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 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.
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 "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 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 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 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 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; since this fact is material to the determination of qualified immunity summary judgment cannot be granted on qualified immunity grounds.
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 -- 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 parties will fairly and adequately protect the interests of the class.