First, they argue that plaintiffs
have failed to demonstrate that defendants acted with deliberate
indifference in subjecting them to dangerous levels of friable asbestos.
Second, defendants contend that plaintiffs are not entitled to relief
because they have not established present physical injury or a reasonable
likelihood of developing future physical injury. Third, defendants argue
that plaintiffs' claims are barred by the Eleventh Amendment. Finally,
defendants argue that plaintiffs' claims are barred by the doctrine of
A. Summary Judgment Standard
The standards governing motions for summary judgment are well-settled.
A court may grant summary judgment only where there is no genuine issue
of material fact and the moving party is therefore entitled to judgment
as a matter of law. See Fed R. Civ. P. 56(c); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the
Court's task is not to "weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986). To create an
issue for trial, there must be sufficient evidence in the record to
support a jury verdict in the nonmoving party's favor. See id.
To defeat a motion for summary judgment, the nonmoving party "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita, 475 U.S. at 586. As the Supreme Court stated
in Anderson, "if the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, 477
U.S. at 249-50 (internal citations omitted). The nonmoving party may not
rest upon mere conclusory allegations or denials, but must set forth
"concrete particulars" showing that a trial is needed. National Union
Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N Y 1989) (quoting
R.G. Group Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(internal quotation marks omitted)).
B. Eighth Amendment Claims
Defendants challenge the merits of plaintiffs' Eighth Amendment claims
on essentially three grounds, alleging that (1) plaintiffs were not
exposed to dangerous levels of asbestos; (2) plaintiffs cannot establish
deliberate indifference on the part of defendants; and (3) plaintiffs
cannot establish present physical injury or a reasonable likelihood of
future physical injury. Because I find that no reasonable jury could find
that plaintiffs suffer from present physical injuries or an unreasonable
risk of future injuries, I do not reach the merits of defendants' first
and second arguments;*fn18 and I assume — for the purposes of this
motion only — that genuine issues of fact exist with respect to
The Eighth Amendment protects prisoners from unconstitutional
conditions of confinement. To challenge such conditions, a prisoner must
show that prison officials, acting with deliberate indifference to the
prisoner's safety, subjected the prisoner to a sufficiently serious
deprivation. See Dawes v. Walker, No. 99-252, 2001 U.S. App. LEXIS 2438,
at *12-13 (2d Cir. Feb. 8, 2001) (amended Feb. 23, 2001); McPherson v.
Coombe, 174 F.3d 276, 280 (1999). This requires a showing of both
objective and subjective elements. With respect to the objective
element, the alleged deprivation must be so serious as to be "considered
cruel and unusual." Doyle v. Coombe, 976 F. Supp. 183, 186 (W.D.N.Y.
1997); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (stating that
a "prison official's act or omission must result in the denial of the
minimal civilized measure of life's necessities") (internal quotation
marks omitted). With respect to the subjective element, "the prison
official involved must have acted with a sufficiently culpable state of
mind." McPherson v. Coombe, 174 F.3d 276, 280 (1999) (quoting Farmer, 511
U.S. at 834 (1994)) (internal quotation marks omitted) Where, as here,
the plaintiffs challenge the condition of their confinement, the relevant
state of mind is deliberate indifference.*fn19 Id.
The Supreme Court has held that a prisoner may bring an Eighth
Amendment claim for exposure to toxic contaminants even if no present
physical injury is alleged. See Helling v. McKinney, 509 U.S. 25, 32-35
(1993). In such an instance, the prisoner must demonstrate that the
exposure "pose[s] an unreasonable risk of serious damage to his future
health." Id. at 35. The Court admonished, however, that:
determining whether [plaintiff's] conditions of
confinement violate the Eighth Amendment requires more
than a scientific inquiry into the seriousness of the
potential harm and the likelihood that such injury to
health will actually be caused by exposure to [the
toxin]. It also requires a court to assess whether
society considers the risk that the prisoner complains
of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to
such a risk.
Id. at 36 (emphasis in original). The Second Circuit has applied Helling
to inmates' claims of exposure to friable asbestos while in prison. See
LaBounty v. Coughlin,