believing that harm actually would befall an inmate; it is enough that
the official acted or failed to act despite his knowledge of a
substantial risk of serious harm." Farmer, 511 U.S. 825, 842, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994).
Here, plaintiff provides adequate evidence that Goord, Healy, Aidala
and Kuhlmann knew of and failed to remedy plaintiffs Eighth Amendment
violation. Plaintiff claims, and it appears likely, that Goord approved
the "Use of Restraints Directive" which stated that "`The inmate will
remain shackled during the entire period he/she is out of SHU cell.' This
will include the SHU recreation area." 3/17/98 Memorandum, Ex. F to Portz
Aff. See also Williams, 918 F. Supp. at 96 ("Defendant, by helping to
formulate and then approving the challenged policy, was deliberately
indifferent to the excessive risk that this deprivation posed to the
plaintiffs health."). Healy sent this directive to all SHU staff and
inmates on March 17, 1998. See Ex. F to Portz Aff.
Aidala initially ordered that plaintiff be placed in mechanical
restraints for seven days. Both Aidala and Healy renewed plaintiffs
seven-day restraint order four times. When plaintiff appealed to Kuhlmann
via letter dated August 17, 1998, Kuhlmann referred plaintiffs letter to
Aidala, who officially responded to plaintiff with a signed memorandum
explaining that the mechanical restraints were "in no way a punishment"
but meant to insure that plaintiff would "be moved safely from [his] cell
to the exercise area and back to [his] cell." 8/21/98 Memorandum, Ex. 11
to Pl. Dep. Neither Kuhlmann nor Aidala ever directly addressed the need
for plaintiff to be placed in mechanical restraints while in the exercise
It cannot be said that no reasonable jury could find in favor of
plaintiff on the facts as alleged. Goord, Healy, Aidala and Kuhlmann
therefore, are not entitled to summary judgment on plaintiffs Eighth
D. Personal Involvement
Defendants contend that the Complaint should be dismissed against
Goord, Healy and Kuhlmann because plaintiff fails to adequately allege
personal involvement. See Defendants' Motion for Summary Judgment at
30-32. It is well-settled in the Second Circuit 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). See also Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995).
A defendant who occupies a supervisory position may be "personally
involved" in the alleged deprivation in several ways other than direct
participation, such as: (1) failing to remedy the wrong after learning of
it through a report or appeal; (2) creating a policy or custom under
which unconstitutional practices occurred, or allowing such a policy or
custom to continue; and (3) grossly negligent management of subordinates
who caused the unlawful condition or event. See Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994); Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir. 1986). In addition, "supervisory liability may be imposed where
an official demonstrates `gross negligence' or `deliberate indifference'
to the constitutional rights of [plaintiff] by failing to act on
information indicating that unconstitutional practices are taking place."
Wright, 21 F.3d at 501 (citation omitted).
As noted above, plaintiff offers evidence that Goord, Healy and
Kuhlmann were personally involved in plaintiffs Eighth Amendment claim.
Having alleged and substantiated the existence of the requisite personal
involvement, a summary judgment motion seeking dismissal of plaintiffs
claim on this ground must fail.
E. Eleventh Amendment Immunity
In assessing whether the Eleventh Amendment bars recovery in this
action, it is necessary to decide whether
plaintiff sued the defendants in their personal or official capacities.
See Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 87 L.Ed.2d
114 (1985). Personal or individual capacity suits seek to impose personal
liability upon a government official for actions he or she took under
color of state law. Id. at 165, 105 S.Ct. 3099. Official capacity suits,
on the other hand, are suits against a government entity. Id. at 165-66,
105 S.Ct. 3099. Plaintiffs Complaint names Kuhlmann, Healy and Aidala in
"both their individual and official capacities."
The Eleventh Amendment bars suits for compensatory and other
retroactive relief against a state and its officials in their official
capacities, absent a waiver or consent, neither of which is present
here. Plaintiffs official-capacity suit seeks compensatory and punitive
damages — precisely the relief barred by the Eleventh Amendment.
See Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 39 L.Ed.2d
662 (1974). Accordingly, plaintiff cannot proceed against Goord, Healy,
Aidala and Kuhlmann in their official capacities. However, plaintiff may
still pursue his Eighth Amendment claim for monetary damages against
defendants in their individual capacities. Id. at 663, 94 S.Ct. 1347.
For the foregoing reasons, defendants' motion for summary judgment is
granted in part and denied in part. Plaintiffs Fourteenth and First
Amendment claims are dismissed against all defendants. In addition,
plaintiffs Eighth Amendment claim is dismissed against all defendants
except Goord, Healy, Aidala and Kuhlmann. Plaintiff may pursue an Eighth
Amendment claim against Goord, Healy, Aidala and Kuhlmann in their
individual capacities. A conference is scheduled for August 8, 2000 at