FLEMING v. UNITED STATES OF AMERICA et al

Filing 159

ORDER ADOPTING, IN PART, AND REJECTING, IN PART, THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION: The magistrate judge's report and recommendation (ECF No. 147 ) is REJECTED to the extent the magistrate judge recommends dismissal of (1) Plaintiff's Eighth Amendment claim against Warden Strong; and (2) Plaintiff's FTCA claim against the United States for mold and asbestos contamination. The magistrate judge's report and recommendation (ECF No. 147 ) is otherwise ADOPTED. The government's motion to dismiss (ECF No. 84 ) is GRANTED as to (1) Plaintiff's First Amendment claim against Warden Strong; and (2) Plaintiff's FTCA claim against the United States for failure to provide for & quot;social distancing" during the pandemic. Plaintiff's First Amendment claim against Warden Strong and Plaintiff's FTCA "social distancing" claim against the United States are DISMISSED as recommended by the magistrate judge. The clerk shall return the case to the magistrate judge for further proceedings. Signed by SENIOR JUDGE WILLIAM STAFFORD on 11/21/2022. (tpm)

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

RHONDA FLEMING,
Plaintiff,
v.

4:20cv545–WS/MJF

UNITED STATES OF AMERICA,
and WARDEN ERICA STRONG,
Defendants.

ORDER ADOPTING, IN PART, AND REJECTING, IN PART,
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the court is the magistrate judge’s report and recommendation (ECF
No. 147) dated October 3, 2022. The magistrate judge recommends that the
undersigned (1) deny Defendants’ motion to dismiss (ECF No. 84) Plaintiff’s
claim against the United States with respect to her “failure to protect” claim under
the Federal Tort Claims Act (“FTCA”); (2) otherwise grant Defendants’ motion to
dismiss Plaintiff’s FTCA claims against the United States; (3) grant Defendants’
motion to dismiss Plaintiff’s Eighth Amendment and First Amendment claims
under Bivens against Warden Erica Strong. Plaintiff has filed objections (ECF No.

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153) to the magistrate judge’s report and recommendation.
Among other things, Plaintiff objects to the magistrate judge’s
recommendation that her Eighth Amendment claim against Warden Strong be
dismissed for failure to state a claim. She maintains that the magistrate judge failed
to recognize that her Eighth Amendment claim encompassed her allegations
regarding Strong’s failure to remove her from a housing area containing mold and
friable asbestos. Indeed, in her fifth amended complaint, she alleged:
42. Defendant Warden was deliberately indifferent to the safety needs
of the Plaintiff before, during, and in the present continuing [COVID]
pandemic, by housing the Plaintiff in an open dorm, with the
following unconstitutional prison conditions:
a. Leaking roof which caused toxic mold to colonize and
causing the Plaintiff to sleep in a wet bed;
b. Ceiling, windowsills, and doors with visible toxic
mold:
....
e. Food Service building full of toxic mold, denying the
Plaintiff a safe place to eat.
....
44. Defendant Warden has seen the mold and been informed of the
serious health problems caused by mold and asbestos. No action was
taken to remove the Plaintiff from these unconstitutional conditions,
even after she was hospitalized with the [COVID] virus with
symptoms worsened by inhaling toxic mold and asbestos for over two
years.
In Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990), the Eleventh Circuit

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held that a prisoner who alleged exposure to asbestos in the dormitory adequately
stated an Eighth Amendment claim under Bivens.1 See also Edwards v. Fed.
Bureau of Prisons, No. 5:10cv286–RH/GRJ, 2013 WL 709614, *1 (Feb. 27 (2013)
(“Deliberately exposing an inmate to harmful substances can constitute cruel and
unusual punishment in violation of the Eighth Amendment.”). As stated by the
Eleventh Circuit:
The plaintiff alleges that the defendants forced him to remain in a
dormitory when the dormitory atmosphere was filled with friable
asbestos. Further, the plaintiff alleges that the defendants knew of the
health danger and yet refused to move the plaintiff to an asbestos-free
environment. This constitutes deliberate indifference to the plaintiff’s
serious medical needs. Accordingly, the plaintiff alleged a
constitutional violation under Bivens.
914 F.2d at 1463. Given the Eleventh Circuit’s decision in Powell, the undersigned
finds that Plaintiff in this case has sufficiently alleged an Eighth Amendment claim
against Defendant Strong.2
1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 402
U.S. 388 (1971).
2

The undersigned assumes that Plaintiff exhausted her administrative
remedies regarding her Eighth Amendment claim regarding environmental hazards.
Defendants have conceded that Plaintiff exhausted the issues related to mold. ECF
No. 84 at p. 10. Defendants’ less-than-complete listing of Plaintiff’s many
administrative complaints reveals that Plaintiff complained about leakage, safety,
sanitation, and environmental conditions on more than one occasion. Id. Plaintiff
has submitted a grievance (not included in Defendants’ listing) wherein she
complained: “I am a federal inmate living in a building where the roof is leaking
all over the housing unit. Mold spores are all over the roof. Termites are biting us. .

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Plaintiff also objects to the magistrate judge’s recommendation that her
FTCA claim against the United States be dismissed as to her mold/asbestos
contamination claim. The magistrate judge determined that such claim is barred by
the FTCA’s discretionary-function exception. The undersigned is unable to reach
that same conclusion at this pleading stage of the case. As applied to Plaintiff’s
mold/asbestos contamination claim, the government’s motion to dismiss (ECF No.
84), with supplemental brief regarding the discretionary function exception (ECF
No. 138), goes to the merits of the case.3 To survive dismissal, Plaintiff must
simply allege a plausible claim that falls outside the discretionary function
exception. Foster Logging, Inc. v. United States, 973 F.3d 1152, , 1159 (11th Cir.
2020) (“To survive dismissal, Plaintiffs were required to allege a plausible claim
that falls outside the discretionary function exception. . . . In other words,
. . I can’t breath at night. The mold spores have me congested, coughing and
gagging. No allergy meds help. My chest hurts from coughing so much. . .
.Whenever it rains, water and the chemicals from the roof are leaking in at least 20
areas of the unit.” ECF No. 120, at p.10.
3

In its motion to dismiss (in a footnote), the government states that Plaintiff
“fails to show how the United States was negligent or any employees engaged in a
negligent or wrongful act of omission. . . . The roof has been repaired and all
reports of workplace mold were handled in accordance with the nationwide BOP
guidance.” ECF No. 84. p11. In its supplemental brief, the government states:
“Investigation into the allegations of mold and leaks revealed FCI-Tallahassee
follows the BOP guidance dated June 11, 2015, concerning reports of work place
mold and that the roof in A-Unit was repaired with roof sealant and that inmates
have subsequently been removed from A-Unit housing.” ECF No. 138, p. 9.

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Plaintiffs' complaint must have alleged facts showing that a government employee
engaged in conduct that, by its nature, is not the kind of conduct that is based on or
grounded in considerations of public policy.” (Internal quotation marks and
citations omitted)). Here, Plaintiff’s allegations regarding the government’s alleged
failure to address mold and asbestos contamination in Plaintiff’s housing unit are
sufficient, if barely so, to survive the government’s motion to dismiss.
See Douglas v. United States, 814 F.3d 1268, 1275 (11 Cir. 2016) (noting that,
where “the government’s discretionary function challenge is based on factual
contentions that go right to the merits of the overall case, . . . [t]he court can then
address this challenge in the proper manner: after discovery and with the
protections of either a trial or review on summary judgment”); see also Whisnant v.
United States, 400 F.3d 1177, 1183 (9th Cir. 2005) (“Because removing an
obvious health hazard is a matter of safety and not policy, the government’s
alleged failure to control the accumulation of toxic mold . . . cannot be protected
under the discretionary function exception.”); Gibson v. United States, 809 F.3d
807, 813 (5th Cir. 2016) (noting that the “Government’s decisions about routine
property maintenance, decisions with which any private landowner would be
concerned, are not susceptible to the kind of policy analysis shielded by the
discretionary function exception”); S.R.P. ex rel. Abunabba v. United States, 676

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F.3d 329, 340 (3d Cir. 2012) (noting that the discretionary function exception does
not apply “where the Government is aware of a specific risk of harm, and
eliminating the danger would not implicate policy but would involve only gardenvariety remedial measures”).
Accordingly, it is ORDERED:
1. The magistrate judge’s report and recommendation (ECF No. 147) is
REJECTED to the extent the magistrate judge recommends dismissal of (1)
Plaintiff’s Eighth Amendment claim against Warden Strong; and (2) Plaintiff’s
FTCA claim against the United States for mold and asbestos contamination. The
magistrate judge’s report and recommendation (ECF No. 147) is otherwise
ADOPTED.
2. The government’s motion to dismiss (ECF No. 84) is GRANTED as to (1)
Plaintiff’s First Amendment claim against Warden Strong; and (2) Plaintiff’s
FTCA claim against the United States for failure to provide for “social distancing”
during the pandemic.
3. Plaintiff’s First Amendment claim against Warden Strong and Plaintiff’s
FTCA “social distancing” claim against the United States are DISMISSED as
recommended by the magistrate judge.
4. The clerk shall return the case to the magistrate judge for further

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proceedings.
DONE AND ORDERED this

21st

day of

November

, 2022.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE