The opinion of the court was delivered by: MCAVOY
The defendants, NAOMI MARSH, JOAN L. MILOWE, ARLENE SHEFFIELD, REBECCA GARDNER, and THOMAS SOBOL, have moved for summary judgment. The plaintiffs, JOHN DOE and JANE ROE, two HIV
positive individuals, oppose the defendants' summary judgment motion and have cross-moved for summary judgment in their favor.
In particular, sometime in September of 1992, the New York State Education Department published a document entitled "Setting Up HIV Prevention Programs Including Persons Living With HIV/AIDS." As suggested by the title, the publication was a guide for those who wished to set up programs aimed at preventing the spread of HIV, and that used the services of HIV/AIDS infected individuals. The guide was written by the defendant Marsh and was reviewed prior to publication by her supervisor, the defendant Sheffield. No other defendants were involved in the production or distribution of the guide. Moreover, there was no procedure requiring further review of the document in question.
The troublesome portion of the guide is the acknowledgment page. The plaintiffs are among a number of individuals mentioned by their full names as having contributed to the success of the program and referenced as "living with HIV." The plaintiffs argue that, although both had discussed living with HIV and/or AIDS while participating in a number of panel discussions relating primarily to Education Department training programs, neither had disclosed their full name, and no panel discussions were open to the public. It is conceded that each plaintiff had been actively involved for a period of years with various HIV and or AIDS related awareness and advocacy organizations, such as: H.O.M.E., the Wellness Network, AIDS Council of Northeastern New York, the Damien Center, and the Albany County AIDS Housing Task Force. However, the plaintiffs argue that participation with these groups does not mean that the individual is announcing his or her status with regard to HIV, or more importantly, waiving the right to assert the claims set forth herein.
The defendants counter by alleging that the plaintiffs have waived their right to privacy by disclosing their HIV status in public, and on several occasions their full names. The defendants also claim that they are entitled to qualified immunity from suit on the basis that the law relating to a waiver of the right to privacy was not well-settled at the time that the complained of events occurred. The court now turns to the points of counsel.
A. Standard For A Motion For Summary Judgment
The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990) (quoting, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994) (quoting, 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil s 2721 at 40 (2d ed. 1983)). However, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 2552-2553, 91 L. Ed. 2d 265 (1986); Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for a jury, not matters to be decided by the court on summary judgment. Id.; See, e.g., Fed. IL Civ. P. 56(e), 1963 Advisory Committee Note; Agosto v. Immigration and Naturalization Service, 436 U.S. 748, 756, 98 S. Ct. 2081, 2086-87, 56 L. Ed. 2d 677 (1978); Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 472-73, 82 S. Ct. 486, 490-91, 7 L. Ed. 2d 458 (1962); Ramseur v. Chase Manhattan Bank 865 F.2d 460, 465 (2d Cir. 1989); Centronics Financial Corp. v. El Conquistador Hotel Corp., 573 F.2d 779, 782 (2d Cir. 1978); 6 Moore's Federal Practice P 56.02 at 56-45 (2d ed. 1993). "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). It is with the foregoing standards in mind that the Court turns to the issues presented.
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must prove facts showing that a person acting under color of state law deprived plaintiff of a right, privilege, or immunity secured by the United States Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Dwares v. City of New York 985 F.2d 94, 98 (2d Cir. 1993). "By the plain terms of § 1983, two -- and only two -- elements are required in order to prevail on a cause of action under that statute. First, plaintiff must show that some person has deprived him of a federal right. Second, he must show that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980); Costello v. Fairfield, 811 F.2d 782 (2d Cir. 1987).
In the instant case, the plaintiffs have alleged that the defendants, all state employees violated their right to privacy, i.e., their right not to have their HIV status revealed without consent. The defendants have moved for summary judgment, ...