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Thao v. Dobie

United States District Court, N.D. California

June 29, 2017

NOU THAO, Plaintiff,
JOE DOBIE, et al., Defendants.


          PHYLLIS J. HAMILTON United States District Judge.

         This is a civil rights case brought pro se by a state prisoner under 42 U.S.C. § 1983. His claims arise from his detention in San Quentin State Prison (“SQSP”). Plaintiff alleges that defendants were deliberately indifferent to lead-and asbestos-related risks while plaintiff and other inmates were working in the inmate mattress factory in May and June 2012. Defendants Dobie, Earley, Loredo and Smith have filed a motion for summary judgment. Defendant Young has separately filed a motion for summary judgment. Plaintiff has filed an opposition and defendants filed replies. For the reasons set forth below, the motions are granted.


         Previously, six other related actions were brought in this court asserting the exact same claims of asbestos and lead paint exposure at the mattress factory in May and early June 2012. The six related actions were Terry v. Smith, C 13-1227 EMC; Carter v. Smith, No. C 13-4373 EMC; Spells v. Smith, No. C 13-4102 EMC; Hirscher v. Smith, 14-340 EMC; Arnold v. Smith, No. C 13-4456 EMC; and Beyett v. Smith, No. C 14-3153 EMC. The six prisoner-plaintiffs appeared to be coordinating their efforts, as their pleadings, requests, oppositions, and exhibits were similar. On the other side, and similar to this case, the defendants were represented by the Law Office of Nancy E. Hudgins, except for Jeremy Young, who was represented separately by attorney Kenneth Williams. Defense motions for summary judgment were filed in five of the six cases; one was not filed in the Arnold case because it proceeded at a slower pace.

         The court chose one case (Carter), went through the evidence in that case, and issued an order granting in part and denying in part defendants' motions for summary judgment. The court then sent to the parties in all six cases the lengthy order in the Carter case, explaining that the ruling in Carter was not technically dispositive of the motions for summary judgments in each of the other related cases, but that the ruling showed the court's evaluation of the evidence and provided enough guidance for the parties in all six cases to have a good sense of their relative positions for settlement purposes. The court then referred all the cases to a magistrate judge for settlement proceedings. Four of the actions settled, and two-Terry, C 13-1227 EMC and Arnold, No. 13-cv-4456 EMC-continued. New motions for summary judgment with additional evidence were filed in Terry and Arnold, and on December 2, 2016, the court granted the motions and the cases were closed. This case, while not identical, is substantially similar to the six closed cases, and both sides submit substantially similar arguments and evidence; however in this case, it is undisputed that plaintiff has suffered no medical problems and is in good health.


         Motion for Summary Judgment

         A. Summary Judgment Standard

         Summary judgment is proper where the pleadings, discovery and affidavits show 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

         The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has met this burden of production, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the moving party wins. Id.

         B. Eighth Amendment Standard

         The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Deliberate indifference to an inmate's health or safety may violate the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate's health or safety. See Farmer, 511 U.S. at 834.

         Exposure to toxic substances may be a sufficiently serious condition to establish the first prong of an Eighth Amendment claim, depending on the circumstances of such exposure, as explained by the Supreme Court in Helling v. McKinney, 509 U.S. 25, 35 (1993) (inmate stated Eighth Amendment claim based upon possible future harm to health, as well as present harm, arising out of exposure to second-hand smoke). The plaintiff “must show that he himself is being exposed to unreasonably high levels” of the toxic substance. Helling, 509 U.S. at 35. Moreover, determining whether the condition violates the Eighth Amendment “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to [the toxic substance]. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.” Helling, 509 U.S. at 36.

         Although Helling was a second-hand smoke case, the rule also applies to asbestos exposure. In Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995), the Ninth Circuit cited Helling in a case in which an inmate had been exposed to asbestos during a prison cleaning operation. The Wallis plaintiff extensively handled asbestos-containing materials when he was on a work detail required to clean an attic with damaged asbestos-containing insulation on pipes and insulation material that “had broken loose and lay scattered around the attic” with other debris. Id. at 1075. Wearing inadequate masks, the inmates were required to “tear off loose pipe covering and insulation” and bag it for disposal in a dusty attic without outside ventilation. Id. The court in Wallis spent little time discussing whether the objective prong was satisfied for the Eighth Amendment claim because it was “uncontroverted that asbestos poses a serious risk to human health, ” and the plaintiff's medical expert had declared that the amount of exposure for that plaintiff was “medically serious, ” id. at 1076.

         Other circuits also have cited Helling in cases involving toxic substances such as asbestos. See, e.g., Templeton v. Anderson, 607 F. App'x 784, 787 (10th Cir. 2015) (summary judgment proper for defendant because requiring inmate to work for one hour removing asbestos mastic and tiles “was not a significant duration given the type of exposure at issue” and therefore did not satisfy the objective prong of Eighth Amendment claim); Smith v. Howell, 570 F. App'x 762, 765 (10th Cir. 2014) (affirming summary judgment on qualified immunity grounds on Eighth Amendment claim because there were no Tenth Circuit or Supreme Court cases by 2003 that had held “that a limited exposure to asbestos dust for a few hours poses such an objectively serious risk of future harm to offend contemporary standards of decency. Indeed, there is no such authority even today.”); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (finding genuine issues of fact as to whether plaintiff was exposed to levels of asbestos sufficient to pose an unreasonable risk of damage to his future health based on his two-month stay in a facility “contaminated with asbestos to which inmates were routinely exposed, ” but that summary judgment was proper because he alleged no physical injury and, pursuant to 42 U.S.C. § 1997e(e), he could not recover damages for mental and emotional stress without physical injury); McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993) (Eighth Amendment claim properly dismissed because being housed in a cell for ten months near asbestos-covered pipes was not a serious enough condition; plaintiff “does not allege facts sufficient to establish that he was exposed to unreasonably high levels of asbestos. Had, for example, [plaintiff] been forced to stay in a dormitory where friable asbestos filled the air, we might agree that he states a claim under the Eighth Amendment. That, however, is not this case. . . . [T]he fact remains that asbestos abounds in many public buildings. Exposure to moderate levels of asbestos is a common fact of contemporary life and cannot, under contemporary standards, be considered cruel and unusual.”)

         C. ...

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