914 F. SUPP. 1011

RONALD DAVIDSON, Plaintiff, - against - CHARLES SCULLY, et al., Defendants. RONALD DAVIDSON, Plaintiff, - against - CHARLES SCULLY, et al., Defendants. RONALD DAVIDSON, Plaintiff, - against - THOMAS COUGHLIN, III, et al., Defendants. RONALD DAVIDSON, Plaintiff, - against - THOMAS COUGHLIN, III, et al., Defendants.

81 Civ. 0390 (PKL), 81 Civ. 0617 (PKL), 81 Civ. 5657 (PKL), 83 Civ. 2404 (PKL), 83 Civ. 2405 (PKL)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

914 F. Supp. 1011; 1996 U.S. Dist.

January 18, 1996, Decided
January 19, 1996, FILED





COUNSEL: [**1] APPEARANCES

STROOCK & STROOCK & LAVAN, New York, New York, Edward P. Grosz, Esq., of counsel, Attorneys for Plaintiff.

THE HON. DENNIS C. VACCO, Attorney General of the State of New York, Office of the Attorney General, New York, New York, Robert F. Bacigalupi, Esq., of counsel, Attorney for Defendants.

JUDGES: Peter K. Leisure, U.S.D.J.

OPINIONBY: Peter K. Leisure

OPINION:
[*1014] OPINION AND ORDER

LEISURE, District Judge:
Plaintiff has moved for a preliminary injunction against the defendants to "correct" certain conditions of his incarceration in the special housing unit at Auburn Correctional Facility. Specifically, he requests certain medical care regarding his eye condition, tinnitus, allergies, podiatric condition, post-surgery hernia condition, knee condition, urological problems, dermatological problems, and cardiological problems; he requests certain furnishings and supplies for his cell to ease his writing; he requests that his exercise conditions be improved and made more secure; and he requests that his kosher diet be maintained, even when he is placed on a restricted diet as punishment for violating prison rules.
"A party seeking injunctive relief ordinarily must show: (a) [**2] that it will suffer irreparable harm in the absence of an injunction and (b) either (i) likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir. 1995). However, in this application for an injunction forcing the defendants to change certain prison conditions, "'appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief,' particularly when it comes to regulating a state's administration of its own facilities, including its schools and prisons." Dean v. Coughlin, 804 F.2d 207, 213 (2d Cir. 1986) (citation omitted) (quoting Rizzo v. Goode, 423 U.S. 362, 379, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976)). In fact, the Second Circuit has held that where a preliminary injunction "seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous fair-ground-for-litigation standard should not be applied." Sweeney v. Bane, 996 [**3] F.2d 1384, 1388 (2d Cir. 1993) (internal quotation marks omitted). Therefore, out of deference to the state's judgments on how to administer its prisons, the Court holds that an application of the less rigorous standard is inappropriate. Cf. Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985) ("Judicial reluctance stems not from insensitivity; rather it reflects an awareness of the relatively narrow [*1015] authority of judges and the appropriate, but by no means unlimited, deference to be accorded the decisions of prison administrators."). Therefore, before the Court can consider granting the requested injunction, plaintiff must demonstrate irreparable harm and a likelihood of success on the merits. The Court will consider the separate categories of complaints individually.

1. Medical Claims
Plaintiff's request for a preliminary injunction regarding his medical conditions must fail because he has not shown a likelihood of success on the merits of these claims. "To establish an unconstitutional denial of medical care, a prisoner must prove 'deliberate indifference to [his] serious medical needs.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (alteration in original) [**4] (quoting Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)), cert. denied, 115 S. Ct. 1108 (1995). This test includes both an objective and subjective element.


First, the alleged deprivation must be, in objective terms "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). See Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) (standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain").


Hathaway, 37 F.3d at 66. The second, subjective element of the standard requires that the charged official act with "more than negligence, but less than conduct undertaken for the very purpose of causing harm." Id.
Plaintiff here has failed to satisfy the Court that there is a likelihood of success on the merits in establishing the first element. The logic by which failures in medical treatment are actionable under 42 U.S.C. § 1983 is that denial of medical care may rise to the level of cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff's medical complaints spring from conditions which do not [**5] produce death, degeneration, or extreme pain. His complaints, though serious, concern conditions which many people suffer from and function despite on a day-to-day basis and the fact that a sufferer is incarcerated does not elevate every perceived lack of treatment to the level of cruel and unusual punishment. The state need not treat these conditions at a level that "exceeds what the average reasonable person would expect or avail herself of in life outside the prison walls. The [Auburn Correctional Facility] is not a health spa, but a prison in which convicted felons are incarcerated." Dean, 804 F.2d at 215.
Plaintiff's eye condition amounts to a demand to be housed in a smoke-free environment, to be given a particular type of eye drops, and to be given new eyeglasses. Plaintiff asserts that the smoke-free environment and eye drops are necessary to ameliorate his eye condition. However, the Court finds that even if the defendants were deliberately indifferent to plaintiff's eye condition, it is not sufficiently serious that their shortcoming would amount to a constitutional violation. Plaintiff's request for new eyeglasses also does not present a constitutional claim, because [**6] it is unlikely that he can show deliberate indifference on the part of defendants, in light of their repeated attempts to provide eyeglasses that satisfy plaintiff.
Plaintiff's tinnitus also is not an urgent medical condition the maltreatment of which presents a constitutional claim. Tinnitus is a condition of the ear manifested in a ringing sensation in the sufferer. While this condition may very well be painful, it does not cause death, and plaintiff has not adduced sufficient evidence that his condition is degenerative or causes extreme pain. His supporting papers rather contain a collection of complaints of circumstances that make his condition more difficult to bear, such as a noisy environment, insufficient supply of ear plugs, failure to provide him with the medicine of his choice, and failure to permit him to participate in a sleep study. These circumstances, which if changed might ease his condition, do not amount to cruel and unusual punishment.
Similarly, plaintiff's complaints regarding his allergy condition, his podiatric condition, his post-surgery hernia condition, his knee condition, his urological problems, [*1016] his dermatological problems, and his cardiological problems [**7] do not present urgent medical conditions the maltreatment of which amounts to cruel and unusual punishment in violation of the Eighth Amendment. However appropriate certain care of these conditions may be, the conditions themselves, as presently alleged, are not life-threatening and do not cause the type of extreme pain cognizable in a constitutional claim.
Because the Court finds that plaintiff cannot demonstrate a likelihood of success on the merits by satisfying the objective element of the deliberate indifference standard, the Court need not undertake to determine whether plaintiff has demonstrated a likelihood of success on the merits of showing that the nearly constant medical attention plaintiff receives actually masks a deliberate pattern to deny necessary treatment or deliberate indifference to his legitimate medical complaints. Nor need the Court determine whether denial of the injunction will cause irreparable harm.

2. Requests for Certain Furnishings and Writing Supplies
Plaintiff complains that his furnishings and supplies are inadequate and this interferes with his ability to prepare his cases. Although argued as a motion for a preliminary injunction, plaintiff [**8] in fact has moved for an order unrelated to the merits of his underlying claims, because there is no actual controversy between the parties before the Court regarding the adequacy of plaintiff's furnishings and supplies. This Court stated in response to plaintiff's application to increase his telephone contact with his lawyer that


Based on the extraordinarily voluminous and dilatory filings in this case, the Court finds that the present arrangement of one thirty minute telephone call per week to be adequate and sufficient. Plaintiff has not demonstrated that defendants are, in fact, stifling his ability to prepare these cases for trial, and defendants have provided ample justification for limiting plaintiff's telephone time as they have.


Davidson v. Scully, 1996 U.S. Dist. LEXIS 496, *8, Nos. 81 Civ. 390, 617, 5657, 83 Civ. 2404-05 (PKL) (S.D.N.Y. Jan. 4, 1996). The same can be said for plaintiff's present arrangement regarding his furnishings and supplies.
Furthermore, even if plaintiff's underlying lawsuits presented a claim related to his furnishings and supplies, the Court would decline to issue a preliminary injunction, because plaintiff would not be able to demonstrate a [**9] likelihood of success on the merits of such a lawsuit. n1 Although, as plaintiff contends, having to sit on his bed and write on a shelf attached to the wall of his cell with an undersized pen, using only his overhead light fixture as lighting, may cause strain and make his writing efforts less comfortable, his complaints do not amount to an unconstitutional denial of reasonable access to the courts. The state's decisions regarding the furnishings and supplies available to inmates housed in the special housing unit are reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987) (holding that prison regulations are valid if reasonably related to legitimate penological interests). The need to limit furniture and light fixtures in the special housing unit to those items that are immobile is reasonably related to the legitimate penological interest in preventing inmate access to items which are easily converted into weaponry. The same is true of the practice of issuing only undersized pens. n2

n1 The Court does not consider whether plaintiff can show irreparable harm from denial of the preliminary injunction because the court finds that the requested relief is unrelated to the merits of plaintiff's lawsuits and, even if it were related, plaintiff would not be able to show likelihood of success on the merits.
[**10]


n2 Plaintiff also complains that defendants have refused to supply him with 8 1/2 x 11 in. paper, which refusal would not be reasonably related to a legitimate penological goal. However, defendants have denied this allegation and stated that proper sized paper is available to plaintiff. Therefore, the Court finds that plaintiff has not shown a likelihood of success on the merits even of a claim relating to the size or amount of the paper with which he is provided.

Plaintiff's arguments that different items are available in other prisons' special [*1017] housing units are unavailing, for the law is clear that "the Constitution 'does not mandate a "lowest common denominator" security standard, whereby a practice permitted at one penal institution must be permitted at all institutions.'" Id. at 95 n.* (quoting Bell v. Wolfish, 441 U.S. 520, 554, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)). In addition, it does not inexorably follow from plaintiff's claimed difficulties due to inadequate furnishings and supplies that he has been denied access to the courts. See Strickler v. Waters, 989 F.2d 1375, [**11] 1385 (4th Cir.), cert. denied, 126 L. Ed. 2d 341, 114 S. Ct. 393 (1993). In order to carry his burden of demonstrating a likelihood of success on the merits, plaintiff would have to be able to demonstrate an actual denial of access to the courts resulting from his conditions. See Salahuddin v. Coughlin, 591 F. Supp. 353, 360 (S.D.N.Y. 1984). "'A demonstration of inability to present a legal claim is an essential ingredient of a suit such as this because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to [better furnishings and supplies]).'" Strickler, 989 F.2d at 1385 (quoting DeMallory v. Cullen, 855 F.2d 442, 452 (7th Cir. 1988) (Easterbrook, J., dissenting)). Although plaintiff asserts that his papers have been returned by the Court for failing to conform to the rules relating to paper size, this inconvenience alone does not present an unconstitutional denial of access to the courts.

3. Exercise Conditions
Plaintiff requests that he receive one hour of exercise per day in a secure setting, that he be provided with warm clothing [**12] to use in the exercise area, that he be provided with individual clothing to use in the exercise, and that he have separate exercise periods for security reasons.


Conditions of confinement inflict cruel and unusual punishment when they result "in unquestioned and serious deprivations of basic human needs" or "deprive inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). However, conditions that are "restrictive and even harsh" are "part of the penalty that criminal offenders pay for their offenses against society." Id. Courts have recognized that some opportunity for exercise must be afforded to prisoners.


Anderson, 757 F.2d at 34-35 (parallel citations omitted). Courts have not specifically determined what amount of exercise is constitutionally required. See id. (collecting cases); Jolly v. Coughlin, 894 F. Supp. 734, 747 (S.D.N.Y. 1995) (collecting cases). Plaintiff's undisputed allegation is that inmates housed in the special housing unit are issued only "summer weight pants, short sleeve shirts, a sweatshirt and non-insulated, non-waterproof footwear." Declaration [**13] of Ronald Davidson, sworn to April 17, 1995, in Support of Motion for Preliminary Injunction P 52. In addition, plaintiff alleges that special housing unit inmates share "community" lightweight jackets. See id. P 54. The Court finds that for the prison to refuse to provide adequate clothing for outdoor exercise is tantamount to refusing to provide outdoor exercise, which refusal would be a constitutional violation. In particular, the refusal to provide reasonably warm clothing for outdoor exercise during the cold winters of upstate New York cannot be supported, and in fact defendants have not attempted to defend the practice in their papers opposing plaintiff's motion. Therefore, the Court finds that plaintiff has presented facts demonstrating a likelihood of success on the merits insofar as the light clothing provided is inadequate to permit inmates to exercise. Where a constitutional violation is alleged, that allegation satisfies the requirement that the plaintiff show irreparable harm. See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). Therefore, because plaintiff has demonstrated a likelihood of success on the merits on a constitutional claim for deprivation of exercise, [**14] he has also demonstrated that absent a preliminary injunction, he will be irreparably harmed. Accordingly, the Court grants his motion for a preliminary injunction that defendants provide plaintiff with warm clothing to use in the exercise area.
[*1018] Plaintiff's request that exercise clothing be individually issued to each inmate does not allege a constitutional violation, and his request for a preliminary injunction with respect to this complaint is therefore denied. With regard to plaintiff's security while exercising, he has submitted no evidence to support the necessity of the requested preliminary injunction, and therefore the Court denies his request.

4. Kosher Diet
Plaintiff complains that when he is placed on a restricted diet, the "nutriloaf" he is given is not kosher, in violation of his First Amendment rights. Again, this complaint is unrelated to plaintiff's lawsuits before the Court, and therefore the Court denies the request. Furthermore, even if plaintiff's request were properly presented to this Court, the Court would deny his motion because he has failed to demonstrate a likelihood of success on the merits of this complaint. The rule is well-established that [**15] prison officials must provide a prisoner a diet that is consistent with his religious scruples. See, e.g., Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992). However, this rule does not carry with it a requirement that prison officials certify by particular means that the diet provided is consistent with the inmate's religious requirements. In the case at bar, defendants have submitted evidence that the nutriloaf provided to plaintiff is prepared under the supervision of two rabbis who have certified it as kosher. Thus, despite plaintiff's naked assertion that the loaves are not kosher, he has not shown a likelihood of success on the merits of an argument that his restricted diet is unconstitutional. Because plaintiff's request must be denied, the Court need not reach the question of whether plaintiff has shown irreparable harm from the denial of the preliminary injunction.
CONCLUSION
For the reasons stated above, plaintiff's motion for a preliminary injunction that the defendants provide plaintiff with warm clothing to use in the exercise area is HEREBY GRANTED and in all other respects plaintiff's motion is HEREBY DENIED.

SO ORDERED

New York, New York
January [**16] 18, 1996
Peter K. Leisure
U.S.D.J.

RONALD DAVIDSON, Plaintiff, -against- THOMAS A. COUGHLIN III, DANIEL SENKOWSKI, ROBERT McCLELLAN, Deputy Superintendent, WENDELL BABBIE, and JOHN ANDRUS, Defendants.



88-CV-0646



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK



920 F. Supp. 305; 1996 U.S. Dist. LEXIS 3522



March 16, 1996, Decided

March 19, 1996, FILED













COUNSEL: [**1] Appearances:


RONALD DAVIDSON, Auburn, NY, Plaintiff, Pro Se.


Sue H.R. Alder, A.A.G., OFFICE OF THE ATTORNEY GENERAL, Department of Law, Albany, NY, For Defendants Coughlin, Senkowski, McClellan, and Babbie;


Mark J. Rogers, Esq., LEWIS, ROGERS LAW FIRM, Plattsburgh, NY, For Defendant Andrus.



JUDGES: HON. THOMAS J. McAVOY, Chief U.S. District Judge



OPINIONBY: THOMAS J. McAVOY



OPINION:

[*307] MEMORANDUM-DECISION and ORDER


I. BACKGROUND

Plaintiff Ronald Davidson, a pro se state prison inmate, commenced this action by filing a complaint on January 6, 1992. Plaintiff raises three causes of action pursuant to 42 U.S.C. § 1983 against defendant Thomas A. Coughlin III, former Commissioner of the New York State Department of Corrections, and defendants Daniel Senkowski, Robert McClellan, Wendell Babbie, and John Andrus, officials at Auburn Correctional Facility ("Auburn"). Plaintiff alleges that defendants (1) failed to provide him with a smoke-free environment at Auburn in violation of New York state law; (2) provided inadequate cold weather clothing; (3) did nothing to correct the tainted prison water supply; and (4) allowed bird droppings to contaminate his [**2] [*308] cell when the birds entered the area through unrepaired broken windows. Defendants' failure to remedy these poor conditions constituted, in plaintiff's view, deliberate indifference to his health amounting to cruel and unusual punishment in violation of the Eighth Amendment.

Presently before the Court is plaintiff's motion for partial summary judgment on his smoke and clothing claims pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Defendant Andrus opposes this motion and has cross moved for summary judgment in full pursuant to Rule 56(c). The remaining defendants also oppose the motion and have cross moved pursuant to Rules 12(b)(1) and 56(b) of the Federal Rules of Civil Procedure for an order dismissing the Complaint for lack of subject matter jurisdiction and granting summary judgment as a matter of law on the ground that they are entitled to qualified immunity. Because the parties to the latter cross motion have included supporting affidavits and other documents presented to and not excluded by the court, this motion will be treated as a single motion for summary judgment.


II. DISCUSSION

A. STANDARD OF REVIEW

The motions were referred by this Court [**3] to the Hon. Daniel Scanlon, Jr., United States Magistrate Judge, for a report and recommendation pursuant to a Standing Order of the Court dated November 12, 1986. Petitioner has raised objections to the Report-Recommendation issued by Judge Scanlon on December 29, 1995, which generally suggested that the Court grant defendants' motions such that only plaintiffs second cause of action against defendants Coughlin, Senkowski, McClellan, and Babbie should remain. Because dispositive motions were referred to a magistrate judge for a report and recommendation and objections have been filed, the Court "shall make a de novo determination of those portions of the report...to which objection is made." 28 U.S.C. § 636(b)(1). After performing such review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The [Court] may also receive further evidence or recommit the matter to the magistrate with instructions." Id.

After examining the record, the Court adopts the Report-Recommendation for the reasons stated therein with the following additions.

B. EIGHTH AMENDMENT VIOLATIONS

The Eighth Amendment represents a [**4] general constitutional prohibition against cruel and unusual punishment. Moreover, "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993). A claim alleging that prison conditions are in violation of the Eighth Amendment must satisfy both an objective and subjective requirement: the conditions complained of must be "sufficiently serious" from an objective standpoint, and the plaintiff must demonstrate that prison officials subjectively acted with "deliberate indifference." Wilson v Seiter, 501 U.S. 294, 298 & 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The required inquiry with regard to deliberate indifference is whether "the official knows of and disregards an excessive risk to inmate safety; the official must both be aware of facts from which the inference could be drawn and must also draw that inference." Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1979 (1994).

1. Second-Hand Smoke

Plaintiff has failed to satisfy the Wilson two-prong test with regard to his first cause of action [**5] alleging that the defendants failed to provide him with a smoke-free environment in violation of New York state law. In Helling the Supreme Court held that a plaintiff may satisfy the objective prong of Wilson by showing that "he himself is being exposed to unreasonably high levels of ETS [environmental tobacco smoke]" and that the "risk of which he complains is not one that today's society chooses to tolerate." Helling, [*309] 113 S. Ct. at 2482. Plaintiff here has failed to meet this standard. Whereas plaintiff in Helling had been housed in a cell with an inmate who smoked five packs of cigarettes per day, plaintiff in this case was housed in his own individual cell and has not demonstrated exposure to levels of ETS comparable to those in Helling. As Judge Scanlon states in the Report-Recommendation, "...the plaintiff has not demonstrated what the level of smoke in the facility was or whether that degree of exposure would have been enough to cause or aggravate a current or future serious illness." (Report-Recommendation at 6.)

In his first cause of action plaintiff also alleges that exposure to smoke aggravated his existing allergies. However, the Supreme Court held [**6] in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), that "deliberate indifference to serious medical needs of prisoners" constitutes "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Id. at 104. Plaintiff in this case has failed to submit any evidence in support of his medical condition, which he nevertheless claims is well documented by DOCS. Plaintiff's bare allegation is insufficient to survive summary judgement.

If a plaintiff fails to satisfy one prong of the Wilson test "...the court may give judgement ...without taking further evidence." Helling, 113 S. Ct. at 2482. The Court would like to note, however, that plaintiff also has failed to satisfy the second prong of the test. With regard to the subjective factor, the Helling court held that the "adoption of a smoking policy will bear heavily on the inquiry of deliberate indifference." Id. Defendants here have implemented a smoking policy in compliance with the Clean Air Act, similar to the prison officials in Helling, so the Court does not believe that plaintiff could reasonably prove that defendants acted with deliberate indifference. n1



n1 While plaintiff alleges that the policy is not being adequately administered, the Helling Court suggested that improper administration of smoking policies, while relevant, would not be dispositive of whether the subjective prong is satisfied. Rather the Court stated that inquiry into "this factor would be an appropriate vehicle to consider arguments regarding the realities of prison administration." Helling, at 2482.


[**7]

2. Inadequate Winter Clothing

Plaintiff has satisfied both the objective and subjective prongs of the test with regard to his second cause of action alleging inadequate winter clothing. The Supreme Court has held that "denying prisoners one of life's necessities" is a violation of the Constitution. Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). Furthermore, "adequate clothing is one of the necessities of life which prison officials can not deprive an inmate." Gordon v. Faber, 800 F. Supp. 797, 800 (N.D. Iowa), aff'd, 973 F.2d 686 (8th Cir. 1992). Thus providing prisoners with clothing that is "patently insufficient to protect them from cold winter months" is a violation of the Constitution. Balla v. Idaho St. Bd. Of Corrections, 595 F. Supp. 1558, 1575 (D. Idaho 1984).

Plaintiff alleges that the clothing distributed by the Clinton Facility is insufficient to protect plaintiff from the winter elements in upstate New York. Plaintiff points to DOCS Directive #3081 submitted by defendants, which delineates the winter clothing provided to prisoners. Specifically, plaintiff alleges that the defendants fail to provide prisoners with [**8] "winter underwear, winter boots or galoshes, sweaters, gloves, scarves, wool socks, rain coats or winter coats...hooded coats or hooded sweatshirts and long sleeve shirts." Instead, some of the winter items listed above are available for purchase only. While defendants have asserted that plaintiff was provided clothing mandated by DOCS Directive #3081, they have not clearly demonstrated how the clothing issued is sufficiently suitable for the harsh winter climate of upstate New York. Thus plaintiff has raised a material issue of fact on whether the clothing he was provided was objectively sufficient.

With regard to the second element of the Wilson test, defendants argue that they were not "deliberately indifferent" as demonstrated by the fact that they followed [*310] the DOCS directive. The Court notes, however, that the test for "deliberate indifference" elaborated upon by the Supreme Court is not necessarily addressed by whether an official followed a DOCS directive. Rather, the proper inquiry is whether "the official knows of and disregards an excessive risk to inmate safety; the official must both be aware of facts from which the inference could be drawn and must also draw that [**9] inference." Farmer, 114 S. Ct. at 1979. Whether the defendants meet this standard is a material question of fact about which a genuine issue exists. Consequently, summary judgment on this count cannot be granted to either plaintiff or defendants Senkowski, McClellan, or Babbie.

Summary judgment may be granted, however, for defendants Coughlin and Andrus. "Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under 1983." McKinnon v. Patterson, 568 F.2d 930, 936 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978). In Young v. Kihl, 720 F. Supp. 22 (W.D.N.Y. 1989), the court stated that

personal involvement of a supervisory official may...include a failure to remedy the wrong after having learned of [it] with the caveat that the wrong must have been ongoing or otherwise have been capable of mitigation at the time of the supervisory official was appraised thereof... Without such caveat, the personal involvement doctrine may effectively and improperly be transformed into one of respondeat superior.


Id. at 23. The record does not support a determination that [**10] defendant Coughlin had direct knowledge either of the DOCS directive issued by the Deputy Commissioner or of the possibility that plaintiff's Constitutional rights were being violated. Moreover, with regard to defendant Andrus, plaintiff admits in his Affidavit in Opposition to that defendant Andrus had "no involvement" in the clothing issue.

3. Tainted Water Supply and Bird Droppings

Plaintiff has failed to meet the two-pronged Wilson test as to Parts A and B of his third cause of action. Consequently, the Court adopts the Report-Recommendation with regard to Parts A and B of the third cause of action for the reasons stated therein.

C. QUALIFIED IMMUNITY

Government officials performing discretionary functions are entitled to qualified immunity "...insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (citing Procunier v. Navarette, 434 U.S. 555, 565, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978)). Qualified immunity "permits 'insubstantial lawsuits [to] be quickly terminated" and reduces "...the [**11] expenses of litigation, the diversion of official energy from pressing public issues and the deterrence of able citizens from acceptance of public office." Harlow, 457 U.S. at 814. If, however, as in the instant case, facts material to the issue of qualified immunity are in dispute, qualified immunity cannot be determined as a matter of law until the factual issues are resolved at trial. DiMarco v. Rome Hosp., 952 F.2d 661, 666 (2d Cir. 1992).

The Supreme Court has elaborated on Harlow and held that a government official "may [not] be held personally liable for money damages if a reasonable officer would could have believed that the search comported with the Fourth Amendment." Anderson v. Creighton, 483 U.S. 635, 636-38, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). While the instant case involves the Eighth Amendment, the standard to be applied is the same. The appropriate inquiry is whether a reasonable state officer could have believed that providing only the clothing mandated by DOCS Directive #3081 was a violation of the Eighth Amendment. As discussed above, plaintiff has raised a material question of fact with regard to the adequacy of winter clothing provided; [**12] since this fact is material to the determination of qualified immunity summary judgment cannot be granted on qualified immunity grounds.

[*311] D. APPOINTMENT OF COUNSEL

While plaintiff's claim appears to be of substance, meeting the threshold requirement for appointment of counsel set forth in Sawma v. Perales, 895 F.2d 91, 95 (2d Cir. 1990), the Court holds that plaintiff still is not entitled to such appointment. In deciding whether to appoint counsel a court should consider a number of factors, including:

the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues, and any special reason . . . why appointment of counsel would be more likely to lead to a just determination.


Id. None of these factors are controlling, however, and each case should be decided on its own facts. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).

In the instant case, the only remaining issue -- whether or not the "winter clothing" provided by the defendants was adequate -- [**13] is not overly complex. Furthermore, the record indicates that plaintiff has the ability to learn and implement legal arguments. While there may be conflicting evidence requiring cross-examination at trial, this factor alone is not determinative of a motion to appoint counsel. See Jackson v. Francis, 646 F. Supp. 171, 172 (E.D.N.Y. 1986). Many pro se litigants have handled similar Section 1983 claims with considerable proficiency, and the Court finds no indication that plaintiff will be unable to do so here. The analysis here is similar to that performed by the Court recently in Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995). As a result, plaintiff's motion for appointment of counsel must be denied.

E. CLASS ACTION CERTIFICATION


Plaintiff does not meet the requirements for class action set forth in Rule 23 of the Federal Rules of Civil Procedure, which requires at a minimum that


(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative [**14] parties will fairly and adequately protect the interests of the class.


Fed. R. Civ. P. 23(a)(4). Plaintiff in the instant case is pro se and unable to adequately represent the class. Consequently, class action certification is denied at this time.


III. CONCLUSION

For all the foregoing reasons, summary judgment is hereby GRANTED in favor of the defendants on the first and third cause of action. With regard to the second cause of action summary judgment is GRANTED in favor of Defendants Coughlin and Andrus. However, summary judgment is hereby DENIED as to the other defendants on the second cause of action because a material issue exists with regard to whether the clothing provided to the plaintiff was adequate. Plaintiff's motions for appointment of counsel and class certification are DENIED without prejudice to renew at some future time if circumstances so warrant.


IT IS SO ORDERED.


March 16, 1996

Binghamton, New York

HON. THOMAS J. McAVOY

Chief U.S. District Judge