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Drumgo v. CPL. Matthew Dutton

United States District Court, D. Delaware

December 3, 2018

DESHAWN DRUMGO, Plaintiff,
v.
CPL. MATTHEW DUTTON, et al., Defendants.

          DeShawn Drumgo, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Matthew Dutton, David Pierce, Michael Lenigan, Gregory Farrington, and Todd Drace.

          MEMORANDUM OPINION

          CONNOLLY, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff DeShawn Drumgo ("Drumgo"), an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. §1983.[1] (D.I. 4) An Amended Complaint was filed on December 2, 2014. (D.I. 22) Defendants David Pierce ("Pierce"), Matthew Dutton ("Dutton"), Michael Lenigan ("Lenigan"), Todd Drace ("Drace"), and Gregory Farrington ("Farrington") ("collectively "Defendants") move for summary judgment.[2] (D.I. 100) Plaintiff opposes the motion and requests counsel and appointment of an expert. (D.I. 103, 106, 109)

         II. BACKGROUND

         Plaintiff complains of unlawful conditions of confinement from September 13, 2013 through August 1, 2014, when he was housed in Buildings 17, 18, 19, 21, and 23 of the Security Housing Unit ("SHU") at the VCC. (D.I. 22 at 9) The Amended Complaint alleges that the vents are filthy and have not been cleaned in decades, there is a gas leak, and asbestos is airborne and is coming through the vents. Plaintiff alleges that he submitted grievances and wrote numerous letters to Dutton, former VCC Warden Pierce, Lenigan, Farrington, and Drace. Plaintiff alleges the conditions have caused his health to suffer.

         The Amended Complaint alleges that Farrington and another correction officer agreed the vents needed cleaning, that Lenigan did not dispute that the vents were filthy, and that Drace issued write-ups to inmates who covered the vents. When Plaintiff complained to a maintenance man on August 20, 2014 about the smell of gas, he was told there was a manifold leaking gas into the heating and/or cooling system. Plaintiff alleges that Lenigan was aware of the leak as of September 16, 2014. When Plaintiff complained to other correction officers, he was told to forget about the gas and worry about the asbestos coming through the ventilation. Plaintiff alleges that Pierce had known about the asbestos for some time, and Dutton denied the grievances Plaintiff submitted concerning the asbestos.

         The evidence of record indicates that in August 2014, Lenigan requested Harvard Environmental, Inc. ("Harvard") to perform air monitoring services in the SHU in response to grievances filed by inmates about poor air quality, the presence of airborne mold, and other potential airborne substances. (D.I. 12-1 at Ex. A at ¶ 4; D.I. 12-1 at Ex. A at Ex. 1) Harvard performed air quality testing on September 3, 4, 8, and 9, 2014. (D.I. 12-1 at Ex. A at ¶ 5) The testing included gas monitoring and comparing the presence of mold and other particles naturally found in ambient conditions in the exterior and interior of structures. (Id.) Harvard's report, dated September 28, 2014, indicates there were "low to moderate levels" of airborne mold but the amount was "significantly lower than the exterior [and] are also consistent with the summer season and not considered as outside of normal." (D.I. 12-1 at Ex. A ¶ 1; D.I. 12-1 at Ex. A at Ex. 1 at 12) Harvard did not recommend any follow-up air quality testing unless physical conditions of the areas changed. (D.I. 12-1 at Ex. A¶6; D.I. 12-1 at Ex. A at Ex.1 at 12)

         On August 8, 2014, Building 18 experienced a smell of gas. (D.I. 103 at 4) Maintenance was called to the building to investigate and found a malfunctioning regulator. (Id.) The regulator was repaired and there were no other reports of "gas smells." (Id.) In addition, during the relevant time-frame, the Delaware Department of Correction ("DOC") was in the final phase of converting from steam to gas-fired boilers and heating units. (D.I. 12-1 at Ex. A at¶ 7) On September 16, 2014, a facility maintenance mechanic identified a leak in a factory installed fitting inside a remote terminal unit on SHU Building 17. (Id.) A factory authorized repairman completed the repair on September 22, 2014. (D.I. 12-1 at Ex. A at ¶ 7; D.I. 12-1 at Ex. A at Ex. 2) In a September 27, 2014 unsworn, unverified statement made by inmate Samuel Evans ("Evans"), he states that he could smell gas coming through his vent. (D.I. 110) Evans states that "the people at JTVCC have claimed to fix the problem, but it hasn't been fixed yet." (Id.)

         According to Lenigan he is unaware of any indication that asbestos was or is used in any of the SHU or the Medium-High Housing Unit ("MHU"). (Id. at ¶ 8) Lenigan states that the buildings where Plaintiff was housed, including SHU and MHU, were constructed in the late 1990's and early 2000's and that it would be highly unlikely construction during this time would have included asbestos. (Id.)

         Plaintiff submitted a grievance in 2011 and asked to have someone clear the fences and clean the dust and dirt in Building 18. (D.I. 103 at 19) Farrington Investigated the grievance and recommended that maintenance use a hose/pressure washer or cleaning instruments to remove the dust and debris form the area. (Id.)

         Plaintiff submitted grievances on August 20 and 25, 2014, October 22 and 23, 2014, and February 23, 2015, complaining of filthy vents, dust, mold, gas leaks, and the like. (D.I. 103 at 3, 20-28) In his August 24, 2015 grievance, Plaintiff complained that Dutton said there was no gas leak, but it was determined that the maintenance supervisor, not Dutton, had made the statement. (Id. at 4) In 2014 and 2015, Plaintiff submitted numerous sick call slips complaining that gas leaks and dust, dirt, and possibly asbestos blowing out of the ventilation affected his allergies.[3] (D.I. 103 at Ex. A)

         Defendants move for summary judgment on the grounds that: (1) Plaintiff has failed to show personal involvement in violation of a constitutional right; and (2) Defendants ...


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