February 1, 2005
Before the Court is the defendants' motion for summary judgement (Docket No. 67).
Plaintiffs, Ernest W. Vann ("Vann"), Joseph T. Owen ("Owen"), and Patrick Wilson ("Wilson"), are or were inmates at the Wende Correctional Facility ("WCF"), Alden, New York at the time this action was commenced. They initiated this action under 42 U.S.C. § 1983 alleging various claims relating to their exposure to hazardous work conditions in connection with their inmate work program at WCF. More specifically, plaintiffs contend that they were exposed to asbestos dust in connection with the removal of two ovens from the old WCF bakery in the fall of 2000. They also contend that they were exposed to cement dust containing crystalline silica in connection with the construction of two cement picnic tables.
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ford v. Reynolds, 316 F.3d. 351 (2nd Cir. 2003); Fed.R.Civ.P. 56(c). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Ford, 316 F.3d. at 354. "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir. 1997) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, (1986)). While the moving party must demonstrate the absence of any genuine factual dispute, (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), the party against whom summary judgment is sought, however, "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986); McCarthy v. American Intern. Group, Inc., 283 F.3d 121 (2d Cir. 2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002). Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Nippon Fire Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2nd Cir. 2000) quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Eighth Amendment Claim
To establish an Eighth Amendment violation, an inmate must meet both an objective and a subjective requirement. To meet the objective requirement, the alleged violation must be sufficiently serious by objective standards. The objective component is context specific, turning upon contemporary standards of decency. To meet the subjective requirement, the inmate must show that the prison officials involved had a wanton state of mind when they were engaging in the alleged misconduct. Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). Although significant injury is not required "[w]hen prison officials maliciously and sadistically use force to cause harm [because] contemporary standards of decency always are violated," the Eighth Amendment "necessarily excludes from constitutional recognition de minimis uses of physical force, provided the use of force is not repugnant to the conscience of mankind." Hudson, 503 U.S. 1, 9-10 (1992). See also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) ("a de minimis use of force will rarely suffice to state a constitutional claim"); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (holding that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights").
In a case alleging improper exposure to some harmful substance, the plaintiff must show that he is personally "being exposed to unreasonably high levels" of the substance. Helling v. McKinney, 509 U.S. 25, 36 (1993). A court must consider whether the risk that the prisoner complains of is one "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id. at 36. It has been held that exposure to toxic contaminants may serve as the basis of an Eighth Amendment claim even if no present physical injury is alleged. However, in such cases, the plaintiffs must demonstrate that the exposure "posed an unreasonable risk of serious damage to his future health." Nunes v. Artuz, 2003 WL 2252743 at *5 (S.D.N.Y. 2003).
Subjectively, the plaintiff must demonstrate that prison officials acted with "deliberate indifference to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994). "A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety." Id. at 837. "[T]he official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must draw the inference."Hathaway v. Coughlin, 37 F. 3d 63, 66 (2d Cir. 1994). An Eighth Amendment claim cannot be based upon mere negligence or inadvertence on the part of a prison official. Duncan v. Keane, 1997 WL 328070 (S.D.N.Y. 1997).
The Asbestos Claim
Plaintiffs Vann and Wilson claim that they were exposed to asbestos dust when ovens were removed in the old bakery area of WCF.
The defendants assert that Larry Ryan, as part of his duties as a vocational instructor, was in charge of a team of inmates who removed two ovens in the old WCF bakery in the fall of 2000. Declaration of Larry Ryan dated October 8, 2004 ("Ryan Dec.") ¶ 4. Ryan states that he supervised the removal of the ovens and was personally involved in physically removing the ovens along with the inmates assigned to his team. Ryan Dec., ¶ 4. It is undisputed that the plaintiffs in this action were not part of the oven removal team and were not involved in the removal of the ovens. Ryan Dec., ¶ 5.
Ryan asserts that while inmates from WCF were involved in the oven removal project, no inmate or employee from WCF was involved in removal of asbestos. Ryan Dec., ¶ 5. It is undisputed that the testing and removal of asbestos was conducted by Corcraft, a subsidiary of DOCS, with employees and inmates who are specially trained in asbestos removal. Ryan Dec., ¶ 5. Prior to the ovens actually being removed, they were tested to determine if asbestos was present. Ryan Dec., ¶ 6. The first tests were completed in 1987 as part of a comprehensive review of asbestos at WCF. At that time, the oven was sampled and it was determined that no asbestos was present. Ryan Dec., ¶ 6; see also Exhibit A to Ryan Dec., a PTL-Inspectorate Inc. Lab Report dated 2/26/87. The ovens were again tested in May of 1998. At that time, eight samples of the ovens were taken and analyzed for asbestos. One sample came back positive for asbestos. Ryan Dec., ¶ 7. The asbestos was contained in a grey fibrous gasket on the front oven. Ryan Dec., ¶ 7. Based on the positive finding for asbestos, Don Pietrantone, who is certified in the removal and testing of asbestos, traveled to WCF on February 10, 1999 and removed the asbestos gasket. Declaration of Don Pietrantone dated October 14, 2004 ("Pietrantone Dec.") ¶¶ 5, 8. Pietrantone states that because the gasket had not been disturbed prior to its removal on February 10, 1999, there was no contamination to the surrounding area nor any airborne release of asbestos when it was removed. Pietrantone Dec., ¶ 8. No staff or inmates from WCF were involved in the asbestos removal. Pietrantone Dec., ¶ 8.
The demolition of the front oven was completed without any incident or any finding or suspected finding of asbestos. Ryan Dec., ¶ 9. After the removal of the front oven, Ryan and his team began to remove the second oven which was located behind a plywood wall. Ryan Dec., ¶ 9. Early on in the process of removing the second oven, two additional gaskets were discovered that were suspected to contain asbestos. Ryan Dec., ¶ 10. These two gaskets were not previously tested for asbestos because they were not exposed until removal of the second oven commenced. Ryan Dec., ¶ 10. Once the suspected asbestos material was discovered in the second oven, demolition of the oven was immediately halted. Ryan Dec., ¶ 11. The area was then secured behind a locked wire fence so that no one could enter the demolition area or disturb the materials there, including the suspected asbestos. Ryan Dec., ¶ 11.
According to the defendants, Corcraft was advised and Don Pietrantone proceeded to take samples of the material for asbestos testing. Ryan Dec., ¶ 10; Pietrantone Dec., ¶ 11. On May 19, 2000, test results determined that some of the material did contain asbestos. Ryan Dec., ¶ 10; Pietrantone Dec., ¶ 11. Due to the positive findings of asbestos in two fittings and two gaskets, Pietrantone was sent to WCF on October 13, 2000. At that time, he removed the asbestos gaskets and mud fittings in the oven. Pietrantone Dec., ¶ 13. Between the time the asbestos was discovered in May of 2000 and its removal in October of that year, signs were posted warning people that asbestos removal was taking place and the area was isolated by closing the bakery so that it was not accessible to inmates. Pietrantone Dec., ¶ 13. The removal was done in an isolated environment being the old bakery itself. Pietrantone Dec., ¶ 13. The defendants assert that at no time did asbestos from either oven contaminate the bakery area. Pietrantone Dec., ¶ 16. Pietrantone states that there was no release of asbestos in the area. Pietrantone Dec., ¶ 16.
None of the plaintiffs claim that they worked on the removal of the bakery ovens. None of the plaintiffs assert that they have as of yet suffered any medical symptom, illness or injury which can be connected to the exposure of asbestos during the removal of the ovens at WCF. In response to the instant motion, the plaintiffs present the deposition testimony of plaintiff Patrick Wilson. It appears that plaintiff Owens does not allege that he was exposed to the asbestos inasmuch as the claim in the complaint and the response to the instant motion are based solely upon the averments of Wilson. (Complaint, Docket No. 1 at page 20). It is unclear whether plaintiff Vann alleges exposure to asbestos in connection with this project. In any event, the plaintiffs do not point to any factual evidence presented by Vann that bears on the release of or exposure to asbestos at the WCF. Wilson asserted that he worked in close proximity to the bakery ovens while the ovens were being removed. He contends that when the individuals who were working on the removal project used torches and saws to dismantle the ovens, the air became "puffy" with a "big vapor cloud" of particles. (Docket No. 80, Exhibit M, page 19). However, the plaintiffs have articulated no basis to conclude that the particles that Wilson refers to were asbestos. Indeed, when asked at his deposition whether he still believed that he was exposed to asbestos, Wilson stated: "No, I amended the complaint to fiberglass." (Docket No. 80, Exhibit M, page 18). Other than the testimony of Wilson, the plaintiffs assert only that the defendants failed to comply with certain state and federal regulations regarding the removal of asbestos. (Docket No. 80, Attachment 3, page 18).
No such amendment of the complaint has been made. The record does not reflect any basis for a claim that Wilson or any of the plaintiffs were exposed to fiberglass in connection with the removal of the ovens.
The plaintiffs' asbestos exposure claim cannot survive on such a vague, speculative and contradictory basis. To present a sustainable Eighth Amendment claim, the plaintiffs must do more than assert a technical violation of some regulation relating to the removal of asbestos. As noted above, the plaintiffs must demonstrate some factual basis sufficient to raise an issue of fact as to whether the plaintiffs were exposed to "an unreasonably high level" of asbestos. The plaintiffs have failed to meet this objective standard, as a matter of law, in this case. The plaintiffs have had ample opportunity for discovery in this matter. Without more, the fact that the plaintiff saw unidentified "particles" in the air is insufficient to sustain a claim of asbestos exposure. The plaintiffs have not provided any basis from which a trier of fact could conclude that the "particles" were asbestos, as opposed to wood, fiber or various other substances. There is no evidence in the record which would suggest that Wilson has any personal knowledge of any friable asbestos in the ovens or the removal process that was used. Similarly, the plaintiff's expert, Heidi Reisman, has acknowledged that she cannot determine the extent of any actual exposure of asbestos to Wilson. (Docket No. 80, Exhibit S at page 2.) Although the plaintiffs contend that the defendants did not fully comply with certain OSHA regulations, the plaintiffs have not disputed any of the relevant factual allegations presented by the defendants regarding the removal of the asbestos gaskets from the ovens. Without some basis to conclude that an unreasonable exposure took place, the alleged failure to comply with an OSHA regulation is not a sufficient basis to maintain an Eighth Amendment claim.
Because the Court finds that the plaintiffs have not met their burden to establish a material issue of fact for trial as to the asbestos exposure claim, the Court declines to address whether the plaintiffs have demonstrated personal involvement on the part of the individual defendants or as to whether the individual defendants are entitled to qualified immunity.
Based on the above, the instant motion for summary judgment is granted as to the claims based upon the alleged exposure to asbestos relating to the removal of the bakery ovens at WCF.
The Crystalline Silica Claims
Plaintiffs Vann and Owen assert that they were improperly exposed to crystalline silica in the cement dust that resulted from the construction of two cement picnic tables on the WCF grounds. Again, neither Vann nor Owen has alleged that he yet suffers symptoms of any illness or injury as a result of the alleged exposure. As was the case with Wilson's asbestos claim, neither Vann, nor Owen, worked on the project to construct the picnic tables.
It is undisputed that construction of concrete tables commenced on or about May 15, 2000 and was completed on or about October 13, 2000. Declaration of Terry Pusch dated October 12, 2004 ("Pusch Dec.") ¶ 4. Terry Pusch and Thomas Prior supervised the construction work and supervision of the inmates who worked on construction of the concrete tables. Prior is now deceased. Pusch Dec., ¶ 5. It was their responsibility to instruct the inmate workers on how to construct the concrete tables and to instruct them on what safety equipment was needed and available. Pusch Dec., ¶ 5. According Pusch, he was aware of the hazardous nature of certain forms of cement and familiar with the safety equipment that is needed during the mixing and pouring of cement. Pusch Dec., ¶¶ 6, 7. While the work began on the construction of the forms to be used and other preparations in May of 2000, cement was not actually poured until June of 2000. Pusch Dec., ¶ 8. Pusch was in charge of mixing and pouring the cement. Pusch Dec., ¶ 9. While inmates did assist Pusch, none of the plaintiffs in this action assisted or were involved in either mixing or pouring the cement at any time. Pusch Dec., ¶ 9. Moreover, all concrete work was done outdoors. Pusch Dec., ¶ 10. All inmates who worked on the project were advised by Pusch and Tom Prior about what safety equipment was needed and they were provided with gloves, safety goggles or glasses, Tyvek coveralls, and dust masks to conduct the work. Pusch Dec., ¶ 11.
The defendants argue that considering that the cement was mixed outdoors and that the plaintiffs were not involved in the mixing of the cement, there is simply no quantitative basis to conclude that the plaintiffs or anyone else was exposed to "an unreasonably high" level of cement dust. Furthermore, the defendants assert, there is no medical evidence produced by plaintiffs to support their claim that exposure to cement dust has resulted in any ill health effects or will in the future.
In response to the instant motion, although Vann and Owen do not dispute the fact that they did not work on the project, both claim that they were exposed to the cement dust because they worked in areas of the facility that were accessible to the outdoor courtyard where the cement was poured. Vann asserts that he worked in the maintenance department located in the Building #3 which has a door that opens into the courtyard where the cement was poured. Owen asserts that he worked in the laundry located in Building #7 which also adjoined the courtyard where the work on the picnic tables took place. Owen contends that the dust entered the laundry area through a garage door and fans that lead out to the courtyard.
The plaintiffs have presented no evidence of the amount of crystalline silica they may have been exposed to under the circumstances. Vann testified at his deposition that the dust would create "one big blanket of fog." (Docket No. 80, Exhibit H at page 63). It is unclear as to how long this condition existed in terms of length of time. The plaintiffs' responding papers do not point to any testimony from Owen which would further illuminate the amount of silica dust to which he was exposed. Once again, the plaintiffs' expert has concluded that she cannot determine the extent of actual exposure of Vann and Owens to silica dust. She concludes only that, in her opinion, an unnecessary risk of harm to the plaintiffs took place due to the failure of the prison officials to follow OSHA regulations. Id.
At her deposition, Reisman testified as to the existence of exposure limits relating to crystalline silica established by OSHA and other regulatory and/or industry agencies. (Docket No. 80, Exhibit R at page 33-35). Reisman has not been able to conclude the extent of exposure on the part of Vann and Owen (or anyone else at the WCF) or whether such exposure exceeded the exposure limits set by OSHA. (Docket No. 80, Exhibit S at page 2). Once again, the plaintiffs have presented no evidence from which the trier of fact in this case could do anything but speculate as to the extent Vann and Owens were exposed to silica dust. This is insufficient to meet their burden to establish that the plaintiffs were subject to an unreasonable exposure to crystalline silica. Once again, the plaintiffs' focus on whether the prison officials complied with OSHA regulations, and not whether an unreasonable exposure occurred. An Eighth Amendment claim may not be sustained on these grounds.
To the extent that the plaintiffs contend that the defendants may be held liable for an Eighth Amendment claim based solely on an alleged violation of an OSHA regulation without demonstrating an actual exposure to an unreasonable level of some toxin, the defendants are entitled to qualified immunity. The plaintiffs have presented no authority which would suggest that the violation of an OSHA regulation may serve as the basis of an Eighth Amendment claim without having to demonstrate the existence of an unreasonable exposure to the substance.
In light of the above, the Court does not address whether or not the individual defendants were personally involved sufficiently so that a claim under § 1983 may be asserted against them. The Court also does not address whether or not plaintiffs Vann and Owen exhausted their administrative remedies. It appears that the defendants do not dispute that plaintiff Wilson exhausted his administrative remedies.
In light of the above, the defendants motion for summary judgment (Docket No. 67) is granted. The trial scheduled to commence on February 14, 2005 is canceled. The complaint in this case is dismissed in its entirety.