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finding water "as dark as coffee" that could not be used for drinking or bathing without extreme discomfort could violate the Eighth Amendment
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No. 05 CIV. 98 (DLC).
October 24, 2006
Frank L. Bellezza, pro se, for plaintiff.
Neil Shevlin, Assistant Attorney General, State of New York, New York, NY, for defendant.
OPINION ORDER
This case arises out of the allegedly unsafe condition of the water supply at the Sing Sing Correctional Facility ("Sing Sing") in 2004. Plaintiff Frank L. Bellezza, Jr. ("Bellezza") brings this pro se action pursuant to 42 U.S.C. § 1983 on behalf of himself and other current and former inmates at Sing Sing, alleging that defendant Brian Fischer ("Fischer"), the facility's superintendent, violated the inmates' Eighth Amendment rights by failing to ensure access to potable drinking water at all times. Fischer moves for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the following reasons, the motion is granted in part. Background
The following facts are taken in the light most favorable to plaintiff. Bellezza arrived at Sing Sing in mid-1997 and resided there until his transfer to another facility in August 2005. Although his complaint pertains solely to events that occurred during 2004, Bellezza alleges that there were "ongoing problems" with the tap water available to inmates throughout his time at the prison. He claims that the water was often discolored and cloudy, "at certain times . . . coming out of the faucet like the consistency of a strong cup of coffee." Even when the discoloration was not so extreme, a white cloth would still turn brown when it was held under a running faucet. At his deposition, Bellezza testified that this was true "[e]very single day" of his confinement at Sing Sing. Bellezza also contends that the water sometimes smelled of bleach and caused a burning sensation in his throat every time he drank it. After showers, his skin would itch. When Bellezza would complain about the water, he contends that corrections officers would respond,
"[Y]eah, we know. What do you want us to do about it?" And other ones would make fun of us and say, "[Y]ou know, just drink it. Heat it up, it's like coffee." They don't care. They're drinking bottled water.
Because of his consumption of the water at Sing Sing, Bellezza contends that he suffered from persistent headaches, sore throats, and diarrhea, and that his teeth became stained. In addition, he suggests that the water damaged his liver and kidneys. In 2004, Bellezza was seen by the Sing Sing medical staff 13 times. During six of those visits, he complained of a headache; during three, he complained of diarrhea; and during one, he complained of a sore throat. Although he did not complain of itchy skin or rashes, he once said that his hands were dry and flaky. Dr. Aman Bakshi, who served as Bellezza's primary care physician while he was at Sing Sing, submitted an affidavit stating that Bellezza's medical records — in particular, the infrequency of his complaints and the lack of any serious injury — do not support his allegation that he was exposed to tainted water at the prison.
Sing Sing shares a water supply with the Town of Ossining (the "Town"), which has two sources of water — the Indian Brook Reservoir and the Croton Reservoir. The Town encompasses both the Village of Ossining ("Ossining") and the Village of Briarcliff Manor ("Briarcliff Manor"). Briarcliff Manor typically obtains its water from the Croton Reservoir. Periodically, however, when the Croton Reservoir is shut down for repairs or because of water quality issues, Indian Brook supplies the water to both villages. When this happens, the increased volume of water flowing through the system can cause sediment at the bottom of the pipes to become dislodged, leading to higher "turbidity" or cloudiness in the Town's tap water.
One such incident occurred in October 2004. In response, the Mayor of Ossining issued a public notification stating that the Village had been experiencing "intermittent discolored water" and that the condition would persist for a few weeks. He assured residents that the water remained safe to drink and use. The Ossining Department of Public Works sent a letter to Sing Sing containing similar information and reiterating that "the water department tests the water each day and the water is safe to drink."
On October 20, six inmates at Sing Sing filed a consolidated grievance regarding the water quality at the prison, alleging that the tap water was brown and tasted like bleach. Some inmates who drank or showered with the water complained that it caused their skin to itch and throats to burn, and led to headaches and rashes. On October 25, Bellezza joined the complaint. On November 2, the Inmate Grievance Review Committee ("IGRC"), whose members include prison staff and inmates, rejected the grievance, noting that the Town was aware of the discoloration and had assured the prison that the water remained safe. The grievants appealed the IGRC determination to Fischer. Fischer upheld the denial of the grievance, saying that the "facility has spoken with the Town, and received confirmation that the water meet[s] sanitary standards." One of the inmates appealed Fisher's determination, and on December 22, it was upheld by the Central Office Review Committee of the Department of Correctional Services.
In late October, responding to reports of discoloration, Fischer arranged for water tankers to deliver water to the mess hall and laundry facility at Sing Sing, and he had water filters installed on the pipes in certain buildings in the prison. This installation was completed in January 2005. Bellezza claims, however, that these changes did not affect the cell block in which he was housed. Fischer also lifted the restrictions on the number of bottles of water inmates could obtain from the commissary, but inmates were still required to pay for them.
The Town's Annual Drinking Water Quality Report for 2004 (the "Report") — which was released on May 20, 2006 — shows that the amounts of contaminants in the water supply were all below the levels permitted by New York State regulations. The Report does find that the Town's water had an impermissibly high turbidity reading on four days in late December, but it attributes those results to a "process control malfunction" that was corrected through an adjustment to the filtration system. The Report does not, however, mention the turbidity problems that occurred in October 2004.
Bellezza's complaint in this action was signed on October 25, 2004. Therefore, these turbidity readings could not have formed the basis of his complaint.
At his deposition, Bellezza testified that he believed the water at Sing Sing became contaminated after it left the Town's system and entered the prison. He said that because the pipes were installed in the early-to-mid 1900's, they could have become rusty and begun shedding bits of rust and solder into the drinking water. Although he did not examine the pipes at Sing Sing himself, he based this assessment on his experience as a maintenance worker at the correctional facility in which he is currently housed.
Bellezza's complaint, which was filed on January 6, 2005, seeks an injunction requiring the defendant to supply clean drinking water free of charge to inmates at Sing Sing and to run daily tests for pollutants on the tap water at the facility for a period to be determined by the Court. It also seeks $2,500 in compensatory damages and $5,000 in punitive damages on behalf of every inmate who filed a grievance in 2004 relating to the quality of the drinking water.
On April 19, 2005, Fischer moved to dismiss the complaint in its entirety. The motion was denied on September 20. Following fact discovery, defendant now moves for summary judgment, arguing that: (1) Bellezza's constitutional rights were not violated; (2) even if they were, Fischer would be entitled to qualified immunity; and (3) Bellezza's claim for injunctive relief is moot because he is no longer incarcerated at Sing Sing.
Discussion
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). Even where facts are disputed, in order to defeat summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248.
I. Violation of the Eighth Amendment
To prevail on a claim under Section 1983, a plaintiff must demonstrate "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (citation omitted). The Eighth Amendment prohibits the infliction of "cruel and unusual punishment," U.S. Const. amend. VIII, and applies to states through the Due Process Clause of the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 666-67 (1962). The conditions in which a prisoner lives "can give rise to an Eighth Amendment violation." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002); see also Farmer v. Brennan, 511 U.S. 825, 828 (1994). To prove such a violation, an inmate must show
(1) that the deprivation alleged is "objectively sufficiently serious" such that the plaintiff was denied the minimal civilized measure of life's necessities, and (2) that the defendant official possessed a "sufficiently culpable state of mind."Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003) (quoting Farmer, 511 U.S. at 834). Prison conditions may not pose "an "unreasonable risk of serious damage" to an inmate's future health. Phelps, 308 F.3d at 185 (citation omitted). "[I]n prison-conditions cases the state of mind requirement is one of deliberate indifference to inmate health or safety." Trammell, 338 F.3d at 162 (citation omitted).
A. Seriousness of the Deprivation
Water that is suitable for drinking and bathing is undeniably one of "life's necessities," and, as defendant concedes, the Eighth Amendment therefore requires that it be supplied to inmates. See, e.g., LaBounty v. Coughlin, 137 F.3d 68, 72 (2d Cir. 1998). As discussed above, Bellezza contends that the water coming out of the faucet in his cell burned his throat and, at least some of the time, was extremely dark and cloudy. He was also unable to take a shower without his skin itching. Bellezza has not, however, pointed to any facts in the record that would support his claims that consumption of the water caused more serious health problems. Nonetheless, Fischer has not shown that Bellezza's remaining allegations would be insufficient to support a finding that he was "denied the minimal civilized measure of life's necessities." If the water provided to the inmates at Sing Sing was indeed as dark as coffee and could not be used for drinking or bathing without causing extreme discomfort, this could be deemed to be "objectively sufficiently serious" to raise the prospect of a constitutional violation.
Bellezza's suggestion that the water caused him to suffer headaches, loose bowel movements, stained teeth, and liver or kidney damage is entirely speculative. He has provided no evidence that he sustained damage to his liver or kidneys. While he did complain to Sing Sing's medical staff in 2004 of headaches and diarrhea, he has offered no expert medical opinion that those conditions or his stained teeth were caused by Sing Sing's water. Under New York law, a plaintiff who claims that his medical ailments were caused by particular events must "produce expert opinion evidence based on suitable hypotheses in order to support a finding of causation." Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 268 (2d Cir. 2002) (citation omitted). Therefore, Bellezza cannot rely on his unsupported allegations to defeat summary judgment.
Although Fischer contests Bellezza's description of the water at Sing Sing, "[a]ssessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citation omitted).
B. Deliberate Indifference
The requirement that a plaintiff in a prison-conditions case show that the defendant acted with deliberate indifference is "equivalent to the familiar standard of `recklessness' as used in criminal law." Phelps, 308 F.3d at 186 (citing Farmer, 511 U.S. at 839-40). Although an official must have knowledge of a substantial risk in order to have acted with deliberate indifference, a factfinder may infer that knowledge "from the very fact that the risk was obvious." Id. (citation omitted). There can be no dispute that the risks posed by dirty tap water are obvious. To the extent that Sing Sing officials knew about the allegedly contaminated water and failed to take measures to remedy it or provide inmates with other sources of water, they could be deemed to have acted with the requisite level of indifference.
Bellezza's filings are somewhat ambiguous regarding the time period of his claim. Although he alleges that there were "numerous ongoing problems with the tap water" between January and October of 2004, the only specific events to which he refers occurred in October. His complaint could therefore reasonably be read to state a claim only with respect to the water quality during that month. Nonetheless, because Bellezza is proceedingpro se, his papers must be read "liberally and interpret[ed] . . . to raise the strongest arguments that they suggest."Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (citation omitted). They will therefore be construed as making two separate claims — one regarding the water supply during October 2004 and another with respect to the water supply between January and September of that year.
Fischer has provided substantial — and uncontested — evidence regarding the steps he took to respond to the reports of discolored water in October 2004. He authorized emergency expenditures to be made on tankers of fresh water and filters for certain buildings in the prison, and he allowed inmates to purchase an unlimited amount of bottled water from the commissary. Fischer also received assurances from the Town that these steps were, in fact, unnecessary, since the water remained safe to drink throughout the period of discoloration. Even if Fischer's actions were inadequate, a factfinder could not reasonably conclude that he was deliberately indifferent to the well-being of inmates in October 2004.
Fischer has supplied no evidence, however, of what steps he took to ensure the safety of the water supply between January and September. As a result, he has effectively failed to assert, much less show, that there is no genuine issue of material fact that would prevent judgment in his favor as a matter of law with respect to the earlier period. Because it was not entirely clear from the face of Bellezza's papers that his complaint pertained to this period, the parties will be given an additional opportunity to brief the issue of whether summary judgment is appropriate with respect to the January-through-September claim, as well.
This does not mean that Fischer has no defense to liability. Indeed, based on the facts submitted here, it is possible that he was not even aware of any of the alleged constitutional violations prior to October and therefore could not be held liable for them. See, e.g., Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004). It is also possible that prison officials took sufficient steps to monitor water quality and maintain the infrastructure that would defeat a finding of deliberate indifference. Because Fischer did not make those arguments here, and because Bellezza therefore has not had an opportunity to respond to them, they cannot provide the basis for a grant of summary judgment.
II. Qualified Immunity
Fischer argues that even if Bellezza's rights were violated, he is entitled to qualified immunity. Under the doctrine of qualified immunity, a government official may be shielded from liability "if his conduct did not violate clearly established rights or if it would have been objectively reasonable for the official to believe his conduct did not violate plaintiff's rights." Reuland v. Hynes, 460 F.3d 409, 419 (2d Cir. 2006) (citation omitted). Again, because Fischer has not identified what actions he took prior to October 2004 to address water quality in the prison, a finding of qualified immunity is not warranted here with respect to the earlier period.
Fischer also asserts that, to the extent he is sued in his official capacity, he is immune from liability under the Eleventh Amendment. While a state officer is generally sued in his official capacity with respect to any injunctive relief, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989), there is no indication that Fischer has been named in his official capacity with respect to Bellezza's claim for damages.
III. Mootness
"Under Article III, section 2 of the Constitution, federal courts lack jurisdiction to decide questions that cannot affect the rights of litigants in the case before them." Davis v. New York, 316 F.3d 93, 99 (2d Cir. 2003). Such situations arise when "there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation."Id. (citation omitted). In the context of an individual action, it is "settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility." Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996). Bellezza was transferred out of Sing Sing in August 2005.
Bellezza, however, brings this claim on behalf of all inmates who filed grievances about the lack of clean drinking water between January 1 and December 31, 2004. Under certain limited circumstances, a class action can go forward despite the fact that the named plaintiff's claim is mooted before a class has been certified. See Krimstock v. Kelly, 306 F.3d 40, 70 n. 34 (2d Cir. 2002) (collecting cases). The Second Circuit has held that such actions may proceed when (1) an intervenor has stepped in, or (2) the claims are so "inherently transitory" that a court is unlikely to be able to certify a class before they are mooted). Comer v. Cisneros, 37 F.3d 775, 799 (2d Cir. 1994) (citation omitted). Because neither circumstance exists here, defendant's motion will be granted with respect to Bellezza's request for an injunction.
Conclusion
For the foregoing reasons, Fischer's motion for summary judgment is granted with respect to (1) Bellezza's claim for an injunction, and (2) all claims based on the events of October 2004. The Court reserves judgment on the remainder of the motion.
Through a separate Order bearing today's date, a schedule has been set for supplemental briefing on plaintiff's claim for damages insofar as it pertains to events that occurred between January and September 2004.
SO ORDERED: