Ahearn v. Vose

833 N.E.2d 659

64 Mass. App. Ct. 403

Edward AHEARN & others¹ v. George VOSE & others.²

No. 04-P-262.

Appeals Court of Massachusetts, Suffolk.

Argued January 11, 2005.

Decided September 2, 2005.

COPYRIGHT MATERIAL OMITTED

James R. Pingeon, Boston, for the plaintiffs.

Michael C. Donahue, Special Assistant Attorney General, Boston, for the defendants.

Present: GELINAS, DOERFER, & KAFKER, JJ.

KAFKER, J.

The plaintiffs, inmates at the Southeastern Correctional Center (SECC), are pursuing 42 U.S.C. § 1983 claims seeking monetary damages against two superintendents of the SECC and two Commissioners of the Massachusetts Department of Correction (DOC)³ because of the failure to provide flush toilets in the prison cells and the use instead of unsanitary chemical "Pak-A-Potties" and utility sinks. A Superior Court judge allowed the defendants' motion for summary judgment on the ground of qualified immunity.

Background. A. Facts. The facts, when viewed in the light most favorable to the plaintiffs, establish that they lived in single-occupancy cells that were not equipped with flush toilets or sinks with running water until 1996. Instead, they urinated and defecated into portable chemical toilets, called "Pak-A-Potties," and used open pitchers of water for drinking and washing. To reduce the odor and break up the solid waste, a deodorizing chemical solution was used in conjunction with the portable toilets.

The package containing the solution had the following cautionary language: "Contains Methyl Alcohol and Formaldehyde. Cannot be made non-poisonous. Avoid contact with skin, eyes, or mucous membranes. Avoid prolonged or repeated breathing of vapor. Prolonged or repeated contact may cause allergic irritation. FIRST AID: In case of skin or eye contact, immediately flush affected area with plenty of fresh water for at least 15 minutes."

The inmates kept these toilets in their cells — usually underneath or near their beds — for long periods during the day and overnight. Some prisoners in "room detention" were locked in their cells for at least twenty-three hours a day and were required to eat their meals in close proximity to their chemical toilets.

Once a day in the morning, the inmates were allowed to empty the contents of their chemical toilets into utility sinks known as a "slop sinks" at the end of each cellblock. The slop sinks had drains about two and one-half inches in diameter and water taps that flushed waste down the drains. Because the sinks were not designed for sewage disposal, however, the drains frequently became clogged, causing waste to overflow and spill onto the floor. Inmates were often splashed with waste and chemicals as they dumped out the Pak-A-Potties. Many of the inmates were also required to use bathroom sinks in the same rooms as the slop sinks to brush their teeth and wash their faces.

Additionally, the plaintiffs alleged that SECC allowed the chemical toilets to fall into disrepair, with cracks and worn parts causing their contents to leak into the wooden floors and their odors to permeate their living spaces. According to their affidavits, inmates made repeated requests to obtain replacement portable toilets, sometimes to no avail. They also attested that there were often no brushes or other cleaning materials available in the slop sink areas, and that the brushes supplied were inadequate. In addition, they claimed that when an inmate was transferred out of his cell, the next occupant inherited the Pak-A-Potti, and the record includes complaints that the transferred chemical toilets could be filthy and contain another person's waste.

In a 1982 study of the sanitary conditions at SECC, Dr. Bailus Walker, who would serve as the Commissioner of Public Health from 1983 to 1987, detailed the health risks posed by the use of chemical toilets. During the process of emptying the chemical toilets in the slop sink,

"fecal-urine aerosols are produced . . . [that] harbor both bacteria and viruses which fallout and contaminate bedding, clothing, and other surfaces. Here the risk of infection is increased since hand contact with contaminated surfaces can result in self-inoculation by touching the nose or mouth. . . . Aside from coughing and sneezing, the emptying of these toilets must be one of the more common processes involved in the generation of infectious aerosols in the institution. Running water in the utility sink simultaneously with the discharge of feces and urine from the portable toilet is not sufficient to prevent the build up of infectious organisms in the sink and in the cell block."

The plaintiffs claimed that the "disgusting" and "unbearable" odor of human waste and toxic chemicals emanating from the Pak-A-Potties caused nausea, dizziness, loss of appetite, headaches, and irritation of the eyes and skin. Inmates with weakened immune systems due to human immunodeficiency virus (HIV) described their particular vulnerability to the unsanitary conditions. The inmates also claimed to have made numerous complaints about the unsanitary conditions created by the use of chemical toilets, including that slop sinks backed up through floor drains in the inmates' showers.

The defendants did not dispute that the prisoners had to use the chemical toilets and slop sinks to dispose of their waste; however, they claimed that they maintained clean and acceptable conditions at SECC.⁴ Defendant Vose stated that the prison "replace[d] damaged units immediately once an inmate reported the damage." According to Amaral, the SECC replaced one-third of the Pak-A-Potties per year and had sufficient supplies of disinfectant materials for the toilets. He also stated that "if an inmate reported a broken toilet (`Potti'), our facility would give him a new one right away out of the storage room." Defendant Hall recalled "personally receiving few, if any, complaints about individual toilets."⁵ The defendants also contended that the prisoners abused and misused the toilets causing them to break.

The defendants argued that the Massachusetts prison system experienced such severe overcrowding during the late 1980's and early 1990's that the "[t]ransfer of the SECC inmate population, either permanently or temporarily, . . . was not an option." The defendants further claimed that they had no control over the limited capital funds needed to install modern plumbing at SECC. Commissioners Vose and Rapone received their capital funds from the Division of Capital Planning and Operations (DCPO), an executive agency that was statutorily responsible for approving and overseeing all phases of study, design, and construction of public buildings.⁶ In fiscal year 1986, DOC sought a study of toilet installation at SECC, but the request was rejected. DOC requested a study again the following year, and it was approved. Because the study estimated the project would cost close to $6 million, DCPO did not approve it due to budgetary and logistical problems. In fiscal year 1990, DCPO rejected another DOC request for project funding.

B. Case law history. In 1983, the Supreme Judicial Court held that the "human waste disposal system and related sanitary conditions" at the Essex County house of correction and Lawrence jail constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. Michaud v. Sheriff of Essex County, 390 Mass. 523, 524, 458 N.E.2d 702 (1983). Like the plaintiffs in this case, the inmates in Michaud had no modern plumbing; instead, two inmates each shared five-gallon buckets, which they emptied into utility sinks. Id. at 524-525, 458 N.E.2d 702. The court looked to the Department of Public Health regulations⁷ "as an objective standard for assessing whether sanitary conditions at the jail fall below minimum standards of decency." Id. at 531, 458 N.E.2d 702. In concluding that the sanitary conditions fell below the constitutionally permissible minimum, the court issued an order to the defendants for remedial measures: "[I]n no event is a cell at the jail to be occupied beyond June 1, 1984, without the necessary renovations: the installation of a flush toilet and sink with hot and cold running water, controls for all of which are accessible from within the cell." Id. at 536, 458 N.E.2d 702. The court authorized "interim ameliorative measures," however, which included the use of the type of chemical toilets at issue in this case. Ibid. See Richardson v. Sheriff of Middlesex County, 407 Mass. 455, 463, 553 N.E.2d 1286 (1990) (inmates' detention in areas lacking bathrooms and areas in which there were not enough toilets and showers violated their constitutional rights).

C. Procedural history. The plaintiffs in this case (Ahearn) filed their initial complaint on August 7, 1990, and later amended it on February 11, 1991.⁸ At this time, ten other inmates, including William Langton, were pursuing separate litigation raising similar constitutional claims regarding the sanitary conditions at SECC. Langton v. Fair, Plymouth Superior Court, No. 86-24234 (May 20, 1991). Two of the defendants in Langton, Amaral and Vose, are defendants in the instant case. In Langton v. Fair, supra, a Superior Court judge found that "the overall SECC toilet conditions . . . do not amount to cruel or unusual punishment." In addition, the Superior Court judge concluded that the doctrine of qualified immunity precluded liability of individual defendants for money damages because "a reasonable person in the defendants' positions could not be expected to know that the particular conditions at SECC violated clearly established standards on unconstitutional cruel or unusual punishment." In addressing the constitutional claims, the Superior Court judge in Langton considered it important that "the prisoners are required to be in their cells only for nine and a half hours at night and that they are not required to eat their meals in their...