Thao v. California Prison Industry Authority et al

Filing 36

ORDER by Judge Phyllis J. Hamilton granting 26 Motion for Summary Judgment and 28 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 6/29/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

NOU THAO,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 16-cv-01098-PJH
ORDER GRANTING DEFENDANTS'
MOTIONS FOR SUMMARY
JUDGMENT

v.
JOE DOBIE, et al.,

Re: Dkt. Nos. 26, 28

Defendants.

12
13

This is a civil rights case brought pro se by a state prisoner under 42 U.S.C. §

14

1983. His claims arise from his detention in San Quentin State Prison (“SQSP”). Plaintiff

15

alleges that defendants were deliberately indifferent to lead-and asbestos-related risks

16

while plaintiff and other inmates were working in the inmate mattress factory in May and

17

June 2012. Defendants Dobie, Earley, Loredo and Smith have filed a motion for

18
19
20
21
22

summary judgment. Defendant Young has separately filed a motion for summary
judgment. Plaintiff has filed an opposition and defendants filed replies. For the reasons
set forth below, the motions are granted.
BACKGROUND
Previously, six other related actions were brought in this court asserting the exact
same claims of asbestos and lead paint exposure at the mattress factory in May and

23
early June 2012. The six related actions were Terry v. Smith, C 13-1227 EMC; Carter v.
24
25
26
27
28

Smith, No. C 13-4373 EMC; Spells v. Smith, No. C 13-4102 EMC; Hirscher v. Smith, 14340 EMC; Arnold v. Smith, No. C 13-4456 EMC; and Beyett v. Smith, No. C 14-3153
EMC. The six prisoner-plaintiffs appeared to be coordinating their efforts, as their
pleadings, requests, oppositions, and exhibits were similar. On the other side, and

1

similar to this case, the defendants were represented by the Law Office of Nancy E.

2

Hudgins, except for Jeremy Young, who was represented separately by attorney Kenneth

3

Williams. Defense motions for summary judgment were filed in five of the six cases; one

4

was not filed in the Arnold case because it proceeded at a slower pace.

5
6
7
8
9
10

The court chose one case (Carter), went through the evidence in that case, and
issued an order granting in part and denying in part defendants’ motions for summary
judgment. The court then sent to the parties in all six cases the lengthy order in the
Carter case, explaining that the ruling in Carter was not technically dispositive of the
motions for summary judgments in each of the other related cases, but that the ruling
showed the court’s evaluation of the evidence and provided enough guidance for the
parties in all six cases to have a good sense of their relative positions for settlement

11
United States District Court
Northern District of California

purposes. The court then referred all the cases to a magistrate judge for settlement
12
13
14
15
16

proceedings. Four of the actions settled, and two-Terry, C 13-1227 EMC and Arnold, No.
13-cv-4456 EMC-continued. New motions for summary judgment with additional
evidence were filed in Terry and Arnold, and on December 2, 2016, the court granted the
motions and the cases were closed. This case, while not identical, is substantially similar
to the six closed cases, and both sides submit substantially similar arguments and

17

evidence; however in this case, it is undisputed that plaintiff has suffered no medical

18

problems and is in good health.

19

DISCUSSION

20

Motion for Summary Judgment

21

A.

22

Summary judgment is proper where the pleadings, discovery and affidavits show

Summary Judgment Standard

23

that there is "no genuine dispute as to any material fact and the movant is entitled to

24

judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may

25

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

26

(1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

27

reasonable jury to return a verdict for the nonmoving party. Id.

28
2

1

The moving party for summary judgment bears the initial burden of identifying

2

those portions of the pleadings, discovery and affidavits which demonstrate the absence

3

of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

4

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When

5

the moving party has met this burden of production, the nonmoving party must go beyond

6
7
8
9
10

the pleadings and, by its own affidavits or discovery, set forth specific facts showing that
there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough
evidence to show a genuine issue of material fact, the moving party wins. Id.
B.

Eighth Amendment Standard

The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Deliberate

United States District Court
Northern District of California

11
12
13
14
15
16

indifference to an inmate’s health or safety may violate the Eighth Amendment’s
proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976). A prison official violates the Eighth Amendment only when two requirements are
met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is,
subjectively, deliberately indifferent to the inmate’s health or safety. See Farmer, 511
U.S. at 834.

17

Exposure to toxic substances may be a sufficiently serious condition to establish

18

the first prong of an Eighth Amendment claim, depending on the circumstances of such

19

exposure, as explained by the Supreme Court in Helling v. McKinney, 509 U.S. 25, 35

20

(1993) (inmate stated Eighth Amendment claim based upon possible future harm to

21

health, as well as present harm, arising out of exposure to second-hand smoke). The

22

plaintiff “must show that he himself is being exposed to unreasonably high levels” of the

23

toxic substance. Helling, 509 U.S. at 35. Moreover, determining whether the condition

24

violates the Eighth Amendment “requires more than a scientific and statistical inquiry into

25

the seriousness of the potential harm and the likelihood that such injury to health will

26

actually be caused by exposure to [the toxic substance]. It also requires a court to

27

assess whether society considers the risk that the prisoner complains of to be so grave

28

that it violates contemporary standards of decency to expose anyone unwillingly to such
3

1

a risk. In other words, the prisoner must show that the risk of which he complains is not

2

one that today’s society chooses to tolerate.” Helling, 509 U.S. at 36.

3

Although Helling was a second-hand smoke case, the rule also applies to

4

asbestos exposure. In Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995), the Ninth Circuit

5

cited Helling in a case in which an inmate had been exposed to asbestos during a prison

6
7
8
9
10

cleaning operation. The Wallis plaintiff extensively handled asbestos-containing
materials when he was on a work detail required to clean an attic with damaged
asbestos-containing insulation on pipes and insulation material that “had broken loose
and lay scattered around the attic” with other debris. Id. at 1075. Wearing inadequate
masks, the inmates were required to “tear off loose pipe covering and insulation” and bag
it for disposal in a dusty attic without outside ventilation. Id. The court in Wallis spent

11
United States District Court
Northern District of California

little time discussing whether the objective prong was satisfied for the Eighth Amendment
12
13
14
15

claim because it was “uncontroverted that asbestos poses a serious risk to human
health,” and the plaintiff’s medical expert had declared that the amount of exposure for
that plaintiff was “medically serious,” id. at 1076.
Other circuits also have cited Helling in cases involving toxic substances such as

16

asbestos. See, e.g., Templeton v. Anderson, 607 F. App’x 784, 787 (10th Cir. 2015)

17

(summary judgment proper for defendant because requiring inmate to work for one hour

18

removing asbestos mastic and tiles “was not a significant duration given the type of

19

exposure at issue” and therefore did not satisfy the objective prong of Eighth Amendment

20

claim); Smith v. Howell, 570 F. App’x 762, 765 (10th Cir. 2014) (affirming summary

21

judgment on qualified immunity grounds on Eighth Amendment claim because there were

22

no Tenth Circuit or Supreme Court cases by 2003 that had held “that a limited exposure

23

to asbestos dust for a few hours poses such an objectively serious risk of future harm to

24

offend contemporary standards of decency. Indeed, there is no such authority even

25

today.”); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (finding genuine issues of

26

fact as to whether plaintiff was exposed to levels of asbestos sufficient to pose an

27

unreasonable risk of damage to his future health based on his two-month stay in a facility

28

“contaminated with asbestos to which inmates were routinely exposed,” but that summary
4

1

judgment was proper because he alleged no physical injury and, pursuant to 42 U.S.C. §

2

1997e(e), he could not recover damages for mental and emotional stress without physical

3

injury); McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993) (Eighth Amendment claim

4

properly dismissed because being housed in a cell for ten months near asbestos-covered

5

pipes was not a serious enough condition; plaintiff “does not allege facts sufficient to

6
7
8
9
10

establish that he was exposed to unreasonably high levels of asbestos. Had, for
example, [plaintiff] been forced to stay in a dormitory where friable asbestos filled the air,
we might agree that he states a claim under the Eighth Amendment. That, however, is
not this case. . . . [T]he fact remains that asbestos abounds in many public buildings.
Exposure to moderate levels of asbestos is a common fact of contemporary life and
cannot, under contemporary standards, be considered cruel and unusual.”)

11
United States District Court
Northern District of California

C.
12

The following facts are undisputed except where indicated otherwise:1

13
14

Facts

Plaintiff was incarcerated at SQSP during the relevant time. Compl. at 4; Motion
for Summary Judgment filed by Dobie, Earley, Loredo and Smith (“MSJ1”) (Docket No.

15

26); Pl.’s Dep. 7:23-24, 8:21-23. From 2010 to June 7, 2012, plaintiff was an inmate

16

worker at the Prison Industry Authority (“PIA”) mattress and bedding factory. Pl.’s Depo.

17

11:18-20, 15:5-7. Plaintiff never returned to the factory after June 7, 2012. Id. 15:16-17.2

18

In late May 2012, the PIA stopped factory operations for annual cleaning and

19

inventory. MSJ1 Ex. 2, Dobie Decl. ¶¶ 3-4. Plaintiff and other inmates used a power

20

washer to clean the ceiling for approximately 10 days in late May to early June. Compl.

21

at 9; Opp’n at 2. While washing the ceiling, fibers and other particles were released into

22

the air. Opp’n at 2-3. Plaintiff was wearing a mask, but the packaging states the mask

23

does not protect against asbestos. Opp’n at 2.

24
25
26
27
28

1

Plaintiff’s opposition (Docket No. 32) contradicts several statements plaintiff made in his
deposition. It appears that the opposition was prepared by plaintiffs in the other six
cases. Opp’n at 2. The deposition occurred on February 6, 2017, and the opposition
was filed on May 10, 2017.
2
In the deposition, plaintiff is clear that he has not returned to the factory. The opposition
states that he still works in the factory and continues to be exposed to lead and asbestos.
Opp’n at 3, 7.
5

On June 6, 2012, a maintenance supervisor expressed concern that the cleaning

1
2

process could possibly result in lead or asbestos exposure. MSJ1 Ex. 3, Earley’s First

3

Decl. ¶ 7. The factory was closed for inspection and abatement of any hazardous

4

substances. MSJ1 Ex. 4, Loredo Decl. ¶ 7.
No asbestos was found in the areas where inmates worked. Earley’s First Decl. ¶

5
6
7
8
9
10

8; Dobie Decl. ¶14. Dust samples collected from around the factory tested negative for
any asbestos. Loredo Decl. ¶ 8; Compl. at 48. A small amount of asbestos was present
under floor tiles in the factory supervisors’ office, and trace amounts were detected in
glazing putty around the supervisors’ office windows. Earley’s First Decl. ¶ 9. Some
lead-containing paint was found on some exterior swing-out windows. Earley’s First
Decl. ¶ 9. The wrapping around the ceiling pipes was assumed to contain asbestos, but

11
United States District Court
Northern District of California

was not tested. Id. The wrapping was in good condition. Id.
12
13
14
15
16

Photos of the factory show an open and airy workspace with a ceiling that is at
least 12 feet high and a limited number of pipes running near the ceiling. The pipes are
covered with what appears to be insulation wrapped with tape, although there is no
visible writing on the pipe covering. The portions of the pipe covering that are disturbed
are quite limited in number, and the disturbed areas are confined in size; no disturbed

17

area appears to be bigger than six inches long. The disturbed areas on any particular

18

pipe appear to be few and far apart. Opp’n at 27-62.3

19

The inmate workers at the factory were tested, and none tested positive for lead

20

exposure. MSJ1 Ex. 5, Earley’s Second Decl. ¶ 4. Some inmate workers requested

21

testing for possible asbestos exposure. MSJ1 Ex. 7, letter to Dewey Terry from Cal.

22

Corr. Healthcare Servs. The request was denied because asbestos-related diseases

23

generally only occur years after prolonged, substantial exposure and because the testing

24

is invasive and ineffective until the disease manifests itself. Id.; MSJ1 Ex. 8, Piatt Decl.

25

¶¶ 6-8.

26
27
3

28

Some of the photos contain people, which allows the viewer to have a sense of the size
of the factory and the damage to the pipes. Opp’n at 30-31.
6

1

Plaintiff is unaware if there was any asbestos in the factory. Pl.’s Dep. 12:14-23.

2

Plaintiff recalls seeing only one sign warning of the possibility of asbestos and lead paint.

3

Id. 12:21-13:8. Plaintiff is unaware of any evidence that he was exposed to any lead or

4

asbestos in the factory. Id. 11:22-25, 12:14-13:19, 14:21-15:4, 18:11-18. Plaintiff is

5

unaware of any evidence that defendants were aware of any risk of lead-or asbestos

6
7
8
9
10

related-harm. Id., 28:24-29:6.
Plaintiff’s blood was tested on June 8, 2012. Opp’n at 97-98. The report states
that the level of lead in plaintiff’s blood was less than 2.0 mcg/dL (i.e., micrograms per
deciliter) for lead in the blood. Id. at 97. The report states that the reference range is 0.0
to 10.0 mcg/dL and blood levels in the range of 5-9 mcg/dL have been associated with
adverse health effects in children aged 6 years and younger. Id. The report also stated

11
United States District Court
Northern District of California

that, with respect to zinc protoporphyrin, plaintiff had a level of 39 and the reference
12
13
14
15
16
17
18
19
20
21

range was less than 100 mcg/dL. Id. at 98.
Plaintiff does not know if he has suffered any type of lead-related harm. Pl.’s Dep.
26:3-13, 28:24-29:6. On the date of the deposition, February 6, 2017, plaintiff stated he
was healthy. Id. 26:14-17.
Defendants present a declaration from a medical expert, Brad Piatt, M.D., who
obtained his A.B. in biochemistry and completed post-graduate work in biochemistry at
U.C. Berkeley, obtained his medical degree at Vanderbilt University, and now is a boardcertified radiologist. MSJ1 Ex. 8, Piatt Decl. ¶ 1. Dr. Piatt has “obtained substantial
experience with asbestos and asbestos related medical illnesses during the analysis of
diagnostic imaging for over a thousand patients being evaluated for asbestos exposure in

22

order to determine the presence, type and extent of disease.” Id. Dr. Piatt states that

23

“[a]sbestos-related illness only develops after chronic, prolonged exposure to significant

24

concentrations, most diseases occurring years or decades after substantial exposure.”

25

Id. ¶ 8. With regard to the claimed lead exposure, Dr. Piatt declares that, “[i]n adults,

26
27

lead inhalation rarely results in medical disease unless there is prolonged exposure to
high concentrations.” Id. ¶ 16.

28
7

1

According to several government authorities, “medical science has not established
any minimum level of exposure to asbestos fibers which is considered to be safe to

3

individuals exposed to the fibers.” 20 U.S.C. § 3601(a)(3) (Congressional statement of

4

findings and purposes for the Asbestos School Hazard Detection and Control Act of

5

1980); id. § 4011(a)(3) (Congressional statement of findings and purpose for the

6

Asbestos School Hazard Abatement Act of 1984). “[E]xposure to asbestos fibers has

7

been identified over a long period of time and by reputable medical and scientific

8

evidence as significantly increasing the incidence of cancer and other severe or fatal

9

diseases, such as asbestosis.” 20 U.S.C. § 3601(a)(1) (Congressional statement of

10

findings and purposes for the Asbestos School Hazard Detection and Control Act of

11
United States District Court
Northern District of California

2

1980). Although making these findings about the general hazard of asbestos, Congress

12

did not choose to close all potentially affected schools and instead directed that a task

13

force be established, that states prepare plans, and that financial and other assistance be

14

provided to states to address the problem. See 20 U.S.C. § 3601(b).

15

The Occupational Safety and Health Administration (“OSHA”) has regulations that

16

do allow some asbestos exposure for workers. One regulation sets a “permissible

17

exposure limit” for employee exposure to asbestos. See 29 C.F.R. § 1910.1001(c)(1)

18

(“The employer shall ensure that no employee is exposed to an airborne concentration of

19

asbestos in excess of 0.1 fiber per cubic centimeter of air as an eight (8)-hour time-

20
21
22

weighted average”); id. § 1910.1001(c)(2) (“The employer shall ensure that no employee
is exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic
centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes”).
ANALYSIS

23
24

Plaintiff has failed to demonstrate a triable issue with respect to either the
objective or subjective prong of his Eighth Amendment claim. He has not shown that the

25
alleged deprivation was sufficiently serious or that defendants were deliberately
26

indifferent to his safety.

27
28
8

1

Objective Prong

2

Plaintiff only argues that for several days he and others used a power washer and

3

disturbed pipes that could have contained asbestos. It is undisputed that there is no

4

evidence that plaintiff was exposed to asbestos or lead. The testing from the area where

5

plaintiff was working tested negative for asbestos, and plaintiff presents no evidence of

6
7
8
9
10

any irregularities in his blood tests or in those of the other inmate-workers. That there
were particles in the air while cleaning the ceiling and pipes does not show that asbestos
was present or that plaintiff was exposed to dangerous amounts of any toxic substance.
The pictures that plaintiff submitted only demonstrate a few small, disturbed areas of pipe
in a large, open, and airy workspace. In contrast to the facts of Wallis, plaintiff has failed
to establish any evidence that he was exposed to unreasonably high levels of a toxic

11
United States District Court
Northern District of California

substance. In Wallis, the plaintiff directly and extensively handled asbestos in an
12
13
14
15

enclosed space, a dusty attic.
It is also undisputed that plaintiff is currently healthy and has had no adverse
medical problems. Defendants submitted expert evidence that asbestos-related diseases
usually require a significant and prolonged exposure to asbestos as opposed to the at

16

most minimal degree of exposure at issue in this action. Plaintiff’s conclusory allegations

17

that there could have been asbestos and that he could have been exposed to a

18

dangerous amount are insufficient to meet his burden and survive summary judgment.

19

His allegation that the mere possibility that he was exposed to asbestos violates

20

the Eighth Amendment does not satisfy the standard set out in Helling. Plaintiff fails to

21

present evidence that would allow the court or a jury to perform a scientific and statistical

22

inquiry into the seriousness of probable harm and the probability that any health-related

23

injury will be caused by exposure to asbestos or lead. See Helling at 36.

24

Even if there was a small amount of asbestos in the factory and plaintiff was

25

exposed, he has still failed to show a sufficiently serious deprivation. OSHA regulations

26

set limits on asbestos exposure and allow some small exposure to workers. These

27

regulations contradict plaintiff’s general assertion that any exposure to asbestos would

28

meet the high standard for an Eighth Amendment deliberate indifference claim.
9

1

Subjective Prong

2

Plaintiff has also failed to present evidence that even if there was a sufficiently

3

serious deprivation, that defendants were deliberately indifferent to his safety. Plaintiff

4

conceded in his deposition that he was unaware of any evidence that defendants were

5

aware of any risk of lead-or asbestos-related harm. In his opposition plaintiff includes a

6
7
8
9
10

declaration from another inmate who states that he had told a defendant there was
asbestos in the factory. Opp’n at 129-130. Yet, this declaration does not describe how
the inmate knew that the material was asbestos or how much asbestos was in existence
at the factory. Nor does the declaration describe how much asbestos material was
disturbed in the cleaning of the factory. Even assuming a defendant had been told by an
inmate that there was asbestos, the defendants were not deliberately indifferent in their

11
United States District Court
Northern District of California

actions based on the undisputed facts discussed above. Moreover, if there was a triable
12
13
14
15
16
17

issue on this subjective prong and the warning from the other inmate, defendants are still
entitled to summary judgment because plaintiff has not shown a triable issue on the
objective prong of a sufficiently serious deprivation. To proceed with an Eighth
Amendment claim plaintiff must raise a triable issue on both the subjective and objective
prongs for his claim to survive summary judgment. For all these reasons, summary
judgment is granted for defendants.

18

Qualified Immunity

19

The defense of qualified immunity protects “government officials . . . from liability

20

for civil damages insofar as their conduct does not violate clearly established statutory or

21

constitutional rights of which a reasonable person would have known.” Harlow v.

22

Fitzgerald, 457 U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the

23

plainly incompetent or those who knowingly violate the law.’” Saucier v. Katz, 533 U.S.

24

194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants can

25

have a reasonable, but mistaken, belief about the facts or about what the law requires in

26

any given situation. Id. at 205. A court considering a claim of qualified immunity must

27

determine whether the plaintiff has alleged the deprivation of an actual constitutional right

28

and whether such right was clearly established such that it would be clear to a
10

1

reasonable officer that his conduct was unlawful in the situation he confronted. See

2

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the two-part

3

test that required determining a deprivation first and then deciding whether such right was

4

clearly established, as required by Saucier). The court may exercise its discretion in

5

deciding which prong to address first, in light of the particular circumstances of each

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

case. Pearson, 555 U.S. at 236.
The existence of a triable issue as to whether a prison official was deliberately
indifferent to an inmate’s health or safety may require denial of a defense motion for
summary judgment on the merits of the Eighth Amendment claim, but the qualified
immunity analysis does not end there. See Estate of Ford v. Ramirez-Palmer, 301 F.3d
1043, 1045 (9th Cir. 2002); see id. at 1049 (“Saucier’s key point is that the qualified
immunity inquiry is separate from the constitutional inquiry”). “Even though the
constitutional issue turns on the officers’ state of mind (here, deliberate indifference to a
substantial risk of serious harm), courts must still consider whether assuming the facts in
the injured party’s favor it would be clear to a reasonable officer that his conduct was
unlawful.” Estate of Ford, 301 F.3d at 1045. That is, the court must consider whether the
information available to the defendants made it so clear that the plaintiff would be harmed
that no reasonable officer could have allowed the situation to occur. Id.
For an Eighth Amendment violation based on a condition of confinement (such as
a safety risk), the official must subjectively have a sufficiently culpable state of mind, i.e.,
“‘the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.’ Thus, a
reasonable prison official understanding that he cannot recklessly disregard a substantial
risk of serious harm, could know all of the facts yet mistakenly, but reasonably, perceive
that the exposure in any given situation was not that high. In these circumstances, he
would be entitled to qualified immunity.” Id. at 1050 (citation omitted) (quoting Farmer,
511 U.S. at 834, and citing Saucier, 533 U.S. at 205). Although the general rule of
deliberate indifference had been expressed in Farmer, no authorities had “fleshed out ‘at
11

1

what point a risk of inmate assault becomes sufficiently substantial for Eighth

2

Amendment purposes.’” Id. at 1051 (quoting Farmer at 834 n.3). Because it had not

3

been fleshed out, “it would not be clear to a reasonable prison official when the risk of

4

harm from double-celling psychiatric inmates with one another changes from being a risk

5

of some harm to a substantial risk of serious harm. Farmer left that an open issue. This

6

necessarily informs ‘the dispositive question’ of whether it would be clear to reasonable

7

correctional officers that their conduct was unlawful in the circumstances that [they]

8

confronted.” Id. at 1051. Each of the defendants in Ford was entitled to qualified

9

immunity even though he was aware of some information that there was some risk in

10

double-celling the violent inmate with the decedent or any other inmate.

United States District Court
Northern District of California

11

Similar to qualified immunity being found in Estate of Ford because of the

12

undefined qualitative elements, qualified immunity is appropriate in this case because of

13

the undefined qualitative elements in Helling. Cf. A.D. v. Cal. Highway Patrol, 712 F.3d

14

446, 455 n.4 (9th Cir. 2013) (denying qualified immunity for a substantive due process

15

claim; “[t]he standard for a due process violation – purpose to harm unrelated to a

16

legitimate law enforcement objective – does not contain undefined qualitative elements

17

(“substantial risk” and “serious harm”) like the Eighth Amendment standard does.”).

18

Helling found that whether exposure to “unreasonably high levels” of a toxic substance

19

violates the Eighth Amendment “requires more than a scientific and statistical inquiry into

20

the seriousness of the potential harm and the likelihood that such injury to health will

21

actually be caused by exposure to [the toxic substance]. It also requires a court to

22

assess whether society considers the risk that the prisoner complains of to be so grave

23

that it violates contemporary standards of decency to expose anyone unwillingly to such

24

a risk. In other words, the prisoner must show that the risk of which he complains is not

25

one that today’s society chooses to tolerate.” Helling, 509 U.S. at 36.

26

The cases cited earlier show that not all exposure to asbestos amounts to

27

objectively serious conduct, and that no court has articulated a well-defined test that a

28

reasonable prison official could look to in order to determine the lawfulness of his actions.
12

1

Wallis, for example, found an Eighth Amendment violation for an inmate who directly

2

handled already damaged asbestos-containing materials in a confined space for about 45

3

hours. Yet, courts have rejected claims of Eighth Amendment violations from an inmate

4

who worked for about an hour removing asbestos mastic and tiles (Templeton v.

5

Anderson), an inmate who was exposed to asbestos dust for a few hours (Smith v.

6

Howell), and an inmate who was housed for ten months near asbestos-covered (but

7

undisturbed) pipes (McNeil v. Lane). Because lower courts have reached different

8

results in determining whether exposure to a given toxic substance is an unreasonably

9

high level so as to amount to an objectively sufficient serious condition highlights the
difficulty that a reasonable prison official would have in determining whether his conduct

11
United States District Court
Northern District of California

10

was unlawful when inmates are exposed to or work with toxic substances. The same

12

problem exists for lead paint. No court has articulated a well-defined test that a

13

reasonable official could look to in order to determine the lawfulness of his actions in

14

allowing prisoners to be exposed to lead paint.
Defendants are therefore entitled to qualified immunity for plaintiff’s claim that they

15
16

were deliberately indifferent based on the asbestos and lead exposure because, as set

17

forth above, the facts in the record do not show the violation of a constitutional right by

18

them. See Saucier, 533 U.S. at 201 (defendants prevail on qualified immunity if there

19

was no constitutional violation). The undefined contours as to what amounts to

20

“unreasonably high levels,” Helling, 509 U.S. at 35, of a toxic substance (such as

21

asbestos or lead) to satisfy the objective prong of an Eighth Amendment analysis also

22

provides another basis for qualified immunity. Based on the undisputed facts of this case

23

and the minimal, if any, exposure to lead and asbestos in the mattress factory, the

24

defendants could have believed reasonably and mistakenly that the risk was not

25

sufficiently substantial to violate the Eighth Amendment. For all these reasons,

26

defendants are entitled to qualified immunity.4

27
4

28

As the court has not found a constitutional violation and that defendants are entitled to
qualified immunity, the arguments that plaintiff failed to exhaust his administrative
13

CONCLUSION

1
2
3

1. For the reasons set forth above, the motions for summary judgment (Docket
Nos. 26, 28) are GRANTED.

4

2. The clerk shall close the file

5

IT IS SO ORDERED.

6

Dated: June 29, 2017

7
8
9
10

PHYLLIS J. HAMILTON
United States District Judge
\\candoak.cand.circ9.dcn\data\users\PJHALL\_psp\2016\2016_01098_Thao_v_Dobie_(PSP)\16-cv-01098-PJH-sj.docx

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

remedies or failed to state a claim with respect to defendant Young will not be addressed.
14