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August 26, 1997

EARL DOYLE, Plaintiff,
PHILIP COOMBE, Commissioner, New York State Department of Correctional Services, et al, Defendants.

The opinion of the court was delivered by: LARIMER

 In this action brought pursuant to 42 U.S.C. ┬ž 1983 plaintiff Earl Doyle ("Doyle") alleges that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by exposing him to dangerous levels of asbestos and by failing to provide necessary medical care. Doyle was a prisoner at the Elmira Correctional Facility ("Elmira") during the relevant time period. The defendants, Philip Coombe, Thomas A. Coughlin, III, Larry Pocobello, George Bartlett, John Maloy, Mark Lyman, Robert McConnell, Willis Shutt, Jerome Fitzpatrick, and ten "John Does" were employees or agents of the New York State Department of Correctional Services ("DOCS"). Except for Coombe, who is sued in his official capacity, the defendants are sued in their individual capacities.

 Doyle commenced this action, pro se, on July 14, 1992. By Order dated May 17, 1993 he was assigned counsel. Doyle seeks money damages and medical monitoring costs from all defendants. *fn1"


 Doyle was an inmate at Elmira from March 1990 to October 1992. During that time he worked at the facility as a maintenance worker and plumber. He worked alongside defendant Fitzpatrick, a civilian plumber employed by DOCS. Doyle claims that he was exposed to asbestos in three ways. First, he alleges that he was exposed while performing his normal duties, specifically, while removing asbestos-containing insulation from around heating and water pipes. This exposure occurred in prison locations that later became sites for asbestos removal. Doyle Affidavit, dated January 24, 1997 ("Doyle Aff."), at P 8. When he complained to the Corrections Officers [the "John Doe" defendants] they allegedly told him that he would be disciplined if he continued to complain about his working conditions. Id. at P 8.

 Secondly, Doyle asserts that he was forced to work in areas where asbestos abatement projects were in progress. Specifically, he asserts that "although I was not a member of any inmate crew involved in the asbestos removal program, ... I was ordered by ... the Corrections Officers [the John Doe defendants] to enter into areas in which signs were visibly posted warning that asbestos and asbestos-containing materials were present and that exposure to same without protective gear was dangerous." Doyle Aff. at P 10.

 Finally, Doyle claims that he continually was exposed to asbestos while confined to his cell because "throughout 1992, asbestos and asbestos containing materials were left in the basement of Cell Block I, which is an area open to the same air space as the cells." Doyle Aff., at P 11.

 Doyle claims that he suffered skin rashes from June 1990 to September 1991 and occasional shortness of breath and coughing since November 1992. There is no medical evidence in the record establishing a casual relationship between the activities at Elmira in 1990-1992 and Doyle's present medical condition.

 Defendants concede that Elmira did house asbestos in certain areas of the facility. Defendants also admit that during the relevant time period there was an asbestos abatement program in progress at the facility. However, defendants assert that only specially trained and certified members of the abatement teams were permitted to handle asbestos during the project. Doyle was not such a trained and certified worker and, therefore, he was not authorized to be involved in the abatement project. Defendants deny Doyle's assertion that he was forced to work as part of the abatement project.

 Furthermore, defendants assert that except for Fitzpatrick, none of them knew Doyle or had ever heard of any of his concerns. Only Fitzpatrick, as Doyle's supervisor, had any direct contact with him. Fitzpatrick asserts that there was no occasion when either he or Doyle worked with asbestos and that he, Fitzpatrick, never requested or felt the need for any protective equipment. Fitzpatrick also denies receiving any request from Doyle for this equipment. Fitzpatrick Affidavit, dated November 26, 1996, ("Fitzpatrick Aff.") at P 11.

 Finally, defendants assert that during the relevant time period Doyle failed to seek any medical care whatsoever, failed to seek a change in jobs, and failed to make any official grievance to prison authorities. Without any knowledge of his concerns, it was impossible for prison authorities to investigate his allegations at the appropriate time.


 A prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993); Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Furthermore, "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling, 509 U.S. at 31. This includes environmental hazards that pose an unreasonable risk of serious damage to future health. Id. at 33-35.

 Proof of mere negligence, however, will not give rise to a constitutional violation. Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991)(citing Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986)). Rather, a plaintiff must demonstrate that defendants acted with deliberate indifference with respect to his safety or with a specific intent to cause him harm. Id.

 To prevail on an Eighth Amendment claim a plaintiff must satisfy both prongs of a bifurcated standard, i.e., he must satisfy both an objective and subjective component. See Wilson, at 298-300. First, objectively, the deprivation alleged must be "sufficiently serious" to be considered cruel and unusual. See Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) (citing Wilson, 501 U.S. at 298); McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993). For a claim based on a failure to prevent harm, an inmate must show that he was incarcerated under conditions posing a substantial risk of serious harm. Farmer, 511 U.S. at 834. As for the subjective component, a plaintiff must show that defendants had a sufficiently culpable state of mind; that is that they knew of the risk and operated with "deliberate indifference" to the inmate's health or safety. Id.


 Defendants presently move for summary judgment on the grounds that Doyle has failed to satisfy the substantive criteria for an Eighth Amendment claim. Specifically, defendants assert that Doyle cannot show that they acted with the requisite 'deliberate indifference.' Defendants also assert that, except for ...

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