than any named defendant. See Doyle Aff. at P 10 ("I was ordered by a number of the [John Does] 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 does not assert that any of the named defendants, including defendant Fitzpatrick, ordered him to work in the posted areas.
No direct liability can attach to unnamed individuals. Thus, Doyle's claim against the named defendants, based upon this allegation, can survive only if there is evidence that any of the named defendants was in some other way 'personally involved' in the alleged deprivation.
It is well settled that "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, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978). Under the law of this Circuit, where defendants have not directly participated in the event, a plaintiff may establish personal involvement by showing that the defendants learned of the wrong and failed to correct it; that they created or allowed a policy to exist that harmed the plaintiff; or that they acted with "gross negligence" in managing subordinates. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).
With respect to defendants Shutt, McConnell, Lyman, Maloy, Bartlett, Pocobello, and Coughlin (the "supervisory defendants"), each has asserted in his affidavit that he did not know anything about the forced exposure. Indeed, each asserts that he did not know Doyle or had even heard of him.
Doyle does not assert that he gave actual notice to the supervisory defendants regarding his exposure to asbestos. However, Doyle asserts that the supervisory defendants' position of authority put them on notice when he complained to the "John Does", and that as supervisory officials they allowed a policy to exist that exposed plaintiff to harmful amounts of asbestos and asbestos containing material.
Doyle's allegations in this regard are insufficient. Essentially Doyle seeks to impose liability here on a respondeat superior theory which cannot form the basis for liability in actions alleging constitutional violations. There is no evidence whatsoever that any complaints (if made regarding the forced exposure) were relayed to the supervisory officials; there is no evidence whatsoever that the supervisory officials were negligent; and there is no evidence whatsoever that there was a policy or practice of permitting inmates to be exposed to asbestos. Indeed, the evidence establishes the contrary. The existence of the asbestos abatement project and the precautions followed as a result demonstrate that the only existing "policy" was one to protect inmates from exposure.
See Napoleoni v. Scully, 932 F. Supp. 559, 563 (S.D.N.Y. 1996)("the fact that there was a class that taught inmates how to remove asbestos does not without more support the inference that the defendants were aware that there was asbestos in the area where the plaintiff was working.")
Thus, because there is no evidence that the supervisory defendants were personally involved in the alleged forced exposure, Doyle's claim is dismissed as against them.
The only remaining defendant is Fitzpatrick. Doyle alleges that "after I discovered that I was being exposed to asbestos and asbestos-containing material, I advised Fitzpatrick that I believed that it was unsafe for me to be in contact with asbestos and asbestos-containing material." Doyle Aff. at P 12. Fitzpatrick "informed me that I would have to be exposed to asbestos and asbestos-containing materials for years before I would be in danger of developing an asbestos-related illness." Id.
Doyle's assertion fails to clarify precisely what he complained to Fitzpatrick about. If he complained about his exposure during work activities, or his exposure while confined to his cell, Fitzpatrick is protected from liability by qualified immunity, as discussed above. Even if Doyle complained to Fitzpatrick about the John Does forcing him to enter posted areas, there is no evidence that Fitzpatrick was in a supervisory position vis-a-vis the John Does, or possessed any authority to correct their actions. Fitzpatrick was a civilian employee, working as a plumber at Elmira. It is not clear that he had any supervisory authority at all, except over Doyle. Thus, I cannot find that Fitzpatrick had any authority to correct the officers' behavior or alter any existing policy. Accordingly, I find that Doyle has failed to establish Fitzpatrick's personal involvement in the John Does' actions.
However, even if Doyle adequately has established personal involvement by Fitzpatrick, I find that this action against Fitzpatrick alone cannot be sustained. To the extent there is any evidence of deliberate indifference by any of the defendants, it is on the part of the John Does. They were the only ones allegedly forcing Doyle to enter into posted areas. Unfortunately for Doyle, he has failed to identify those individuals and is thus now precluded from asserting claims against them. See discussion of Doyle's motion to amend, infra. With respect to Fitzpatrick, there simply is insufficient evidence of deliberate indifference to sustain Doyle's claims.
Fitzpatrick asserts that he and Doyle never worked with asbestos, that they were never asked to work with or around asbestos, that they were aware of asbestos dangers and were directed not to work with asbestos, and finally, that he (Fitzpatrick) never felt the need for protective clothing and that Doyle never expressed any concerns about asbestos or requested any protective equipment either. Fitzpatrick Aff.
Doyle's assertions to the contrary do not raise genuine issues of material fact as to whether Fitzpatrick was "deliberately indifferent" to a substantial harm. While it is true that, generally, it is improper to grant summary judgment when a litigant's state of mind is in question, see Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984), no case ever would be ripe for summary judgment if the court allowed a complaint to succeed based only on an allegation of an improper state of mind. See LaBounty v. Coughlin, 1996 WL 525865, *3 (S.D.N.Y. 1996) (noting that even a pro se party's "bold assertion," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment)(citations omitted). There must be evidence such that a rational trier of fact could find for the plaintiff.
Here, there is simply no evidence whatsoever that Fitzpatrick intentionally or wantonly permitted Doyle to be exposed to asbestos, intending to cause him harm. At best, Fitzpatrick may have been uninformed, negligent or stupid. But there is no evidence that he was deliberately indifferent to Doyle being exposed to dangerous levels of asbestos. Cf. Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995)(where a report of asbestos violations, a fire marshall's order to remove asbestos debris, and prison officials' admissions that they knew of exposed asbestos comprised evidence sufficient to withstand defendants' motion for summary judgment on issue of subjective intent). Thus, I find that Doyle has failed to raise genuine issues of material fact concerning Fitzpatrick's state of mind, for purposes of defeating defendants' motion for summary judgment.
Doyle's Request for Additional Discovery
Alternatively, Doyle asks that, before considering defendants' motion, this Court allow him to conduct further discovery, pursuant to Fed. R. Civ. P. Rule 56(f). Doyle asserts that he cannot adequately oppose defendants' motion without deposing defendants about their knowledge of the alleged exposures. I deny this request. This action is over five years old. Plaintiff has been represented by counsel since May 1993, and the time within which to conduct the necessary discovery is more than sufficient. A scheduling order was entered on September 26, 1995 allowing the parties to conduct discovery to March 1, 1996. Shortly after discovery was to close, on March 15, 1996, the Court gave the parties six months additional time to complete discovery, until October 1, 1996. Thereafter, plaintiff obtained an additional two month extension for discovery until December 1, 1996. Plaintiff has identified no justifiable reason as to why all of the necessary discovery could not have been completed during the three years that counsel has been in the case and during the times provided in the discovery scheduling orders.
Moreover, I find that such depositions are unnecessary. Each supervisory defendant has stated in an affidavit that he knew nothing of Doyle and/or Doyle's complaints or concerns. Fitzpatrick has stated that Doyle never complained to him, and that he never relayed any complaints to anyone else. While it is true that depositions allow for greater factual exploration than can be obtained from an affidavit, I find that in this case there is no reason to believe any defendant would provide significantly different information in a deposition than was represented in his affidavit. M.B. # 11072-054 v. Reish, 119 F.3d 230, 1997 U.S. App. LEXIS 19302, 1997 WL 423065, at *2 (2d Cir. 1997). Accordingly, I deny plaintiff's request for additional discovery.
Doyle's Motion for Leave to Amend the Complaint
Finally, Doyle seeks leave to amend the complaint, pursuant to Fed. R. Civ. P. 15(c), to add Officers Barto, DiFasi, Bannon, Davenport, Augustine, Coleman, Rogerio, Witkowski, Dinkleberger, and Santiago as defendants in place of the currently named "John Doe" defendants. Doyle asserts that "but for a mistake as to the exact identity" of the "John Doe" defendants, they would have been named in the original complaint. Essentially, Doyle's claim is that now that the officers' identities are known, they should be substituted for the "John Doe" defendants. Doing so, however, would be in direct contravention of clear Second Circuit precedent.
Doyle concedes that the statute of limitations applicable to his § 1983 claim has expired. Therefore, he may amend his complaint now to add the additional defendants only if the amendment would "relate back" to the date his original complaint was filed. Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996).
An amendment to a pleading that attempts to add a new party "relates back" to the date of the original complaint only if: (1) the claim arises out of conduct set forth in the original pleading; (2) the party to be added received notice such that it will not be prejudiced in maintaining a defense; (3) the party to be added should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third requirements are fulfilled within the period prescribed in Fed. R. Civ. P. 4(m) for service of process. See Soto, 80 F.3d at 35; Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-69 (1995), modified, 74 F.3d 1366 (2d Cir.1996).
It is the third requirement that proves fatal to Doyle's motion. The Second Circuit has held that "Rule 15(c) explicitly allows the relation back of an amendment due to a 'mistake' concerning the identity of the parties (under certain circumstances), but the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Barrow, 74 F.3d at 1367. Therefore, "Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow, 66 F.3d at 470; see also Covington v. City of New York, 1997 U.S. Dist. LEXIS 8009, 1997 WL 311922, *1 (S.D.N.Y. 1997)(denying plaintiff's request to amend complaint to identify one of "12 Unknown Members of the Manhattan South Tactical Narcotics Team" because his failure to identify them earlier was "clearly due to his lack of knowledge of their names rather than due to factual or legal mistake"); Daniels v. Loizzo, 174 F.R.D. 295, 1997 WL 231125, *4 (S.D.N.Y. 1997)(noting that attempt to supply names would not be allowed where the amendment would only correct plaintiff's lack of knowledge, not a mistake); Steiner v. City of New York, 920 F. Supp. 333, 341-42 (E.D.N.Y. 1996).
Here, Doyle failed to specify these ten officers' names in his original complaint or to add them within the applicable statute of limitations. Doyle's actions in this regard resulted not from a "mistake of identity," but from a clear lack of knowledge of their identities. Accordingly, the requirements of Rule 15(c) for relation back are not met and Doyle's motion for leave to amend the complaint is denied.
For all the above reasons, defendants' motion for summary judgment ( # 33) is GRANTED in its entirety as to all defendants. Plaintiff's cross motion to amend the complaint and for additional discovery ( # 9) is DENIED.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
August 26, 1997.