United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Gericke was a prisoner at the Westville Correctional Facility
when he was working in the Maintenance Department. Without a
lawyer, he filed a complaint alleging he was exposed to
asbestos. “A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, the court must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
alleges he “worked daily in the non-ventilated,
underground tunnels throughout the prison, in various
mechanical rooms, repairing steam lines and handling various
repairs . . . from 7/25/16 - 12/09/16.” ECF 7 at 7.
While there, he alleges he was exposed to asbestos along with
other inmates and prison employees. He alleges this violated
various health and safety rules. However, “not every
deviation from ideally safe conditions constitutes a
violation of the constitution.” The Eighth amendment
does not constitutionalize torts. Nor does it require
complete compliance with the numerous OSHA
regulations.” French v. Owens, 777 F.2d 1250,
1257 (7th Cir. 1985) (quotation marks and citations
omitted.). “In order to state a claim under § 1983
a plaintiff must allege: (1) that defendants deprived him of
a federal constitutional right; and (2) that the defendants
acted under color of state law.” Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Therefore the
violation of health and safety rules is not sufficient to
state a claim.
conditions violate the Eighth Amendment if they pose a
substantial risk of serious harm and prison officials are
deliberately indifferent to the risk. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Conditions of
confinement must be severe to support an Eighth Amendment
claim; “the prison officials' act or omission must
result in the denial of ‘the minimal civilized measure
of life's necessities.” Id. at 834. The
Eighth Amendment only protects prisoners from conditions that
exceed “contemporary bounds of decency of a mature,
civilized society.” Lunsford v. Bennett, 17
F.3d 1574, 1579 (7th Cir. 1994). In other words, “[a]n
objectively sufficiently serious risk is one that society
considers so grave that to expose any unwilling individual to
it would offend contemporary standards of decency.”
Christopher v. Buss, 384 F.3d 879, 882 (7th Cir.
2004) (quotation marks and citations omitted).
Seventh Circuit has explained, “the mere presence of
asbestos in a prison does not violate the Eighth Amendment;
exposure to moderate levels of asbestos is a common fact of
contemporary life and cannot, under contemporary
circumstances, be considered cruel and unusual.”
Contreras v. Hawk, 77 F.3d 484 (7th Cir. 1996)
(quotation marks and brackets omitted). Gericke was exposed
to asbestos while doing maintenance work for less than five
months. This was not an objectively serious risk because his
exposure was not meaningfully different than that of prison
employees who willingly worked in the same environment for
many years. Even the serious safety violation on November 9,
2016, exposed prison employees Adam Leidy and Ken Stovaugh to
similar asbestos risks while they supervised Gericke's
work group. On that occasion, Engineer Mark Wilson violated
safety rules when he removed asbestos from an overhead pipe
causing asbestos to rain down around Leidy, Stovaugh,
Gericke, and others who had no personal protective equipment.
Though unfortunate, this kind of workplace risk is not
uncommon for maintenance employees both in and out of
prisons. As such, it cannot be considered cruel and unusual
punishment in violation of the Eighth Amendment.
Gericke raises two related claims. He alleges he wrote to
various supervisors complaining about hazardous conditions.
However, the “view that everyone who knows about a
prisoner's problem must pay damages implies that [a
prisoner] could write letters to the Governor of Wisconsin
and 999 other public officials, demand that every one of
those 1, 000 officials drop everything he or she is doing in
order to investigate a single prisoner's claims, and then
collect damages from all 1, 000 recipients[, but t]hat
can't be right.” Burks v. Raemisch, 555
F.3d 592, 595 (7th Cir. 2009). “[P]ublic employees are
responsible for their own misdeeds but not for anyone
else's.” Id. at 596. “Only persons
who cause or participate in the violations are
responsible.” George v. Smith, 507 F.3d 605,
609 (7th Cir. 2007). There is no general respondeat superior
liability under 42 U.S.C. § 1983. Id. at 594.
also alleges he filed healthcare requests, but was not seen
by medical staff. However he has not named any medical staff
as defendants. Neither has he alleged that any of the named
defendants did anything to impede him from getting medical
treatment. Though it is unclear why he was not seen by
medical in response to his healthcare requests, it is clear
he has not alleged that any of the named defendants were
personally involved in denying him medical treatment.
complaint does not state a claim. It is unclear what facts
Gericke could add which could state a claim, but if he has
additional facts, he may file an amended complaint. See
Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). To
do so he must place this cause number on a blank
Prisoner Complaint (INND Rev. 8/16)
form which is available from the law library. In the
complaint, he must set forth all of the facts necessary to
plausibly show that one or more of the listed defendants was
personally involved in violating his Eighth Amendment rights.
these reasons, the court: (1) GRANTS Christopher Gericke
until November 14 2019, to file an
amended complaint; and (2) CAUTIONS Christopher Gericke if he
does not respond by the deadline, this case will be ...