Barney v. Semple et al

Filing 7

INITIAL REVIEW ORDER Discovery due by 12/30/2017 Dispositive Motions due by 1/29/2018 Signed by Judge Alvin W. Thompson on 5/31/2017.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JEREMY LOUIS BARNEY,
Plaintiff,
v.
COMMISSIONER SEMPLE, et al.,
Defendants.

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: Civil No. 3:17-cv-685 (AWT)
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INITIAL REVIEW ORDER
The plaintiff, Jeremy Louis Barney, who is currently
incarcerated at Osborn Correctional Institution in Somers,
Connecticut, has filed a complaint pro se, pursuant to 42 U.S.C.
§ 1983.

The plaintiff names as defendants Commissioners Semple

and Arnone, Deputy Commissioners Cepelak and Dzurenda, Wardens
Maldonado and Chapdelaine, Fire Safety Officer Gero, Plant
Facility Engineer Kevin Roy, Director Steven Link, Rich Hardy,
Ward, Mario Costa, Correctional Officers Dinino and Jordan, GMOs
Goodwin, Trap, Martin, Sullivan, Bassette and Bell, Governor
Dannel Malloy, Analyst Rebecca Cutler, DEEP Commissioner Daniel
Esty and President Collin Provost.

The plaintiff alleges that

the defendants have caused him to be subjected to

unconstitutional conditions of confinement.
received by the court on April 25, 2017.

The complaint was

The plaintiff’s motion

to proceed in forma pauperis was denied on May 5, 2017, and he
tendered the filing fee on May 22, 2017.
Under section 1915A of title 28 of the United States Code,
the court 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.

Id.

In reviewing a pro se complaint, the court must

assume the truth of the allegations, and interpret them
liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

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.
U.S. 544, 555-56 (2007).
sufficient.

Bell Atlantic v. Twombly, 550

Conclusory allegations are not

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.

“‘A

document filed pro se is to be liberally construed and a pro se
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complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’”
Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
I.

Factual Allegations
The plaintiff was housed in the Q-building at Osborn

Correctional Institution from November 2011 until September 7,
2016.

During that time, he was exposed to friable asbestos,

methane gas, black and yellow mold, lead paint, and high levels
of polychlorinated biphenyl (“PCB”).

The drinking water

contained PCBs, tin or lead, black sludge, asbestos and other
contaminants.

There were no sprinklers in these housing units

and the cell doors could not be automatically unlocked.
Ventilation was poor.
On December 7 and 11, 2016, defendants Dinino and Jordan
appeared on the NBC news program and stated that the Q-building
was closing because of unsafe conditions including the presence
of PCBs and asbestos. They showed copies of test results
documenting these conditions.

On December 8, 2016, a newspaper

reported that the governor was closing Q-building because of a
reduction in crime. In the same article, the president of the
Department of Correction employee union stated that the union
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had raised concerns about the conditions in the Q-building
housing units for years.

Testing, revealing unsafe levels of

hazardous materials, has been conducted in and around the Q
buildings since 2011.
The plaintiff 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 2012,

the Department of Energy and Environmental Protection reported
that a company had been retained to test interior and exterior
caulk for PCBs. Defendants Cepelak, Dzurenda, Chapdelaine, Link
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, Costa, Sullivan,
Martin, Bassette and Bell drilled holes in sewage pipes to
facilitate clog removal.

The holes, which were in violation of

code requirements, released methane gas into the housing units
all day.

Maintenance workers also installed tarps under

skylights in Q-building to catch falling glass and leaking
water.

Defendant Fire Safety Officer Gero failed to report the
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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.

The

plaintiff describes the drinking water as cloudy and brown with
a “funny” smell and bad taste.

He alleges that two inmates

contracted H-pylori from the water in 2016, and another inmate
was rushed to the hospital where PCBs were found in his liver.
Defendants Maldonado and Hardy were aware of the conditions but
continued to house inmates in Q-building.
II.

Analysis
The plaintiff contends that the defendants were aware of

the hazardous conditions but caused him to be exposed to those
conditions for five years.

He seeks damages as well as

declaratory and injunctive relief.

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
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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. 2001) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (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, 32 (1993)).

Thus, the “objective

component relates to the seriousness of the injury.”
v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994).

Davidson

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.”

Id. 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.
U.S. 23, 34-35 (1993).
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Helling v. McKinney, 509

The plaintiff 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.

Although the

plaintiff does not allege that he suffered any harm from
exposure to these conditions, he alleges that other inmates
contracted H-pylori from the water and suffered a harmful effect
with respect to their kidneys and liver.

The plaintiff 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.”).

The court concludes that

the alleged conditions are sufficient to support a plausible
claim for unconstitutional conditions of confinement.
III. Conclusion
The court enters the following orders:
(1)

As the plaintiff paid the filing fee to commence this
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action, he is directed to effect service of the complaint on the
defendants in their individual and official capacities pursuant
to Federal Rule of Civil Procedure 4, and to file returns of
service demonstrating that he has complied with this order.
(2)

The Clerk shall send a courtesy copy of the Complaint

and this order to the Connecticut Attorney General and the
Department of Correction Office of Legal Affairs.
(3)

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.
do so can result in the dismissal of the case.

Failure to

The plaintiff

must give notice of a new address even if he is 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.
(4)

The plaintiff shall utilize the Prisoner Efiling

Program when filing any document with the court.

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It is so ordered.
Signed this 31st day of May 2017 at Hartford, Connecticut.

/s/AWT
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Alvin W. Thompson
United States District Judge

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