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April 12, 2004.


The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Jeffrey Miner sues pro se pursuant to 42 U.S.C. § 1983 (2000), seeking damages from defendants for violating his Eighth and Fourteenth Amendment rights.*fn1 Defendants move for summary judgment. For the reasons set forth below, defendants' motion is granted.


  The following facts are either undisputed or presented in the light most favorable to plaintiff.

  Plaintiff Jeffrey Miner has been incarcerated in Green Haven Correctional Facility ("Green Haven") since 1997; he becomes eligible for parole in 2011. (Declaration of Valerie Singleton ("Singleton Decl."), Ex. B) The New York State Department of Correctional Services operates a Family Reunion Program ("FRP") at Green Haven. (Singleton Decl., Ex. C; Affidavit of Patrick King ("King Aff.") ¶ 3-4) Inmates who participate in the FRP are allowed to visit with family members for prolonged periods of time — typically overnight or over the course of a weekend — in the privacy of individual trailers. (King Aff. ¶ 4) Inmates who want to participate in the FRP must sign a consent form authorizing the release of their confidential medical conditions to their spouses. (Affidavit of Carl Koenigsmann ("Koenigsmann Aff.") ¶ 5) If an inmate has Hepatitis B, Hepatitis C, or HIV, Infectious Control Nurse Cathy Metzler prepares educational materials and a form letter, under the signature of Green Haven Medical Director Dr. Carl Koenigsmann, notifying the inmate's spouse of the inmate's communicable disease status. (Id. ¶¶ 5-6; Affidavit of Cathy Metzler "Metzler Aff." ¶ 5) Dr. Koenigsmann is not personally involved in writing the letters or notifying the spouses, but he does sign the letters. (Koenigsmann Aff. ¶ 7; Metzler Aff. ¶ 5)

  Miner was first cleared to participate in the FRP on January 9, 2001. (Metzler Aff. ¶ 7) At that time, Nurse Metzler reviewed Miner's chart and noted that he was Hepatitis C positive. (Id.) Although Miner had consented to release this Hepatitis C information to his wife, his FRP request was deferred so that Nurse Metzler could counsel him about Hepatitis C on January 12, 2001. (Id. ¶ 8) After this discussion, Miner participated in an FRP visit with his wife, who received a notification packet regarding his Hepatitis C status. (Id. ¶ 9) Miner was again approved from FRP visits with his wife on June 4, 2001, and January 3, 2002; both times he consented to the release of his Hepatitis C information. (Id. ¶¶ 10-11) On or about Saturday, January 5, 2002, Miner's wife, Norma Miner Vellon, arrived at Green Haven for an FRP visit with Miner. (Affidavit of John Shetsky ("Shetsky Aff.") ¶ 7) Upon her arrival, Vellon told FRP officer John Shetsky and FRP counselor Patrick King that she needed to leave by 1:00 p.m. the following day in order to attend a Monday court date. (Id.; King Aff. ¶ 10) King handed Vellon a sealed medical envelope from Green Haven's medical department. (King Aff. ¶ 11) Shetsky then searched Vellon's belongings and directed her to walk through a metal detector before driving her to the site of her trailer visit with Miner. (Shetsky Aff. ¶ 10) At that point, Vellon had not yet opened the sealed medical envelope. (Id.)

  The next day, Shetsky returned to the trailer to pick up Vellon. (Id. ¶ 12) Shetsky noticed that Miner was upset, but Vellon did not appear visibly shaken, and Shetsky escorted her to the front gate of the facility. (Id.) Shetsky then returned to Miner's trailer to conduct a strip search and a search of the premises. (Id. ¶ 13) At this time, Miner told Shetsky that Vellon was leaving him, that she had visited him in order to tell him so, and that she had not slept in his bed. (Id. ¶ 13) Shetsky offered to take Miner to a counselor, but Miner declined and returned to his cell. (Id. ¶ 14) On January 7, the following day, Miner appeared to be upset and refused to leave his cell. (Affidavit of Susan Hann ("Hann Aff.") ¶ 6) Sergeant Susan Hann went to Miner's cell and asked him if he was all right. (Id.) Miner explained that Vellon had been given paperwork, which he showed to Hann, that falsely stated that he was HIV positive. (Id.) According to Miner, Vellon knew that he had Hepatitis C but had become very upset upon being told that he was HIV positive and had reacted by terminating the FRP visit early. (Id.)

  Hann then contacted Nurse Metzler, who checked the computer file and discovered that Vellon had received in error a letter stating that Miner was HIV positive. (Id. ¶ 8) At Hann's request, Nurse Metzler met with Miner that day to explain the mistake. (Id. ¶¶ 9-10) Nurse Metzler told Miner that a clerical error had been made and that she would take the necessary steps to correct it. (Metzler Aff. ¶ 12) When Hann spoke to Miner later that afternoon, Miner told her that everything had been taken care of and thanked her for her help. (Hann Aff. ¶ 11) Nurse Metzler spoke to Dr. Koenigsmann about the mistake, and, with Miner's consent, Dr. Koenigsmann sent a letter to Vellon on January 8, 2002, advising her that she had received the HIV letter in error instead of a letter about Hepatitis C. (Metzler Aff. ¶¶ 13-14; Koenigsmann Aff. ¶ 8-10)

  Miner filed this action on January 23, 2002, seeking compensatory and punitive damages for his deep depression over the estrangement of his spouse and children. (See Complaint ("Compl.") ¶ !V-A, V) Five months later, on June 19, 2002, Vellon sued Miner for divorce. (Singleton Decl., Ex. I) The ground alleged for divorce was Miner's confinement in a correctional institution for more than three years. (Id.) On May 8, 2003, Miner requested another FRP visit with Vellon and other family members. (Singleton Decl., Ex. H) In his request, Miner stated: "My wife was given a letter stating that I was a carrier of the virus that causes AIDS which was falsely diagnosed and my wife had filed for divorce, but after finding out the truth of me not being a carrier of the virus and has not finalized that action, we are in the hopes of being approved so that we can amend our marriage and discuss rebuilding our relationship." (Id.) On May 30, 2003, Miner had a FRP trailer visit with Vellon and their son. (King Aff. ¶ 13)

  Defendants moved for summary judgment on June 9, 2003. Summary judgment is appropriate if, after drawing all justifiable inferences in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Curry v. City of Syracuse, 316 F.3d 324, 329 (2d Cir. 2003).


  Defendants first argue that the Eleventh Amendment to the United States Constitution bars Miner from suing them in federal court. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Memo." at 17-18) Under the Eleventh Amendment, a state cannot be sued under § 1983, and "this rule applies `to States or governmental entities that are considered "arms of the state' for Eleventh Amendment purposes.'" Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995) (quoting Will v. Michigan Dept. of Police, 491 U.S. 58, 70 (1989)). As state agencies, both the New York State Department of Correctional Services and the New York State Department of Health are protected by the Eleventh Amendment. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) ("[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment."); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (finding § 1983 claims against New York State Department of Correctional Services barred under the Eleventh Amendment). Therefore, these two defendants are entitled to a summary judgment because they are immune from suit in this court under the Eleventh Amendment.

  Individual defendants Dr. Koenigsmann and Nurse Metzler also have Eleventh Amendment immunity to the extent that they are being sued in their official capacities because such suits are barred by the Eleventh Amendment. See Will v. Michigan Dep't. of Police, 491 U.S. 58, 71 (1989). However, the Eleventh Amendment does not bar Miner from seeking to impose "individual and personal liability" against Dr. Koenisgmann and Nurse Metzler under § 1983. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). Dr. Koenigsmann argues that he entitled to summary judgment insofar as he is being sued in his personal capacity because he was not personally involved in the alleged deprivation of Miner's constitutional rights. (See Def. Memo, at 12-13) Because only those who actually cause a deprivation of rights are liable under § 1983, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983," and the doctrine of respondeat superior cannot be used to establish liability. Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (internal quotation marks omitted). However, ...

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