United States District Court, D. Connecticut
INITIAL REVIEW ORDER
R. Underhill United States District Judge
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.
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).
Osborn Correctional Institution
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, 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.
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.
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.
Garner Correctional Institution
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
alleges that he has suffered digestive and respiratory
issues, skin infections and rashes, dehydration and possible
exposure to more serious ailments.
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
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 ...