Gill v. Pidlypchak, et al.

A prisoner filed a pro se action against two corrections officers,  alleging that they violated his First, Eighth and Fourteenth Amendment rights by deliberately exposing him to secondhand smoke, depriving him of a meal on three  different days and retaliating against him for filing grievances and complaints about their behavior.  The U.S. District Court for the Northern District of New York had dismissed Gill’s complaint, concluding that his secondhand smoke claim alleged only a de minimis injury and, thus, did not amount to an Eighth Amendment violation.  On appeal, the U.S. Court of Appeals for the Second Circuit vacated the district court’s judgment on the retaliation claim but affirmed the dismissal of the two other claims.

In Gill v. Calesciebetta, et als., 2005 U.S. App. LEXIS 26821, the Court of Appeals remanded the case to the District Court, with instructions to determine whether there is a genuine issue of material fact on the question of  whether defendants engaged in retaliatory conduct that would “deter a similarly situated individual of ordinary firmness from exercising his constitutional rights.”

389 F.3d 379, 2004 U.S. App. LEXIS 24188, 19.6 TPLR 2.368 (U.S.C.A. 2nd Cir. 2004).