Vela v. Christian

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE ^[1]

Based on the relevant filings and applicable law, Defendants' Motion to Dismiss and Memorandum in Support Thereof, received on April 1, 2021 (doc. 28), should be granted in part, and the plaintiff's claims should be dismissed.

I. BACKGROUND

Alleging violation of his rights under the Eighth Amendment to the Constitution, Alejandro Vela (Plaintiff) sues the former acting safety administrator, Mark Christian (Administrator), and the former assistant warden Gerardo Rozales (Warden) (Defendants), of the Federal Correctional Institution in Seagoville, Texas (FCI-Seagoville), in their individual capacities. (doc. 3 at 3, 6, 9- 10.)^[2] He claims that Defendants were deliberately indifferent to the serious risk of harm to him from exposure to asbestos and mold while working in a warehouse at FCI-Seagoville, where he is incarcerated. (See id.)

A. The Warehouse

Plaintiff alleges that the FCI-Seagoville warehouse was built in the late 1930s, so it is presumed to have been constructed with and using “Asbestos containing material.” (Id. at 10) (citing

2

29 CFR § 19.1001(a)(b) and j(2)). It was previously abated due to asbestos on the pipes. (Id.) In another inmate's office, the flooring was partially removed “due to asbestos in the tile.” (Id. at 10-11.) Plaintiff alleges the existence of a report generated many years ago, which states that the warehouse was asbestos-free. (Id. at 11.)

The warehouse itself contains two storage rooms with freezers (storage areas 1 and 2) that previously stored food and other items. (Id.) From October 1, 2013, through about July 1, 2017, there were issues with the freezers “breaking down.” (Id.) The freezer in storage area 1 broke down for the last time on April 1, 2017. (Id.) On or about May 1, 2017, it was determined that storage area 1 should be converted to “dry storage” due to the assistant food service administrator observing the inmates' food covered with a fine dust and chunks of black substances that had fallen from the ceiling. (Id. at 11-12.)

In early July 2017, the warehouse supervisor directed inmates to start dismantling and removing the shelving systems from storage area 1. (Id. at 12.) Inmates personally cleaned each piece of the storage shelf system, which was covered in an accumulated “dirty dry substance” and “black surfaces substances.” (Id.) After removing the shelves, inmates cleaned storage area 1 of all dust and falling debris and tore down the walls. (Id.) At no time were the inmates provided protective gear or informed that the substances they were cleaning up contained asbestos, but the poor air quality in storage area 1, which contained asbestos and mold, caused them to suffer upper respiratory issues and bloody noses. (Id.)

On or about September 1, 2017, in response to the frequent complaints of upper respiratory issues and bleeding noses, the warehouse supervisor emailed Administrator about the falling substances in both storage areas, as well as a strong odor emanating from them. (Id. at 13.) On or

3

about September 30, 2017, Warden, Administrator, and other individuals examined the warehouse. (doc. 8 at 1, 3.)^[3] Administrator tested the black substance in both storage areas on or about October 27, 2017, and determined that the substance and smell was only mildew. (Id. at 2.; doc. 3 at 13.) He did not, however, address the substance falling from the ceiling. (doc. 3 at 13.) That same day, after instructing the inmates to remove all property from both storage areas, and while wearing a full body suit and respiratory protection, Administrator sprayed a “soapy smelling substance” in both storage areas. (doc. 8 at 2.) Following the testing, the warehouse supervisor then ordered the inmates to clean and then return all property to its respective storage room. (doc. 3 at 14.)

Warden agreed with the testing methodology and results and “did not take into consideration the hazardous materials, i.e., asbestos, found rampant in the warehouse historically.” (Id.; doc. 8 at 3.) Nor did he address the falling substance, which Plaintiff alleges created an unsafe working condition in both storage areas. (Id.)

After Administrator's visit, inmates still experienced nose bleeds and significant upper respiratory breathing issues upon entering the storage areas, which they reported to their direct supervisor. (doc. 3 at 14; doc. 8 at 2.) Substances and ceiling tile continued to fall from the ceilings in the storage areas that the inmates had to continually clean. (doc. 3 at 14.) Due to the lack of ventilation and humidity in the storage areas, the ceilings became dry and crumbled; mold began to grow after the freezers broke down, causing the ceiling installation to fall and shatter on the items

4

below. (Id. at 14-15.) Plaintiff emphasizes that the source of the asbestos was the ceiling installation, which contained friable asbestos and mold. (Id. at 15) (citing 29 CFR § 1910.1001, Appendix C(1).) Until January 15, 2018, when the storage areas were equipped with new doors allowing air to filter in and out from the breeze way, “both inmates and staff had been working in a condition where the air flow movement was uninhibited in the breeze-way and the storage areas.” (Id.)

In July 2018, a new safety administrator visited the warehouse. (Id. at 17.) Around that same time, Administrator and Warden left FCI-Seagoville. (Id.) In early September 2018, the new safety administrator was introduced to the storage areas, prompting him to announce that he would test the storage areas. (Id.) On or around October 9, 2018, at the direction of the new safety administrator, an outside company representative tested the substances falling from the ceilings. (Id.) The new safety administrator then placed signs on the doorways of the storage areas stating, “Danger, Asbestos, May Cause Cancer Cause Damage to Lungs, Authorized Personnell [sic] only. 29 CFR [1910.1001(j)(4)(1)] C. Rees, Safety Manager, Ext. 4431.” (Id. at 18.) The new safety administrator informed the warehouse supervisor and inmates that the crumbled substance prevalent in both storage areas contained 10% asbestos and mold as well. (Id.) The new safety administrator then restricted air flow coming into and out of the storage areas by covering the same with plastic. (Id.)

After the sealing of the storage areas on or around October 9, 2018, the storage areas were dormant, with air-flow restricted. (Id. at 19.) The new safety administrator informed others that all toilet paper, mattresses, washers, and dryers, and cardboard boxes in the storage areas needed to be abated and destroyed. (Id.) On October 31, 2018, the new safety administrator issued a memorandum reporting the finding of asbestos in both storage areas. (Id.) It specifically states that testing revealed the presence of asbestos-containing materials in the warehouse, but two air samples read negative

5

for the presence of airborne asbestos. (Id. at 44.)

B. Plaintiff's Exposure

Plaintiff began working in the warehouse on or around November 1, 2017, and still works there. (Id. at 15) He was responsible for cleaning, with his hands, falling debris from both storage areas, which contained black and dry substances; crushing the ceiling installation so that it could fit in the trash compactor; sweeping and mopping all the debris to ensure that the storage areas remained clean; dismantling the shelves in storage area 2, which were covered with debris from the ceiling; and removing or adding “institutional properties” upon request from the warehouse supervisor or staff. (Id. at 15-16; doc. 8 at 6-8.) During the cleaning process for storage area 2, the ceiling was “falling apart and there was black and dry substance all over the floor, including the part of the ceiling that was hanging down.” (doc. 8 at 6.) Plaintiff claims that immediately upon entering the breeze-way of the warehouse where the storage areas were located, he could smell a strong distinct odor. (Id.) He inquired as to the insulation over the piping in the warehouse and was informed that the warehouse had been insulated due to asbestos exposure. (Id.) The warehouse supervisor instructed Plaintiff to keep the doors to storage areas 1 and 2 closed when not moving property into or out of those areas. (Id. at 7.) At no point during the process did Plaintiff, or any other inmate, wear protective gear. (doc. 3 at 16.; doc. 8 at 7.) Nor were they informed that the substance they were handling contained asbestos. (Id.) Plaintiff claims that he routinely cleaned all property being removed from storage areas of the dusty substance and black matter. (doc. 8 at 7.) It was also routine to navigate falling ceiling tiles or remove hanging ceiling tiles to avoid injury. (Id.)

After the storage areas were sealed in October 2018, Plaintiff was informed that his clothing

6

and bedding needed to be exchanged due to extended exposure to the “10% asbestos and mold.” (doc. 3 at 19.) In May 2019, an abatement company abated the material that “Plaintiff handled on a routine basis for over 200 plus days, ” and removed the ceiling and wall covering that were the sources of the asbestos. (Id. at 20-21.) During the abatement process, employees and staff of the abatement company wore protective suits. (Id. at 20.)

Due to the lack of ventilation in both storage areas, Plaintiff's nasal passages frequently flared upon entering the warehouse due to the strong odor coming from the breeze-way. (doc. 8 at 7.) He continued to experience “nasal passage issues” until the new safety administrator sealed the storage areas in October 2018. (Id.) The symptoms did not subside until “a couple of months” afer...