Smith v. United States of America et al
MEMORANDUM AND ORDER denying 160 plaintiff's Motion for Reconsideration; and denying as moot 161 plaintiff's Motion for Hearing. Signed by District Judge J. Thomas Marten on 9/10/2013. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 06-3061-JTM
E.J. GALLEGOS, et. al.,
MEMORANDUM AND ORDER
The following matter comes to the court upon plaintiff Byron Smith’s Motion to
Reconsider (Dkt. 160) and Motion for Hearing (Dkt. 161). The court denies Smith’s
Motion to Reconsider for the following reasons. As a result, the court also denies the
Smith’s Motion for Hearing as moot.
The court granted summary judgment to the defendants on February 7, 2013,
finding the defendants entitled to qualified immunity because they did not violate any
clearly established Eighth Amendment right and did not subject Smith to a wanton
infliction of unnecessary pain when Smith was minimally exposed to asbestos dust
during a work assignment at the U.S. Penitentiary at Leavenworth. (Dkt. 158). Smith
filed a motion to reconsider and motion for hearing on March 7, 2013, claiming that the
court misapprehended the facts of the case and the law. Smith claims that the court
misapprehended the extent of his exposure, the defendants’ culpability, and the
defendants’ knowledge about the location of asbestos. He also claims that the court
misapprehended the law because the defendants were aware of the risk to Smith and
the law clearly establishes an Eighth Amendment right to be free of any levels of friable
The factual background of the case is adequately stated in the court order issued
on February 7, 2013. See Dkt. 158.
II. Legal Standard
Any party may file a motion asking the court to reconsider an order or decision.
D. KAN. RULE 7.3. A motion to reconsider a dispositive order must be filed pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. Id. A party seeking to alter or amend
a judgment must file his motion within twenty eight days after the entry of judgment.
FED. R. CIV. P. 59(e). The court will not reconsider its prior judgment unless (1) there is
an intervening change in controlling law; (2) new evidence is available; or (3) there is a
need to correct clear error or prevent manifest injustice. First State Bank v. Daniel &
Associates, P.C., 491 F. Supp. 2d 1033, 1035 (D. Kan. 2007) (citing Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). Reconsideration is appropriate when the
court has misapprehended the facts, the controlling law, or a party’s position. Id.
However, a motion to reconsider is not a tool to raise issues already addressed or
advance arguments that could have been raised in prior briefing. Id. Whether to grant
or deny a motion for reconsideration is committed to the court’s discretion. Marx v.
Schnuck Markets, Inc., 869 F. Supp. 895, 897 (D. Kan. 1994) (citations omitted).
A. The Court Did Not Misapprehend the Facts
Smith argues that the court did not view the facts in the light most favorable to
him, that doing so would show that he was exposed to clouds of asbestos while
working in a closet over two days, that the court improperly focused on the liability of
the only two defendants who were responsible for Smith’s work within the closet and
that the court did not focus on the liability of other defendants. Contrary to Smith’s
assertions, the court did view the facts in the light most favorable to him. The court
determined that Smith was exposed for a few hours. Dkt. 158 at 11. As Smith himself
claims, when inmate Gonzales began pulling at the insulation that created the dust,
Smith was prevented from working. He and his work crew were allowed to leave the
closet, and Smith did not return to the closet until the dust settled. Although work
continued into the next day, when Gonzales again caused dust clouds, Smith and his
work crew were again allowed to stop until the dust settled. The facts in a light most
favorable to Smith do not indicate that he worked two full days in the closet. Smith and
his work crew were interrupted and allowed out of the closet to take breaks from the
dust. Further, after Smith’s supervisor, defendant Sinclair, arrived on day two, they
worked another hour and then work was completed. The time of Smith’s exposure was
not misapprehended by the court.
Likewise, the court did not misapprehend facts by addressing the liability of
Sinclair and Durbin, two of the defendants. These are the only two defendants who
granted permission for Smith to be present and work in the closet. No other defendants
had reason to believe that Smith or any other prisoner would enter into the locked
closet of a classroom in the education building of the U.S. Penitentiary at Leavenworth.
Durbin placed the work order and Sinclair authorized Smith to work on the closet. Both
of these defendants exposed themselves to the same dust that Smith now complains has
B. Under the Correct Legal Standard, the Defendants Are Entitled to Qualified
In granting summary judgment, the court determined that the defendants were
entitled to qualified immunity because they did not act with wantonness or obduracy.
See Dkt. 158 at 6. This analysis used an erroneous legal standard. However, under the
correct analysis, the defendants are still immune from liability. Qualified immunity
balances the need to hold public officials accountable for unjust exercises of power
against the need to shield officials from liability when they reasonably perform their
duties. Pearson v. Callahan, 555 U.S. 223, 231 (2009); see also Jacqueline Blaesi-Freed, From
Shield to Suit of Armor: Qualified Immunity and A Narrowing of Constitutional Rights in the
Tenth Circuit, 50 WASHBURN L.J. 203, 218 (2010). Qualified immunity relieves federal and
state officials from liability unless a plaintiff shows (1) that the official violated a
statutory or constitutional right, and (2) that the right was “clearly established” at the
time of the challenged conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). The trial
court may decide which of the two prongs of qualified-immunity analysis to tackle first.
1. The Defendants Did Not Disregard a Known Excessive Risk to Smith’s
Health or Safety
To hold a prison official personally liable for violating a prisoner’s Eighth
Amendment right, the plaintiff must establish that the alleged deprivation violates an
objective and subjective test. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (citing
Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998)). Objectively, the alleged
deprivation must be “sufficiently serious.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298,
(1991)). Subjectively, the prison official must have the appropriately culpable state of
mind at the time of the alleged deprivation. Id. (citing Wilson, 501 U.S. at 297).
Deliberate indifference to inmate health and safety is the relevant state of mind when
the court addresses prison conditions. Id. (citing Farmer v. Brennan, 511 U.S. 825, 834
(1994)). A prison official may be found deliberately indifferent when he knew of an
excessive risk to inmate health or safety and disregarded that risk. Id. (citing Farmer, 511
U.S. at 837). 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.” Id. (quoting Farmer, 511 U.S. at 837).
Even if Smith’s exposure to a single fiber of friable asbestos constituted a
sufficiently serious risk, Smith has not shown that the defendants had the appropriately
culpable state of mind. No defendant was aware of all of the facts necessary to infer a
substantial risk to Smith. By extension, no defendant drew that required inference.
Smith alleges that the Ramsey-Shilling Report and an alleged email from defendant
Parent put all other defendants on notice that the closet at issue contained asbestos. But
the alleged email’s contents did not make any staff aware of asbestos in the closet where
Smith worked. The email addressed a different closet in a separate part of the education
As the court already noted, Durbin and Sinclair were the only defendants who
knew Smith was working in the closet in the education building. But these defendants
were unaware of the Ramsey-Shilling report. Smith does not show that Durbin or
Sinclair were aware that the closet at issue contained friable asbestos. Nothing indicates
Durbin or Sinclair knew that Smith was exposed to asbestos when inmate Gonzales
started causing dust clouds in the closet or that Smith’s exposure presented a serious
risk of harm to him. It is also apparent that Durbin and Sinclair were unaware of a risk
of exposure to asbestos because they willingly exposed themselves to that same risk.
With regard to the other defendants, Smith has not shown that they were aware
that he, other inmates, or anyone else would access the locked closet at issue. Without
this knowledge, Smith cannot show that the other defendants drew the required
inference of a substantial risk of serious harm. All of the defendants were either
unaware of the facts of a substantial risk to Smith, or did not draw inferences of that
risk, or both. The defendants did not act with deliberate indifference and are, therefore,
entitled to qualified immunity. See Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998).
2. Smith Does Not Have a Clearly Established Eighth Amendment Right
to Be Free From a Limited Exposure of Friable Asbestos
The court did not misapprehend the law when determining that Smith’s
exposure was not a violation of a clearly established Eighth Amendment right. A right
is clearly established when a reasonable official would understand that what he is doing
violates that right. Prison Legal News, Inc. v. Simmons, 401 F. Supp. 2d 1181, 1189 (D. Kan.
2005) (citing Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1241 (10th
Cir.1999)). Based on the limited facts available to them, none of the defendants here
would reasonably have known that what they did violated Smith’s clearly established
A right may also be clearly established when there is a Supreme Court or Tenth
Circuit case on point or when the “weight of authority from other courts must have
found the law to be as the plaintiff maintains.” Simmons, 401 F. Supp. at 1189 (citing
Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir.1992) (overruled on other
grounds)). Neither the Tenth Circuit nor this court has previously addressed whether
every exposure to friable asbestos, no matter how small, constitutes a violation of the
Eighth Amendment right to be free from deliberate indifference of prisoner health and
safety. Other circuits addressing such claims have determined exposure to friable
asbestos to be a violation of the Eighth Amendment when the exposure is prolonged.
The Second Circuit has found prison officials infringe on the Eighth Amendment when
they subject inmates to friable asbestos for one year. LaBounty v. Coughlin, 137 F.3d 68,
74 (2d Cir. 1998). The Eleventh Circuit has determined that an Eighth Amendment
violation occurs when prison officials knowingly force an inmate to work and live in a
dormitory filled with friable asbestos for two months. Powell v. Lennon, 914 F.2d 1459,
1464 (11th Cir. 1990); accord, Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995) (finding
prison officials acted with deliberate indifference by failing to timely respond to an
inmate’s multiple removal requests from a work unit exposed to friable asbestos for
forty-five hours over several days). However, the Seventh Circuit has held that a tenmonth period of asbestos exposure does not offend the Eighth Amendment when the
inmate is not forced to live in a cell filled with friable asbestos. McNeil v. Lane, 16 F.3d
123, 125 (1993).
Here, Smith was not forced to live in a room of friable asbestos, did not work for
forty-five hours with exposure to it, and he did not warn any defendant about his
exposure as it was happening. Smith was exposed to two clouds of dust containing
friable asbestos for no more than a few seconds. He was allowed to exit the closet until
the dust settled. After it settled, Smith’s exposure continued for, at most, a few hours,
during which he took several breaks. This limited exposure does not infringe upon a
right clearly established by Tenth Circuit precedent or persuasive authority. See Powell,
914 F.2d at 1464; Wallis, 70 F.3d at 1076; LaBounty, 137 F.3d at 74. It is not at all clear that
a reasonable official would understand that Smith’s exposure of a few hours violated
the Eighth Amendment. See Simmons, 401 F. Supp. 2d at 1189 (D. Kan. 2005).
The court did not misapprehend the facts of this case. Further, the court did not
err in finding no clearly established constitutional right to be free from such a limited
exposure to friable asbestos. The court’s previous analysis used the incorrect qualified
immunity standard, but this does not change the result. Applying the proper legal
standard, the court finds that Smith cannot show that the defendants were aware of
relevant facts from which an inference could be drawn that a substantial risk of serious
harm existed, let alone that the defendants actually drew that inference. The court
denies the motions.
IT IS THEREFORE ORDERED this 10th day of September, 2013, that Smith’s
Motion to Reconsider (Dkt. 160) is denied. The court necessarily denies his Motion for
Hearing (Dkt. 161) as moot.
s/J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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