Templeton v. Anderson

Filing 183

ORDER granting 161 Motion for Summary Judgment. by Judge R. Brooke Jackson on 7/23/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 12-cv-01276-RBJ-BNB
JAMES TEMPLETON,
DAVID COWDEN,
ROBERT GALLOB,
DAVID ALLEN,
Plaintiffs,
v.
PETER ANDERSON,
JEFF SMITH,
JAMES CHANEY,
TIMOTHY CREANY,
JAN SYLVIA,
STEVEN GALLEGOS,
CHERI DRENNON,
STEPHEN ENGLE,
THOMAS MARTIN,
Defendants.

ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment [ECF No.
161]. The Court asserts jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons,
the motion is granted.
BACKGROUND
This case arises out of an incident in June 2011 in which the plaintiffs, inmates at the
Colorado Department of Corrections (“CDOC”), were exposed to low concentrations of
asbestos. The plaintiffs were assigned to work detail replacing floor tiles in the prison. Before

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beginning the assignment, the defendants contend that a sample of the tile had been pulled and
taken for testing, with the results indicating that there was no asbestos in the tile or in the mastic.
Just in case the tests had returned false negatives, Officer Anderson told Officer Chaney that if
the work crew encountered any color of mastic other than brown mastic the removal of the tiles
should immediately stop. Tile removal began without incident on June 27, 2011. The next day,
at approximately 1:35 p.m., plaintiff James Templeton discovered black mastic and immediately
notified Officer Chaney. There is a genuine dispute as to whether Officer Chaney stopped the
project immediately or if the plaintiffs were required to spend another 45–65 minutes removing
tiles before stopping. This dispute will be discussed more fully below. Either way, the project
was halted soon after this discovery, and the plaintiffs were sent back to their cell units.
The prison followed up by testing the area for asbestos. The results came back about a
week later showing that the tile and mastic contained between 4% and 8% asbestos. On July 15,
2011 each of the named plaintiffs underwent chest x-rays due to possible asbestos exposure.
Where abnormalities were seen, follow-up x-rays were ordered and administered. Overall, the
defendants were unable to detect any immediate physical effects of the asbestos exposure.
The plaintiffs also claim that they were exposed to asbestos over a period of time when
assigned to change out windows with asbestos-containing material (“ACM”) in the window
glaze. According to Mr. Templeton, defendants Engle and Martin were aware that the glaze
contained ACM by October 2011. In spite of this knowledge, plaintiffs Templeton and Cowden
were assigned to remove one 6” x 9” window containing ACM in the glaze on November 29,
2011. The defendants contend that they utilized a safety procedure when removing these
windows in order to insulate the workers from asbestos exposure. The plaintiffs have not
disputed this assertion in any of their declarations.

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According to the plaintiffs, the defendants violated the Eighth Amendment by exposing
them to asbestos in such a way that amounted to deliberate indifference and by failing to provide
adequate medical and mental health care following the alleged exposure. The defendants argue
that there are no genuine disputes of material fact such that they are entitled to summary
judgment as a matter of law.
ANALYSIS
“Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.’” Utah Lighthouse Ministry v.
Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir. 2008) (quoting Fed. R.
Civ. P. 56(c)). When deciding a motion for summary judgment, the Court considers “the factual
record, together with all reasonable inferences derived therefrom, in the light most favorable to
the non-moving party . . . .” Id. The Court does not weigh the evidence or make credibility
determinations. Id. The moving party has the burden to show that there is an absence of
evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The nonmoving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324. In challenging such a showing, the non-movant “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Under the Eighth Amendment, a prison official may not act with deliberate indifference
to a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Two conditions must be met in order to violate this proscription: first, the deprivation must be
“sufficiently serious” under an objective standard; second, the prison official must have had

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subjective knowledge of the risk of harm. See Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir.
2008) (citing Farmer, 511 U.S. at 834, 837). “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 or safety; 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.” Farmer, 511 U.S. at 837. Prisoners exposed to
toxic contaminants by deliberately indifferent correctional officers may seek relief under the
Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 32–35 (1994) (finding an actionable
Eighth Amendment claim arising from excessive tobacco smoke exposure); LaBounty v.
Coughlin, 137 F.3d 68, 72 (2d Cir. 1998) (citing Helling, 509 U.S. 25, to support an Eighth
Amendment claim arising from alleged exposure to friable asbestos).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must establish that the
defendant, acting under color of state law, deprived him of a right secured by the United States
Constitution or its laws. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “A
defendant may not be held liable under § 1983 unless he or she subjected a citizen to the
deprivation, or caused a citizen to be subjected to the deprivation.” Lippoldt v. Cole, 468 F.3d
1204, 1219 (10th Cir. 2006) (alterations and citation omitted). In turn, the plaintiff must allege
that the defendant personally participated in the alleged violation. See e.g., Olson v. Stotts, 9
F.3d 1475, 1477 (10th Cir. 1993).
A. Exposure to Asbestos in June 2011 Tile Replacement Project.
“The health risk posed by friable asbestos has been acknowledged by various courts,
which have held that inmates’ unwilling exposure to an unreasonably high concentration of airborne asbestos particles constitutes a cognizable claim under the Eighth Amendment.” Pack v.

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Artuz, 348 F. Supp. 2d 63, 79 (S.D.N.Y. 2004) (collecting cases). Under the objective prong of
the deliberate indifference test, “[f]or exposure to airborne asbestos fibers to create a substantial
risk of serious harm . . . the intensity and duration of the exposure must both be significant.” Id.
at 79–80. Further, the subjective prong must also be met through a showing that the prison
official knew of and disregarded an excessive risk to inmate health or safety; in this case, that he
knew of the presence of the asbestos. The plaintiffs claim that their exposure to asbestos in June
2011 violated the Eighth Amendment. This claim is asserted against the Officer Defendants,
Officers Anderson, Smith, Chaney, Engle, and Martin. For the following reasons, all of the
Officer Defendants are entitled to judgment as a matter of law.
To begin, no allegations are put forth in the Second Amended Complaint that Officers
Martin and Smith personally participated in the tile replacement project. Therefore, this claim is
not actionable against these defendants under § 1983.
Next, the plaintiffs claim that Officer Anderson assured them that testing had been done
to check whether the tiles contained asbestos before commencing the project. Declaration of
James Templeton [ECF No. 151] at ¶ 4.1 According to the plaintiffs, Officer Anderson stated
that he believed the tests had come back negative for asbestos. Id. Officer Anderson’s affidavit
confirms this account. Affidavit of Peter Anderson [ECF No. 161-2] at ¶ 8. In turn, the
plaintiffs cannot show that Officer Anderson had any subjective knowledge or belief that he was

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Because these plaintiffs are appearing pro se, the Court has liberally construed the record in this case.
In particular, the Court references declarations and documents submitted by the plaintiffs in a variety of
other motions even though none were attached to their response to this motion. Notably, Mr. Templeton
has submitted three substantially similar declarations throughout this case. Compare [ECF No. 15] with
[ECF No. 60-2 at 1–18] and [ECF No. 151]. Because the declarations are substantially similar, the Court
will only cite to one for ease of reference.
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exposing the plaintiffs to asbestos.2 As such, the subjective prong of the deliberate indifference
test cannot be met.
Moving along, the only possible claim made against Officer Engle (and the Court reads
this claim quite liberally) is that he and/or Officer Anderson were deliberately indifferent when
they made a decision not to quarantine the plaintiffs or to order a shower and a change of clothes
after the exposure. According to Officer Anderson, he instructed the plaintiffs to remove their
shoes and also “contacted the Shift Commander so that the offenders could get a shower.”
Affidavit of Peter Anderson [ECF No. 161-2] at ¶ 25. Officer Chaney also attested that the
inmates were instructed to return to their cell houses and shower. Affidavit of James Chaney
[ECF No. 161-7] at ¶¶ 7–9. Notably, the plaintiffs have not alleged that they were prevented
from showering or changing their clothes. Therefore, at most they argue that Officer Engle
and/or Officer Anderson were deliberately indifferent by not ordering that the plaintiffs be
quarantined. Yet there is no reason to believe that quarantine would have been an appropriate
response. Further, quarantining already-exposed individuals would not undo the initial exposure.
Therefore, this failure could not constitute deliberate indifference towards the safety or health of
the already-exposed inmates. Insofar as this claim is alleged, it too must fail.
The remaining defendant in this cause of action is Officer Chaney. As noted earlier, a
genuine dispute of material fact surrounds the actions of Officer Chaney on June 28, 2011.
Before the removal of tile began, Officer Anderson informed Officer Chaney that if the inmates
encountered any color of mastic except for brown mastic he should stop the project immediately.
Affidavit of Peter Anderson [ECF No. 161-2] at ¶ 11. Nothing of significance occurred on June
27, 2011, the first day of the project, but the next day the plaintiffs discovered black mastic.
2

On that note, any argument that the plaintiffs were not given proper protective gear is equally
unavailing, as there was no reason to know that protective gear would be necessary before the discovery
of the black mastic.
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According to plaintiffs Templeton, Cowden, and Gallob, upon making this discovery they
informed Officer Chaney that they needed to stop the project; however, Officer Chaney refused,
directing them to finish lifting tile until they reached the first crash gate. Declaration of James
Templeton [ECF No.151] at ¶ 10; Declaration of David Cowden [ECF No. 60-2 at 37–43] at 39–
40, ¶ 5; Declaration of Robert Gallob [ECF No. 60-2 at 45–47] at 45. On the other hand, Officer
Chaney has attested that once black mastic was found he contacted Officer Anderson and halted
the project. Affidavit of James Chaney [ECF No. 161-7] at ¶¶ 7–9. Given the conflicting
declarations, there is a genuine dispute of material fact over whether Officer Chaney stopped the
project when black mastic was discovered.
Drawing all reasonable inferences in favor of the plaintiffs, for purposes of this motion
the Court presumes that the subjective prong of the deliberate indifference test has been met as to
Officer Chaney. However, Officer Chaney is still entitled to judgment as a matter of law
because the objective prong of the test has not been met: neither the intensity nor the duration of
the exposure was significant. Beginning with duration, Mr. Templeton has alleged that he
discovered black mastic at approximately 1:35 p.m. on June 28, 2011. Declaration of James
Templeton [ECF No. 151] at ¶ 10. At some point between 2:20 p.m. and 2:40 p.m. Officers
Engle and Anderson arrived at the worksite and halted the project. Id. at ¶ 11. Therefore, only
45–65 minutes passed between the time the plaintiffs and Officer Chaney became aware of the
black mastic and the time the exposure ended. Such a short duration of exposure is not
objectively significant.3 Cf. Pack, 348 F. Supp. 2d at 67 (alleging the defendants knowingly
exposed the plaintiff to airborne asbestos over a period of seven years). Moving onto the

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The Court recognizes that it is possible that the plaintiffs were exposed to asbestos over both days of the
project. However, liability cannot exist unless the subjective prong of the deliberate indifference test is
also met. Since the earliest anyone knew of the potential exposure was 1:35 p.m. on June 28, 2011, the
Court only looks to the duration of the exposure after this time.
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intensity prong, the medical records indicate that the Department of Health recommended only
taking baseline chest x-rays because of “this exposure being a very low exposure.” Ambulatory
Health Record of James Templeton [ECF No. 161-8 at 5]; see also Ambulatory Health Record of
David Cowden [ECF No. 161-8 at 11] (reporting that Mr. Cowden’s wife was “assured of
minimal exposure to offenders”). The plaintiffs have responded by stating that no level of
asbestos exposure is safe. However, even if this is true, it “still does not establish that any
amount of asbestos exposure, no matter how small, creates an unreasonable risk of serious
damage for purposes of an Eighth Amendment claim.” Pack, 348 F. Supp. 2d at 87. The Court
hereby finds that Officer Chaney is entitled to summary judgment because the objective prong of
the deliberate indifference test cannot be met given the short duration and low level of asbestos
exposure.
B. Exposure to Asbestos Changing Windows.
As noted earlier, Mr. Templeton claims that he and Mr. Cowden were ordered to change
out a 6” x 9” window in November 2011, approximately a month after Officers Engle and Martin
knew the window glaze contained ACM. Declaration of James Templeton [ECF No. 151] at ¶¶
34, 46. Notably, neither the Complaint nor Mr. Templeton’s declarations indicate who assigned
them this task. Because no personal participation by Officers Engle and Martin has been alleged,
this claim is not actionable under § 1983. Further, the defendants have previously declared that
elaborate safety precautions are taken in order to prevent asbestos exposure during the window
replacement process. Affidavit of Thomas Martin [ECF 52-2] at ¶¶ 8–15.4 The Court has no
reason to doubt this assertion. As these safety precautions would minimize if not eliminate
exposure to the asbestos, any claim of deliberate indifference to exposure must fail. Therefore,
4

As the Court liberally takes into account previously filed declarations of the plaintiffs in support of their
position, see supra note 1, in fairness it does the same on behalf of the defendants.
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even presuming that Officers Engle and Martin were the ones who ordered that the window be
replaced, both would be entitled to summary judgment as a matter of law.
The plaintiffs also allege that they have changed out hundreds of windows during their
time in the prison, beginning in February 2011. These allegations are not sufficient to state a
claim for relief without more, such as an allegation that at that time the defendants who gave the
assignments knew that the window glaze contained ACM and that inadequate safety precautions
were taken to prevent exposure. Any claims regarding these other assignments should have been
dismissed in the Court’s earlier March 25, 2013 Order [ECF No. 87] and are hereby dismissed.
C. Medical Care.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (citation omitted). “This conclusion does not mean, however,
that every claim by a prisoner that he has not received adequate medical treatment states a
violation of the Eighth Amendment.” Id. at 105. “The prisoner’s right is to medical care—not to
the type or scope of medical care which he personally desires.” Coppinger v. Townsend, 398
F.2d 392, 394 (10th Cir. 1968). “[A] prison doctor remains free to exercise his or her
independent professional judgment and an inmate is not entitled to any particular course of
treatment.” Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997) (cited by Callahan v.
Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006)).
The plaintiffs contend that they were denied adequate medical care following their
exposure to asbestos and that this failure constitutes a violation of the Eighth Amendment.
These claims are asserted against the Medical Defendants, Dr. Creany and Mr. Gallegos. The
plaintiffs argue that they should have been administered, at minimum, the following “modern

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diagnostic tests”: medical/mental, pulmonary, cardiovascular, respiratory, and digestive
diagnostics. First Amended Complaint [ECF No. 19] at 24, ¶¶ 3–4. The defendants, instead,
chose to administer chest x-rays after “work[ing] very closely with the Department of Health
(asbestos department) for recommendations.” Ambulatory Health Record of James Templeton
[ECF No. 161-8 at 5]. Because the exposure to asbestos was “very low,” and because it was not
an abatement project, the Department of Health recommended administering baseline chest xrays, id., which the Health Services Administrator ordered for each of the plaintiffs, Affidavit of
Dr. Timothy Creany [ECF No. 161-8] at ¶ 4. The results of these x-rays came back normal for
plaintiffs Templeton and Allen; normal except for “mild hypertension” for Mr. Gallob;5 and
mildly abnormal for Mr. Cowden. See id. On September 7, 2011 the Medical Defendants
administered a follow-up chest x-ray for Mr. Cowden and directly compared it to the earlier xray. See id. at ¶ 4(b). The defendants found that the appearance was stable with no substantial
change. See id. The defendants further noted that there were “no discreet acute infiltrates
identified,” meaning there was no clear asbestos effect on Mr. Cowden. See id.
In addition, the Medical Defendants responded quickly and adequately to Mr.
Templeton’s one follow-up medical kite submitted on September 11, 2011, see [ECF No. 60-8 at
1], scheduling him for an appointment on September 20, 2011, see Ambulatory Health Record of
James Templeton [ECF No. 161-8 at 5–6]. At this appointment, Mr. Templeton reported
shortness of breath, coughing, watery eye, and severe migraines, all of which he believed to be
attributed to the June 2011 asbestos exposure. See Ambulatory Health Record of James
Templeton [ECF No. 161-8 at 6]. The medical professional who conducted the examination
found that these symptoms were most likely attributable to allergies. Id.
5

According to Dr. Creany, mild hypertension is consistent with chronic asthma or emphysema, and is not
consistent with asbestos exposure. Affidavit of Dr. Timothy Creany [ECF No. 161-8] at ¶ 4(c).
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The Court finds that there is no genuine dispute of material fact on the face of the record
regarding the medical care the plaintiffs received in response to the asbestos exposure. On the
basis of the record, the Court holds that the Medical Defendants were not deliberately
indifference to the plaintiffs’ medical needs. If anything, they provided the plaintiffs with
adequate medical care. As such they are entitled to judgment as a matter of law.
D. Mental Health Care.
“[P]rison officials violate the Eighth Amendment’s ban on cruel and unusual punishment
if their ‘deliberate indifference to serious medical needs of prisoners constitutes the unnecessary
and wanton infliction of pain.’” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The
constitutional obligation to provide adequate medical care includes a responsibility to provide
psychological treatment. Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980). Once again, two
prongs must be met: the prisoner’s mental health needs must be objectively serious, and the
prison official must subjectively know of and disregard an excessive risk to the inmate’s health
or safety. See Rashad v. Doughty, 4 F. App’x 558, 561 (10th Cir. 2001). “[A] medical need is
sufficiently serious ‘if it is one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.’” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos, 639 F.2d at
575). A “severe mental illness” is “one that has caused significant disruption in an inmate’s
everyday life and which prevents his functioning in the general population without disturbing or
endangering others or himself.” Tillery v. Owens, 719 F. Supp. 1256, 1286 (W.D. Pa. 1989)
aff’d, 907 F.2d 418 (3d Cir. 1990).
“Delaying medical treatment can violate the Eighth Amendment if the delay itself
‘reflect[s] deliberate indifference which results in substantial harm.’” Anderson v. Colorado,

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Dep’t of Corr., 848 F. Supp. 2d 1291, 1299 (D. Colo. 2012) (quoting Olson v. Stotts, 9 F.3d
1475, 1477 (10th Cir. 1993)). Typically, courts have found that delays that violate the Eighth
Amendment “frequently involved life-threatening situations and instances in which it is apparent
that delay would exacerbate the prisoner’s medical problems.” Hunt, 199 F.3d at 1224 (citation
omitted). “A prison medical professional who serves ‘solely . . . as a gatekeeper for other
medical personnel capable of treating the condition’ may be held liable under the deliberate
indifference standard if she ‘delays or refuses to fulfill that gatekeeper role.’” Mata v. Saiz, 427
F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir.
2000)). However, “the subjective component presents a high evidentiary hurdle to the plaintiffs:
a prison official must know about and disregard a substantial risk of serious harm.” Self, 439
F.3d at 1232.
The plaintiffs claim that they were not provided adequate mental health care following
their asbestos exposure, resulting in a violation of the Eighth Amendment’s prohibition against
deliberate indifference to serious medical needs. This claim is asserted against the Mental
Health Defendants, Ms. Drennon and Ms. Sylvia. In particular, the Complaint alleges that a
number of mental health requests went unanswered. Notably, none of the plaintiffs except for
Mr. Templeton attest that they requested mental health care. The Court has no reason to believe
that typical management of asbestos exposure necessitates mental health treatment. Therefore,
the only plaintiff presenting a claim is Mr. Templeton, as he is the only one who requested but
did not receive mental health treatment.
The Court has reviewed Mr. Templeton’s repeated requests for mental health treatment
which, on their face, suggest that he continued to submit these requests because they continued
to go unanswered. See [ECF No. 60-8 at 2–3]. Of the four requests the Court could find in the

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record, one of them names Ms. Drennon and another one names Ms. Sylvia as the mental health
provider being requested. See id. The defendants contend that Ms. Drennon and Ms. Sylvia
were unaware of and not responsible for these unanswered requests, and that therefore neither
one personally participated in the alleged deprivation.
According to the submitted affidavits, Ms. Drennon is an administrative assistant for the
Sex Offender Treatment and Management Program/Mental Health Department, Affidavit of
Cheri Drennon [ECF No. 161-3] at ¶ 3, and Ms. Sylvia is a social worker responsible for
providing mental health services to offenders, Affidavit of Janis Sylvia [ECF No. 161-4] at ¶¶ 2–
3. The defendants claim that in spite of these roles neither individual had any involvement in or
knowledge of the mental health requests submitted by Mr. Templeton. Affidavit of Cheri
Drennon [ECF No. 161-3] at ¶ 8; Affidavit of Janis Sylvia [ECF No. 161-4] at ¶ 6. Given that at
least one request was addressed to each individual, the Court finds that there is a genuine dispute
of material fact regarding the awareness of and involvement in Mr. Templeton’s mental health
requests on the part of both defendants.
However, the Mental Health Defendants are still entitled to summary judgment as a
matter of law. Even presuming that they knew of and ignored Mr. Templeton’s requests, they
did not disregard an objectively serious mental health need. Mr. Templeton’s requests provide
the following information regarding his need for treatment: (1) August 12, 2011 Request: “I have
been exposed to asbestos. I am scared I might have been purposely poisoned”; (2) November 20,
2011 Request (Addressed to Ms. Drennon): “Nightmere’s [sic] about cancer. Asbestos related
fears, anxiety, panic attacks”; (3) January 3, 2012 Request: “General mental health check-up; Pcode questions; Questions concerns about my phobia”; and (4) February 21, 2012 Request
(Addressed to Ms. Sylvia): “I have sent at least ½ dozen request[s] to MH [Mental Health] to

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speak to someone about asbestos related fears/concerns.” The Court does not condone the
prison’s failure to provide a mental health evaluation, especially given how many times Mr.
Templeton requested one in a span of several months. However, Mr. Templeton’s fear and
anxiety are not sufficiently serious mental health issues for a delay in care to rise to the level of
an Eighth Amendment violation. The Mental Health Defendants are therefore entitled to
judgment as a matter of law.
E. Qualified Immunity.
Because the Court has found that all of the defendants are entitled to judgment as a matter
of law, the question as to whether the defendants are entitled to qualified immunity is moot.
ORDER
For the foregoing reasons, Defendants’ Motion for Summary Judgment [ECF No. 161] is
GRANTED. The civil action and all claims therein are dismissed with prejudice.
DATED this 23rd day of July, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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