awareness associations and advocacy groups. Finally, the plaintiff Doe states that he has disclosed his HIV status to certain family members and a number of close friends and/or acquaintances.
As to the plaintiff Roe, it is undisputed that she spoke about her HIV status, using her first name, on no less than five occasions. Each occasion was a workshop or conference targeting health care professionals and/or those involved with teaching others about HIV/AIDS. The plaintiff Roe also participated in a number of HIV/AIDS awareness associations and advocacy groups. A list of participants in a 1991 workshop, in which the plaintiff Roe revealed her HIV status, listed the full name of the plaintiff Roe, although the list itself did not indicate the defendant's status. The plaintiff Roe was videotaped telling her story about contracting HIV. In that connection, the plaintiff Roe signed a statement indicating her knowledge and assent that the videotape would be distributed for teaching/educational purposes at conferences, workshops, and in classrooms throughout the state, and without restriction. Finally, the plaintiff Roe disclosed her HIV status to certain family members and a few friends and/or acquaintances.
Based on the foregoing facts, the court finds that as a matter of law the only conclusion that a jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances, i.e., whether the plaintiffs had waived the right to privacy. See Lennon, 66 F.3d at 421. In essence, the facts in this case show that the plaintiffs were visible participants in the HIV/AIDS advocacy and awareness movement, and that numerous individuals knew of their HIV status. The plaintiffs seem to complain vigorously about the use of their full names in connection with their HIV status. Notwithstanding the fact that at least plaintiff Doe has used his full name in connection with his HIV status previously, the court considers the emphasis on full name to be misplaced. The court finds the Second Circuit's decision in Doe v. City of New York instructive.
In Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994), decided after the events giving rise to this lawsuit, the plaintiff therein alleged facts in support of a claim for breach of the right to privacy where a press release, although not mentioning the plaintiff's name, "did contain sufficient information to allow those who knew or worked with Doe to identify him." 15 F.3d at 265.
In effect, identifying characteristics of the plaintiff other than his name constituted publication of his identity, and hence raised a factual issue as to breach. The court finds that the converse must also be true. The release by a plaintiff of identifying characteristics other than a full name raises a factual issue as to whether the plaintiff has published his or her identity, and thereby waived the right to privacy. This is particularly true in light of the lack of guidance in the law as to what constitutes a waiver of the right to privacy. The plaintiffs would have the court deem the use of a till name a shibboleth for waiver. This the court cannot accept. Accordingly, the court grants the defendants' motion for summary judgment on the basis of qualified immunity.
D. Personal Involvement Of Defendants Sobol And Gardner
"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.'" Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), citing, Wright v. Smith 21 F.3d 496, 501 (2d Cir. 1994). The circuit also noted that the personal involvement of a supervisory defendant may be shown by evidence that: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of the [defendants] by failing to act on information indicating that unconstitutional acts were occurring." 58 F.3d at 873 (citation omitted).
The plaintiffs allege that the defendants Sobol and Gardner created a policy or custom under which unconstitutional practices occurred and/or were grossly negligent in supervising subordinates who committed the alleged wrongful acts. The plaintiffs, however, fail to set forth any facts in support of these claims. The mere fact that an individual occupies a high position is insufficient to sustain the plaintiffs' claim. See Ayers v. Coughlin 780 F.2d 205, 210 (2d Cir. 1985); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978). Accordingly, the defendants Sobol and Gardner are entitled to a grant of their motion for summary judgment on the basis that they were not personally involved in the alleged wrongful conduct.
For the foregoing reasons, the court grants the defendants' motion for summary judgment dismissing the plaintiffs' complaint in its entirety.
It is so ordered.
Dated March 16, 1996
at Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge