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Arizona DOC May Be Held Accountable for Not Protecting Prisoners from Asbestos

A federal magistrate judge in Arizona has recommended denying a motion for summary judgment filed by the State of Arizona in a lawsuit brought by a group of current and former prisoners. The suit was filed after the prisoners were used by the Arizona Department of Corrections (ADC) to shut down and clean up a 22-acre landfill owned by ADC.

The 17 past and present prisoners accused ADC of failing to take proper precautions to protect them from asbestos contamination. The landfill had transite pipe and shingles, each of which contained asbestos.

The Prison Litigation Reform Act (PLRA), the basis of the state’s motion, prohibits recovery for mental or emotional injury suffered while in custody without a prior showing of physical injury. The court found the PLRA is “designed to deter frivolous litigation by idle prisoners” and it does not apply to the plaintiffs who are not incarcerated. As for the plaintiffs who are still incarcerated, the PLRA applies. However, the court found that because the prisoners’ damages claims were premised on constitutional violations, not emotional or mental injuries, they may proceed without a showing of physical injury.

On March 7, 2008, Magistrate Judge Bernardo P. Velasco recommended the district judge, after his independent review and consideration, deny the state’s motion for summary judgment. Source: Abney v. Arizona, USDC, D. Ariz., No. CV-04-525-TUC-RCC (BPV) (March 7, 2008). The Report and Recommendation is available in PLN’s brief bank. The district court adopted the report and denied the state’s motion for summary judgment on June 9, 2008. See: Abney v. Astrue, USDC, D. Ariz., No. CV-04-525-TUC-RCC (BPV) (June 9, 2008).

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Related legal case

Abney v. Arizona

Please see the brief bank for the Report and Recommendation of Magistrate Judge Bernardo P. Velasco.

STEVEN ABNEY, et al, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

No. CV04-525-TUC-RCC


2008 U.S. Dist. LEXIS 45447

June 9, 2008, Decided
June 9, 2008, Filed


On March 7, 2008, the Honorable Bernardo P. Velasco, United States Magistrate Judge, filed a Report and Recommendation ("Recommendation") in this action (Docket No.204). The Recommendation advised the Court to DENY the Defendants' Motion for Summary Judgment (Docket No. 174). The Court reviewed and considered the Defendants' Objection (Docket No. 210) and the Plaintiffs' Response (Docket No. 213).

The Court considers the Recommendation (Docket No.204) to be thorough and well-reasoned. After a thorough and de novo review of the record, the Court will ADOPT the Recommendation of Magistrate Judge Bernardo P. Velasco. Therefore,

IT IS HEREBY ORDERED Defendants' Motion for Summary [*3] Judgment (Docket No. 174) is DENIED.

DATED this 9th day of June, 2008.

/s/ Raner C. Collins

Raner C. Collins

United States District Judge