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Ledford v. Baenen

United States District Court, E.D. Wisconsin

March 28, 2019

WILLIAM N. LEDFORD, Plaintiff,
v.
MICHAEL BAENEN, AMY BASTEN, RANDY MATTISON, CATHY JESS, YANA PUSICH, C.O. LEURQUIN, SMA CONSTRUCTION SERVICES, MIKE ABHOLD, BURT FEUCHT, and SOCIETY INSURANCE COMPANY, Defendants.

          ORDER

          J. P. STADTMUELLER JUDGE

         Plaintiff William N. Ledford (“Ledford”), a prisoner proceeding pro se, filed this action to recover for injuries he allegedly sustained from the discharge of noxious fumes into his cell block during construction of a new shower facility at Green Bay Correctional Institution (“GBCI”). (Docket #55). In his amended complaint, Ledford asserts claims for violations of his constitutional rights under the Eighth Amendment pursuant to 42 U.S.C. § 1983. Id. at 16. He also raises claims of negligence, negligent supervision, and negligent infliction of emotional distress under Wisconsin state law. Id. at 22-26. The defendants include an array of prison officials (collectively, the “State Defendants”), as well as private individuals and entities associated with the construction work (collectively, the “Construction Defendants”).

         Before the Court are motions for summary judgment by the State Defendants and the Construction Defendants. (Docket #86 and #94). The motions are fully briefed.[1] For the reasons stated below, they will be granted and the case will be dismissed.

         1. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 provides that the Court “shall grant summary judgment 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); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The Court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The Court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the [C]ourt that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         2. RELEVANT FACTS

         The parties' evidentiary submissions in connection with the present motions are massive, [2] but the core operative facts are largely undisputed. In the narrative that follows, disputes concerning the facts will be mentioned only when necessary. Otherwise, the facts are presented in the light most favorable to Ledford.[3]

         2.1 The North Cell Hall

         The North Cell Hall (“NCH”) at GBCI is a long, four-story structure with cells located along its west side on each floor. The NCH is bisected by a firewall between cells A-23 and A-24. The firewall is made from steel and glass and stretches from the floor to the ceiling of the structure. It has a standard double door on the ground floor and a single door on the walkways on the three floors above. See (Docket #134-4, #151-1) (photographs of NCH interior). During the relevant period, about 350 prisoners were housed in the NCH.

         When Ledford was incarcerated in the NCH, he occupied cell A-26, which is on the ground floor beyond the firewall. Cell A-26 is located directly across from the air intakes, ventilation system, and exterior windows on the east side of the hall. The exterior windows are high up on the wall, across from the third-floor cells. (There are exterior windows on the ground floor, but they are sealed shut.)

         2.2 The Bathhouse Project

         In November 2013, construction began on a new shower facility at GBCI located between the NCH and GBCI's main kitchen. Amy Basten (“Basten”), GBCI's Correctional Services Manager, exercised day-to-day supervision of the project for the prison. SMA Construction Services (“SMA”) was hired to build the facility. The bathhouse was positioned such that it directly abutted the east wall of the NCH.

         Ledford says the area in which construction took place was “very narrow” and close to the NCH's air intakes. Defendants maintain that this is simply his subjective opinion. However, Ledford provided photographs of the construction site from which it can be inferred that heavy construction equipment was being used in close proximity-sometimes only a few feet-from the air intakes. (Docket #153-1 at 13-20). A diagram of the building project reflects that the space in which construction occurred was only about fifty feet wide. (Docket #109-1). Further, Mike Abhold (“Abhold”), president of SMA, agreed during his deposition that the shower facility was being built in a “fairly narrow corridor.” (Docket #153-4 at 38).

         Construction work was nearly constant, from 8:00 a.m. to 4:00 or 5:00 p.m. on most days. Workers used heavy machinery and power tools, including a Skytrak forklift, a Bobcat skid loader, a concrete saw, and an excavator, all powered by gasoline or diesel internal combustion engines. (Docket #108 at 10, 13). The forklift and the skid loader were not equipped with exhaust scrubbers, and it is unlikely that the excavator was equipped with one. (Docket #153-3 at 78). Additionally, cement and dump trucks were commonly on-site to provide cement and back-fill, with sometimes as many as thirty trucks arriving in a single day. They idled for 10- to 15-minute periods each, emitting thick exhaust fumes the whole time. Workers also used diesel-powered ground-thawing equipment that operated both during and after working hours. At one point, says Ledford, the ground-thawing machine ran continuously for over a week.

         2.3 The Exhaust Fumes

         Large construction machinery, especially that powered by gasoline or diesel fuel, emits exhaust fumes. The fumes contain carbon monoxide, a colorless, odorless, tasteless gas that is harmful to humans in sufficient concentrations. Because of the proximity of the construction work to the NCH, exhaust fumes from the construction equipment entered the building through the hall's nearby air intakes. The fumes also entered the NCH even when the air intakes were not being used, due to cracks, gaps, and holes in the building's walls and windows. Ledford contends that the fumes “resulted in an intense odor being present on a nearly daily basis. The fumes were sometimes heavy enough to cause a visible haze in the air.” (Docket #158 ¶ 15). The NCH firewall, intended to keep fire and smoke from traveling between the halves of the hall, also had the effect of trapping and concentrating the exhaust fumes at the far end of the hall, between cells A-24 and A-37, where Ledford was confined.

         Defendants say that Ledford's assertions concerning the existence and concentration of exhaust fumes are his own lay speculation and are overblown. They admit, however, that “there were odor fumes and occasional visible fume haze during certain parts of the construction period.” Id. Moreover, as explained below, at the time GBCI officials acknowledged the possibility that exhaust fumes from the construction work were entering the NCH.

         2.4 Ledford's Symptoms

         The NCH inmates were exposed to exhaust fumes for an extended period of time. Ledford says that starting in December 2013, he experienced daily respiratory problems, severe headaches, nausea, burning eyes, a sore throat, one episode of dry heaves, and other symptoms as a result. Other inmates did, too. Defendants dispute whether the fumes caused the prisoners' alleged physical distress, (Docket #158 ¶ 23), (Docket #161 ¶ 23), as Ledford has no opinion from a physician establishing a causal link between the fumes and his ailments, though they admit that his symptoms are consistent with prolonged exposure to carbon monoxide, (Docket #158 ¶ 24); (Docket #161 ¶ 24). The parties' competing expert opinions on this topic will be discussed further below. As prisoners, Ledford and his fellow inmates obviously did not have the ability to roam the institution freely to escape the fumes.

         2.5 The Fume Complaints and Initial Response

         In February 2014, Ledford and other NCH inmates began regularly complaining to the correctional officers assigned to the building, Wayne Laufenberg (“Laufenberg”) and Todd Zuge (“Zuge”). After hearing many inmate complaints, Zuge, who testified that he himself experienced no ill effects from the fumes despite long shifts in the NCH, asked Scott Leurquin (“Leurquin”), a correctional officer and member of the GBCI Health and Safety Committee, to address the issue. Laufenberg also reported the complaints to his supervisors, though he does not remember precisely who. Ledford also complained directly to Leurquin during his rounds through the NCH. Leurquin performed additional rounds in the NCH around this time, along with other members of the Health and Safety Committee, and no one detected the presence of fumes or any odor. Ledford asserts that this is because their rounds occurred outside construction hours.

         Leurquin reported the inmate complaints to Building and Grounds Superintendent Chris Timmers (“Timmers”). Timmers visited the work site daily and was in close contact with the construction crew. It is Department of Corrections (“DOC”) policy for Building and Grounds staff to formulate plans to address environmental concerns at Wisconsin prisons. If the staff finds that the institution cannot appropriately address such a problem, it is referred to the Bureau of Budgets and Facilities Management. There are no policies that provide specific steps institutions must undertake to remediate environmental concerns beyond these general directives. See (Docket #97).

         Inmates next turned to Captain Yana Pusich (“Pusich”), the NCH's security supervisor at that time. Ledford and others wrote to Pusich to complain about the fumes. Ledford's letter of February 4, see (Docket #153-3 at 6), received no response. Pusich did, however, relay the complaints to Basten. Pusich did nothing else with respect to the fume issue and did not follow up with anyone as to what had been done.[4]

         Basten told Pusich that she would look into it. Basten met with Timmers to discuss the nature of the problem and determine what he thought should be done to address it. He said that in order to mitigate fume entry into the building, staff had shut down the air intakes on that side of the NCH during construction hours. Additionally, staff deployed large air fans on the ground floor to disperse the fumes. He also pointed out to Basten that painting work was being done inside the NCH at the time that might have contributed to the odor. She instructed him to stop the painting. See (Docket #153-2 at 107) (email chain with Pusich, Basten, and Timmers).[5]

         Thus, in early February 2014, GBCI turned off the air intakes for the NCH and set up large fans on the ground floor. Neither measure was effective, and Ledford reports that a fume haze remained in the NCH until the end of May 2014. As for Ledford and other inmates past the firewall, the fans were particularly unhelpful, as they did little to move the air at that end of the hall.

         Because of the nature of the NCH's ventilation system, turning off the air intakes simultaneously shut off the heat in the building. Coupled with the fans, this left the NCH intensely cold given the time of year. See (Docket #106-1 at 3) (noting that construction work was delayed by “subzero temperatures during the winter of 2013 into 2014”). Ledford says that he was forced to wear several layers of clothes just to stay warm, even when going to bed. Inmates thus added complaints of cold to their complaints of fumes when seeking Laufenberg's and Zuge's help. The two officers submitted additional work orders to address the concerns, and Zuge spoke to Leurquin about the problem.[6]

         2.6 Ledford's Visit with Dr. Sauvey

         On February 10, 2014, during a regular visit to discuss his diabetes with Dr. Mary Sauvey (“Sauvey”), a physician at GBCI, Ledford complained about the fumes. She said nothing could be done from a medical standpoint except to remove the source of the fumes. The doctor's notes from that visit do not reflect that the conversation occurred, but Ledford maintains that based on his many years as a state prisoner, he knows that prison doctors rarely write down the topics they discuss with patients.[7]

         This was the only time Ledford mentioned the fumes to the prison medical staff. One may wonder why, if the fumes were so debilitating for him, he did not seek medical attention related to them before or after this visit with Dr. Sauvey. Ledford explains that he never submitted a formal request for medical attention prior to February 10 because “he did not have to do so. He had routine diabetic passes for check and exams.” (Docket #158 ¶ 36). Similarly, he said nothing to anyone in the health services unit after the February 10 visit “because he did not believe that GBCI personnel had any intention of taking any reasonable actions” given their belief- explained further below-that the fumes “did not present a health risk.” Id. ¶ 37; (Docket #111 at 7) (Ledford testifying that he perceived GBCI officials exhibiting a “flippant, cavalier and indifferent” attitude about his complaints). And, given Sauvey's advice that nothing could be done to treat him for fume exposure, he concluded that further discussion with the medical staff would be futile.

         While Ledford apparently did not complain to medical staff about the fumes outside his conversation with Dr. Sauvey, other NCH inmates did so in written healthcare requests. One such inmate, Michael Piester (“Piester”), asked for medical care but was forced to pay a co-pay and was told that he did not present any medical concerns.

         Ledford reports that in addition to physical ailments, he suffered severe emotional and psychological harm as a result of prolonged exposure to the fumes; he dreaded returning to his cell to suffer the fumes and felt like he was constantly being poisoned. Further, he was dismayed that Defendants seemed not to care about his plight despite his regular complaints to institution staff, which will be explored further below. However, he never complained to institution psychological services staff about these problems.

         2.7 ICRS Complaints, the Martin Investigation, and the Mattison Memorandum

         In addition to verbal complaints to correctional officers, Ledford and some of his fellow NCH inmates submitted formal inmate complaints through the institution's Inmate Complaint Review System (“ICRS”), seeking reprieve from the fumes and cold and complaining that the remedial measures taken to date were ineffective. Ledford filed his complaint on February 14, 2014. Another group of NCH inmates, led by prisoner Dwayne Cox (“Cox”), filed a group complaint shortly thereafter, on February 19. Ledford signed his name to the group complaint as well.

         A construction project progress meeting was held on February 18. (Docket #153-2 at 16-17) (meeting minutes). The warden, Michael Baenen (“Baenen”), Department of Corrections chief engineer Randall Mattison (“Mattison”), Basten, Timmers, and the Construction Defendants, including Abhold and SMA site supervisor Burt Feucht (“Feucht”), were in attendance. At this meeting, the Construction Defendants were informed of a complaint about the fumes. Avenues for resolution were discussed, and Timmers reported his solution to shut down the air intakes during construction hours. For their part, the Construction Defendants agreed to implement exhaust scrubbers on their heavy equipment to reduce emissions.

         After this meeting, Timmers took the lead in ensuring that his proposed solutions were implemented and in monitoring temperature and air quality inside the NCH. Basten and others seemed to rely on his expertise in this area and did little to follow up. They did not determine what specific steps he took to measure air quality, though Basten testified that Timmers regularly took temperature readings in the hall. A week after the meeting, Feucht says Timmers reported that the problem had been resolved despite inmates' continued malingering.

         Mattison also undertook an investigation of the NCH's ventilation system at Baenen and Basten's request, and in response to Ledford's complaint, to ensure that it was working properly. He issued a memorandum on February 20 in which he concluded that the ventilation system, though decades old, was functioning appropriately. (Docket #103-1 at 2-3). He wrote that although diesel exhaust fumes may have entered the NCH during construction, exposure posed no long-lasting health risks and there was significant airflow through the NCH, meaning that dangerous concentrations of fumes would not be expected to build up. Id. Mattison also noted that prison maintenance staff, at Timmers' direction, would shut down one or more of the air intakes when construction equipment was being used nearby. See Id. at 3. Nevertheless, Mattison observed that the Construction Defendants had agreed to use exhaust scrubbers for any equipment in the areas of the air intakes. Id.

         Defendants submit that OSHA regulations define a carbon monoxide exposure limit of fifty parts per million over an eight-hour work day. (Docket #153-3 at 91). However, Mattison performed no air quality testing, has no medical training, and did not speak with NCH staff or inmates before writing his memorandum. See Id. His conclusion regarding health risks was premised entirely on Basten's report that there were no fume-related complaints lodged with the medical staff. Id. at 28. He did not warn GBCI officials of the dangers of carbon monoxide poisoning as dictated by OSHA or of the recommended abatement steps when individuals experience symptoms consistent with carbon monoxide poisoning. He did not examine SMA's construction equipment or investigate whether Timmers' attempted fixes for the fume problem were working. (Docket #104 at 12, 16). Further, his ...


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