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Toliver v. Semple

United States District Court, D. Connecticut

December 6, 2016

SEAN TOLIVER, Plaintiff,
v.
COMMISSIONER SEMPLE, et al., Defendants.

          INITIAL REVIEW ORDER

          Stefan R. Underhill United States District Judge

         Sean Toliver, a former inmate, filed this case pro se under 42 U.S.C. § 1983 alleging that the defendants exposed him to unconstitutional conditions of confinement while he was confined at Osborn and Garner Correctional Institutions. Toliver names as defendants Commissioner Semple, Commissioner Arnone, Deputy Commissioner Cepelak, Deputy Commissioner Dzurenda, Warden Madonaldo, Warden Falcone, Fire Safety Officer Gero, Plant Facilities Engineer II Kevin Roy, Director Stephen Link, Head of Maintenance Rich Hardy, Marro Acosta, GMO Goodwin, GMO Trapp, Warden Chapdelaine, GMO Martin, GMO Sullivan, GMO Bassette and GMO Bell. The complaint was filed on November 18, 2016. Toliver's motion to proceed in forma pauperis was granted on November 22, 2016.

         Under section 1915A of Title 28 of the United States Code, I must review prisoner civil complaints and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is well-established that “[p]ro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         I. Allegations

         A. Osborn Correctional Institution

         Toliver was housed in Q-building at Osborn Correctional Institution (“Osborn”) from October 18, 2011 through August 2015, when he was moved to a single cell in H-block. On September 7, 2016, all inmates housed in Q2 were moved to H-block. At that time, Toliver became aware of the conditions of confinement in Q-building. Toliver alleges that he was exposed to friable asbestos, methane gas[1], black and yellow mold, unsafe water, high levels of polychlorinated biphenyl (“PCB”) contamination, poor building infrastructure, and fire hazards including no sprinklers, no fire drills, no automatic unlocking mechanism for cell doors and poor ventilation.

         Toliver attaches to his complaint a memo to Rebecca Cutler, dated December 19, 2011, which reported on PCB testing of exterior caulk and glazing at Q-building. In December the Department of Energy and Environment reported that a company had been retained to test interior and exterior caulk for PCBs. Defendants Arnone, Cepelak, Dzurenda, Chapdelaine and Roy were copied on the memo. In October 2016, workers wearing full-hooded suits took soil samples at Osborn. Also in 2016, Commissioner Semple indicated that he would prefer to close Q-building because of infrastructure issues but continued to house inmates there.

         Maintenance worker defendants Trap, Acosta, Sullivan, Martin, Bassette and Bell drilled holes in sewage pipes to facilitate clog removal. The holes, which were against code requirements, released methane gas all day. Fire Safety Officer Gero failed to report the holes or any of the other fire hazards. Defendant Roy signed testing and monitoring reports on water quality even though he was not certified to do so. Toliver describes the drinking water at Osborn as cloudy and brown with a “funny” smell and bad taste. He alleges that two inmates contracted H-pylori from the water in 2016. Shower heads had rust as well as black and yellow mold.

         B. Garner Correctional Institution

         Toliver was confined at Garner Correctional Institution (“Garner”) from 1998 to 2001 and again from 2006 through 2010. In 2016, Toliver learned from a newspaper article that Garner was located in an area with the highest potential for Radon exposure in the state. Toliver alleges that he was forced to inhale radon for seven years and that several inmates and staff members developed lung cancer from radon exposure.

         Toliver alleges that he has suffered digestive and respiratory issues, skin infections and rashes, dehydration and possible exposure to more serious ailments.

         II. Analysis

         Toliver contends that the defendants subjected him to unconstitutional conditions of confinement. To state an Eighth Amendment claim for unconstitutional conditions of confinement, an inmate must allege facts demonstrating failure of prison officials to provide for the inmate's “basic human needs-e.g., food, clothing, shelter, medical care, and reasonable safety.” DeShaney v. Winnebago Dep't of Soc. Servs., 489 U.S. 189, 200 (1989).

         An inmate may prevail on an Eighth Amendment claim based on unconstitutional conditions of confinement “only where he proves both an objective element-that the prison officials' transgression was ‘sufficiently serious'-and a subjective element-that the official acted, or omitted to act with a ‘sufficiently culpable state of mind, ' meaning with a ‘deliberate indifference to inmate health or safety.'” Phelps v. Kapnolas, 308 F.3d 180, 185 (3d Cir. 2002) (quoting Farmer v. Brennan, 511 U.S. 825, 837-38 (1994)). A condition is objectively serious if it “‘pose[s] an unreasonable risk of serious damage to [a prisoner's] future health.'” Id. (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). Thus, the “objective component relates to the seriousness of the injury.” Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). To meet the subjective component, a plaintiff must allege that prison officials knew “of and disregard[ed] an excessive risk to inmate health or safety, ” that is, that they were “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and … dr[e]w ...


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