007); however, “it does require enough facts to ‘nudge 

[plaintiffs’] claims across the line from conceivable to plausible.’” Elevator Antitrust Litig., 502 

F.3d at 50 (quoting Twombly, 127 S. Ct. at 1974) (alteration in Elevator Antitrust Litig.). 

A. 

As noted, the only claim asserted against Petrie is that he, along with all 

defendants, was indifferent to the health dangers of environmental tobacco smoke of which he 

was aware and that he acted with deliberate indifference to plaintiff’s rights. “It is well settled in 

this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a 

prerequisite to an award of damages under § 1983.’” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 

1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Plaintiff does 

not identify any specific action (or inaction) taken by Petrie. No facts are alleged that place 

Petrie on notice of the specific nature of his involvement with plaintiff or his complaints about 

second-hand smoke. The allegations are insufficient to state a claim against Petrie. 

B. 

Plaintiff alleges that Turner abducted plaintiff and engaged in threatening 

behavior and “guerrilla warfare” in response to plaintiff filing a grievance against him. Plaintiff 

made similar allegations against defendant Hirsch. In his brief in opposition to the motion to 

dismiss that was filed by Hirsch, Fischer, Simmons, Leclaire and Connelly, plaintiff disclaimed 

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any intention to assert a retaliation claim against Hirsch or any other moving defendant. 

(Aug. 31, 2007 Opp. Br. 2.) In his February 20, 2008 letter in opposition to Turner and Petrie’s 

motion to dismiss, plaintiff advances no argument in support of a retaliation claim, stating that he 

“already addressed each claim against each of the defendants in [the] response on 

August 31, 2007.” (Feb. 20, 2008 Opp. Br. 2.) Thus, I conclude that plaintiff has abandoned any 

retaliation claim against Turner. 

To the extent plaintiff is attempting to assert any other claims based on the 

allegations that Turner “abducted” plaintiff, aimed profanity and threats at him, and engaged in 

“guerrilla warfare” against him, such claims are dismissed. To prevail on his section 1983 claim, 

plaintiff must show that he was deprived of a protected liberty interest without due process of 

law. The Due Process Clause protects only “the most basic liberty interests” of prisoners. See

Hewitt v. Helms, 459 U.S. 460, 467 (1983); Wolff v. McDonnell, 418 U.S. 539, 555 (1974) 

(“Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary 

citizen . . . .”). “[A]ctions under the Due Process Clause are reserved for prisoners enduring a 

hardship that is substantially more grave than hardships they would be likely to endure simply as 

a consequence of the ordinary administration of the prison.” Welch v. Bartlett, 196 F.3d 389, 

392 (2d Cir. 1999). 

Plaintiff’s accusation that he was abducted seems to rest solely on the fact that 

Turner escorted him to Lieutenant Simmons’ office and questioned him about his grievance. 

Common sense dictates that being forced to appear for questioning when summoned by a prison 

official is an ordinary consequence of incarceration. Plaintiff’s allegation that Turner engaged in 

“guerrilla warfare” against him seems to refer to the threats and verbal insults Turner directed at 

plaintiff. The Court recognizes that “the exchange of verbal insults between inmates and guards 

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is a constant, daily ritual observed in this nation’s prisons . . . [Verbal insults] do not deprive 

prisoners of the minimal civilized measure of life’s necessities, and thus do not constitute an 

eighth amendment violation.” Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 475 (S.D.N.Y. 

1998) (Sotomayor, J.) (citation and internal quotation marks omitted). Plaintiff has not alleged 

that excessive force was used against him; nor has plaintiff alleged that he suffered any 

cognizable injury as a result of the abduction, threats, profanity and “guerrilla warfare.” See

Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (affirming district court’s dismissal of 

claim that prison guard engaged in name calling, where plaintiff did not allege any appreciable 

injury) (citing McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir. 1983)); Shabazz, 994 F. Supp. at 

474 (“verbal harassment or profanity alone, unaccompanied by any injury no matter how 

inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of 

any federally protected right and therefore is not actionable under 42 U.S.C. § 1983.”) (citations 

and internal quotation marks omitted). Plaintiff has not alleged any facts that would support a 

finding that his constitutional rights were violated when Turner escorted him to Simmons’ office 

and questioned him about his grievance, or when Turner verbally threatened and harassed him. 

C. 

Defendants Petrie and Turner assert that if and to the extent they are being sued 

for money damages in their official capacity, then the claim in actuality is against the state and 

must be dismissed under principles of sovereign immunity. Having concluded that plaintiff 

failed to state a claim against Petrie, I need not address any claim against him for money 

damages. 

With respect to Turner, sovereign immunity principles bar any claim against him 

for money damages in his official capacity. The analysis the Court applied in the January 9 

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