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Wisconsin: Court Dismisses Prisoners’ Suit Over Asbestos, Mold on Procedural Grounds

Filed on July 18, 2019, by Nicasio Cuevas Quiles III and nine fellow prisoners at the medium-security facility, the suit sought $15 million in damages for alleged exposure to asbestos, radium, lead and black mold, as well as contaminated water and unsanitary living conditions, all in violation of plaintiffs’ Eighth Amendment rights.

The order by Judge William M. Conley dismissed the case without prejudice, giving plaintiffs specific instructions on how they could amend or refile the case to meet procedural deficiencies that killed it.

For example, Conley found that the suit lists claims that broadly fall into three categories alleging (a) discrimination, (b) unlawful confinement conditions or (c) inadequate health care. To avoid running afoul of federal procedural rules that prevent mixing different claims in one suit, he recommended that plaintiffs file three separate lawsuits.

Conley also found that the suit failed to allege sufficient facts to support all of its legal claims. And it failed to allege a set of facts common to all plaintiffs, another procedural requirement necessary for each of the ten prisoners to be included in the same suit.

So, for example, while plaintiffs allege daily exposure to asbestos – putting them at risk of cancer – they failed to mention how they were exposed, and they also failed to describe methods of exposure common to all 10.

The prisoners’ suit said that asbestos is not the only problem at the lockup west of Madison. They alleged that they were required to drink water piped through lead laterals known to carry radium, gross alpha, and rust, materials that can cause cancer and blindness.

Another issue in the lawsuit related to “Tight Building Syndrome” or “Sick Building Syndrome,” terms coined to describe an occupational health and safety problem for prisoners who live or work indoors with mold that is “caused in part by ... ‘contaminants that may breed in stagnant water accumulated in ducts, humidifiers, and drain pans, or where water has collected on ceiling tiles, carpeting, or insulation.”

Citing the federal Environmental Protection Agency (EPA), the suit noted that such mold has been a concern for the EPA and the subject of class action lawsuits across the nation.

The prisoners also cited Antonelli v. Sheahan, 81 F.3d 1422, (7th Cir 1996) to claim that defendants had committed an act so dangerous that its infliction and their reckless actions were deliberate in the criminal sense, and the prisoners requested a temporary injunction of the application of the policy to them.

However, as Conley noted, it’s more common that a court prevents a change in the status quo and almost unheard of to enjoin the status quo itself. He denied the request for injunction, but he invited plaintiffs to refile their request in accordance with his advice.

In addition to Warden Tim Haines and Deputy Warden Kevin Semanko, the suit names as defendants Security Director Russell Bausch, Program Director Lisa Pettera, a named unit manager, health unit manager and nurse, as well as four “John Doe” staff defendants. See: Quiles v. Haines, 2019 U.S. Dist. LEXIS 174078. 

 

Related legal case

Quiles v. Haines