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March 26, 2001


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.


A. The Facts

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.

a. The Counseling Unit

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. (Id.).

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)

Air sampling tests taken in the east area of the Counseling Unit on September 1996 revealed .005 fibers of asbestos per cubic centimeter. *fn4(Id. Ex. X). On November 19, 1996, preparation for asbestos removal was commenced in the Counseling Unit; the project started on December 2, 1996, and did not end until October 10, 1997, when all the asbestos was removed. (Gastin Aff. ¶¶ 13-15)

b. The Mosque

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. ΒΆ 21). Services continue to ...

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