Opinion
01 Civ. 4652 (JES).
August 14, 2006
MEMORANDUM OPINION AND ORDER
Plaintiff pro se ("plaintiff") Michael Jones brings this action under the Fourteenth Amendment and 42 U.S.C. § 1983, seeking compensatory and punitive damages against certain current and former officials of the Green Haven Correctional Facility ("Green Haven"), for civil rights violations arising from exposure to asbestos he allegedly suffered while held as an inmate at Green Haven.
Defendants bring this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants defendants' motion.
BACKGROUND
Plaintiff alleges that from 1991-1999, while an inmate at Green Haven, defendants failed to comply with State and Federal regulations regarding asbestos maintenance, thereby deliberately subjecting plaintiff to an increased risk of developing a serious asbestos related illness, due to exposure to easily crumbled or pulverized ("friable") asbestos particles. See Compl. ¶ 1. Plaintiff further claims that defendants were aware of the dangerous conditions at Green Haven but failed to move plaintiff to a safe and non-hazardous environment. See id. ¶ 37. Defendants' actions, plaintiff alleges, demonstrated deliberate indifference to the substantial risk of causing him serious harm. See id. ¶¶ 1, 37.
Plaintiff alleges that while housed at Green Haven, he was exposed to friable asbestos in two areas of the facility. Plaintiff first claims that, on several occasions between July 1991 and July 1996, he was exposed to dangerous conditions within the facility's "J" building. See id. ¶ 12. Plaintiff was required to attend counseling sessions in the "J" building four days per year, and frequently visited other offices and attended programs in the unit. See id. Plaintiff alleges that during this time, defendants failed to maintain the ceiling tiles of the building, as a result of which the tiles became defective and collapsed, releasing airborne asbestos-containing materials into portions of the J-School building. See id. ¶¶ 13-15. Plaintiff claims that although a "large plastic container was used to cover the [asbestos-containing material] hanging from the ceiling," the area remained in a hazardous condition for a four-week period. See id. ¶ 19. Eventually an asbestos project notice was posted in the building waiting area, and portions of the area were sealed off. See id. ¶¶ 21-25.
Plaintiff next alleges that he was exposed to asbestos in the G-Block Housing Unit at Green Haven, where he resided from July 1991 to November 1999. See id. ¶ 26. Plaintiff asserts that the catwalk area located behind his cell, as well as the pipes, walls, and air vents within the G-Block Unit, contained large pieces of asbestos containing materials. See id. ¶ 27. In April 1997, plaintiff filed a grievance requesting that the catwalk area be sealed off and warning signs be posted. See id. ¶ 31. Upon receipt of plaintiff's grievance, the prison granted plaintiff a hearing, and a panel determined that the catwalk area should be enclosed to prevent asbestos particles from entering the air. See id. ¶ 33. Plaintiff alleges that the panel recommendation was forwarded to defendant Artuz, the superintendent at Green Haven, who denied the recommendation on the grounds that asbestos work at Green Haven is performed pursuant to the regulatory guidelines set forth in 12 NYCRR Part 56. See id. ¶ 34. To follow the panel's recommendation, Artuz argued, would have been a violation of the state regulations. Plaintiff appealed Artuz's decision to the Albany Central Office Review Committee ("CORC") division, and after further investigation, the division concluded that the area does not contain friable asbestos, and any minimal contact with asbestos covered pipes that may have been possible posed no health hazard.See id. ¶ 35.
Plaintiff maintains that defendants, by exposing him to asbestos within the "J" Building and G-Block Unit and failing to provide him with subsequent medical treatment, demonstrated deliberate indifference to his health. See id. ¶¶ 37, 38. Plaintiff claims that as a result of defendants' deliberate indifference to his well-being, which caused him to be exposed to asbestos at Green Haven, he suffers from respiratory problems and excessive headaches and is at an increased risk of developing a wide variety of asbestos related illnesses in the future. See id. ¶¶ 37-39.
Defendants have submitted the affidavit of Dr. Neil w. Schluger, Clinical Chief of Pulmonary, Allergy and Critical Care at Columbia-Presbyterian Medical Center of Columbia University College of Physicians and Surgeons. See Affirmation of Lee Alan Adlerstein, dated May 17, 2004 ("Alderstein Affirm."), Exh. F. ("Schluger Affirm."). Dr. Schluger reviewed plaintiff's deposition given on January 22, 2004. See Alderstein Affirm. Exh. E, Letter of Neil W. Schluger, dated April 8, 2004 ("Schluger Letter"). Dr. Schluger also reviewed several medical tests plaintiff underwent, including a chest X-ray, CAT scan, stress test, and breathing test. See Schluger Affirm. ¶ 5.
Plaintiff stated, in his deposition, that he is able to lift and transport heavy objects, as well as perform calisthenics on a regular basis. See Alderstein Affirm., Exh. D, Plaintiff's Deposition (Pl.'s Dep.) at 10-12. Plaintiff further admitted that his overall health has been good, and during his eight years at Green Haven, he only experienced shortness of breath "5-10" times, and in each case was participating in strenuous exercises.See Pl.'s Dep. at 34-35, 40. Plaintiff also admitted that since leaving Green Haven in 1999, he has only experienced shortness of breath a few times, and has had no breathing-related problems since 2001. See id. at 34-35. Dr. Schluger concluded, after reviewing plaintiff's deposition, that plaintiff's descriptions of overall good health as well as his ability to perform strenuous physical activity, suggest that he does not suffer from an asbestos-related lung injury. See Schluger Letter.
Plaintiff's test results confirm this conclusion. Specifically, Dr. Schluger found that plaintiff's X-ray was "unremarkable," and although test results revealed a mildly reduced lung capacity, this could be attributed to a wide variety of factors, and not necessarily exposure to friable asbestos. See Schluger Affirm. ¶¶ 6, 7. Following a review of all of plaintiff's test results, Dr. Schluger concluded that plaintiff's medical records fail to reveal any indications of pulmonary or asbestos-related disorders. See id. ¶ 6.
Dr. Schluger further noted that plaintiff's alleged exposure to friable asbestos, which was essentially limited to asbestos on a pipe running alongside his cell from which asbestos allegedly filtered through an air duct into his cell, is considered trivial exposure. See id. ¶ 10. Considering this trivial exposure, coupled with plaintiff's medical condition and test results, Dr. Schluger concluded that it is "extremely unlikely" that plaintiff's described exposure to asbestos would ever manifest in any asbestos-related disease. See id.
DISCUSSION
A court may only grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). All ambiguities and factual inferences must be drawn in favor of the party opposing the motion. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999). 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.
Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on five separate grounds. First, they argue that plaintiff was not, through defendants' deliberate indifference, exposed to friable asbestos at Green Haven in any significant degree, so as to cause any present or future injury. Second, defendants assert that plaintiff has failed to demonstrate any present physical injury or the likelihood of developing any physical injury in the future. Third, they argue that because defendants were at all times acting in their official capacity, and plaintiff failed to allege that their actions deviated from State policies, plaintiff's claims are in fact asserted against the State, and thus fall outside this Court's jurisdiction under the Eleventh Amendment. Fourth, defendants contend that plaintiff fails to allege sufficient personal involvement by defendants Goord, Artuz, Haponik, and Richards in order to sustain a claim of deliberate indifference. Finally, defendants argue that plaintiff's claims are barred by the doctrine of qualified immunity, as plaintiff has failed to demonstrate that defendants' actions, which conformed at all times to State policies, were in any respect unreasonable.
Following a review of all relevant evidence, this Court finds that no reasonable jury could conclude that plaintiff suffers from any present asbestos-related physical injury or an unreasonable risk of developing a future asbestos-related injury. Therefore, it is unnecessary for the Court to consider the merits of defendants' additional grounds for summary judgment.
The Second Circuit applies the same standards to deliberate indifference claims brought as Fourteenth Amendment due process violations as it does to those brought as Eighth Amendment cruel and unusual punishment violations. See Smith v. Montefiore Med. Center Health Services Div., 22 F.Supp.2d 275, 280 (S.D.N.Y. 1998). Thus, plaintiff's deliberate indifference claim may be analyzed under the Second Circuit's Eighth Amendment standards.
The Eighth Amendment protects inmates from cruel and unusual punishment, including unduly harsh treatment and conditions within prison. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). In order for a prisoner to demonstrate that his rights have been violated under the Eighth Amendment, two requirements must be met. See id. at 834.
The prisoner must first allege that the violation of his rights was "sufficiently serious," which requires him to demonstrate, in a case based on failure to prevent harm, that he was "incarcerated under conditions posing a substantial risk of serious harm." Id. To find that prison conditions pose such a risk, the Court must do more than conduct a scientific and statistical inquiry into the seriousness and likelihood of any potential harm, it must also "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." Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original).
Second, the inmate must show that prison officials acted with "deliberate indifference" to the health or safety of the inmate.See Farmer, 511 U.S. at 834. To demonstrate the prison official's state of mind, the inmate must show that the prison official both knew of and disregarded an excessive risk to the inmate's well being. See id. at 837.
The Eighth Amendment protects inmates from prison conditions or treatment which are likely to cause the inmate serious future harm, even where no present harm can be demonstrated. See Helling, 509 U.S. at 33. The Supreme Court has recognized situations in which exposure to toxic substances presents so high a risk that the Eighth "Amendment's protection would be available even though the effects of exposure might not be manifested for some time." Id. at 34. The Second Circuit has held that claims of deliberate indifference may be applicable in cases of alleged exposure to asbestos. See LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998). However, in order for such a claim to succeed, plaintiff must demonstrate a present injury or an increased risk of future injury based on the alleged exposure to asbestos. See Crawford v. Artuz, 143 F.Supp.2d 249, 259 (S.D.N.Y. 2001).
In Crawford, the Court examined a similar deliberate indifference claim based on alleged exposure to asbestos within the Green Haven facility. See id. After reviewing expert medical affidavits stating that plaintiffs' records contain no indication of present injury and an extreme improbability of future injury, the Court granted summary judgment in favor of defendant prison officials. See id. at 259-62; see also Nunes v. Artuz, No. 01 Civ. 1141, 2003 WL 22952743, at *5-7 (S.D.N.Y. Dec. 12, 2003) (granting summary judgment to defendants based on a lack of genuine issues of material fact regarding both present and future injury as a result of alleged exposure to asbestos at Green Haven); Pack v. Artuz, 348 F.Supp.2d 63 (S.D.N.Y. 2004) (granting summary judgment to defendants and dismissing claims that officials subjected plaintiffs to dangerous levels of asbestos based on lack of genuine issues of material fact regarding present or future injury). Thus, absent a clear indication of present injury or an increased risk or future injury, an inmate's deliberate indifference claim must fail.
Here, plaintiff concedes that he does not presently suffer from an asbestos-related injury. See Compl. ¶ 32. This is confirmed by the letter and affirmation of Dr. Schluger. Dr. Schulger affirms that he reviewed the deposition of plaintiff as well as various medical test results. See Schluger Letter. Tests reveal plaintiff had "a normal chest radiograph" and "his diffusing capacity . . . was normal at the time of testing."Id. Plaintiff's deposition demonstrates that plaintiff is in good overall health, and has not had any breathing-related medical problems since 2001. Pl.'s Dep. at 24. Plaintiff also stated that he is in good physical shape, and regularly lifts weights, performs chin-ups, push-ups, and calisthenics. See id. at 10-20. As a result, Dr. Schluger concluded, "overall, the information in the recent deposition does not suggest asbestos-related lung injury. There is no evidence of progressive pulmonary fibrosis, mesothelioma, or other illness related to asbestos exposure." See Schluger Letter.
Plaintiff's main contention is that, as a result of having been exposed to asbestos at Green Haven, he is at an increased risk of developing a serious illness in the future. See Compl. ¶ 1. Plaintiff supports his allegations of the risk of future injury by arguing that although his test results did not demonstrate any present symptoms of asbestos-related illness, the defendants "did not and could not rule out that plaintiff had been exposed to friable asbestos." See Compl. ¶ 32. Additionally, he argues, Dr. Schulger admits that for asbestos-related diseases resulting from non-trivial exposures over a long period of time, "incubation periods of many years are likely for asbestos-related diseases, and manifestations of asbestos-related diseases within ten years of exposure are extremely unlikely." See Schluger Affirm. ¶ 9. Plaintiff alleges that because Dr. Schluger did not have the opportunity to review actual air sample analysis reports for the G-Block housing unit, he could not have determined plaintiff's actual level of exposure to asbestos in order to make the determination that such exposure was merely trivial and therefore that plaintiff is not at risk for developing future injury. See Pl.'s Reply Statement Pursuant to Local Civil Rule 56.1 ¶ 8.
However, based on a through review of plaintiff's medical history, as well as the level of the alleged exposure to asbestos, Dr. Schluger was able to conclude that plaintiff's exposure was merely trivial. See Schluger Affirm. ¶ 10. Dr. Schluger stressed that plaintiff's exposure to asbestos was limited to asbestos on a pipe running alongside his cell, which was allegedly filtered through an air duct into plaintiff's cell.See id. This very limited exposure to asbestos, coupled with plaintiff's presently good medical condition led Dr. Schluger to emphasize that it is "extremely unlikely" that such a trivial exposure would result in any asbestos-related disease. Id. Dr. Schulger also discussed the possibility of plaintiff later developing mesothelioma from his alleged exposure to friable asbestos. See id. ¶ 11. He concluded that plaintiff's X-rays do not indicate any lesions that could be precursors to the disease, and overall, plaintiff's medical records to not reveal any other indications that plaintiff will develop mesothelioma in the future. See id. As such, Dr. Schluger concluded, "[g]iven the alleged exposure and Mr. Jones's medical condition as revealed by his medical records, Mr. Jones is not likely to develop any asbestos-related disease in the future."See id. ¶ 10.
Plaintiff has failed to provide evidence of either a present asbestos-related injury, or a risk of developing a future injury. Based on the evidence before this Court, no reasonable jury could conclude otherwise.
CONCLUSION
Based on the foregoing, defendant's Motion for Summary Judgment shall be and hereby is granted. The Court directs the Clerk of the Court to enter judgment for defendants and to close this case.
It is SO ORDERED.