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Mitchell v. Dane County Sheriff Department

United States District Court, W.D. Wisconsin

February 13, 2018

ROY MITCHELL, Plaintiff,

          OPINION & ORDER


         Plaintiff Roy Mitchell is proceeding in this action under 42 U.S.C. § 1983 on claims that various Dane County officials subjected her to conditions of confinement that violated her Fourteenth Amendment due process rights. In particular, she is proceeding on claims that she was housed in a section of the Dane County Jail that exposed her various hazards, including sewage flies, asbestos, lead, and black mold. Now before the court is defendants' motion for summary judgment (dkt. #261), which will be granted.[1]


         The following facts are material and undisputed unless otherwise noted. The court has drawn these facts from the parties' proposed findings of fact and responses, which includes Mitchell's proposed findings of fact. Defendants ask that the court deem paragraphs 11-54 of their proposed findings of fact undisputed because Mitchell failed to respond to them specifically as prescribed by the Preliminary Pretrial Conference Order (dkt. #139, at 17). While defendants correctly point out Mitchell's obligation to respond to defendants' proposed factual findings by paragraph, the court has not outright ignored Mitchell's various other filings that purport to support her disputed facts. As such, the court has deemed the majority of defendants' proposed findings of fact undisputed, but only where Mitchell has submitted no admissible evidence in dispute.

         I. Parties

         A. Plaintiff

         Between 1998 and September of 2016, Mitchell has been incarcerated at the Dane County Jail on various occasions.[2] Additionally, Mitchell has also been incarcerated at multiple Wisconsin Correctional Institutions, including Fox Lake, Dodge, Oakhill, Oregon, Stanley, Chippewa Falls, and Portage, as well as the Columbia County Jail. Mitchell is no longer incarcerated in any of these institutions and is currently on active community supervision.

         Mitchell suffers from a number of mental health issues that she avers is related to her transgender identity and her African-American race.[3] Mitchell has been seen by health care providers since being diagnosed with atypical pneumonia in September of 2016. (Ex. C (dkt. #267-3) at 2.) Also, in September of 2016, Mitchell underwent a lead exposure test resulting in a “normal” level. (Dkt. #267-3) at 74.) Since that time, Mitchell has since been seen by her health care providers multiple times for complaints of problems breathing, nasal congestion and problems walking for long periods of time, but she has not been diagnosed with pneumonia since 2016. (Id. at 17; dkt. #290-1, at 4; dkt. #293-1, at 1.)

         Although a regular smoker of cigarettes in the past, Mitchell's records further indicate that she reported to her health care providers that she believes these symptoms to be related to her exposure to asbestos at the Dane County Jail. At the time of her deposition, August 29, 2017, Mitchell stated that she was suffering from bronchitis, but the court has been unable to locate a medical record confirming that diagnosis. (Mitchell Dep. (dkt. #269), at 34-35.) Mitchell has a February 2018 appointment scheduled a UW Health pulmonologist for suspected asbestos exposure (id. at 4), but the court has been unable to identify any instance in her medical records in which a health care provider confirmed actual exposure to asbestos.

         B. Defendants

         The defendants include Dane County Sheriff Dave Mahoney, Dane County Jail Captain Anhalt, Sergeant Olsen, Sergeant Skerpenski, Deputy Merrill, and Dane County Administrator Joe Parisi. Mitchell claims that each of these defendants knew about the conditions in the jail and failed to correct them. As to Parisi specifically, Mitchell claims that he failed to pass a budget that would provide funding to improve conditions at the Dane County Jail.[4]

         II. Conditions at the Dane County Jail

         The Dane County Jail is comprised of three facilities: the City-County Building, the William H. Ferris Center, and the Public Safety Building. The City-County Building was constructed in 1955. Currently (and during the relevant time period), the Dane County Jail operated on the 6th and 7th floors of the City-County Building. In 1982, the William H. Ferris, Jr. Center was constructed as a Huber Law facility. In 1994, the Public Safety Building was constructed and includes 400 additional beds, office space for the Dane County Sheriff's Department, the Dane County Coroner, and the Department of Emergency Government.

         Mitchell's claims in this lawsuit relate to the original floors of the City-County building, and the parties agree that Mitchell was housed in the City-County Building and Public Safety Building during the relevant time period. In particular, Mitchell claims that during her time on the 7th floor of the City-County Building, she (along with other inmates and staff) had been exposed to four types of hazards: asbestos, lead paint, black mold and “sewage flies” that appear around the drainage holes in the Jail.[5] Beyond personally averring that she has been exposed to all of these conditions, Mitchell submitted sixty pages of “sworn declarations” of other inmates. (Ex. B (dkt. #276-2).) These sworn statements similarly refer to allegedly unsanitary conditions in the jail, including the presence of black mold and bugs, although none put Mitchell near any such hazards; as opposed to being housed in the jail generally. Nor do they provide additional, specific information about the conditions to which Mitchell was exposed. As such, even setting aside the question of the admissibility of these statements, they do not provide much corroborating evidence material to proving the defendants acted with deliberate indifference to Mitchell's exposure to constitutionally infirm conditions of confinement. Accordingly, the court has not considered those statements material for purposes of evaluating Mitchell's constitutional claims in this lawsuit. Rather, the court will turn to the material facts in the record specifically related to Mitchell claims: her exposure to asbestos, lead paint, black mold and sewage flies.[6]

         For their part, defendants submitted proposed findings of fact specific to each of the four types of hazards claimed, which the court addresses in turn below. As an initial matter, Mitchell has submitted a June 2014 “Needs Assessment and Master Plan” report for the Dane County Jail and Sheriff's Office created by the engineering firm of Mead & Hunt, and directed to, among others, Administrator Parisi, Sheriff Mahoney and Jail Captain Anhalt. (Ex. A (dkt. #276-1).) Mitchell argues that this report establishes that the inmates were held in “dire psychological and unsafe dehumanizing environmental conditional hardships.” At summary judgment, Mitchell submitted what appear to be portions of that final report, which do not include such an unqualified condemnation, but does contain an executive summary stating that “the age of the City County [Building], outdated technology, and poor physical conditions of the buildings cause many risks and hazards.” (Id. at 8.) The report further states that among those risks are the “[e]xistence of hazardous materials (asbestos and lead paint)” in the portions of the Jail located in the City County Building. (Id.) Finally, the report states that “stakeholders” should use caution in “considering long term solutions” for the City County Building due to the immense costs associated with remodeling and updating the City-County Building to meet those concerns. (Id.) While some of the statements from the report would appear to corroborate some of Mitchell's own claimed experiences at the Dane County Jail, like the affidavits of other inmates, they are not specific enough, alone, to support a finding of deliberate indifference.

         A. Asbestos

         Assuming for the moment that Mitchell was exposed to a dangerous level of asbestos at some point in her life, the question remains whether plaintiff has submitted proof of the presence of, and exposure to, asbestos during the relevant time period that she was an inmate of the Jail's 7th floor.

         Scott Teuscher, Dane County's Safety Coordinator, is a Certified Asbestos Inspector and holds a current license to do inspections in the State of Wisconsin. In this role, Tuescher is responsible for inspecting and sampling materials for the presence of asbestos-laden materials before any Dane County renovation and demolition projects can begin, one of the requirements in the County's written policies on asbestos control. When Teuscher determines asbestos testing is necessary, he obtains a sample and sends it to the State of Wisconsin Hygiene Lab. If the Hygiene Lab reports to Teuscher a positive result greater than 1%, Teuscher informs the project manager that a licensed abatement contractor must be contacted before work can continue. Then Dane County either contracts with Dirty Ducts Cleaning & Environmental Inc. for small abatement products or starts the bidding process.

         Of special relevance here, it is undisputed that on August 29 and 30 of 2017, Teuscher toured and inspected each cell and holding area within the Dane County Jail where Mitchell has been housed in since 1998, including cells in the City-County and Public Safety Buildings. Teuscher's visual inspection did not lead him to believe that any of these cells had asbestos-containing materials. Even though other areas in the buildings needed testing, Teuscher did not ...

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