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Byron Smith v. Gallegos

February 6, 2013


The opinion of the court was delivered by: J. Thomas Marten, Judge


The court has before it the defendants' Motion to Dismiss or for Summary Judgment (Dkt. 121). The defendants seek an order dismissing the case for failure to state a claim under Fed. R. Civ. P. 12(b)(6). In the alternative, the defendants ask the court to grant summary judgment in their favor. After thoroughly reviewing the parties' briefs, the court is now prepared to rule. For the following reasons, the court grants summary judgment to the defendants on the basis of qualified immunity.

I. Background

Plaintiff Byron Smith is a prisoner who was incarcerated at the United States

Penitentiary at Leavenworth ("USP Leavenworth") during the times relevant to his Second Amended Complaint. Plaintiff alleges that defendants violated his Eighth Amendment rights and were deliberately indifferent to his safety by exposing him to very large dosages of asbestos fibers when he was on a work detail. For relief, Smith seeks $150,000 in compensatory damages, $50,000 in punitive damages, an unspecified amount for future medical expenses, and regular testing by a professional trained in the area of asbestos for the purpose of proper diagnosis and treatment.

Smith filed the present action initially on January 6, 2006 in the District of Columbia, which transferred his case to the District of Kansas due to improper venue. Smith thereafter filed a First Amended Complaint in the District of Kansas on March 27, 2006, incorporating by reference the documentation and facts of the original complaint. On September 28, 2009, Smith filed a Second Amended Complaint, incorporating by reference the relevant documentation and facts in the original complaint. Smith is suing all defendants in their individual capacities.

Smith's complaint alleges that he was exposed to asbestos in 2003, while he was an inmate at USP Leavenworth. From April through June that year, he worked for the Custodial Maintenance Service as an electrician. While working in this capacity, he received a work order from defendant Jeffery Sinclair, the electric shop supervisor, to add a new light fixture in a closet in the education building. Defendant Janet Durbin, an education officer/teacher, met the plaintiff in the education building, unlocked the classroom and the closet, and showed Smith where she wanted the light fixture to be placed. Smith and his work crew began working on the light fixture in the closet, which was approximately 12 feet by 6 feet. During the work, inmate Gonzales, who worked on a different work order, began pulling pipe out of the closet, which caused the closet to become thick with dust from the pipe insulation. Smith alleges this dust contained asbestos, and it irritated his eyes, nose, and throat, causing him to cough. Defendant Durbin also instructed inmate Gonzales to wait until plaintiff and his work crew installed the light fixture before proceeding back into the closet. Smith ended his work on the closet until the dust settled.

The next day, Sinclair gave another work pass to Smith and his crew to return to work on the fixture. Inmate Gonzales was allowed inside to continue his cleaning. Again, Gonzales pulled the insulation off the pipe in the closet, filling the closet with dust. The dust bothered plaintiff's eyes and throat, which caused the plaintiff to stop working until the dust settled. Defendant Durbin instructed inmate Gonzales to leave the closet or a report would ensue. Once the dust cleared, Smith and his crew continued to work on the fixture, but could not get the light to function properly. Durbin called Sinclair, who came to assist. The job was completed in an hour after Sinclair came to help.

In 1994, the Ramsey-Schilling Consulting Group performed a survey to document the presence of asbestos at USP Leavenworth. The Group's final report was extensive. Smith contends that the pipe insulation that was disturbed by Gonzalez was reported as damaged by the Ramsey-Schilling survey. He alleges that this report made the several individual defendants aware of the asbestos in the closet in the education department where he was assigned to work.

This court initially dismissed Smith's Eighth Amendment claims, holding that Smith failed to plead deliberate indifference on the part of defendants. See Dkt. 59, at 8-- 9. On appeal, the U.S. Court of Appeals for the Tenth Circuit reversed this holding, finding that Smith had pled sufficient facts for his claim that the defendants were aware of a substantial risk of asbestos exposure. Smith v. United States, 561 F.3d 1090, 1105 (10th Cir. 2009). Specifically, the Tenth Circuit found that the existence of the Ramsey-Schilling survey gave a sufficient basis to find that defendants knew about the asbestos in the education department closet. The Tenth Circuit also found that the chain of command provided a basis for finding that several defendants knew about the asbestos in the closet:

Smith also alleges that defendant Stephanie Wheeler, a member of the safety department, had previously directed Gonzalez's activities with respect to removal of the asbestos material, and that defendant Teresa Hartfield had to approve of all work done in the education department, which implies that Hartfield had to have known of the prior asbestos-related work. Smith alleges that John Parent told him he had previously informed the education department staff about the presence of asbestos in the closet, which would have included defendants Hartfield, Durbin, and John Doe. And, Smith alleges that defendant Durbin was aware of the damaged pipe insulation at the time of Smith's exposure. Moreover, defendant Jeffery Sinclair is alleged to have given Smith a work pass on the second day so that he could return to the closet and finish the job that could not be finished the first day because of the dust exposure, which implies Sinclair's knowledge.

Smith, 561 F.3d at 1105 (citations to the docket omitted).

The present issues for consideration are (1) whether this court should dismiss Smith's Second Amended Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6); (2) whether this court should grant defendants summary judgment under Rule 56; and (3) whether the defendants are entitled to qualified immunity. The ...

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