ANDREA K. JOHNSTONE, Magistrate Judge
Pro se plaintiff Daniel Ayer, an inmate at the New Hampshire State Prison ("NHSP"), has sued six defendants in their individual capacities, under 42 U.S.C. § 1983, asserting violations of his First and Eighth Amendment rights. Pursuant to LR 72.1, the defendants' motion for summary judgment (doc. no. 81), to which plaintiff objects, is before this magistrate judge for a report and recommendation as to disposition.
Summary judgment is warranted where "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);
To obtain summary judgment, "[t]he moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party."
Naming six defendants to this action, Ayer asserts two claims that have survived preliminary review. First, Ayer alleges that in June 2014, then NHSP Warden Richard Gerry and NHSP Kitchen Supervisor Robert Heath, violated Ayer's First Amendment right to petition the government for a redress of grievances by terminating his employment in the prison kitchen, in retaliation for Ayer's filing of this lawsuit.
Ayer started working in the NHSP kitchen in 2004. Pl.'s Mot. to Am. (doc. no. 27), 3. In May and June 2014, Ayer was employed in the "pots and pans area" of the NHSP kitchen, and Robert Heath was his direct supervisor.
Regarding sanitation in the prison kitchen, the following testimony from Heath is largely undisputed:
Aff. of Robert Heath (Doc. No. 81-5) ("Heath Aff."), ¶¶ 5-6.
Ayer first noticed mold on various surfaces in the prison kitchen in early 2014. Pl.'s Mot. to Amend (Doc. No. 21), 2. When he showed Heath several cutting boards with mold on them and asked for something to clean them with, "Heath added some bleach to a sink with some water and plaintiff soaked and washed them."
In late May, Ayer told Heath that he thought there was black mold in the pots and pans area.
Heath Aff., ¶ 7. Ayer and another inmate thoroughly cleaned the pots and pans area. Pl.'s Mot. to Amend (Doc. No. 21), 2. Defendants have produced NHDC Food Service Inspection Forms, indicating that the kitchen passed inspections by Heath or other NHSP personnel every day in May and June 2014, except May 21, June 4, and June 11, days for which no forms have been submitted.
By the first week in June, the mold had returned. Pl.'s Mot. to Amend (Doc. No. 21), 2. On June 9, 2014, Ayer directed an Inmate Request Slip ("IRS") to Heath in which he reported that he had discovered black mold in the kitchen and asked Heath to test the purported mold. June 9, 2014, IRS (Doc. No. 81-3). In the June 9 IRS, Ayer pointed out that "[t]he mold could be a hazard," but did not claim that he had suffered any ill effects as a result of exposure to it.
On June 28, 2014, Ayer directed a Grievance Form to Warden Gerry. Although Ayer had lost his job in the NHSP kitchen since filing the June 9 IRS, in the June 28 Grievance, he asked for testing of the purported black mold, but again, did not claim to have suffered any ill effects from mold exposure. June 28, 2014, Grievance Form (Doc. No. 81-11). On July 14, 2014, Maj. Fouts, who had them become the acting Warden of the NHSP, responded to the June 28, 2014, grievance as follows:
Ayer appealed Fouts's response in a grievance directed to Commissioner William Wrenn. July 20, 2014, Inmate Request Slip (doc. no. 91-12). Ayer again asked for testing and proper removal of the purported mold but did not claim to have suffered any ill effects from mold exposure.
Ayer filed his original complaint in this case on June 11, 2014, naming both Heath and (former) NHSP Warden Richard Gerry as defendants. On June 12, 2014, while going through the kitchen mail with another DOC employee, Heath saw a copy of Ayer's complaint. Heath Aff., 5. On June 12, 2014, a NHSP kitchen employee notified Gerry of Ayer's complaint. Aff. of Richard Gerry (doc. no. 81-16) ("Gerry Aff."), 4. On June 13, 2014, Heath terminated Ayer from his NHSP kitchen job, at Gerry's direction. Heath Aff., 5. Heath testified that Ayer was terminated at that time because, in the complaint he saw on June 12, Heath read information leading him to believe that Warden Gerry, unbeknownst to Heath, had directed Ayer's termination in December 2013.
On June 16, 2014, Ayer directed an IRS to Heath containing the following request:
June 15, 2014, IRS (doc. no. 81-24, 1). On June 19, Heath responded: "You were terminated on 06-13-14 per Warden Richard Gerry. Please address all future request slips to him."
On June 25, 2014, Ayer executed a motion to amend his complaint in this case.
On June 28, Ayer directed two IRSes to Warden Gerry. One of them contains the following request:
June 28, 2014, IRS (doc. no. 81-24, 2). The second IRS is a copy of Ayer's motion to amend.
On July 12, Ayer filed a Grievance Form with Maj. Fouts. He described his grievance this way:
July 12, 2014, Grievance Form (doc. no. 81-24, 7). On July 14, 2014, Maj. Fouts responded:
Ayer claims that Gerry and Heath violated his First Amendment right to petition the government for a redress of grievances by discharging him from his job in the prison kitchen in retaliation for filing this lawsuit. Defendants argue that they are entitled to summary judgment because: (1) Ayer failed to exhaust his administrative remedies; (2) they are entitled to qualified immunity; and (3) they are entitled to judgment as a matter of law, on the merits, on the undisputed factual record. Defendants' first argument is persuasive and dispositive.
Under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). To exhaust administrative remedies under the PLRA, a prisoner must complete the administrative review process available at the place where he is confined, in accordance with the applicable procedural rules of that facility.
Exhaustion is mandatory, and claim must be dismissed if exhaustion exhaustion of that claim is not completed prior to the filing of the claim.
At all times relevant to this matter, the DOC employed a three-level procedure for handling inmate grievances. The first level is an IRS "addressed to the lowest level staff person with the authority to address the issue raised." N.H. Policy & Procedure Directive ("PPD")1.16 (doc. no. 81-4), 2. "A request slip regarding any issue must be received within 30 calendar days of the date on which the event complained of occurs."
Here, no reasonable jury could find that Ayer had exhausted his First Amendment claim, through the administrative remedies available to him, before he initiated that claim in this action. Ayer first raised his First Amendment claim, at the latest, on July 1, 2014, when his motion to amend (doc. no. 12) was docketed in this case. Viewing the facts in the light most favorable to Ayer, at the time he commenced this action, he had completed the second level of the DOC's three-level grievance process. Ayer did not submit his third-level appeal to the DOC Commissioner until July 26, 2014, more than three weeks after he filed his claim here. It is therefore undisputed that Ayer failed to properly exhaust the administrative remedies available to him for his First Amendment claim prior to filing it here.
Ayer does not argue to the contrary but, rather, "object[s] to the Defendants introducing failure to Exhaust Administrative Remedies at this time," and notes that "the Warden did not file an objection with the court about the 6/26/14 Motion to Amend." Pl.'s Obj. (Doc. No. 83), 18-19. The court understands Ayer to be arguing that defendants waived their right to assert an exhaustion defense.
When Ayer executed his June 25, 2014, motion to amend, which was docketed on July 1, 2014, the defendants were not yet parties to this case, and thus could not have objected to that motion. Also, in their timely answer to Ayer's complaint, defendants specifically raised the affirmative defense of failure to exhaust,
Ayer further argues that he has found nothing in the PLRA or the caselaw interpreting that statute to suggest that the exhaustion requirement applies to requests for injunctive relief. The PLRA, however, provides that "
Ayer did not properly exhaust the administrative remedies available to him before he filing his First Amendment claim, and the defendants have not waived their exhaustion defense. Accordingly, defendants are entitled to judgment as a matter of law on Ayer's First Amendment claim.
Defendants move for summary judgment, arguing that they are entitled to judgment as a matter of law on the merits of the Eighth Amendment claim, on the undisputed factual record. Plaintiff's contentions to the contrary are unavailing, for reasons stated below.
"The Eighth Amendment . . . prohibits the infliction of cruel and unusual punishments,"
To state an Eighth Amendment claim, plaintiff must satisfy both an objective component and a subjective component.
An inmate establishes the subjective component of a conditions-of-confinement claim by demonstrating that prison officials acted with deliberate indifference to his health or safety.
Ayer alleges that defendants Fouts, Kench, Gerry, and Wrenn have violated his Eighth Amendment rights by engaging in the following conduct: Maj. Fouts, after receiving Ayer's second-level grievance after June 28, 2014, did not inspect the pots and pans area, question the inmates who worked there, or have the mold tested or professionally abated; Kench, after receiving Ayer's third-level appeal, thereafter, did not question the inmates who worked in the pots and pans area, or have the mold tested or professionally abated; and, both Warden Gerry and Commissioner Wrenn, knowing of the allegations in this lawsuit, did not have the mold tested or professionally abated.
Ayer last worked in the prison kitchen on June 14, 2014. He filed his second-level grievance two weeks later, on June 28, 2014. Thus, nothing that defendants Fouts or Kench did, or did not do, in response to Ayer's second-level grievance, or his later-filed third-level appeal, could possibly have resulted in Ayer's being exposed to black mold.
Ayer's original complaint in this matter was filed on June 11, 2014, but did not include any allegations regarding mold in the kitchen. Ayer asserted those allegations for the first time in a complaint addendum docketed on August 13, 2014 (doc. no. 21). The record is devoid of evidence suggesting that defendants Gerry or Commissioner Wrenn knew of the mold before Ayer grieved those issues, which occurred after his termination on June 14, 2014. No reasonable jury could find that anything Warden Gerry or Commissioner Wrenn did, or did not do, prior to Ayer's termination in June 2014, could have manifested deliberate indifference to Ayer's exposure to black mold, as there is no evidence suggesting that those defendants had any knowledge of the existence of mold before Ayer was terminated.
Accordingly, Ayer has not demonstrated that there is a triable issue of fact as to any Eighth Amendment claim against Fouts, Kench, Gerry, or Wrenn. Those defendants are entitled to judgment on those claims as a matter of law.
Under the circumstances of this case, for Ayer to establish that any defendants had sufficient knowledge of a risk to Ayer to be deliberately indifferent to that risk, Ayer must establish that defendants "actually knew the alleged black mold was present in sufficient quantities to present an excessive risk to the health of inmates."
Here, it is undisputed that Heath and Hanson knew that there was some amount of some kind of mold in the prison kitchen. The court assumes, without deciding, that the mold was of the sort that posed a risk to Ayer's health and safety. Plaintiff has produced no evidence, however, to demonstrate that defendants actually knew either that: (1) the mold was a harmful type of mold; or (2) if the mold was harmful, that the amount of mold in the kitchen was sufficient to present a health risk that was excessive, rather than tolerable.
Ayer first argues that defendants can be deemed to have known of the character of the mold in the kitchen because the risk it posed was obvious. While it was obvious to the defendants that the kitchen had some mold, Ayer has failed to show that any harmful nature the mold possessed was obvious. Ayer's expressed concerns are insufficient to constitute knowledge on the part of the defendants, who were not inclined to accept Ayer's assertions as expertise on the subject of mold.
Ayer also states that in reality television shows that he has seen, statements have been made indicating that the presence of any mold in a building poses a potentially significant risk to those in the building. Even if that assertion were true, such a conclusion made by someone on a television show is not enough to attribute actual knowledge to Heath and Hanson about the risk posed by the mold in the NHSP kitchen. Ayer has failed to overcome the undisputed specific declarations of the defendants indicating that they did not know that the mold in the kitchen was black mold, and that they don't know if it presented any risk, much less an excessive risk, to Ayer's safety.
Ayer further attempts to assert that the court may find that he can demonstrate deliberate indifference based on the fact that the defendants still have not had the mold tested or professionally abated. Ayer argues that deliberate indifference can be found where a lawsuit makes a defendant aware of a danger, and the defendants still fail to respond to that danger. Even if an argument could be made in certain contexts that a defendant's subsequent failure to act provides some evidence of the defendant's prior state of mind, that argument is unavailing here. In short, Ayer has produced no facts from which a reasonable jury could conclude that Heath or Hanson knew that the kitchen had toxic mold that "was present in sufficient quantities to present an excessive risk to the health of inmates," at the time Ayer worked in the kitchen.
Finally, even if plaintiff had created a triable issue concerning defendants' knowledge of a dangerous condition in the prison kitchen, he has produced no evidence from which a reasonable jury could conclude that their response to that condition was unreasonable. In the discussion that follows, the court begins with the NHSP's general approach to dealing with mold in the kitchen and then turns to the specific responses by Heath and Hanson to Ayer's complaints about mold.
It is undisputed that the prison kitchen was cleaned and inspected daily, and was also subject to periodic inspections by the New Hampshire Division of Public Health Services. Numerous courts have ruled that a plaintiff cannot establish deliberate indifference to risks posed by mold in areas of a penal institution that are subject to daily inspection and/or cleaning.
It is undisputed that: (1) when Ayer told Heath about mold in the kitchen, Heath directed several inmates, including Ayer, to clean the surfaces on which mold was found; and (2) when Heath forwarded Ayer's IRS to Hanson, Hanson directed Heath to direct the inmates under his supervision to clean any areas where mold was found. So, the undisputed factual record demonstrates that neither Heath nor Hanson failed to respond to a report of mold in the kitchen and that they took affirmative action to clean up the mold that was reported. The prompt action Heath and Hanson took in response to Ayer's complaints about mold in the kitchen preclude Ayer from showing that either defendant was deliberately indifferent to any risk posed by the presence of mold.
The only aspect of Hanson's and Heath's response that gives the court pause is the fact that their corrective action involved having Ayer (and his fellow inmates) perform the cleanup. On that score, Ayer argues:
Pl.'s Obj. (Doc. No. 83) 4;
Ayer correctly points out that "[d]efendants do not dispute that certain conditions in a prison setting, including exposure to extreme amounts of mold, can be sufficiently serious and hazardous to an inmate's health." Defs.' Mem. of Law (Doc. No. 81-1). The general proposition that exposure to mold can give rise to an Eighth Amendment violation in some circumstances, however, is insufficient to overcome Ayer's failure to produce evidence that the mold he encountered was a harmful type of mold or was present in a large enough concentration to create a serious health hazard. Moreover, absent evidence that either Heath or Hanson knew that the mold posed a substantial health risk, as opposed to a possible risk, ordering Ayer to clean it up did not constitute deliberate indifference to his health and safety.
In short, just as Ayer has failed to produce evidence sufficient to establish the knowledge element of deliberate indifference, he has not produced evidence from which a reasonable jury could conclude that defendants failed to respond reasonably to the potential risk posed by the presence of mold in the prison kitchen. Therefore, he has not created a trialworthy issue on the subjective element of his conditions-of-confinement claim, and defendants Heath and Hanson are thus entitled to judgment on the claims as a matter of law.
For the foregoing reasons described above, the district judge should grant defendants' motion for summary judgment (doc. no. 81). Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice.
