Full opinion text
OPINION AND ORDER LYNCH, District Judge. In this class action, plaintiffs challenge New York State’s administration of a program for double-celling in its maximum-security prisons. Double-celling is a practice in which two prisoners are housed in a cell originally designed for one person. Plaintiffs claim that defendants’ practice of double-celling some New York inmates violates the First and Eighth Amendments. With respect to plaintiffs’ Eighth Amendment claims, it is clearly established that double-celling, even in maximum security prisons, does not in itself constitute cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337, 339, 349-50, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Plaintiffs nevertheless contend that the manner in which double-celling is carried out in New York violates the Constitution, because the practice results in “depriving] inmates of the minimal civilized measure of life’s necessities,” id. at 347, 101 S.Ct. 2392, and demonstrates that the New York authorities have been deliberately indifferent to the health and safety of inmates in their charge. See Wilson v. Seiter, 501 U.S. 294, 303-05, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). This litigation has a long history. The complaint was filed in 1995, making it one of the oldest active cases on this Court’s individual docket, and the case has been assigned to several judges over the years. The case was effectively stayed for some time pending litigation of a companion case challenging the same practice in medium security prisons. After a full trial on the merits, Judge Stein denied the plaintiffs in that case any relief, in a lengthy and careful opinion. See Bolton v. Goord, 992 F.Supp. 604 (S.D.N.Y.1998). On September 27, 1999, Judge Pauley dismissed portions of plaintiffs’ second consolidated amended complaint, and granted in part plaintiffs’ motion for class certification as to the remaining claims. Jones v. Goord, 190 F.R.D. 103 (S.D.N.Y. 1999). With respect to plaintiffs’ demands for injunctive relief, the Court certified a class of all prisoners who have been double-celled in the subject facilities, and divided the double-celling class into thirteen subclasses, one for each of New York’s maximum security institutions. Id. at 111-13. The Court, however, declined to certify a class or classes with respect to claims for damages, holding that “it is neither feasible nor desirable to determine monetary damages on a class-wide basis.” Id. at 113. A third consolidated and amended complaint was filed in November 1999, addressing some of the deficiencies noted in Judge Pauley’s decision, and extensive discovery followed, punctuated by occasional disputes requiring judicial intervention. See, e.g., Jones v. Goord, No. 95 Civ. 8026, 2002 WL 1007614 (S.D.N.Y. May 16, 2002) (denying plaintiffs access to certain electronic databases). For the most part, discovery focused on four institutions — Attica, Clinton, Great Meadow, and Green Haven' — which have been treated as exemplary. Even with this limitation, the discovery process has been exhaustive and expensive, and has consumed the energies of numerous attorneys and support staff on both sides, over a period of years. By the spring of 2003, the parties had finally completed discovery. On the elaborate record thus compiled, defendants now move for summary judgment both as to plaintiffs’ class claims and individual plaintiffs’ claims for damages. Briefing of the motions took over a year, with frequent requests for extensions of time. The motion was fully briefed by August 2004, and is now ripe for decision. Defendants’ motion will be granted with respect to plaintiffs’ class claims and plaintiffs’ claims for injunctive relief, and the Court will reserve decision with respect to individual plaintiffs’ claims for damages. BACKGROUND New York State operates the fifth largest correctional system in the nation. (Def. R. 56.1 Stmt. ¶ 8.) At the time defendants’ motion for summary judgment was filed, approximately 65,400 inmates were in the custody of the New York Department of Correctional Services (“DOCS”). (Id.) Like many prison systems across the country, New York began to see a large increase in its prison population in the late 1980s and early 1990s, and state prisons at that time were often unable to accept inmates from local jails in a timely manner. (Id. ¶¶ 15, 17, 18.) These delays led to numerous lawsuits by various counties and municipalities, and DOCS began to discuss double-celling as a solution to the problem. (Id. ¶¶ 18-20.) After researching double-celling policies in other jurisdictions, DOCS developed a double-celling policy for New York. (Id. ¶¶ 21-26.) In mid-1995 that plan was implemented in the thirteen maximum security prisons at issue in this litigation. (Id. ¶ 27.) Those thirteen prisons contain approximately 20,000 cells, 796 of which have been converted to double cells. (Id. ¶ 2, 29.) Those 796 cells are the focus of this litigation. While the record does not contain evidence regarding each and every one of the 796 double cells at issue, plaintiffs’ expert Vincent Nathan toured the four exemplary institutions and describes the double cells he observed. (See Zilberberg Decl. Ex. B [hereinafter Nathan Rep.].) For purposes of this motion, Nathan’s descriptions of the cells will be accepted as accurate, and the following descriptions are taken from his report. Generally, Nathan describes the double cells as “well-maintained,” but also “claustrophobic, relatively dark, and cluttered with furnishings and personal property.” (Id. 11.) Most of the cells have between 48 and 60 square feet of floor space, a “significant” portion of which is consumed by “bulky” metal bed frames. Nathan reports that in several cells he examined, he and his partner had a difficult time moving within the cell at the same time. (Id. 19-20.) Because most of the cells are in the interior and toward the front of the cell-block, natural light is available for the most part only from windows on the outer walls of the cellblocks. Green Haven has 102 double cells, located toward the front of the cellblocks closest to the guards’ station. Each double cell has 55 square feet of floor space and the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 12 inches wide, 18 inches deep, and 7 feet high; a sink and a toilet; a fan on a shelf in the corner; a single fluorescent overhead light; an electrical outlet; and one or two radios. No double cell at Green Haven has a window, but all double cells face a walkway which has a bank of windows. Nathan reports that there are 32 total double cells in Clinton — 26 in Clinton Main and 6 in Clinton Annex. Just as in Green Haven, the double cells are located toward the front of the cellblocks nearest the guards’ station. All double cells in Clinton Main have 51 square feet of floor space and the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 18 inches wide, 16 inches deep, and 4 feet high; a sink and a toilet; two personal fans; a single fluorescent light on the back wall; one electrical outlet; one television provided by DOCS; one or two radios; and a fold-down writing surface (with the exception of cells in Lower F cellbloek). The double cells in Clinton Annex are similar, but have 80 square feet of floor space, a window, a fluorescent ceiling light, a small shelf on the wall opposite the bed, and no television. There are 81 double cells in Great Meadow, and, as in the other prisons, all are located at the end of the cellblocks toward the guards’ station. Double cells in C block and D block have 55 square feet of floor space, while the double cells in E block have approximately 50 square feet. All double cells in Great Meadow have the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 15 inches wide, 16 inches deep, and 2 feet high; a sink and a toilet; one or two personal fans; a single fluorescent light; two clip-on lights; one electrical outlet; two televisions provided by DOCS; and one or two radios. All double cells face a walkway and a bank of windows, which provide natural light, although Nathan reports that the windows were dirty at the time of his visit to Great Meadow. Attica has 107 double cells. Again, all double cells are located toward the front of the cellblocks near the guards’ stations. Double cells in A block, B block, and D block have 48 square feet of floor space. Double cells in C block and the honor block have 60 square feet of floor space. Double cells in E block have approximately 65 square feet of floor space. All cells are generally rectangular in shape, with the exception of the honor block cells, which are L-shaped, creating “some additional degree of physical separation” for the cellmates. (Id. 18.) The double cells in C block, while rectangular, have a small alcove in which a bunk bed can fit. All double cells in Attica have the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 15 inches wide, 16 inches deep, and 2 feet high; four plastic storage bins; a sink and a toilet; two clip-on fans; two clip-on lights; one fluorescent light; one electrical outlet; a television provided by DOCS; and one or two radios. The honor block has additional amenities, including a recreational room with a color television, a ping pong table, cooking equipment, an iron, and additional seating. Before being placed in any cell, single or double, an inmate must first go through a screening process. Plaintiffs dispute the extent to which the DOCS screening policies are followed, both as a general matter and in specific instances, but the policies themselves are not in dispute. Plaintiffs’ claims that the below-described procedures are not followed in DOCS facilities will be addressed later in this opinion. When an inmate is first committed to DOCS custody he is sent to a reception facility for a review of his social background, criminal history, and behavior during prior incarcerations. Inmates are then given a medical examination, including a medical history, a physical examination, various screenings, blood work, a chest x-ray, a PPD test for tuberculosis, a test for hepatitis B and C, an optional HIV test, various immunizations, and a mental health assessment. After this initial screening, DOCS maintains a record of each inmate’s health and behavior. This record includes unusual incidents (“UIs”), disciplinary violations, medical treatment received, chronic medical problems, medications, and test results, such as the annual tuberculosis test. Before an inmate is placed in a double cell, DOCS performs further screening. DOCS policy provides that inmates are not to be placed in a double cell if they have serious mental health problems, and inmates with less serious mental health problems can only be double-celled after close review. Inmates whose records indicate that they are victim prone, are assaul-tive, have a history of extreme violence, or have a history of homosexual behavior are not to be double-celled, unless more recent history shows that a particular inmate has improved or adjusted. Inmates taller than 6 feet, 5 inches or heavier than 299 pounds are not to be double-celled, and inmates older than 70 years old are not to be double-celled unless they volunteer. Prison medical staff screen inmates for communicable diseases or physical disabilities before an inmate can be placed in a double cell, and based on this screening the medical staff may conclude that an inmate should not be double-celled. DOCS policy allows HIV-positive inmates to be double-celled if they meet the general criteria. Inmates with a record of good behavior over the previous two years are exempt from mandatory double-celling, but may be double-celled on request if they otherwise meet the criteria. Once an inmate is assigned to a double cell, he may not be double-celled for more than 60 days unless he consents to continued double-celling. However, because DOCS can move inmates to different prisons within the New York prison system, inmates often consent to remain in a double cell because refusing to do so could result in transfer to a less preferable prison farther away from New York City. DISCUSSION I. Representation of Subclasses As an initial matter, defendants argue that two of the injunctive relief subclasses — the Great Meadow subclass and the Clinton subclass' — -have no named plaintiff representatives, and that therefore all claims on behalf of those subclasses should be dismissed. (Def.Inj.Mem.20.) Additionally, defendants argue that the Attica subclass has only one named plaintiff, Anwar Abdul, and that Abdul does not raise an Eighth Amendment claim, thereby requiring the dismissal of the Attica subclass’s Eighth Amendment claims. (Id.) Plaintiffs respond by pointing out that discovery has. revealed that two of the named plaintiffs — Juan Perdomo and Herbert Junior — were double-celled at Clinton, and arguing that they can therefore serve as class representatives for the Clinton subclass. (Pl.Iry.Mem.31.) With respect to Attica, plaintiffs similarly point out that three named plaintiffs — James White, Yahya Muhammad Abdullah Muntaqim, and Michael Walsh — were double-celled at Attica, and that Abdul himself made statements in his deposition that give rise to an Eighth Amendment claim that should be read into the complaint. (Id. at 31-32.) Plaintiffs do not contend that there is a named plaintiff for the Great Meadow subclass, but represent that one could be added with little difficulty (Pl. Inj. Mem. 33 n. 9.) More generally, plaintiffs argue that all issues regarding the appropriateness of subclass representatives were decided by this Court’s opinion in Jones v. Goord, 190 F.R.D. 103 (S.D.N.Y.1999), and that therefore the approval of the subclasses and their representatives is now the “law of the case.” (Pl.Inj.Mem.32.) Judge Pauley’s opinion in Jones certified a “Double-Celling Class” defined as: “Every person who is or was incarcerated in the DOCS Facilities and who is or was double-celled in the Facilities by DOCS.” 190 F.R.D. at 112. After the certification of the general class, thirteen injunctive relief subclasses were certified, one for each of the thirteen facilities at issue. Id. at 113. The Court stated that the definition of the injunctive relief subclasses would be “governed by the Court’s definition of the Double-Celling Class.” Therefore, for example, the Clinton subclass would be defined as: “Every person who is or was incarcerated in Clinton and who is or was double-celled in Clinton by DOCS.” Because a subclass is itself a class, each subclass must separately and independently satisfy the requirements of Rule 23 for class certification. Fed.R.Civ.P. 23(c)(4)(B) (“a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly”); see also Marisol A. v. Giuliani 126 F.3d 372, 378-79 (2d Cir.1997) (stating subclasses must satisfy requirements of Rule 23(b)). The Court noted that “[biased on the allegations in the second amended complaint, each Injunctive Relief Sub-Class appears to meet the requirements of Rule 23(b)(2).” Jones, 190 F.R.D. at 113. No further inquiry was undertaken at that time with respect to Rule 23(b)(2), nor was any inquiry made as to whether the subclasses satisfied Rule 23(a)’s requirements. The Court did, however, explicitly note its power under Rule 23(c)(1)(C) to decertify a class “if later events reveal that the reasons for granting class certification no longer exist or never existed.” Id. at 111. In light of this Court’s prior statements in Jones, plaintiffs’ argument based on “the law of the case” is without merit. The Court did not claim to examine the adequacy of subclass representation, and even if there were an implicit approval of the adequacy or typicality of the subclass representatives, that approval is (as was expressly noted in the Court’s opinion) subject to the Court’s power under Rule 23(c)(1)(C) to revisit a certification decision. Irrespective of the prior opinion, this Court has the obligation to ensure that the requirements of Rule 23, including adequate representation, are met for each of the subclasses. Turning then to the merits of defendants’ objections to the Attica, Clinton, and Great Meadow subclasses, defendants are correct that the third consolidated and amended complaint, filed after the certification of the subclasses, identifies no named plaintiffs for the Great Meadow and Clinton subclasses, and names Abdul as the sole representative of the Attica subclass. (Comply 16-24.) Plaintiffs do not deny these claims, but simply seek leave to amend their complaint to include named plaintiffs for the unrepresented subclasses and claims. Fed.R.Civ.P. 15(a) states that leave to amend a pleading “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Our Court of Appeals has explained this provision of the Rule as follows: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” United States ex rel. Mar. Admin, v. Cont’l III. Nat’l Bank & Trust Co., 889 F.2d 1248, 1254 (2d Cir.1989). Defendants assert that the plaintiffs’ requested amendments would be prejudicial because “a claim that [a named plaintiffs] rights were violated at one facility does not put defendants on notice that an inmate claims his rights were violated at a different facility.” (Def. Inj. Reply 58-59.) However, the prejudice claimed by defendants falls short of that which existed in the cases they cite for support. For example, in Milligan v. Citibank, N.A., the plaintiff sought to amend her complaint to bring new claims against the defendant after a summary judgment motion had already been fully briefed. No. 00 Civ. 2793, 2001 WL 1135943, at *9 (S.D.N.Y. Sept. 26, 2001). Here, where plaintiffs simply seek to add named plaintiffs for several subclasses, the claims themselves are not “new” in any sense of the word. Defendants surely cannot claim that before plaintiffs’ request to amend the complaint they were not on notice that the double-celling policies in Attica, Clinton, and Great Meadow were the subject of this litigation and were being challenged under the Eighth Amendment. While defendants would not be prejudiced by allowing plaintiffs to amend the complaint, any such amendment would be futile for the reasons discussed in the remainder of this opinion. Accordingly, the claims involving Great Meadow and Clinton, and the Eighth Amendment claim involving Attica, will be dismissed, and plaintiffs will not be granted leave to amend the complaint to add representatives for each of those subclasses. Notwithstanding the dismissal of these claims for lack of named plaintiffs, the merits of the claims must nevertheless be addressed. First, because defendants would not be prejudiced by permission to amend the complaint, the Court’s refusal to permit an amendment is based on the futility of such amendment, a conclusion that can only be reached after considering whether an amended complaint could succeed on the merits. Second, discovery in this case has focused on four facilities— Attica, Clinton, Great Meadow, and Green Haven. The parties have focused discovery on these exemplary facilities not because claims with respect to the facilities are the only claims at issue on this motion, but because the parties have agreed that the exemplary facilities are just that — exemplary. Therefore, even though the claims of the Clinton subclass and the Great Meadow subclass are not now properly before the Court, the Court will consider the evidence from Clinton and Great Meadow, and evidence relating to Eighth Amendment claims from Attica, because the parties have agreed that the evidence from the four exemplary facilities in the record is representative of the evidence supporting the class’s claims as a whole. II. Summary Judgment Standard Summary judgment shall be granted if the Court determines that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A “genuine issue of material fact” exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001). The party moving for summary judgment bears the initial responsibility of informing the District Court of the basis for its motion and identifying those portions of the record which it believes “demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party bears the burden of proof on a specific issue at trial, the moving party may satisfy its initial burden by merely pointing out the absence of evidence in the record necessary to support the nonmoving party’s position on that issue. Id. If the moving party satisfies this initial burden, the nonmoving party must then produce evidence sufficient to create a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In deciding a summary judgment motion, the Court must “resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion.” Cifarelli v. Babylon, 93 F.3d 47, 51 (2d Cir.1996). In addition, the Court is not to make any credibility assessments or weigh the evidence at this stage. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). To determine which facts are material, the Court must look to the substantive law that supplies the basis for the claims at issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants’ motion for summary judgment focuses on plaintiffs’ class claims for injunctive relief under the First and Eighth Amendments and plaintiffs’ individual claims for damages under the First and Eighth Amendments. This opinion will first address plaintiffs’ class claims for injunctive relief under the Eighth Amendment, then plaintiffs’ claims for injunctive relief under the First Amendment, and finally plaintiffs’ individual damages claims. III. Plaintiffs’ Eighth Amendment Injunction Claims A. The Legal Framework It is indisputable that conditions of prisoners’ confinement must conform to the requirements of the Eighth Amendment. See Rhodes, 452 U.S. at 345, 101 S.Ct. 2392. The Constitution does not, however, guarantee prisoners freedom from any and all sorts of unsavory environs. “To the extent that ... conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. 2392. The Constitution draws a line between conditions that are harsh, and conditions that are “cruel and unusual” within the meaning of the Eighth Amendment. Prisoners live every aspect of their lives completely under the State’s control, and the State must exercise that control in accordance with society’s standards of decency. Those standards dictate that the conditions of confinement in American prisons “must not involve the wanton and unnecessary infliction of pain.” Id. To determine whether conditions of confinement are in accord with these constitutional requirements, courts apply a two-part test. First, under the objective prong of the inquiry, a deprivation violates the Constitution only if it is “sufficiently serious.” Farmer v. Bren nan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “The Constitution ... ‘does not mandate comfortable prisons,’ and only those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298, 111 S.Ct. 2321, quoting Rhodes, 452 U.S. at 347, 349, 101 S.Ct. 2392. To violate the Eighth Amendment, a challenged condition of confinement must lead to the “specific deprivation of a single human need.” Wilson, 501 U.S. at 305, 111 S.Ct. 2321. Various conditions can be aggregated to state an Eighth Amendment violation, but only to the extent that the aggregation of those conditions affects a single need, such as a lack of blankets and a lack of heat combining to deprive an inmate of warmth. Id. at 304, 111 S.Ct. 2321. When a plaintiff claims that prison officials are violating (or have violated) the Eighth Amendment by failing to protect him from harm, a prisoner need not wait for inhumane suffering to occur before obtaining relief. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Therefore, the first prong of the test is also satisfied if there exists a “substantial risk of serious harm” to the prisoner. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. If a condition of confinement is sure to cause, or very likely to cause, needless suffering, the Constitution does not allow prison officials to ignore the offending condition. Helling, 509 U.S. at 33, 113 S.Ct. 2475. Second, under the subjective prong of the inquiry, a constitutional violation exists only if the defendants have a “sufficiently culpable state of mind.” Id. The specific mental state required to make out an Eighth Amendment claim differs depending on the conduct of the defendants against which the claim is alleged. For example, a prison official who causes injury in the course of subduing a prison disturbance violates the Eighth Amendment only if he acts “maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). In cases such as the instant matter, where plaintiffs allege injury resulting from conditions of confinement, the required state of mind is “deliberate indifference” on the part of the prison officials. Wilson, 501 U.S. at 303, 111 S.Ct. 2321. The same “deliberate indifference” standard applies to claims that prison officials failed to protect plaintiffs from harm. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. “[Pjrison officials have a duty to protect prisoners from violence at the hands of other prisoners.” Id. at 833, 114 S.Ct. 1970. However, not every prison scuffle is a matter of constitutional import, and the mere existence of the chance that a prisoner might be injured by another prisoner does not violate the Eighth Amendment. Even under the best of conditions, prisoners will sometimes be harmed by other prisoners, and the Constitution is not blind to that unfortunate reality. Under the “deliberate indifference” requirement, prison officials violate the Eighth Amendment only if they are subjectively aware of an “excessive risk to inmate health and safety” and do not respond reasonably to that risk. Id. at 834-38, 844, 114 S.Ct. 1970; see also Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 620 (2d Cir.1996) (“The Eighth Amendment requires prison officials to take reasonable measure to guarantee the safety of inmates in their custody.”). “In sum, prison officials have a constitutional duty to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner.” Heisler v. Kra-lik, 981 F.Supp. 830, 837 (S.D.N.Y.1997). Plaintiffs allege that four particular aspects of defendants’ double-celling policy violate the Eighth Amendment: the general conditions of confinement in double cells, the risk of inmate against inmate violence, injury and disease, and secondhand smoke in double cells. Each of these alleged violations will be addressed in turn. B. Conditions of Confinement Plaintiffs claim that there are material issues of fact regarding whether the conditions of confinement in double cells amount to an Eighth Amendment violation. (Pl.Inj.Mem.35-37.) In support of this claim, plaintiffs point to the fact that most double cells are approximately 50 square feet and the fact that these small cells are coupled with “unsanitary conditions.” (Id. 35.) The unsanitary conditions of which plaintiffs complain are the lack of floor space (Nathan Rep. 19-20), the distance between the beds and the toilets in the cells (Id. 20), the amount of personal property kept in cells (id. 19-20), the smell of “a cellmate’s feces and flatulence” (id. 20), and the smell that can result from a cellmate’s failure to bathe frequently (Pl.Inj.Mem.36). A reasonable finder of fact could not conclude that these conditions amounted to an Eighth Amendment violation. The Constitution does not recognize a general amorphous “conditions of confinement” claim. Wilson, 501 U.S. at 305, 111 S.Ct. 2321. Rather, plaintiffs must show how the combined effects of the above-described conditions deprive inmates of a “single, identifiable human need such as food, warmth, or exercise.” Id. at 304, 111 S.Ct. 2321. Here, plaintiffs make no attempt, at least with respect to their general “conditions of confinement” claim, to point to any specific human need affected by the conditions of the double cells. Instead plaintiffs simply string together a list of undesirable conditions and assert in a conclusory fashion that whether “these facts are objectively serious enough to warrant an Eighth Amendment claim is an issue of fact not properly decided at the summary judgment stage.” (PI. Inj.Mem.35.) Summary judgement is appropriate, however, if the facts alleged by plaintiffs, taken as true, fail to rise to a sufficient level of seriousness as a matter of law. In support of their assertion, plaintiffs cite to Karacsonyi v. Radloff, 885 F.Supp. 368 (N.D.N.Y.1995). In Karacsonyi, the district court stated that the conditions in plaintiffs cell, which measured 115 square feet and which he shared with three other inmates, could form the basis of an Eighth Amendment violation. Id. at 370-71. However, Karacsonyi involved a motion to dismiss, not a motion for summary judgment, and the district court correctly held that the conditions of the plaintiffs incarceration could violate the Eighth Amendment if the plaintiff were able to produce evidence that the conditions led to “deprivations of essential needs.” (Id. at 371.) Plaintiffs in the instant matter have had ample opportunity to find and produce evidence that the conditions of their confinement deprived them of a human need, and reliance on mere possibility will not defeat a motion for summary judgment as it defeated the motion to dismiss in Karacso-nyi. None of the alleged conditions here deprive plaintiffs of “the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 833, 114 S.Ct. 1970. On numerous occasions throughout their briefing, plaintiffs point to the fact that inmates are forced to sleep “mere inches” away from a toilet. It is unclear how this allegation relates to double-celling. Every cell, whether a single or a double, has a toilet, and given that the toilet is on the floor, an inmate in the upper bunk in a double cell is farther away from the toilet than he would otherwise be in a single cell. If the inmate on the lower bunk is 18 inches away from the toilet, and the inmate on the upper bunk is directly above the lower bunk 6 feet in the air, then by the Pythagorean theorem the inmate in the upper bunk would be approximately 63 inches away from the toilet, an increase in distance of 45 inches due to the double cell’s upper bunk. Similarly, plaintiffs’ complaints regarding having to deal with a cellmate’s odors do not rise to the level of a constitutional violation. Sharing a cell with an individual with body odor, or an individual who does not bathe frequently, is a far cry from the “wanton and unnecessary infliction of pain” against which the Eighth Amendment protects. Rhodes, 452 U.S. at 347, 101 S.Ct. 2392. Furthermore, plaintiffs’ claims that double-celling subjects them to “the stench of a cellmate’s feces and flatulence” ignore the fact that even in a single cell, an inmate would be subjected to the “stench” of his own “feces and flatulence.” (Nathan Rep. 20.) Plaintiffs are not so bold as to expressly claim that, to borrow a phrase, their “feces and flatulence” don’t stink. Without question, shared quarters increase this problem, but plaintiffs offer no evidence that such conditions present a health risk, as opposed to a mere increased degree of unpleasantness. Plaintiffs’ reliance on Williams v. Adams, 935 F.2d 960 (8th Cir.1991), in support of their argument is misplaced. The Williams Court held that the individual plaintiff had raised an issue of fact where he provided evidence that the toilet in his cell “did not work, and that it continually [ran] over [and] leakfed] onto the cell floor and the floor stayed filthy with its wast[e].” Id. at 962 (internal quotation marks omitted) (alterations in original). The evidence relied upon by plaintiffs— evidence that one inmate once tried to urinate into the toilet from the top bunk but instead urinated on his cellmate, or evidence that several inmates complained that a cellmate urinated on the toilet instead of in the toilet — is not comparable to the evidence presented in Williams. Such isolated incidents of misbehavior, or simple inaccuracy, do not signify a structural lack of proper hygiene as a result of double-celling. Finally, the fact that inmates ignore prison regulations and keep excess property in their double cells does not establish an Eighth Amendment violation. Plaintiffs fail to present any evidence that the voluntary accumulation of personal property, even when coupled with the size of the cells, has lead to the deprivation of any identifiable human need. In any event, even if plaintiffs did establish that inmates were storing so much personal property in their cells that the resulting clutter was sufficiently grave to be characterized as cruel and unusual, it is unclear how that clutter would violate the Eighth Amendment, as it would be the inmates’ own desire for personal property and their refusal to use out-of-cell storage that led to the clutter, not any “punishment” imposed by defendants. C. Violence in Double Cells Plaintiffs claim that defendants’ policy of double-celling violates the Eighth Amendment because “inmate assaults are frequent, and can lead to serious injuries.” (Pl.Inj.Mem.37.) Plaintiffs argue that defendants’ double-celling policy subjects plaintiffs to a substantial risk of serious injury from an attack by a violent cellmate — a cellmate who, but for double-celling and defendants’ allegedly inadequate screening, would not have had the opportunity to harm them. As discussed above, “prison officials have a duty to protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833, 114 S.Ct. 1970. However, as the Court has explained in an earlier opinion in this case, while “no court approves of physical violence in the correctional system, the fact is that maximum security prisons house violent offenders, and confrontations between inmates are, to some extent, inevitable---- Such incidents, standing alone, do not necessarily rise to the level of cruel and unusual punishment.” Jones, 190 F.R.D. at 108. Rather, to make out a constitutional violation, plaintiffs must provide evidence from which a finder of fact could infer that double-celling, as practiced by defendants, results in a “substantial risk of serious harm” and that defendants know of the risk and disregard it. In support of this claim plaintiffs produce a variety of evidence. First, plaintiffs rely on specific incidents of cellmate-on-cellmate violence described by the named plaintiffs themselves. Plaintiff Aubery Thomas states that while in a double cell he was attacked and stabbed with a razor blade by his cellmate. (Thomas Dep. 172-73.) Plaintiff Gregory Rodriguez states that one cellmate burned his foot with a cigarette lighter while he was sleeping (Rodriguez Dep. 44-45), and that a different cellmate attacked him with a knife and stabbed him in the hand (id. 136). Plaintiff Luciano Ortiz states that one of his cellmates would often brandish a weapon in the cell. (Ortiz Dep. II 50-51.) With respect to instances of violence on a more general scale, defendants have produced UI reports for inmate assaults in the general population for each of the four exemplary facilities from 1990 to 2001. For Attica, the data regarding UI reports of assaults on inmates per thousand inmates over the relevant period are as follows: 1990-10.9 1993-36 1996-19.2 1999-32.3 1991-35.2 1994-46.8 1997-75.2 2000-28.7 1992-30.7 1995-54.3 1998-52.8 2001-28.7 (Def. R. 56.1 Stmt. ¶¶ 97-108.) From 1995, when double-celling began, to 2001, there were three UIs for inmate assaults on inmates inside double cells, and one UI for sexual misconduct inside a double cell. (Id ¶ 110.) Attica has 107 double cells. (Id ¶ 79.) For Clinton, the data regarding UI reports of assaults on inmates per thousand inmates are as follows: 1990-41.3 1993-51.9 1996-54.7 1999-39.3 1991-47.5 1994-64.3 1997-55.9 2000-32.1 1992-49.6 1995-70.1 1998-42 2001-30.1 (Id ¶¶ 130-141.) From 1995 to 2001, defendants report that there was only one UI for an inmate assault on an inmate inside a double cell, and one UI for sexual misconduct inside a double cell. (Id ¶ 143.) Plaintiffs, based on them own review of the UI reports, claim that there were six UIs in double cells over that period, although based on plaintiffs’ own descriptions two of those six incidents did not take place in double cells. Reading the record in the light most favorable to plaintiffs, a finder of fact could conclude that there were four UIs in double cells in Clinton from 1995 to 2001. Clinton has 32 double cells. (Id ¶ 116.) For Great Meadow, the data regarding UI reports of assaults on inmates per thousand inmates are as follows: (Id ¶¶ 164-175.) From 1995 to 2001, defendants report that there were four UIs for inmate assaults on inmates inside double cells, and one UI for sexual misconduct inside a double cell. (Id ¶ 177.) Plaintiffs, based on their own review of the UI reports, claim that there were seven UIs in double cells over that period. However, based on plaintiffs’ own description, one of those seven incidents did not take place in a double cell. Reading the record in the light most favorable to plaintiffs, a finder of fact could conclude that there were six UIs in double cells in Great Meadow from 1995 to 2001. Great Meadow has 81 double cells. (Id ¶ 149.) 1990-28.8 1993-41.6 1996-69.3 1999-36.4 1991-23.6 1994-65.6 1997-84.5 2000-29 1992-48.9 1995-79.7 1998-59 2001-20 For Green Haven, the data regarding UI reports of assaults on inmates per thousand inmates are as follows: 1990-8.6 1993-14.5 1996-33.7 1999-26.2 1991-17.2 1994-17.9 1997-22.9 2000-12.9 1992-12 1995-23 1998-21.4 2001-8.5 (Id ¶¶ 196-207.) From 1995 to 2001, defendants report that there were two UIs for inmate assaults on inmates inside double cells, and one UI for sexual misconduct inside a double cell. (Id ¶ 209.) Plaintiffs claim that there were five UIs in double cells over that period, although plaintiffs’ own description indicates that one of the incidents did not occur in a double cell. Accordingly, a finder of fact could conclude that four UIs occurred in double cells in Green Haven from 1995 to 2001. Green Haven has 102 double cells. (Id. ¶ 183.) The above data regarding reported UIs of assaults show that in each of the four exemplary facilities, the rate of UIs was lower in 2001 (after six years of double-celling) than it was in the year before double-celling began. In other words, six years after the implementation of the DOCS double-celling policy, inmates generally face a lower risk of assault than they did before the policy was implemented, at least according to the reported UIs. In Rhodes, the Supreme Court held that the double-celling policy there at issue did not violate the Eighth Amendment even though violence in the prison increased “in proportion to the increase in population.” 452 U.S. at 343, 101 S.Ct. 2392. In the instant case, the evidence of reported UIs shows that if instances of violence have increased at all, they have increased at a rate much lower than the increase in population since the implementation of double-celling in DOCS facilities. If an increase in violence that is proportionate to an increase in population does not violate the Eighth Amendment, then a decrease in the rate of violence is certainly insufficient to support a finding that the Eighth Amendment has been violated. However, plaintiffs do not argue that double-celling has led to an unconstitutional increase in risk of assault for the general population. In other words, they do not claim that the most recent rates of reported assaults — 28.7 for Attica, 30.1 for Clinton, 20 for Great Meadow, and 8.5 for Green Haven — evince a violation of the Eighth Amendment that can be traced to double-celling. Indeed, such an argument would be difficult to advance given that the general risk of reported assault has decreased since DOCS implemented double-celling. Rather, plaintiffs argue that the increased risk of harm faced by inmates in double cells, as compared to the risk of harm faced by those in single cells, is violative of the Constitution. However, despite this being the basis of their claim, plaintiffs fail to actually undertake this comparison. The aggregate data provided by defendants regarding reported UIs do not allow for a comparison of the risk of assault faced by inmates housed in single cells and those housed in double cells. Instead, the record contains the rates of reported UIs for the prison populations generally (including, presumably, those occurring in double cells) and the raw number of reported individual instances of assaults in double cells. These data thus do not permit a determination of whether inmates in double cells were involved in reported assault incidents at a higher rate than inmates in single cells. In any event, even without the aid of a precise mathematical comparison, a finder of fact could not conclude, based on the reported UIs for assaults, that the increased risk of assault faced by inmates in double cells amounts to an Eighth Amendment violation. As a matter of logic, it certainly must be true that inmates placed in a double cell are subjected to a higher risk of assault than inmates placed in a single cell. That is because, all else being equal, an inmate in a double cell has at least some risk of being assaulted by his cellmate, while an inmate in a single cell is subjected to no such risk. Thus, for whatever period of time inmates spend in their cells, a double-celled inmate bears the risk of assault from a cellmate, while a single-celled inmate is spared this risk. However, this unavoidable increase in risk cannot in and of itself violate the Constitution; otherwise double-celling would be unconstitutional per se, or would be constitutional only if cellmates never assaulted each other. That is not the law. See Rhodes, 452 U.S. at 352, 101 S.Ct. 2392 (holding that double-celling is not unconstitutional despite evidence of the existence of violence). The evidence of reported assaults in the record is insufficient to support a finding that the risk of violence in double cells in DOCS facilities is higher than the acceptable baseline risk that necessarily accompanies double-celling in any prison. Taken in the light most favorable to plaintiffs, there were four reported assaults in double cells in Attica, four in Clinton, six in Great Meadow, and four in Green Haven, all over a span of seven years. These eighteen instances in seven years across four institutions containing a total of 322 double cells are simply too few to support a finding that plaintiffs face an unconstitutional risk of assault, especially when considered in connection with the fact that overall violence in these institutions has decreased over that time. See Bolton, 992 F.Supp. at 627 (noting that de minimis instances of violence in double cells were insufficient to establish a substantial risk of serious harm); cf. Jensen v. Clarke, 94 F.3d 1191, 1198 (8th Cir.1996) (affirming district court’s conclusion that double-cell-ing created a substantial risk of harm based on an overall increase in violence and evidence that violence “carried over” into double cells). Plaintiffs do not dispute the conclusion that eighteen reported assaults over seven years are insufficient to support the a finding that the DOCS double-celling policy creates an unconstitutional risk of serious harm. Rather, plaintiffs argue that reported UIs do not reflect all of the actual instances of inmate-on-inmate assaults that occur in double cells, and that “much violence — especially sexual violence — occurs in prison that does not get reported to staff.” (Pl.Inj.Mem.22.) That is no doubt true as a general matter. The fact that some prison violence is not reported to prison authorities cannot be seriously debated. Plaintiffs provide a variety of academic literature and penological studies showing that inmates are never excused for betraying another inmate by reporting misbehavior (Zilberberg Deck Ex. G), that 22% of men surveyed in a Midwestern prison responded that they had been sexually assaulted in prison, but only 29% of them reported the incident to prison authorities (id. Ex. H), and that sexual assault and rape in prison are often not reported (id. Ex. I). While none of the studies cited by plaintiffs dealt specifically with the New York prisons here at issue, plaintiffs’ expert Nathan does provide some evidence of under-reporting in the prisons he visited. During his tour of the four exemplary facilities, Nathan interviewed a number of inmates, and through those interviews Nathan learned of incidents of violence that occurred in double cells but were not reported as UIs. (See Nathan Rep. 30-31.) Nathan describes an incident at Clinton in which an inmate was raped by his cellmate, two separate incidents at Green Haven in which fights resulted from unwanted sexual advances, and an incident at Attica in which one inmate had repeated fights with his cellmate. Nathan asserts that each of these incidents was reported, but that none resulted in a UI report. (Id. 25-27.) Aside from these instances, Nathan’s report does not detail the seriousness of the unreported fights revealed during his interviews, nor does Nathan define what he means when he uses, the word “fight” to describe an altercation. At one point in his report, Nathan defines “intra-cell violence” to include “threats of violence, use of force with no injury or with minor injuries, cell extraction with no injury or minor injuries, and two inmates fighting each other with no injury or minor injuries.” (Id. 24-25.) Such instances of “violence” fall short of what the Constitution considers cruel and unusual. Nevertheless, Nathan’s report supports the conclusion that there have been a number of incidents at the exemplary facilities — incidents of varying degrees of seriousness— that are not reflected in the UI reports. Defendants admit that “some violence is unreported in prisons in general.” (Def. Inj. Reply 25.) However, defendants argue that when considered together with the undisputed UI data, which shows a decrease in overall violence, the mere fact that some violence goes unreported is insufficient to raise an issue of material fact with respect to plaintiffs’ claim that double-celling as practiced by DOCS exposes inmates to a substantial risk of serious harm and that defendants were deliberately indifferent to that risk. The Court agrees. Based on Nathan’s report, the academic literature provided by plaintiffs, and the testimony of defendants’ own officials, a finder of fact could certainly conclude that much violence in the New York prison system goes unreported. However, plaintiffs make no attempt to provide an estimate on the rate of under-reporting in New York prisons. If the reported rates of violence, standing alone, fall short of a constitutional violation (as plaintiffs apparently concede they do) then, on the record before the Court, a finder of fact would be required to simply pick a multiplier out of the air, or perhaps out of the literature that relates to other prisons in other jurisdictions, and speculate as to the actual level of violence in New York prisons. Nathan’s report provides evidence of the under-reporting of violence in DOCS facilities; based on his review of the UI reports and his interviews he concludes that “all forms of intra-cell violence do not result in the preparation of a [UI report].” (Nathan Rep. 24.) However, nowhere in the report does Nathan offer a conclusion regarding the actual rate of under-reporting in the prisons he visited. A finder of fact could conclude that the information regarding reported assaults provided by defendants understates the actual risk of assault to plaintiffs, but plaintiffs have provided no evidence from which a finder of fact could infer what the actual risk of assault is, and whether that actual risk is higher than that which is tolerated by the Constitution. Plaintiffs specifically challenge defendants’ policy of double-celling inmates, and argue that the policy leads to an unconstitutional increase in the risk of assault. Therefore, to evaluate plaintiffs’ claims a factfinder must compare the rate of assault for single-celled inmates to the rate of assault for double-celled inmates, and determine if defendants’ double-celling practices and procedures result in an unconstitutional increase in the risk of serious harm to double-celled inmates. However, plaintiffs do not present any evidence regarding the level of under-reporting in double cells as compared to the level of under-reporting generally. Without the ability to differentiate between under-reporting in the two settings, a finder of fact is unable to adjust separately the reported risk of assault in double cells and the reported risk in the general prison population. Even if a finder of fact were to rely on the under-reporting rates from the studies provided by plaintiffs — studies that are admittedly based on prisons not the subject of this litigation — those studies involve the under-reporting of prison assaults generally, not under-reporting in double cells specifically. On the other hand, Nathan’s interviews provide some evidence of under-reporting in the double cells in the prisons he visited, but that under-reporting is not compared to under-reporting in the general population in those prisons. Plaintiffs do not argue that the handful of reported UIs in double cells from 1995 and 2001 are sufficient by themselves to establish that inmates in double cells are subjected to a risk of harm that is unconstitutionally higher than that which is faced by inmates in single cells. Rather, plaintiffs argue that under-reporting of violence is masking evidence of a constitutional violation. However, even if a fact-finder were able to determine an under-reporting factor for DOCS facilities, there is no evidence in the record that would support application of that factor only to the risk in double cells. To show that under-reporting affects data regarding the increased risk caused by double-celling, plaintiffs would have to show not only that under-reporting exists, but that it affects the reporting of incidents in double cells more than the reporting of incidents generally. On this point plaintiffs offer only Nathan’s opinion that, because double cells are more isolated than common areas, guards are less likely to notice incidents in double cells and therefore those incidents are less likely to be reported than those occurring in common areas. (Nathan Rep. 27.) A factfinder could certainly accept Nathan’s conclusion as a general matter, but once again, if the factfinder wanted to adjust the reported risks of assault by applying separate under-reporting factors, the decision of how much higher to set the under-reporting factor for double-cell incidents would be left to pure speculation and guesswork. Nathan hypothesizes that under-reporting is more prevalent in double cells, but plaintiffs offer no evidence regarding how much more prevalent. Therefore, there is no evidence from which a factfinder could infer the actual difference between the risk of violence in single cells and double cells, or whether that difference violates the Eighth Amendment. In the end, plaintiffs’ arguments boil down to a claim that, while the evidence of reported assaults in the record does not establish a constitutional violation, a finder of fact could infer that some assaults are unreported, and could further infer that under-reporting occurs more often in double cells than in the general population. Therefore, under plaintiffs’ theory, a fact-finder would have to decide whether that defendants’ double-celling policy results an in unconstitutional risk of harm without having any idea of what the risk of harm actually is. Plaintiffs essentially call for the finder of fact to speculate about the possible effects of double-celling, based on studies from other prisons and a small number of interviews conducted by the plaintiffs’ expert. • However, as Justice Brennan has explained, “[plaintiffs] may well be correct in the abstract that prison overcrowding and double celling ... generally results in serious harm to the inmates. But cases are not decided in the abstract. A court is under the obligation to examine the actual effect of challenged conditions upon the well-being of the prisoners.” Rhodes, 452 U.S. at 367, 101 S.Ct. 2392 (Brennan, J., concurring). Despite years of discovery, plaintiffs provide no evidence regarding what the risk of assault in a double cell actually is. Instead, plaintiffs simply claim that it is higher than what defendants report. Because plaintiffs present no evidence and make no claims regarding what the actual risk of assault is in a double cell, plaintiffs are unable to make any argument that the actual risk is “substantial” enough to make out a constitutional violation. Instead, plaintiffs simply assert that, when forced to speculate about the actual risk of harm, a finder of fact could pick a number that happens to be above the constitutional threshold, whatever that may be. Finally, it bears repeating that the crux of plaintiffs’ argument is that while double-celling is not per se unconstitutional, despite the increased risk of assault intrinsic to the practice, double-celling as practiced in New York is unconstitutional, because the program in New York is administered in a constitutionally inadequate manner, in reckless disregard of inmate safety. Absolutely nothing in plaintiffs’ speculations about unreported intra-cell violence supports this conclusion, since plaintiffs offer no evidence that the rate of such violence is unacceptably high, or exceeds what would occur with optimal screening and selection procedures. In Rhodes, the Supreme Court rejected a similar Eighth Amendment claim because, while “the court found that the number of acts of violence had increased ... [, respondents failed to produce evidence establishing that double celling itself caused greater violence.” Id. at 342-43, 101 S.Ct. 2392. Here, plaintiffs have not even shown a general increase in violence since DOCS began double-celling inmates in 1995, much less that double-celling itself caused an increase in violence. For the reasons discussed above, plaintiffs have failed to raise an issue of fact regarding whether double-celling, as practiced by DOCS, creates a substantial risk of serious harm to inmates due to violence. D. Injury and Disease in Double Cells Plaintiffs next argue that the conditions of confinement in double cells at DOCS facilities have led to injury and disease. Specifically, plaintiffs allege that getting in and out of the top bunk in double cells has caused various injuries (Pl.Inj.Mem.43) and that inmates have contracted various infectious diseases — such as tuberculosis, a cold, the flu, a rash, HIV, and hepatitis — from their cellmates (id. 43-44). Plaintiffs’ claims regarding disease and injury are evaluated under same constitutional requirements as those that applied to their claims regarding inmate violence. Plaintiffs must produce sufficient evidence for a finder of fact to conclude that doublecelling created an unreasonable risk of serious damage to inmates’ health, Helling, 509 U.S. at 35, 113 S.Ct. 2475, and that defendants deliberately disregarded that risk, id. at 36, 113 S.Ct. 2475. Plaintiffs’ Eighth Amendment claim in connection with bumps and bruises received getting into and out of the top bunk in a double cell is completely without merit. In support of this claim plaintiffs cite to the depositions of nine inmates describing various injuries they received while entering or exiting their beds. (PI. Inj.Mem.43.) Regardless of whether these particular injuries could be qualified as serious, plaintiffs present no evidence from which a finder of fact could conclude that inmates generally are subjected to a substantial risk of serious harm from getting in and out of bed. Apart from simply describing the bunk beds as six feet high, plaintiffs produce no evidence regarding the general safety of the beds, and plaintiffs do not argue that the design or placement of the beds is unsafe. Instead, plaintiffs seem to argue that, because nine inmates have injured themselves getting in or out of bed, a factfinder could conclude that six-foot bunk beds are per se unconstitutional. However, no reasonable fact-finder could reach such a conclusion. Plaintiffs’ claims regarding the spread of disease in double cells fare slightly better than their bunk bed claims, but ultimately they too lack sufficient evidentiary support to survive summary judgment. First, plaintiffs claim that six inmates caught colds from their cellmates. Catching the common cold from another inmate is not a serious injury or an inhumane condition that violates the Eighth Amendment. Furthermore, plaintiffs’ claims regarding colds suffer the same infirmity as plaintiffs’ claims regarding bunk beds — apart from six specific incidents, plaintiffs present no evidence that double-celled inmates generally, as a class, were subjected to a substantial risk of catching colds due to double-celling. The other diseases about which plaintiffs complain — tuberculosis, HIV, and hepatitis — cannot be dismissed as trivial. There can be little doubt that each of these diseases, if contracted by an inmate, would result in serious harm. Defendants do not argue otherwise. Plaintiffs, however, have presented insufficient evidence for a finder of fact to conclude that inmates are at a substantial risk of contracting any of these serious diseases from their cellmates inside a double cell. Plaintiffs admit that since double-celling was implemented in 1995, the number of AIDS cases in DOCS facilities has declined by 18% (Def. R. 56.1 Stmt. ¶ 73), and that since 1991, when DOCS began a tuberculosis control program, the number of tuberculosis cases have declined each year, from 83 in 1995 to 17 in 2001, despite an increase in the overall prison population during that period (id. ¶74). Similarly, the rate of newly positive tests fo