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Jones v. United States

United States District Court, S.D. Indiana, Terre Haute Division

June 27, 2019

MARK JACOB JONES, SR., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT IN FAVOR OF DEFENDANT

          HON. WILLIAM T. LAWRENCE, SENIOR JUDGE

         I. Background

         Plaintiff Mark Jacob Jones, Sr. brings his claims of negligence against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. On October 24, 2018, Mr. Jones filed a motion for partial summary judgment on his claims that a) contaminated water at the Federal Correctional Institution - Terre Haute (FCI-Terre Haute) caused him to suffer ulcers and other medical problems, and b) the failure to install duress buttons in the cells caused him physical injury. Dkt. 56. The United States filed a response to Mr. Jones' motion for partial summary judgment and a cross-motion for summary judgment on all remaining claims. Dkt. 63. Both dispositive motions are now ripe for resolution. Dkts. 68, 69, 70, 71.

         II. Summary Judgment Standard

         Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Material facts are those that might affect the outcome of the suit under applicable substantive law.” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015) (internal quotation omitted). “A genuine dispute as to any material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Daugherty v. Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views the facts in the light most favorable to the non-moving party and all reasonable inferences are drawn in the non-movant's favor. See Barbera v. Pearson Education, Inc., 906 F.3d 621, 628 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. See Johnson v. Advocate Health and Hospitals Corp. 892 F.3d 887, 893 (7th Cir. 2018) (“As we have said many times, summary judgment cannot be used to resolve swearing contests between litigants.”) (internal quotation omitted).

         III. Discussion

         A. Undisputed Facts

         The following statement of facts was evaluated pursuant to the standards set forth above. That is, this statement of facts is not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light reasonably most favorable to each non-moving party with respect to their respective motions for summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

         Mr. Jones has been incarcerated with the Federal Bureau of Prisons since 2015. He was incarcerated at the FCI-Terre Haute from June 5, 2017 until May 2018.

         The claims that the Court allowed to proceed in this action based on the amended complaint filed November 20, 2017, are:

Mr. Jones alleges the United States is negligent because it has allowed the following conditions to exist at USP-TH: asbestos, water that is contaminated with arsenic, radium and lead, lead paint throughout the facility, inadequate ventilation, and mold and mildew in the showers. Mr. Jones also alleges there is not an emergency call button in this cell. He alleges that he has been injured due to the lack of an emergency call button in his cell.

Dkt. 11.

         1. Asbestos

         During an orientation to FCI-Terre Haute presented by Safety Officer Stephen Ninesling. Officer Ninesling said, “I want y'all to know that we do have asbestos in the facility as well as lead paint.” Based on this statement, Mr. Jones filed a grievance. Mr. Jones does not know whether there was asbestos in his cell at FCI-Terre Haute.

         Mr. Jones testified during his deposition that he believes he was exposed to friable asbestos (the type of asbestos that has the potential to become airborne) at FCI-Terre Haute because he could “see it flying around.” Dkt. 63-9 at 5. He elaborated that “you can see it in the sunlight around the 4pm count when the sun shines through our window.” Id. at 7. Other inmates also told him that there was friable asbestos at FCI-Terre Haute. Dkt. 63-1 at 29:2-11.

         Mr. Jones also believes that there was asbestos in the facility because a “vent” in his cell was covered up. Dkt. 63-1 at 29:19-30:19. He speculates that the vent was covered up to protect the cells from asbestos removal. Id. at 31:4-20.

         Mr. Jones' cell, E-23, does not have a dedicated vent. It has a pipe chase (a panel used to access pipes) that was sealed shut because inmates were using the pipe chases to store contraband. The pipe chases at FCI-Terre Haute are not part of the ventilation system.

         Mr. Jones does not know whether he has mesothelioma from asbestos exposure. He does not have any other diseases caused by asbestos. Dkt. 63-1 at 35:10-11.

         The Bureau of Prisons' National Occupational Safety and Health Policy (Program Statement 1600.11) provides detailed guidance on the management of asbestos in federal prison facilities. Dkt. 63-2 at ¶ 4; dkt. 63-3 at USA000907-09. As is relevant to this action, the Environmental Safety Compliance Administrator (“ESCA”) must ensure that “[m]onthly inspections document needed repairs on known or suspected ACM (asbestos-containing material.).” Id. at USA000908. Pursuant to this policy, FCI-Terre Haute conducts monthly inspections of the facility. Dkt. 63-2 at ¶ 5. During the time that Mr. Jones was incarcerated at FCI-Terre Haute, these monthly inspections did not identify any potential friable asbestos in the housing units. Id.

         2. Arsenic, Radium, and Lead in the Water

          Mr. Jones believes that there was arsenic in the drinking water at FCI-Terre Haute because of its brown color and its smell. He also believes that the water at FCI-Terre Haute was contaminated with radium because of the smell and the taste. He does not know whether he was damaged by consuming water contaminated by radium ...


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