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Vega v. Semple

United States District Court, D. Connecticut

September 27, 2018

HARRY VEGA, et al, Plaintiffs,
v.
SCOTT SEMPLE, et al, Defendants. September 27, 2018

          RULING ON DEFENDANTS' MOTION TO DISMISS

          JANET BOND ARTERTON, U.S.D.J.

         Plaintiff Harry Vega files this lawsuit on behalf of all inmates and pre-trial detainees exposed to levels of indoor radon gas in excess of federal Environmental Protection Agency ("EPA") and World Health Organization ("WHO") standards while incarcerated at the Connecticut Department of Correction's ("DOC") Newtown facility, Garner Correctional Institution ("Garner").[1] Plaintiffs' Amended Complaint names as Defendants numerous DOC officials in their individual and official capacities, including every Commissioner of Correction dating back to the opening of the Garner facility in late 1992, (Am. Compl. ¶¶ 26-32, 46(A), 49), as well as former wardens of Garner, (id. ¶¶ 26-27, 34), and the current and former Directors of the DOC Engineering and Facilities Management Unit, (id ¶¶ 36-38). Plaintiffs allege violations of the Eighth and Fourteenth Amendments to the United States Constitution (Count One), and violations of the Connecticut Constitution, Article First, Section 8 (Count Two). Defendants move to dismiss the Amended Complaint under Fed. R. Civ. Pro. 12(b)(6) and 12(b)(1), claiming qualified immunity and Eleventh Amendment sovereign immunity. For the reasons that follow, Defendants' Motion is granted in part and denied in part.

         I. Plaintiffs' Allegations

         Plaintiffs allege they were "exposed involuntarily to indoor radon gas, a recognized human carginogen, far in excess of any published safe level" while incarcerated at Garner. (See, e.g., Am. Compl. ¶¶ 1, 41, 46.) They claim Defendants were deliberately indifferent to their safety when building the Garner facility at the Newtown, Connecticut site-which opened in 1992-and by failing to detect or remediate the alleged radon exposure thereafter. (Id. ¶¶ 1, 90-96, 98, 103, 110-11, 114, 135-36.) Further, Plaintiffs claim that Defendants Dzurenda, Semple, and Falcone were deliberately indifferent to inmate safety by failing to notify inmates that radon testing and remediation were being conducted at Garner during 2013 and 2014, after elevated radon levels were discovered in late 2013. (Id. ¶¶ 140, 142-43, 146-47, 150-53, 157-61.)[2]

         Plaintiffs maintain that "the federal Environmental Protection Agency and the U.S. Geological Survey ... evaluated the radon potential in the United States and developed a Map of Radon Zones to assist national, state[, ] and local organizations and building code officials in deciding whether radon-resistant features should be applicable to new construction," and determined "that Newtown, Connecticut is located in Zone 1 - Highest Potential (greater than 4.0 pCi/L) ...." (Id. ¶ 93.) This "designation reflects the average short-term radon measurement in a building without implementation of radon control methods." (Id.) Nonetheless, Defendant Meachum, on behalf of the Connecticut Department of Corrections, and Defendants Doe(s) 1 to 3 decided to construct Garner in Newtown, on a site identified as posing the highest risk for radon above the EPA action level of 4.0 pCi/L, and failed to include any preventative radon mitigation system, thereby ensuring inmates housed at Garner would be exposed to a known carcinogen. (Id. ¶¶ 94, 98-99.)

         In 2013 the school rooms at Garner, located on the second floor level, were tested (as part of state-mandated testing, conducted "at the demand of a Garner teacher") and evidenced levels at or above the EPA action level of 4.0 pCi/L requiring additional testing. (Id. ¶¶ 140, 46(A).) This resulted in the installation of a radon mitigation system which was completed in October 2014. (Id. ¶ 46(A).) Given Garner's location in an area with a known potential for high levels of radon, and that it is a sealed building that does not use windows for ventilation, Plaintiffs claim that follow-up testing should have been widespread throughout the facility. Instead, because the state Department of Public Health required written notification of such radon testing to individuals in the areas subject to testing, Defendants Semple, Dzurenda, Falcone, Link and Does 1-3 purposefully decided not to test the cell block units. (Id. ¶ 141.)

         At the same time, recognizing that any medical condition causally related to radon exposure may take many years to manifest itself as with asbestos, Defendants Dzurenda, Semple and Falcone advised Garner staff to obtain a base-line chest x-ray and provided them with the opportunity to file a WC-207 package to protect their legal rights should staff members develop lung cancer or other chronic pulmonary condition from such elevated radon levels. (Id. ¶¶ 5-10, 145-46, 154.) Given that the installation of a radon mitigation system may not have remedied excessive indoor radon gas in those areas where Garner inmates are housed, [3] Plaintiffs assert that radon testing in those areas must be conducted going forward, with additional mitigation systems installed if this testing indicates a need for such mitigation. (Id. 46(A).)[4]

         II. Defendants' Motion to Dismiss

         A. Legal Standard

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Conclusory allegations are not sufficient. Id. at 678-79; see also Fed. R. Civ. P. 12(b)(6).

         "[A] claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Natl Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)). "When considering a motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). In response to a motion to dismiss pursuant to Rule 12(b)(1), "[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

         B. Qualified Immunity

         The doctrine of qualified immunity shields state officials from civil suit and liability for civil damages, so long "as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Thus, in order for a plaintiff to overcome qualified immunity: (1) the facts alleged must make out a violation of a constitutional right, and (2) that right must have been "clearly established" at the time of the defendants' alleged misconduct. See id.[5] The immunity "affords government officials 'breathing room' to make reasonable-even if sometimes mistaken- decisions." Distiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (quoting Messerschmidt v. Millender, 565 U.S. 535, 553 (2012)). "The qualified immunity standard is 'forgiving' and 'protects all but the plainly incompetent or those who knowingly violate the law.'" Grice v. McVeigh, 873 F.3d 162, 166 (2d Cir. 2017) (quoting Amore v. Novarro, 624 F.3d 522, 530 (2d Cir. 2010)).

         A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alteration omitted). While there need not be a case directly on point for a right to be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The Supreme Court explained,

We have repeatedly told courts . . . not to define clearly established law at a high level of generality. The dispositive question is whether the violative nature of particular conduct is clearly established. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.

Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (internal citations and quotation marks omitted).

         "Although [courts] generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue." Burns v. Martuscello, 890 F.3d 77, 94 (2d Cir. 2018) (citations omitted).

         As the Second Circuit has noted in the qualified immunity context, "[i]t is certainly true that motions to dismiss a plaintiffs complaint under Rule 12(b)(6) on the basis of an affirmative defense will generally face a difficult road." Garcia v. Does, 779 F.3d 84, 96-97 (2d Cir. 2015). "Not only must the facts supporting the defense appear on the face of the complaint, but... the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (internal citations omitted). Like any other motion to dismiss, when determining whether a defendant is entitled to qualified immunity, the Court cannot consider affidavits and exhibits unless they are attached to the complaint, incorporated by reference, or are matters of which judicial notice maybe taken. See, e.g., Canady v. Correct Care Sols., No. 15-CV-4893 (KMK), 2017 WL 4280552, at *14 (S.D.N.Y. Sept. 25, 2017).

         As to Plaintiffs' allegations of constitutional violations based the conditions of their confinement, as well as being denied access to the courts, Defendants assert qualified immunity on both claims.

         i. Conditions of Confinement

          The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994). "To state an Eighth Amendment claim based on conditions of confinement, an inmate must allege that: (1) objectively, the deprivation the inmate suffered was 'sufficiently serious that he was denied the minimal civilized measure of life's necessities,' and (2) subjectively, the defendant official acted with 'a sufficiently culpable state of mind . . . such as deliberate indifference to inmate health or safety.'" Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citations omitted). "To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Id. (citations omitted). "To meet the subjective element, the plaintiff must show that the defendant acted with 'more than mere negligence.'" Id. (citations omitted). "To constitute deliberate indifference, '[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety.'" Id. (citations omitted). "Evidence that a risk was 'obvious or otherwise must have been known to a defendant' may be sufficient for a fact finder to conclude that the defendant was actually aware of the risk." Id. (citations omitted).

         As they confirmed at oral argument, Defendants do not claim in their Motion that the allegations regarding Plaintiffs' conditions of confinement could not amount to a constitutional violation, but rely on their contention that no authority clearly establishes that a supervisory correctional official can be found deliberately indifferent to inmate safety in the particular factual contexts alleged in this case.

         As discussed above, Plaintiffs allege Defendant Meachum, who was responsible for site selection and construction of the Garner facility, and Director Batten, who provided him with input about the site, decided to have Garner built in an area where radon levels would likely exceed the EPA action level if no mitigation system were implemented. (Am. Compl. ¶¶ 82, 90-92, 94.) Plaintiffs claim Meachum failed to ensure that the Garner facility was tested for radon before it opened in 1992 and failed to ensure it was built with a radon remediation system. (Id. ¶¶ 82, 90-96, 98, 99, 135-136.) They also allege that until the mandated testing in 2013, Defendants failed to install any radon mitigation system after the Garner facility opened despite many opportunities to do so. (Id. ¶¶ 100, 103, 105, 135-136.)

         Further, Plaintiffs assert that the remaining Defendants, including Commissioners Armstrong, Lantz, Arnone, Dzurenda, and Semple failed to correct the problem, as did Wardens Falcone (and Dzurenda and Semple) and Director Link. (Id. ¶¶ 103, 105, 107, 110-11, 114, 135-36.) Finally, they allege that after Dzurenda, Semple, Falcone, and Link discovered the possibility of allegedly high radon levels in 2013, they chose not to inform the inmates at Garner but did inform DOC staff, public health officials, and local town officials before the installation of a radon remediation system in October 2014. (Id. ¶¶ 140, 142-143, 146-147, 150-153, 157-161).

         Defendants contend that no authority of this Circuit or the Supreme Court places it 'beyond debate' that a Commissioner of Correction (Meachum), or a facilities engineer (Batten), commits deliberate indifference when the State decides to build a prison facility in an elevated radon region. Further, according to Defendants, no sufficient authority specifies that the failure to learn of allegedly elevated radon levels by subsequent Commissioners (Armstrong, Lantz, Arnone, Dzurenda, and Semple), Wardens (Dzurenda, Semple, and Falcone), and Director of Facilities (Link) constitutes criminally reckless culpability reaching the level of a constitutional tort. Finally, they argue there is no clearly established law requiring supervisory correctional officials to notify inmates in the prison of the possibility of the presence of elevated radon levels.

         In response, Plaintiffs argue that at least after the Supreme Court's decision in Helling v. McKinney, 509 U.S. 25, 29 (1993), a reasonable prison custodian would have understood that they would violate a prisoner's Eight Amendment rights by knowingly or recklessly subjecting a prisoner to an unreasonably high risk of exposure to a toxin known to cause lung cancer.[6] As another district court notes, "[t]he Helling line of cases involve situations where persons are in custody, are exposed to conditions that are substantially likely to cause serious harm, and the victims therein are unable to take corrective action or ...


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