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
The opinion of the court was delivered by: 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. The defendants have moved for summary judgment. For the following reasons, the motion is granted.
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. 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.
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 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.*fn1 Spavone 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 ...