Brown v. Crews et al

Filing 151

ORDER granting 114 Defendants' Motion for Summary Judgment. The Clerk of the Court is directed to enter Judgment in accordance with this Order and close the file. Signed by Judge Marcia Morales Howard on 3/25/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

JOHN BROWN,
Plaintiff,
Case No. 3:13-cv-36-J-34PDB
vs.
BRYAN RIEDL, Warden of Reception
and Medical Center, in his individual and
official capacities, et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendants’ Motion for Summary Judgment
(Doc. 114; Motion), filed on March 19, 2015. In the Motion, Defendants move for entry of
summary judgment on all claims pursuant to Rule 56, Federal Rules of Civil Procedure
(Rule(s)). See Motion at 1, 25. Following a temporary stay of this case, Plaintiff John
Brown (Brown) filed a response in opposition to the Motion on August 17, 2015. See
Plaintiff’s Response to Defendant’s Motion for Summary Judgment (Doc. 138; Response);
see also Order (Doc. 117) (staying case); Order (Doc. 132) (lifting stay). Accordingly, this
matter is ripe for review.
I.

Procedural History
Brown initiated this action on January 11, 2013, by filing a two-count Complaint

(Doc. 1) against Defendant Michael Crews, Secretary of the Florida Department of
Corrections, in his official capacity (Crews), Kenneth S. Tucker, former Secretary of the
Florida Department of Corrections, in his individual capacity (Tucker), Bryan Riedl, Warden

of Reception and Medical Center, in his individual and official capacities (Riedl), Ellen Link,
Assistant Warden of Reception and Medical Center (Link), Sergeant Christopher Hancock
(Hancock), Colonel Archie W. Clemons (Clemons), and Officer Hartley (Hartley). See
generally Complaint.
On April 4, 2014, Brown filed an Amended Complaint (Doc. 72) which dropped
Tucker as a party to this action. See Amended Complaint at 1-2. In the Amended
Complaint, Brown asserts a claim for violation of his Eighth and Fourteenth Amendment
rights, pursuant to 42 U.S.C. § 1983, against Riedl, Link, Hancock, Clemons, and Hartley.
Id. at 8. Specifically, Brown alleges that these Defendants “through deliberate indifference,
caused the Plaintiff to be exposed to high levels of friable asbestos and toxic chemicals,
which posed an unreasonable risk of serious damage to the Plaintiff’s health now and in
the future.” Id. ¶ 59. In Count II of the Amended Complaint, Brown brings an additional §
1983 claim premised on supervisory liability against Crews and Riedl. Id. at 9-12. Brown
alleges that Riedl and Crews condoned customs at the Reception and Medical Center and
throughout the Florida Department of Corrections, involving: (1) the use of “seriously ill
inmates” to work on “hazardous projects,” and (2) the use of inmates to remove “asbestoscontaining materials” from prison structures, and perform construction labor without
protective equipment, proper tools, and with “inappropriate chemicals.” Id. ¶¶ 63-68.
Brown demands compensatory and punitive damages, injunctive and declaratory relief, as
well as attorney’s fees and costs. Id. at 8, 10-11.
On February 20, 2015, the Court entered an Order (Doc. 108) granting Defendants’
Motion to Dismiss Plaintiff’s Claims for Compensatory and Punitive Damages, and Motion
to Dismiss Defendant Crews from this Action (Doc. 76). In that Order, the Court dismissed

2 

Brown’s claim against Crews, and as such, Crews is no longer a party to this action. See
Order at 14. In addition, the Court found that the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(3), precludes Brown from recovering compensatory or punitive damages
based on the allegations contained in the Amended Complaint. Id. at 8-11. Thus, the
Court dismissed Brown’s claims for such relief as to both Counts. Id. at 14. Accordingly,
this case proceeds solely as to Brown’s claims for declaratory and injunctive relief.
In the instant Motion, Defendants request the entry of summary judgment in their
favor as to all remaining claims. See generally Motion. Following the filing of the Motion,
Brown discharged his attorney. See Motion to Withdraw and for Stay (Doc. 115), filed
March 19, 2015; Order (Doc. 117). The Court then stayed the case for ninety days to allow
Brown “to prepare himself for litigation or obtain new counsel.” See Order (Doc. 117) at 2;
Order (Doc. 120). Upon expiration of the ninety days, the Court lifted the stay, see Order
(Doc. 132), and Brown, proceeding pro se, filed his Response to the Motion. Brown has
also submitted requests for the appointment of counsel, as well as for leave to amend the
Amended Complaint, however, the Magistrate Judge denied these requests. See Order
(Doc. 131) (denying motion for appointment of counsel); Order (Doc. 148) (denying motion
to amend complaint); Order (Doc. 150) (denying second motion to appoint counsel).
II.

Standard of Review
Under Rule 56, “[t]he court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Rule 56(a). The record to be considered on a motion for summary
judgment may include “depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion only),

3 

admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).1 An issue is
genuine when the evidence is such that a reasonable jury could return a verdict in favor of
the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)
(quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]
mere scintilla of evidence in support of the non-moving party’s position is insufficient to
defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington,
381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986)).
The party seeking summary judgment bears the initial burden of demonstrating to
the court, by reference to the record, that there are no genuine issues of material fact to be
determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
“When a moving party has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.
1995) (internal citations and quotation marks omitted). Substantive law determines the
materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson,

1

Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding summary-judgment
motions.” Rule 56 advisory committee’s note 2010 Amendments.
The standard for granting summary judgment remains unchanged. The language of
subdivision (a) continues to require that there be no genuine dispute as to any material fact
and that the movant be entitled to judgment as a matter of law. The amendments will not
affect continuing development of the decisional law construing and applying these phrases.
Id. Thus, case law construing the former Rule 56 standard of review remains viable and is applicable here.

4 

477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must
view all evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing
Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.
1994)).
III.

Background2
The events at issue in this lawsuit took place at the Reception and Medical Center

(RMC), a correctional institution administered by the Florida Department of Corrections
(DOC) in Lake Butler, Florida.

See Amended Complaint ¶ 10; Defendants’ Answer,

Defenses, and Demand for a Jury Trial (Doc. 112; Answer) ¶ 10. “The RMC is designated
to receive and process new inmates,” as well as to provide primary medical care to ill and
disabled inmates. See Amended Complaint ¶ 11; Answer ¶ 11. Due to health problems
with his kidneys, Brown has been housed at the RMC since 2005. See Motion, Ex. 1:
Deposition of John Brown (Doc. 114-1; Brown Dep.) at 8. Bryan Riedl served as the
warden at the RMC from September of 2009, until May of 2013. See Motion, Ex. S:
Deposition of Brian Riedl (Doc. 114-19; Riedl Dep.) at 4-5.
At some point prior to June 24, 2009, the previous warden at the RMC noticed that
the floor tiles in the F dormitory (F-Dorm) were loose and instructed Archie Clemons, a
correctional officer colonel, to have the tile removed. See Motion, Ex. B: Deposition of
Archie Clemons (Doc. 114-2; Clemons Dep.) at 5, 24-25. According to Clemons, the loose
tiles posed a health and safety hazard in that someone could trip on a loose tile, or

2

As discussed above, because this case is before the Court on Defendants’ motion for summary judgment,
the facts recited herein and all reasonable inferences therefrom have been viewed in a light most favorable
to Brown. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

5 

potentially use a tile as a weapon. Id. at 25-26. As such, Clemons instructed Hartley, the
dorm officer, to generate a work force to remove the tile. Id. at 25-27; see also Motion, Ex.
C: Deposition of Anita Hartley (Doc. 114-3; Hartley Dep.) at 8, 12-13. Hartley then asked
an inmate, Willie Jones, to put together a crew of inmates who could help with the tile
removal project, and at Jones’ request, Brown joined the crew. See Hartley Dep. at 16;
see also Brown Dep. at 25-26.
On June 24, 2009, Brown and the work crew began removing the tile flooring from
the back half of the F-Dorm. See Brown Dep. at 22, 44-46. Hartley was the sole supervisor
of the work crew during the tile removal project. Id. at 26. On each day of the project,
Brown worked from approximately 9:00 a.m. to 11:00 a.m., and 1:00 p.m. to 4:00 p.m.
removing tile from the floor of the dorm.3 See Brown Dep. at 23-25, 29. According to
Brown, the work crew used shovels, spades, and chisels to lift the tiles, as well as
chemicals, such as bleach, oven cleaner, Comet, and “diamond sand off the rec yard,” to
remove the glue. Id. at 16-17, 21.4 The work crew also used a water hose to “hose[] down
a lot of the stuff,” and a floor buffer. See id. at 15, 21; Hartley Dep. at 20. Although the
inmates were not given any protective gear on the first day of the removal project, Brown
is unaware of anyone expressing concern over the lack of protective equipment. See
Brown Dep. at 26-27. On the second day, Hartley gave the inmates clear plastic gloves to
use. Id. at 30.

3

Brown received dialysis from approximately 11:00 a.m. to 2:00 or 3:00 p.m. on Mondays, Wednesdays, and
Fridays. See Brown Dep. at 56-57. As such, Brown would have missed some of the work hours when he
was receiving dialysis. Id.
4

According to Hartley, the work crew used only water, bleach and floor stripper to remove the tile and glue.
See Hartley Dep. at 22. Hartley denies that oven cleaner was used. Id. However, for purposes of the instant
Motion, the Court accepts Brown’s testimony that the inmates used oven cleaner and other chemicals during
the tile removal project.

6 

In removing the tile, the work crew tried “to get up under the tile because they were
trying to save every tile . . . keep them from getting busted up.” Id. at 17. However, some
of the tile would break during the removal process. Id. at 17, 22. Under the tile was a type
of glue, called mastic, that the inmates also removed from the concrete floor using the
same tools. Id. at 17-18. After removing the tile and mastic, the inmates ran a buffer over
the concrete floor and used “chemicals” to clean it up “as best [they] can.” Id. at 19. The
work crew completed this portion of the tile removal project on approximately June 29,
2009. See Amended Complaint ¶ 22; Answer ¶ 22; see Brown Dep. at 36-37.5 Because
the work crew did not work on weekends, see Brown Dep. at 36, it appears that this portion
of the project took approximately four work-days.
In late October of 2009, Brown and others commenced the tile removal project on
the front half of the F-Dorm. See Brown Dep. at 42-45. The inmates worked the same
hours as in June, and this phase of the project lasted approximately two or three days.
See id. at 43, 45-46, 49.6 Once again, according to Brown, plastic gloves were the only
protective equipment provided to the work crew. Id. at 44. On Thursday, October 22,
2009, Hancock, who was the environmental health and safety officer at the time, observed
the work site and ordered a work stoppage because the inmates were not wearing the

5

Although the Amended Complaint identifies the last day of the project as June 28, 2009, see Amended
Complaint ¶ 22, Brown explains that the work crew did not work on weekends, such that the date should
actually be the next work day, see Brown Dep. at 36-37. Because June 28, 2009, was a Sunday, the Court
infers that the project ended on June 29, 2009.
6
The F-Dorm has small “slat windows that roll in and out” all the way around the building which, according
to Hartley, were open during the project. See Hartley Dep. at 26-27. In addition, the F-Dorm has four big
wall fans on each side used to circulate air, as well as exhaust fans in the ceiling. Id. at 25-26. Hartley recalls
that the exhaust fans “were on all the time during the day.” Id. at 26. Nonetheless, based on his “personal
knowledge,” Brown contends that only two of the eight fans in the F-Dorm were operational at the time, and
at one point during the project, the windows were closed because of a cold-spell. See Brown Dep. at 71-72.

7 

necessary personal protection equipment, such as boots and glasses. See Motion, Ex. D:
Deposition of Christopher S. Hancock (Doc. 114-4; Hancock Dep.) at 11, 24-26, 47.
Hancock does not remember specifically what he said to Hartley, only that he told her to
stop because the inmates were not wearing proper shoes or safety glasses. Id. at 26.
Hancock recalls that he may have “mentioned something about the tile, that the facility
being older, might have asbestos.” Id. According to Hancock, he was only speculating as
to the possibility of asbestos, “a shot in the dark,” in an attempt to overemphasize the
importance of getting the work crew the protective gear they needed.7 Id. at 34-35.
However, Hancock was only at the site for “a minute or two” because soon after his arrival
he was called away to help with an officer having an asthma attack. See Hancock Dep. at
26-27. While he was waiting to go to the hospital with that officer, Hancock told Riedl about
the situation in the F-Dorm, and that he had instructed them to stop working, but may or
may not have said anything about the potential asbestos issue. Id. at 31-34.
According to Clemons, Hartley informed him of the work stoppage, and he instructed
her to get the protective gear the inmates needed, i.e., boots, masks, gloves, and put the
crew back to work. See Clemons Dep. at 30-31. Clemons testifies that Hartley did not
express to him any concern regarding asbestos, and Clemons did not speak with Hancock
or Riedl about the issue. Id. at 31-33. Pursuant to Clemons’ order, Hartley resumed the
work on the project two or three hours after the stoppage.8 See Hartley Dep. at 18. Hartley
recalls that the inmates finished the project that same day. Id. at 20. However, Brown
7

Hartley states that Hancock did not tell her why he ordered the work stoppage and she first learned of the
potential concern with asbestos only later “[w]hen the project was stopped and the inmates were moved out
of the dorm.” See Hartley Dep. at 17-18, 23-24.

8

The evidence of record does not indicate whether Hartley provided the inmates with protective gear at that
point. See Brown Dep. at 48-49; Hartley Dep. at 18-20.

8 

testifies that they continued working the following day until Hancock returned, stopped the
project again, and evacuated the building. See Brown Dep. at 48-49. According to Brown,
the work crew never completed the project on the second half of the F-Dorm. Id. at 45.
Hancock does not remember returning to the work site on Friday, but instead testifies that
he visited the work site on Monday, October 26, 2009, and discovered that the work crew
had completed the tile removal project. See Hancock Dep. at 34, 46.
Upon discovering that the project had been completed, Hancock sent an email to
Riedl regarding the health and safety hazards he had observed, including the presence of
asbestos in the tile and mastic. See Hancock Dep. at 36-37, 42; see also Amended
Complaint, Ex. A. At that time, rather than mere speculation, Hancock actually had a “pretty
good” guess that the tile and mastic contained asbestos because, just prior to emailing
Riedl, Hancock learned that asbestos had previously been found in the C dormitory (CDorm). See Hancock Dep. at 43-45. Specifically, on Monday morning, Glenn Williams,
the maintenance supervisor, gave Hancock test results dated March 21, 2008, which
showed the presence of asbestos in the mastic adhering the tile to the floor in the C-Dorm.
See id. at 44; Motion, Ex. P. Based on those tests results, Hancock “had a good indication
that, [since] the dormitories been built at roughly the same time, if it was in C dorm, it
probably was in F dorm at that time.”

See Hancock Dep. at 45.

On Tuesday or

Wednesday, Hancock called Riedl about the issue, and Riedl instructed him to consult with
the Region II safety coordinator, who told him to contact the Department of Environmental
Protection (DEP), and the Region II medical administrator. See id. at 49-50; Riedl Dep. at
17. Those authorities “gave the advice that [the RMC] have the area tested” and that they
“immediately remove the inmates from the . . . dormitory.” See Riedl Dep. at 18; see also

9 

Hancock Dep. at 50-51; Motion, Ex. E. Accordingly, Riedl promptly ordered the inmates
removed from the F-Dorm, see Riedl Dep. at 35-36, and the inmates were evacuated that
same day. See Hancock Dep. at 49, 59; Motion, Ex. O.
On October 29, 2009, after the inmates were evacuated, Mihir Environics, Inc. came
to the RMC to perform asbestos testing. See Hancock Dep. at 54, 59; see Motion, Exs. GH. Mihir Environics tested air samples in all four dorms, as well as tile and mastic from the
F-Dorm. See Motion, Exs. G-H. On November 1, 2009, John DeLoach of Mihir Environics
reported that all of the collected air samples, in each dorm, “were determined to be less
than 0.01 fibers per cubic centimeter of air (f/cc) at the time the air was sampled.” See
Motion, Ex. G. Based on these results, Mihir Environics found that: “All air samples results
were reported as below detection limit and did not suggest asbestos exposure at this time.”
See id., Ex. I, Ex. F: Deposition of John DeLoach (Doc. 114-6; DeLoach Dep.) at 14.9 In
addition, Mihir Environics found that the floor tile and floor mastic in the F-Dorm tested
positive for asbestos. See Motion, Ex. H at 1. The laboratory analysis report found that
the tile and mastic contained between four and seven percent asbestos fibers. Id., Ex. H
at 2. Pursuant to these findings, Ajay Thakkar of Mihir Environics advised that the “[d]orms
can be reoccupied after installation of new floor tile over the existing floor with asbestos
containing mastic or existing floor tile.” Id., Ex. L. Thakkar further recommended that
“[d]uring installation of the new flooring do not sand the floor with existing asbestos
containing mastic or do not damage the existing asbestos containing floor tile.”

Id.

Pursuant to this recommendation, with which the DEP agreed, the RMC “eventually

9

Brown appears to challenge the validity of these findings given that the windows were open and fans
operating in the days leading up to the test. See Brown Dep. at 75.

10 

encapsulated the actual flooring, the leftover mastic and the concrete,” by putting “new tile
over the concrete and mastic.” See Hancock Dep. at 59, 67-68; see also Motion, Ex. O.
After the tile removal project, several inmates, including Brown, filed grievances
regarding their exposure to asbestos. See Brown Dep. at 77. Although Hancock initially
responded to a few of these grievances, he was advised that a different office would handle
the matter, see Hancock Dep. at 60, and Link, the assistant warden of programs,
addressed the grievances. See Riedl Dep. at 31. However, the RMC waited to respond
to the grievances with an approved standard response, issued by the DOC’s central office
of safety, and as such, the grievances were not answered within the required ten-day time
frame. Id. at 40-43; see also Brown Dep. at 77-78; Amended Complaint, Ex. B. A month
or two after the tile removal project, the inmates who were exposed to asbestos received
chest x-rays. See Brown Dep. at 41-42, 51-52; Hancock Dep. at 63. Brown’s chest x-ray
revealed a spot on his lung which was diagnosed as cancer. See Brown Dep. at 41-42,
52. Brown had lung surgery in 2011 related to the cancer and half of his left lung was
removed. Id. at 80. At the time of his deposition, Brown believed himself to be cancerfree. Id. at 81.
On August 28, 2014, at Defendants’ request, Michael K. Varner, a licensed asbestos
consultant with Southern Earth Sciences, Inc., prepared a report concerning Brown’s
exposure to asbestos. See Motion, Ex. R (Doc. 114-18; Varner Report). Varner opines
that “[t]here is a dose/response relationship between exposure [to asbestos] and an
asbestos related disease,” and as such, “most asbestos related diseases occur in workers
. . . who have worked with raw or manufactured asbestos with high exposures and little or
no protection for extended periods.” Id. at 3. Accordingly, Varner explains that “it is less

11 

likely that exposure to asbestos for a period of six (6) days, as stated in the [A]mended
[C]omplaint, will result in the development of an asbestos related ailment.” Id. Varner
concludes that “the exposure to asbestos by [Brown] was low and there is a low probability
of [Brown] developing an asbestos related disease.”

Id. at 4.

Varner reaches this

conclusion based on the following factors: (1) “[w]et methods were used during removal of
floor tile and mastic,” which inhibited the asbestos fibers from becoming airborne; (2) the
floor tile and mastic were easy to remove, with little or no breakage, also inhibiting asbestos
fibers from becoming airborne; (3) the floor tile and mastic were “non-friable” materials,
“bound in a matrix of vinyl or tar making release of the fibers to the air difficult,” (4) air was
circulated during the removal operation and the time frame was limited, and (5) limited
personal protective equipment was used by workers during removal operations. Id. at 34. Varner also opines that asbestos-related diseases do not develop immediately after
exposure, and that the latency period for lung cancer is ten to thirty years. Id. at 3.
IV.

Discussion
A.

Deliberate Indifference

“[S]ection 1983 provides individuals with a federal remedy for the deprivation of
rights, privileges, or immunities protected by the Constitution or the laws of the United
States that are committed under color of state law.” Brown v. City of Huntsville, Ala., 608
F.3d 724, 733 n.12 (11th Cir. 2010) (citation omitted); see 42 U.S.C. § 1983. Thus, to state
a claim for relief under § 1983, a plaintiff must sufficiently allege that he or she was
“deprived of a right secured by the Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state law.” See Focus on the Family v.
Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003) (quotation

12 

omitted). Here, Brown alleges that Defendants violated his Eighth Amendment rights by
subjecting him to cruel and unusual punishment in the form of exposure to asbestos and
toxic chemicals. See Amended Complaint ¶¶ 57-59.
A prisoner’s medical treatment and conditions of confinement are subject to scrutiny
under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). Indeed, the
Eighth Amendment’s prohibition against cruel and unusual punishment requires that
prisoners be provided “humane conditions of confinement,” including adequate food,
shelter, clothing, and medical care. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001)
(citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). It further imposes a duty upon prison
officials to “take reasonable measures to guarantee the safety of inmates.” Farmer, 511
U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). Thus, an inmate
may maintain a cause of action under the Eighth Amendment challenging the conditions of
his confinement. Evans v. St. Lucie Cnty. Jail, 448 F. App’x 971, 973 (11th Cir. 2011).
To establish such a claim, a prisoner must show that the challenged condition is
“extreme,” generally involving “the wanton and unnecessary infliction of pain,” or that the
condition poses “‘an unreasonable risk of serious damage to his future health’ or safety.”
Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (internal citations omitted). This
showing involves both an objective and a subjective component, that is: “an objective
showing of a deprivation or injury that is ‘sufficiently serious’ to constitute a denial of the
‘minimal civilized measure of life’s necessities’ and a subjective showing that the official
had a ‘sufficiently culpable state of mind.’” Thomas v. Bryant, 614 F.3d 1288, 1304 (11th
Cir. 2010) (quoting Farmer, 511 U.S. at 834). As to the official’s state of mind, the relevant
standard is “deliberate indifference.” Helling, 509 U.S. at 32. The Eleventh Circuit has

13 

explained that “‘deliberate indifference has three components: (1) subjective knowledge of
a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere
negligence.’” Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (quoting McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). In addition to these requirements, a plaintiff
must also allege causation. See Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir.
2007) (“[A]s with any tort claim, [the plaintiff] must show that the injury was caused by the
defendant’s wrongful conduct.”).10
In accordance with the foregoing, the Court first considers the objective component
of Brown’s claim, specifically, whether the circumstances of the tile removal project
exposed Brown to “an unreasonable risk of serious damage to his future health or safety.”
See Moore v. Faurquire, 595 F. App’x 968, 973 (11th Cir. 2014). This factor includes both
“a scientific and statistical inquiry into the seriousness of the potential harm and the
likelihood that such injury to health will actually be caused by exposure” to asbestos and
chemicals, and an assessment of “whether society considers the risk that the prisoner
complains of to be so grave that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.” See Helling, 509 U.S. at 36. Here, the evidence shows

10

A plaintiff may also establish an Eighth Amendment violation based on a prison official’s deliberate
indifference to a prisoner’s serious medical need. See Evans, 448 F. App’x at 973-74. “[A] serious medical
need is considered 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.” Farrow, 320
F.3d at 1243 (internal quotation omitted). Notably, in Powell v. Lennon, the Eleventh Circuit found that, where
an inmate was forced to live in a dormitory atmosphere filled with friable asbestos, his demand to be placed
in an asbestos-free environment was a serious medical need, and ignoring this request was deliberate
indifference. See Powell, 914 F.2d 1459, 1462, 1464 & n.10 (11th Cir. 1990). Thereafter, the Supreme Court
decided Helling, and thus, more recent cases analyze a prisoner’s exposure to environmental toxins using
the conditions of confinement framework discussed in that decision. See Helling, 909 U.S. at 31-35; see
also, e.g., Harris v. Donald, 266 F. App’x 804, 808 (11th Cir. 2008); Moore v. Faurquire, 595 F. App’x 968,
972-73 (11th Cir. 2014). As such, the Court finds it appropriate to apply that analysis to this case as well.
Regardless, whether one characterizes Brown’s claim as “inhuman conditions of confinement, failure to
attend to his medical needs, or a combination of both,” the deliberate indifference standard applies and the
outcome of this case is the same. See Helling, 909 U.S. at 32.

14 

that for a period of approximately seven days, for no more than five hours a day, Brown
worked to remove floor tile and mastic that contained non-friable asbestos fibers. See
supra pp. 6-7; see also Varner Report at 2-3. In addition, for purposes of the instant Motion,
the Court accepts Brown’s testimony that he used various chemicals, including oven
cleaner, to remove the floor tiles and mastic. See Brown Dep. at 21. The work crew also
used water, bleach, and floor stripper to loosen the tiles and endeavored to remove the
tiles without breaking them, although some tiles did break. Id. at 16-17, 21, 70. Aside from
plastic gloves, Brown did not wear any protective gear during this project. Id. at 30, 33, 44.
In addition, viewing the evidence in the light most favorable to Brown, the Court accepts
that, for at least a portion of the project, the windows in the F-Dorm were closed and some
of the fans were not operating. Id. at 71-72. However, while this evidence demonstrates
that Brown was exposed, without protection, to asbestos and chemicals, it does not
address whether this exposure poses a grave risk to his future health. See Harris v.
Donald, 266 F. App’x 804, 808 (11th Cir. 2008). Indeed, the record contains no evidence
from which a reasonable juror could conclude that Brown’s limited exposure to asbestos
and chemicals, under the circumstances of this case, constitutes an unreasonable risk of
serious damage to his future health. See Moore, 595 F. App’x at 973.
Moreover, Defendants submit evidence that, at least with respect to his exposure to
asbestos, the probability of Brown developing a related disease is low. See Varner Report
at 4. According to Varner, the likelihood that an individual will develop an asbestos-related
disease increases based on the extent of his or her exposure to asbestos, such that the
lower the exposure, the less likely an asbestos-related ailment will result. See id. at 3, 4.
As stated above, Brown was exposed to asbestos for a very limited period of time.

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Moreover, the circumstances of the tile removal project are such that, despite the presence
of asbestos in the tile and mastic, Brown’s actual exposure to asbestos was itself low. Id.
at 3-4. Specifically, aside from incidental breakage, the tile was removed intact, using wet
techniques, factors which assist in preventing asbestos fibers from becoming airborne.
See Brown Dep. at 16-17, 21; Varner Report at 3. In addition, the work took place in a
facility with the windows open, at least part of the time, and two fans operating, which also
assisted in circulating air and lowering the exposure to the workers. See Brown Dep. at
71-72; Varner Report at 3. Moreover, the floor tile and mastic were “non-friable” materials,
meaning they cannot be “pulverized, crumbled or reduced to powder by hand pressure,”
decreasing the likelihood of air-borne asbestos exposure. See Varner Report at 2-3.
Indeed, the asbestos fibers were bound within the tar and vinyl making release into the air
difficult. See id. at 3. As such, the evidence before the Court indicates that, under the
circumstances, Brown’s actual exposure to asbestos was limited and did not significantly
endanger his health.11 Id. at 4. In the Response, Brown fails to point to any evidence that
the tile removal project exposed him to levels of asbestos or chemicals that pose an
unreasonable risk of serious damage to his health. Thus, the Court finds that Brown has
failed to create a genuine issue of material fact as to whether his claim satisfies the
objective component of his Eighth Amendment claim. See Helling, 509 U.S. at 35-36;

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The Court notes that Brown offers no evidence that the chemical or asbestos exposure caused any health
problems for him. See Moore, 595 F. App’x at 973 & n.6 (“While causation is a separate element of [plaintiff’s]
deliberate indifference claim, the issue of whether his exposure to paint stripper likely could cause health
problems also comes into play as to the objective component of his claim.” (internal citation omitted)); Kelley
v. Hicks, 400 F.3d 1282, 1285 (11th Cir. 2005). Although Brown testified that a chest x-ray conducted “a
month or two later” revealed the presence of a cancerous spot on his lung, see Brown Dep. at 41-42, 51-52,
there is no evidence in the record linking Brown’s lung cancer to the exposure. Moreover, the only expert
testimony of record indicates that “[d]evelopment of an asbestos related disease does not occur immediately
after exposure,” and that “in general, the latency periods for lung cancer is 10 to 30 years . . . .” See Varner
Report at 3. In light of this evidence, it appears unlikely that Brown’s lung cancer, detected within months of
the exposure, was causally related to the asbestos.

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Moore, 595 F. App’x at 973 (finding prisoner’s Eighth Amendment rights were not violated
in the absence of any evidence that applying a paint stripper with only a face shield for one
week caused a substantial risk of serious harm to his health or safety); Harris, 266 F. App’x
at 807-08 (affirming summary judgment for defendants where record contained no
evidence that prisoner was subjected to prolonged exposure to dangerous levels of
asbestos and medical expert opined that given limited exposure, prisoner’s likelihood of
developing an asbestos-related disease was less than one percent); see also Morefield v.
Brewton, 442 F. App’x 425, 427 (11th Cir. 2011) (affirming summary judgment for
defendants where prisoner “has not shown that he was exposed to sufficiently ‘grave’ levels
of [environmental tobacco smoke] to constitute a violation of the Eighth Amendment”);
Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005) (same).
In addition, even if Brown could satisfy the objective component, he would fail on
the subjective component of the analysis because he has not identified a genuine issue of
material fact as to whether any Defendant was deliberately indifferent to the risk of harm.
The record contains no evidence that prior to the start of the tile removal project any
Defendant was aware of the presence of asbestos in the F-Dorm. Hancock first identified
the potential issue with asbestos on October 22, 2009, but rather than disregard the risk,
he immediately instructed Hartley to suspend the project. See Hancock Dep. at 26, 34-35.
Although Clemons ordered the work to resume, he was unaware of the asbestos risk. See
Clemons Dep. at 31. With respect to Hartley, Hancock may or may not have mentioned
the possibility of asbestos to her, see Hancock Dep. at 26, 34-35, but she denies any
knowledge of a concern with asbestos, see Hartley Dep. at 23-24. Regardless, even if
Hancock did mention that asbestos may be present in the F-Dorm, there is no evidence to

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suggest that Hartley subjectively understood from Hancock’s “shot in the dark” speculation
that continuing the tile removal project actually presented a serious risk of harm to the
inmates. See Farmer, 511 U.S. at 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.”). Likewise, while Hancock
may or may not have mentioned his concern with potential asbestos exposure to Riedl that
day, see Hancock Dep. at 33-34, he told Riedl that he had suspended the project and there
is no evidence that Riedl knew that the inmates had resumed working. See Hancock Dep.
at 31, 34.
Significantly, although asbestos had previously been detected in the C-Dorm, the
test was performed on March 19, 2008, see Motion, Ex. P, over a year before Riedl became
the warden, see Riedl Dep. at 4-5, and there is no evidence that Riedl or any of the other
Defendants knew of that test. See Clemons Dep. at 36. Hancock did not learn of the CDorm test until October 26, 2009, and he immediately informed Riedl. See Hancock Dep.
at 43-44, 46. At Riedl’s instruction, Hancock notified the proper authorities, and at their
recommendation, the F-Dorm was promptly evacuated and tested for asbestos. See id. at
50. The RMC then followed the recommended measures to remedy the asbestos issue,
and a few months later provided the affected inmates with chest x-rays. Id. at 50-51, 59,
63. In light of the foregoing, the Court finds no evidence from which a jury could conclude
that any Defendant actually knew of the risk to the inmates, and disregarded that risk by
conduct that was more than mere negligence. Accordingly, Brown cannot show that any

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Defendant acted with deliberate indifference, and his claim fails on this basis as well. In
light of the foregoing, the Court concludes that the Motion is due to be granted as to all
Defendants on Count I of the Amended Complaint.
B.

Supervisory Liability

In Count II of the Amended Complaint, Brown asserts a claim against Riedl
premised on supervisory liability. “[S]upervisory officials are not liable under § 1983 for the
unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious
liability.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotations and
citations omitted). “Instead, supervisory liability under § 1983 occurs either when the
supervisor personally participates in the alleged unconstitutional conduct or when there is
a causal connection between the actions of a supervising official and the alleged
constitutional violation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003); see also
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). To establish the requisite
causal connection, a plaintiff must allege “facts which support an inference that the
supervisor directed the subordinates to act unlawfully or knew that the subordinates would
act unlawfully and failed to stop them from doing so.” Keating, 598 F.3d at 762 (quoting
Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003)). This requisite causal connection
may be established “‘when a history of widespread abuse puts the responsible supervisor
on notice of the need to correct the alleged deprivation, and he fails to do so,’ . . . or when
the supervisor’s improper ‘custom or policy . . . resulted in deliberate indifference to
constitutional rights.’” Gonzalez, 325 F.3d at 1234 (quoting Braddy v. Fla. Dep’t of Labor
and Emp’t Sec., 133 F.3d 797, 802 (11th Cir. 1998); Rivas v. Freeman, 940 F.2d 1491,
1495 (11th Cir. 1991)). “The deprivations that constitute widespread abuse sufficient to

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notify the supervising official must be obvious, flagrant, rampant and of continued duration,
rather than isolated occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
The necessary causal connection may also be demonstrated through “facts which support
an inference that the supervisor directed the subordinates to act unlawfully or knew that
the subordinates would act unlawfully and failed to stop them from doing so.” Gonzalez,
325 F.3d at 1235.
Here, the record is devoid of any evidence that Riedl was personally involved with
the tile removal project, that he was aware of or directed any unlawful conduct, or that there
was any history of “widespread abuses.” Regardless, Brown’s claim for supervisory liability
must fail given his inability to establish the underlying constitutional violation. See Moore,
595 F. App’x at 974; Walker v. Huntsville, Ala., 310 F. App’x 335, 339 (11th Cir. 2009);
Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). In light of the foregoing,
Defendants’ Motion is due to be granted as to Count II of the Complaint as well.
Accordingly, it is
ORDERED:
1. Defendants’ Motion for Summary Judgment (Doc. 114) is GRANTED.
2. The Clerk of the Court is directed to enter JUDGMENT in favor of Defendants Brian
Riedl, in his individual and official capacities, Ellen Link, Christopher Hancock,
Archie W. Clemons, and Officer Hartley, and against Plaintiff John Brown.

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3. The Clerk of the Court is further directed to terminate any remaining pending
motions and deadlines as moot and close the file.
DONE AND ORDERED in Jacksonville, Florida, this 25th day of March, 2016.

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Copies to:
Counsel of Record
Pro Se Parties

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