The opinion of the court was delivered by: Chin, D.J.
Pro se plaintiffs Clifton Crawford and Ernest McEachern are,
respectively, a present and a former inmate of Green Haven Correctional
Facility ("Green Haven"). They bring this action pursuant to
42 U.S.C. § 1983 against certain current or former officials of Green
Haven, seeking compensatory and punitive damages for alleged violations
of their rights under the First, Eighth, and Fourteenth Amendments.
Specifically, plaintiffs allege that defendants (1) subjected them to
cruel and unusual punishment in violation of the Eighth Amendment by
exposing them to friable asbestos at Green Haven and (2) violated their
First Amendment rights to freedom of religion by effectively preventing
them from attending religious services at the prison mosque.
Defendants move for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. For the reasons set forth below, the motion is
granted and the complaint is dismissed.
1. The Alleged Asbestos Contamination
Plaintiffs claim that from 1995 until the present, several areas in
Green Haven have been (and, in certain cases, continue to be)
contaminated by friable, or crumbling, asbestos. Plaintiffs further claim
that defendants — various officials charged with maintaining Green
Haven's physical plant — knew of the friable asbestos but failed to
properly safeguard the safety of inmates and staff. (Crawford Aff. ¶
8). For their part, defendants deny that plaintiffs were knowingly
exposed to dangerous levels of friable asbestos. (Gastin Aff. ¶ 31).
According to defendant Dan Gastin, Asbestos Control Supervisor at Green
Haven since 1992, no area of Green Haven
has "ever contained friable
asbestos that was not immediately removed or contained." (Id. ¶ 30).
Moreover, Gastin claims, Green Haven's policies conform to New York State
code and regulations. (Id. ¶ 32). The four areas of contamination are
discussed in turn.
First, plaintiffs allege that they were exposed to friable asbestos in
the J-School Counseling Unit (the "Counseling Unit"), an area where
prisoners receive counseling and other services.
On April 8, 1995, at approximately 8:15 a.m., Corrections Officer D.
Patterson discovered that a number of tiles had fallen from the
Counseling Unit's ceiling over the weekend and that a "large amount of
water from the [ceiling] leaks" filled the waiting room area,*fn1 a
large room where inmates wait until they are seen by counselors in
private offices. (Crawford Aff. Ex. A; Gastin Aff. ¶ 11). In his log
book entry for that date, Patterson noted that "the missing tiles,
falling tiles, and leaks have been reported to maintenance many times."
(Crawford Aff. Ex. A.) (emphasis in original). Patterson further wrote
that he was going to contact Senior Counselor Levanduski about the
situation and that Levanduski had been "informed of the situation in the
past." (Id.). Patterson contacted Fire and Safety Officer Smith, who
ordered the inmate waiting area and orientation rooms closed until
repairs were made. (Id.). Gastin states that the waiting area was
"immediately closed" to inmates and staff.*fn2 (Gastin Aff. ¶ 12).
On May 2, 1995, Patterson wrote in the log book that he notified Fire
and Safety Officer Smith about "the closed area not being sealed yet."
(Crawford Aff. Ex. B). In response, Smith told Patterson that he would
contact maintenance again and that Patterson should submit another work
order. (Id.). Two weeks later, on May 18, 1995, Patterson wrote in the
log book that the condemned rooms (of the Counseling Unit) "have never
been sealed to this point." (Id. Ex. C). That afternoon, C.O. Denoso and
"civilian Gaston" (presumably defendant Gastin) arrived at the Counseling
Unit with an inmate asbestos crew to "seal the condemned area." (Id.).
Patterson noted in the log book that he left the Counseling Unit late
that morning because the asbestos crew was still working on the Unit.
Plaintiffs claim that this was not the first time that rain had caused
ceiling tile in the Counseling Unit to fall. (Crawford Aff. ¶ 12).
The Counseling Unit was not closed to inmates until July 1996, when
equipment from the Counseling Unit was transferred to another building.
(Id. Ex. E). By July 8, 1996, Artuz, Seitz, Haponik, Bliden, Richards,
Smith, and Lyman all knew of the asbestos in the Counseling Unit.*fn3
(Id. ¶ 15, Ex. F)
Plaintiffs next allege that they were exposed to friable asbestos when
the ceiling of the Green Haven Masjid Taubah (the "Mosque") collapsed due
to rain.*fn5 (Crawford Aff. ¶ 17). The Mosque is an area designated
for Muslim worship and religious activities. (Id. ¶ 20). Both
plaintiffs are practicing Muslims.*fn6 (Compl. ¶¶ 33, 52).
On August 23, 1996, McEachern, along with two other Green Haven inmates
certified in asbestos handling, was escorted to a room in the Mosque to
examine its ceiling. (Crawford Aff. Ex. PA). Upon inspection, it was
determined that the ceiling contained sprayed-On asbestos fireproofing
that had started to deteriorate from the rain. (Id.).
On September 4, 1996, the New York State Department of Labor's Division
of Safety and Health received a complaint about asbestos in the Mosque
from Asim Bomani, another inmate at Green Haven. (Id. Ex. H). According
to the complaint, the ceiling in one of the Mosque's rooms had
collapsed. The ceiling was covered with asbestos, the room had not been
sealed, and inmates were exposed to particles from the room on rainy or
humid days. (Id.). The complaint was referred to Industrial Hygenist
Sylvester Murray from the Department of Labor. (Id.).
On September 5, 1996, Murray, accompanied by defendants Haponik and
Maintenance Supervisor Richard Muller, conducted an on-site inspection of
the Mosque areas referenced in Bomani's complaint.*fn7 In an inspection
report dated September 6, 1996, Murray reported that the ceiling in
question "had open areas in it and appeared to be undergoing
deterioration[;] however[,] no reconstruction was occurring on it." (Id.
Ex. G). Murray also noted that the door to the potentially contaminated
area was closed but not locked. (Id.). Upon inspecting the area, Murray
informed Haponik and Muller that a licensed asbestos contractor with a
certified group of laborers would be necessary for reconstruction if the
ceiling contained asbestos. (Id.). The Mosque was not closed
immediately. (Id. ¶ 18). An asbestos abatement project was commenced
in October 1996, which resulted in the removal
of approximately seventy
bags of friable asbestos.*fn8 (Id. Ex. AA).
Gastin states that the areas in the Mosque that contain asbestos are
closets not normally used by inmates. (Gastin Aff. ¶ 4). As a
precaution, background asbestos air samples of the East and West Closets
were taken on October 2, 1996; the results were, according to Gastin,
within acceptable limits. (Id. Aff. ¶¶ 5, 8, Exs. A, B). Pre-abatement
samples were taken from the East Closet on October 11, 1996, and the
results were also found to be within acceptable limits. (Id. ¶ 6,
Ex. A). Final air samples of the East and West Closets were taken on
October 19, 1996, and the results of both were within acceptable limits,
as defined by New York State Industrial Code, and met all applicable
re-entry requirements. (Id. ¶¶ 7, 9, Exs. A, B).
Crawford challenges this assessment, asserting that the background
asbestos air samples for the East and West Closets were "very high and
not within acceptable limits." (Crawford Aff. ¶¶ 18, 43-45). Crawford
further states that air samples are currently outside acceptable limits.
(Id. ¶ 19, Exs. U-X). As plaintiffs acknowledge, however, the "safe
level" of asbestos established by the state is .01 fibers/cubic
centimeters. (Id. Ex. Z). The ambient air sample taken from the Mosque in
July 1998 showed .005 and .006 fibers/cubic centimeters. (Id. Ex. W). In
fact, of the 36 readings provided to the Court that are clearly for the
Mosque, only two exceed .01 f/cc, and neither of them exceed .012 f/cc.
(Id. Exs. U-Y; Gastin Aff. Exs. A-B).
As of July 13, 1998, Gastin reported that tiles were still missing from
the Mosque's ceiling in two rooms. (Crawford Aff. Ex. 00). Gastin then
set up a schedule for cleaning, which was to close off the Mosque until
Friday, July 17. (Id.). No further information about asbestos removal, in
the Mosque has been provided.
As of March 8, 2000, "Jumah Services" for Muslim inmates were moved
from the Mosque to a gymnasium. (Id. ¶ 21). Services continue to ...