David Paul TAYLOR, Plaintiff-Appellant, v. Matt CONWAY, et al., Defendants-Appellees, 381 F. App'x 40

SUMMARY ORDER 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, 113 S.Ct. 2475, 125 L.Ed.2d 22 (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, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (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.