Vidlak v. Cox

Filing 30

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 26), OVERRULES Cox's objections (Doc. 27), and DENIES Cox's motion to dismiss (Doc. 16). Signed by Judge J. Phil Gilbert on 4/25/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHAN VIDLAK,
Plaintiff,
v.

Case No. 17-cv-160-JPG-SCW

JUSTIN COX,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
26) of Magistrate Judge Stephen C. Williams recommending that the Court deny defendant Justin
Cox’s motion to dismiss (Doc. 16). Cox has objected to the Report (Doc. 27), and plaintiff
Jonathan Vidlak has responded to that objection (Doc. 28).
I.

Standard of Review
The Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
II.

Background
This case arose after Cox, the supervisor of the electrical shop at the United States

Penitentiary at Marion, Illinois (“USP-Marion”) broke several boxes of fluorescent lightbulbs,
which contain small amounts of mercury, to dispose of the bulbs. Without taking any measures to
protect against the mercury, Cox ordered Vidlak and other inmates at USP-Marion to clean up the

broken bulbs. Several days later, Cox instructed Vidlak and other inmates to break additional
fluorescent bulbs for disposal without taking appropriate safety measures. Vidlak now alleges
Cox exhibited deliberate indifference to his safety in violation of his Eighth Amendment rights by
exposing him to mercury, a toxic chemical, without taking appropriate safety measures.
III.

The Report
Magistrate Judge Williams found in the Report that the Court already decided in its April

12, 2017, threshold review order (Doc. 10) that Vidlak had adequately stated an Eighth
Amendment claim. He therefore declined to reexamine this question. Magistrate Judge
Williams further found that Cox was not entitled to qualified immunity because it was clearly
established by McNeil v. Lane, 16 F.3d 123 (7th Cir. 1993), and Helling v. McKinney, 509 U.S. 25
(1993), that government officials could not deliberately expose inmates to levels of toxic
substances that posed an unreasonable risk of serious damage to the inmate’s future health, and
whether Cox acted deliberately and whether the mercury level in this case satisfied that
requirement were questions of fact to be decided later in the case. Magistrate Judge Williams also
found that, in light of Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997), the Court should continue to
recognize a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), based on work-related injuries of federal inmates.
IV.

Objections
Cox raises several objections to the Report. In light of those objections, the Court

conducts a de novo review of the motion.
A.

Clearly Established Law

Cox first argues that Magistrate Judge Williams was wrong to find a clearly established

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right because the prior cases did not involve broken fluorescent lightbulbs or mercury exposure.
Instead, McNeil v. Lane, 16 F.3d 123 (7th Cir. 1993), involved exposure to in-place asbestos which
was found not to pose a sufficiently serious risk, and the Court only noted in passing that he might
have stated a claim had friable asbestos filled the air. Id. at 125. Helling v. McKinney, 509 U.S.
25 (1993), involved exposure to levels of second-hand tobacco smoke that were alleged to have
posed an unreasonable risk of serious damage to his future health. Id. at 27-28. Cox claims
neither of these cases are particular enough to clearly establish the law such that a reasonable
officer in Cox’s position would have known he was violating the law by exposing Vidlak to
mercury in the concentration alleged.
It is true that the right at issue must be established with some specificity in order to be
clearly established. The inquiry must be made focusing on the specific context of the case, not at
a high level of generality. White v. Pauly, 137 S. Ct. 548, 552 (2017). “[T]he clearly established
law must be ‘particularized’ to the facts of the case. Otherwise, ‘[p]laintiffs would be able to
convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by
alleging violation of extremely abstract rights.’” Id. at 552 (quoting Anderson v. Creighton, 483
U.S. 635, 639-40 (1987); internal citations omitted). “[E]xisting precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011).
The Court believes McNeil and Helling were sufficient to put a reasonable officer in Cox’s
position on notice that deliberate exposure of inmates to an unreasonably high level of a toxic
chemical, whatever the chemical and whatever the means of exposure, violates the Eighth
Amendment. At this stage of the case, Vidlak has alleged in the complaint, viewed liberally in his

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favor, that Cox deliberately exposed him to dangerous levels of mercury without providing
protective measures. This is sufficient to overcome qualified immunity at the motion to dismiss
stage. Whether the exposure actually posed an objectively serious risk whether Cox was
subjectively aware of that danger are issues to be fleshed out later in the case.1
B.

Sufficiency of the Pleading

Cox also objects to the Report’s deferring to the Court’s earlier judgment in its April 12,
2017, threshold review order (Doc. 10) finding that Vidlak has stated an Eighth Amendment claim.
Cox argues that the Court should reexamine that conclusion in light of adversarial briefing.
While the Court believes that some threshold assessments should be reconsidered
following adversarial briefing, especially where the basis of the defendant’s request for dismissal
was not addressed in the threshold order, this is not such a case. For the reasons set forth in the
threshold order, the Court finds Vidlak has adequately pled both the subjective and objective
portions of the deliberate indifference standard as well as sufficient harm from exposure to a toxic
chemical.
C.

Existence of Bivens Action

With respect to whether a federal court should recognize a Bivens action based on an
inmate’s work-related injuries, Cox objects that Magistrate Judge Williams recommends the result
dictated by Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997). Bagola recognized that 18 U.S.C.
§ 4126(c)(4), the federal inmate worker’s compensation equivalent, does not preclude a Bivens
A brief note on Vidlak’s reply is in order. In that document, he invokes the “corporate
knowledge” doctrine to argue that Cox knew of the danger of mercury exposure. However, the
“corporate knowledge” doctrine does not apply in Bivens actions against officials in their
individual capacity where only their actual knowledge is relevant. See Farmer v. Brennan, 511
U.S. 825, 837 (1994) (holding official can be liable only if he actually “knows of and disregards an
excessive risk to inmate health or safety” (emphasis added)); Petties v. Carter, 836 F.3d 722, 728
(7th Cir. 2016) (en banc) (“Officials can avoid liability by proving they were unaware even of an
obvious risk to inmate health or safety.”), cert. denied, 137 S. Ct. 1578 (2017).
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action based on the same injury. Id. at 644-45. Cox argues that Bagola is over twenty years old
and that the legal landscape has changed since the opinion was issued, although the analytical
framework has not. Cox faults Magistrate Judge Williams for failing to conduct a new analysis to
reject Bagola.
Any “new” analysis Magistrate Judge Williams would have set forth in the Report would
have tread the same path as Bagola and would necessarily have come to the same result because
this Court is bound by Bagola and its underlying reasoning. In fact, regardless of whether the
Court agrees with Bagola, it is binding precedent until the Court of Appeals overrules it.
V.

Conclusion
For the foregoing reasons, after conducting a de novo review, the Court hereby:


ADOPTS the Report in its entirety (Doc. 26);



OVERRULES Cox’s objections (Doc. 27); and



DENIES Cox’s motion to dismiss (Doc. 16).

IT IS SO ORDERED.
DATED: April 25, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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