United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND
DIRECTING ENTRY OF FINAL JUDGMENT IN FAVOR OF
William T. Lawrence, United States District Court Senior
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.
Summary Judgment Standard
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).
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
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.
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.
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.
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
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.
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.
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.
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.
Arsenic, Radium, and Lead in the Water
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 ...