Spavone v. N.Y.S. Department of Correctional Services et al

Filing 59

OPINION & ORDER re: 44 MOTION for Summary Judgment filed by Jim Hillregal, Steve Madison, John Bendlin, 36 MOTION for Summary Judgment filed by Steven Spavone. Spavones January 19, 2011 motion for summary judgment is denied and the defendants February 14, 2011 motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendants and close the case. (Signed by Judge Denise L. Cote on 5/25/2011) (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
:
STEVEN SPAVONE,
:
:
:
Plaintiff,
:
:
-v:
N.Y.S. DEPARTMENT OF CORRECTIONAL
:
SERVICES, JIM HILLREGAL, JOHN BENDLIN, :
:
and STEVE MADISON,
:
Defendants.
:
:
---------------------------------------X

10 Civ. 833 (DLC)
OPINION & ORDER

Appearances:
For Plaintiff:
Steven Spavone, pro se
03-A-4330
Sing Sing Correctional Facility
354 Hunter Street
Richmond Hill, NY 11419
For Defendants:
John Eric Knudsen
New York State Department of Law
120 Broadway
New York, NY 10271
DENISE COTE, District Judge:
The plaintiff Steven Spavone (“Spavone”), proceeding pro se,
has brought this action against employees of the New York State
Department of Correctional Services (“DOCS”), asserting that they
placed him at risk of exposure to asbestos.
moved for summary judgment.
motion is granted.

The defendants have

For the following reasons, the

BACKGROUND
While an inmate at DOCS’ Woodbourne Correctional Facility,
Spavone assisted in preparing the Old Jewish Chapel at the
facility for renovation.

Over the course of about four hours

that spanned several days in June 2009, Spavone and other members
of the maintenance crew removed all of the fixtures and the
ceiling from the room.

General Mechanic Steven Madison

(“Madison”) personally supervised the work, and told the crew to
be careful not to hit the water pipe when removing the ceiling.
The water pipe ran above the ceiling along one section of the
room adjacent to a window.

It was wrapped with insulation.

The

crew completed its work by June 16 and placed all of the debris
in garbage cans and carts, which were then removed from the room.
During that period, none of the insulation from the pipe fell.
The next phases of the work, in which Spavone was not
involved, were the painting of the room and the installation of a
new ceiling.

On July 13, civilian carpenter Cliff Hamlin

(“Hamlin”) began the work necessary to install a “wall angle” to
support the ceiling.

To do so, he put up a baker’s scaffold,

which is a moveable flat surface area approximately 3’ by 6’.
While standing on the scaffold, Hamlin noticed a leak in the
water pipe.
When Hamlin returned on July 14, he noticed that part of the
insulation from the pipe had fallen onto the scaffold.

2

Hamlin

promptly notified John Bendlin (“Bendlin”), a Maintenance
Supervisor, who told Hamlin to stay away from the leaking pipe.
A Fire and Safety Officer then shut down the work area because of
the potential for release of asbestos.
On July 16, a member of the CORCRAFT Asbestos Program
assessed the situation and cleaned up the chapel.

Its report

describes the condition of the chapel on July 16 and identifies
“asbestos/particulate” as an atmospheric hazard.
On February 3, 2010, Spavone filed a complaint naming DOCS,
Bendlin, and Madison as defendants, in addition to DOCS Plant
Supervisor Jim Hillregal (“Hillregal”).

Spavone filed a motion

for summary judgment on January 19, 2011.

The defendants filed a

cross-motion for summary judgment on February 14.

The motions

were fully submitted on April 26.

DISCUSSION
Spavone has brought suit pursuant to 28 U.S.C. § 1983,
alleging a violation of his rights under the Eighth Amendment of
the U.S. Constitution due to the defendants’ deliberate
indifference to a serious risk to his health.

Spavone claims

that the defendants knowingly exposed him to asbestos without
providing him with proper protective clothing.
Summary judgment is “‘appropriate where there exists no
genuine issue of material fact and, based on the undisputed

3

facts, the moving party is entitled to judgment as a matter of
law.’”

Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists,

LLC, 628 F.3d 46, 51 (2d Cir. 2010) (quoting D’Amico v. City of
New York, 132 F.3d 145, 149 (2d Cir. 1998)).

“The role of the

court in deciding a motion for summary judgment ‘is not to
resolve disputed issues of fact but to assess whether there are
any factual issues to be tried, while resolving ambiguities and
drawing reasonable inferences against the moving party.’”

Wilson

v. Northwestern Mut. Ins. Co., 625 F.3d 54, 59-60 (2d Cir. 2010)
(quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.
1986)).
Deliberate indifference “entails something more than mere
negligence.”

Farmer v. Brennan, 511 U.S. 825, 835 (1994).

A

prison official acts with deliberate indifference when he “knows
of and disregards an excessive risk to inmate health or safety.”
Id. at 837.

A prison official is held to have violated the

Eighth Amendment only when the alleged risk to health is shown to
be “sufficiently serious” and the prisoner demonstrates that the
charged official acted “with a sufficiently culpable state of
mind.”

Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006)

(citation omitted).
The defendants are entitled to summary judgment.1
1

Spavone

Spavone has not offered any evidence that Hillregal or Bendlin
were personally involved in any alleged violation of his rights.
Therefore, even if the claim against Madison survived, judgment
would be entered in favor of these two defendants.
4

has not offered evidence that he was exposed to asbestos.

He

does not contend that he saw any of the insulation for the pipe
fall during the hours he was in the chapel.

The record provided

by the parties on summary judgment shows that any risk to health
arose about a month after Spavone completed his work in the
chapel.

At that time, the pipe was leaking and some of its

insulation fell.

Consequently, Spavone has not shown that the

defendants placed him at risk of serious harm to his health
during the month of June 2009.

For the same reason, Spavone has

not shown that the defendants were deliberately indifferent to
his health.

Indeed, he admits that Madison warned the

maintenance crew to be careful not to hit the water pipe as it
was removing the ceiling.

While Madison assumed that the

insulation around the pipe contained asbestos, there is no
evidence that he understood that either he or the inmates who
were working with him in the chapel in June were exposed at that
time to any risk from that insulation, so long as it remained
undamaged.
Spavone offers three principal reasons why the defendants’
motion for summary judgment should be denied.

He argues first

that asbestos was present in the pipe insulation, and thereby
presented a grave risk to his health.

Spavone has offered no

evidence from which a jury could conclude, however, that
undamaged insulation containing asbestos presents a health risk

5

or that the insulation on the pipe above the chapel’s ceiling
would have presented a health risk to anyone if that insulation
had remained intact.
Spavone next argues that the creation of a “risk” of injury,
even in the absence of any evidence that an injury occurred,
constitutes a violation of the Eighth Amendment.

Spavone relies

on Helling v. McKinney, 509 U.S. 25 (1993), and Smith v.
Carpenter, 316 F.3d 178 (2d Cir. 2003).

The Supreme Court held

in McKinney that a prisoner’s involuntary exposure to
environmental tobacco smoke (“ETS”) could form the basis of a
deliberate indifference claim against prison officials.
McKinney, 509 U.S. at 35.

But the Supreme Court required the

prisoner to demonstrate that “he himself is being exposed to
unreasonably high levels of ETS” in order to prevail on his
claim.

Id.

Spavone’s reliance on McKinney is thus unavailing,

because he has not demonstrated that he was exposed to asbestos.
The Second Circuit’s decision in Smith is also of no assistance
to Spavone.

The Smith court held that a disruption in a

prisoner’s drug treatment program for HIV could form the basis of
a deliberate indifference claim, but the court also noted that
the jury was free to consider “the absence of concrete medical
injury as one of the relevant factors in determining whether the
asserted deprivation of medical care was sufficiently serious to
establish a claim under the Eighth Amendment.”

6

Smith, 316 F.3d

at 189.

Spavone has not shown any exposure to asbestos, much

less any “concrete medical injury” stemming from his work on the
chapel.
Finally, Spavone contends that Madison did not adequately
warn the maintenance crew of the risk of a dangerous condition
when he directed its members not to hit the pipe when removing
the ceiling.

According to Spavone, this suggested no more than a

concern that the pipe might leak if damaged and was insufficient
to advise the workers that damage to the insulation might release
asbestos.

But as discussed above, Spavone offers no evidence

that he was actually exposed to asbestos.

As a consequence, the

adequacy of Madison’s warning to the maintenance crew is
irrelevant.

CONCLUSION
Spavone’s January 19, 2011 motion for summary judgment is
denied and the defendants’ February 14, 2011 motion for summary

7

judgment is granted.

The Clerk of Court shall enter judgment for

the defendants and close the case.

80 ORDERED:
Dated:

New York/ New York
May 25/ 2011

United 8 !

8

District Judge

COPIES SENT TO:

Steven Spavone
101 66 125~ Street
Apartment #lB
Richmond Hill, NY 11419

John E. Knudsen
Assistant Attorney General
Office of the Attorney General of
The State of New York
120 Broadway
New York, NY 10271