Toliver v. Semple et al
Filing
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INITIAL REVIEW ORDER: Discovery due by 7/7/2017; Dispositive Motions due by 8/6/2017. Signed by Judge Stefan R. Underhill on 12/6/2016. (Landman, M)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SEAN TOLIVER,
Plaintiff,
v.
COMMISSIONER SEMPLE, et al.,
Defendants.
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CASE NO. 3:16-cv-1899 (SRU)
INITIAL REVIEW ORDER
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 wellestablished 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.
1
Toliver’s complaint uses the term “methphane,” which I am interpreting to mean “methane” because I do not
believe methphane is a type of gas.
2
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.
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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 that
inference.” Phelps, 308 F.3d at 185-86. An inmate may state an Eighth Amendment claim
based on allegations that prison officials, with deliberate indifference, exposed him to an unsafe
condition that poses an unreasonable risk of serious harm to his future health. Helling v.
McKinney, 509 U.S. 25, 34-35 (1993).
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A.
Osborn Correctional Institution
Toliver alleges that the conditions in Q-building at Osborn, including high PCB levels;
exposure to friable asbestos, methane gas and black and yellow mold; unsafe water; poor
building infrastructure; and fire hazards rise to the level of a constitutional violation. He alleges
that Commissioner Semple acknowledged some of these conditions but permitted inmates to
remain in Q-building. He also alleges that other defendants were aware of or created these
conditions. Toliver alleges that he suffered digestive and respiratory issues, but other inmates
contracted H-pylori from the water. Toliver need not wait until he suffers serious harm to
challenge dangerous conditions of confinement. See Helling, 509 U.S. at 33 (“We would think
that a prison inmate also could successfully complain about demonstrably unsafe drinking water
without waiting for an attack of dysentery.”). For that reason, I conclude that the alleged
conditions are sufficient to support a plausible claim for unconstitutional conditions of
confinement.
B.
Garner Correctional Institution
Toliver contends that the exposure to radon constitutes an unconstitutional condition of
confinement. Although he may state an Eighth Amendment claim for exposure to unsafe
conditions that pose an unreasonable risk of harm to future health, Helling, 509 U.S. at 34-35,
Toliver presents evidence that the defendants took immediate remedial action. Toliver has
attached to his complaint documents noting that radon testing was done at Garner in December
2013 and January 2014. Following receipt of the recommendations, the Department of
Correction contracted for mitigation work, which was completed by June 2014. See ECF No. 1
at 26-32. As the defendants acted promptly when informed of the problem, they were not
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deliberately indifferent. The claim regarding Garner is dismissed.
C.
Declaratory Relief
Toliver has sued the defendants in their individual and official capacities. He states that
he seeks damages from the defendants in their individual capacities only. ECF No. 1 at 2. The
remaining relief sought is a declaration that the defendants’ actions or omissions were
unconstitutional. ECF No. 1 at 1.
Declaratory relief serves to “settle legal rights and remove uncertainty and insecurity
from legal relationships without awaiting a violation of that right or a disturbance of the
relationship.” Colabella v. American Institute of Certified Public Accountants, 2011 WL
4532132, at *22 (E.D.N.Y. Sept. 28, 2011) (citations omitted). Declaratory relief operates
prospectively to enable parties to adjudicate claims before either side suffers great damages. See
In re Combustion Equip. Assoc., Inc., 838 F.3d 35, 37 (2d Cir. 1988).
Toliver’s request for declaratory relief concerns only past actions. He has not identified
any legal relationships or issues that require resolution by declaratory relief. Thus, the request
for declaratory relief is dismissed. See Ward v. Thomas, 207 F.3d 114, 119-20 (2d Cir. 2000)
(holding that Eleventh Amendment bars declaration that State of Connecticut violated federal
law in the past); Camofi Master LDC v. College P’ship, Inc., 452 F. Supp. 2d 462, 480 (S.D.N.Y.
2006 )(concluding that claim for declaratory relief that is duplicative of adjudicative claim
underlying action serves no purpose).
III.
Conclusion
The claim for radon exposure at Garner and the request for declaratory relief are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk is directed to terminate
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defendant Falcone, the warden at Garner, as a defendant in this case. The case will proceed on
the claim for unconstitutional conditions of confinement at Osborn against the remaining
defendants in their individual capacities.
It is hereby ordered that:
(1)
The Clerk shall verify the current work addresses for each remaining defendant
with the Department of Correction Office of Legal Affairs, mail a waiver of service of process
request packet containing the Complaint to each defendant at the confirmed address within
twenty-one (21) days of this Order, and report to the court on the status of the waiver request on
the thirty-fifth (35) day after mailing. If any defendant fails to return the waiver request, the
Clerk shall make arrangements for in-person service by the U.S. Marshals Service on him or her
and the defendant shall be required to pay the costs of such service in accordance with Federal
Rule of Civil Procedure 4(d).
(2)
The Clerk shall send written notice to the plaintiff of the status of this action,
along with a copy of this Order.
(3)
The Clerk shall send a courtesy copy of the Complaint and this Ruling and Order
to the Connecticut Attorney General and the Department of Correction Office of Legal Affairs.
(4)
The defendants shall file their response to the complaint, either an answer or
motion to dismiss, within sixty (60) days from the date the waiver forms are sent. If they choose
to file an answer, they shall admit or deny the allegations and respond to the cognizable claim
recited above. They also may include any and all additional defenses permitted by the Federal
Rules.
(5)
Discovery, pursuant to Federal Rules of Civil Procedure 26 through 37, shall be
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completed within seven months (210 days) from the date of this order. Discovery requests need
not be filed with the court.
(6)
All motions for summary judgment shall be filed within eight months (240 days)
from the date of this order.
(7)
Pursuant to Local Civil Rule 7(a), a nonmoving party must respond to a
dispositive motion within twenty-one (21) days of the date the motion was filed. If no response
is filed, or the response is not timely, the dispositive motion can be granted absent objection.
(8)
If the plaintiff changes his address at any time during the litigation of this case,
Local Court Rule 83.1(c)2 provides that the plaintiff MUST notify the court. Failure to do so
can result in the dismissal of the case. The plaintiff must give notice of a new address even if he
is, or becomes, incarcerated. The plaintiff should write PLEASE NOTE MY NEW ADDRESS
on the notice. It is not enough to just put the new address on a letter without indicating that it is
a new address. If the plaintiff has more than one pending case, he should indicate all of the case
numbers in the notification of change of address. The plaintiff should also notify the defendant
or the attorney for the defendant of his new address.
SO ORDERED this 6th day of December 2016 at Bridgeport, Connecticut.
/s/STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
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