Hunnicutt v. Smith
| Decision Date | 16 August 2021 |
| Docket Number | Civ. 18-619 JCH/GBW |
| Parties | CARNELL HUNNICUTT, Plaintiff, v. RAYMOND SMITH, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the undersigned, pursuant to Senior Judge Herrera's order of reference (doc. 27), on Defendant Mindy Lewis-Ortega's and the GEO Defendants'[1] Motions for Summary Judgment (docs 32, 36), Plaintiff's motions to deny or stay the summary judgment motions until discovery is complete (docs. 38, 46), Defendant German Franco's Motion to Dismiss (doc. 53), the GEO Defendants' Motion to Strike Plaintiff's Motion in Opposition to Defendants [sic] Motion for Summary Judgment and Affidavit (doc 56), Plaintiff's Motion for Leave to File Surreply to Defendant GEO [sic] and Defendant [Lewis-]Ortega's Motion[s] for Summary Judgment (doc. 59) Plaintiff's Motions for Sanctions (doc. 60), Jason Helmstetler's Motion for Joinder (doc. 34), and Plaintiff's Motion in Support to [sic] Motion for Joinder (doc. 47).
Having reviewed the motions and their related briefing (docs. 35, 37, 44, 48, 49, 51, 52, 57, 58, 61, 66, 68, 69, 70, 71, 74, 75, 76)[2] and being full advised in the premises, I RECOMMEND that the Court do the following: (i) CONVERT Defendant Mindy Lewis-Ortega's and the GEO Defendants' Motions for Summary Judgment into motions to dismiss and DENY them; (ii) DENY as MOOT Plaintiff's motions to deny or stay the summary judgment motions pending discovery; (iii) GRANT Defendant Franco's Motion to Dismiss and DISMISS WITH PREJUDICE all Plaintiff's claims against him; (iv) DENY as MOOT the GEO Defendants' Motion to Strike and Plaintiff's Motion for Leave to File Surreply; (v) DENY Plaintiff's Motion for Sanctions; (vi) CONSTRUE Jason Helmstetler's Motion for Joinder as a motion to intervene and DENY it; and (vii) DENY Plaintiff's Motion in Support of Joinder.
I FURTHER RECOMMEND that the Court (i) VACATE IN PART its order (doc. 26), dated November 12, 2020, finding that all the claims in the Amended Complaint survive preliminary screening under 28 U.S.C. § 1915A; (ii) DISMISS WITH PREJUDICE all Plaintiff's claims against Defendants Lewis-Ortega, Valeriano, and GEO Group and Plaintiff's First Amendment claims against Defendants Vasquez and Solomon pursuant to 28 U.S.C. § 1915A for not stating a claim on further review; and (iii) ORDER Defendants Smith, Solomon, and Vasquez to file a Martinez report pursuant to Martinez v. Aaron, 570 F.2d 317, 320 (10th Cir. 1978) on Plaintiff's remaining Eighth Amendment and negligence claims against them.
From August 2016 through February 2018, Defendant Raymond Smith (the acting warden at Lea County Correctional Facility (“LCCF”)) detailed Plaintiff to a cleaning crew and had him remove paint containing crystalline silica from the facility's doors in preparation for upcoming audits. See doc. 22 at ¶¶ 3, 12, 44, 65. Defendant Eddie Solomon (the LCCF physical plant manager) oversaw the cleaning crew's day-today operations and provided it with scrapers and other tools to remove the paint. Id. at ¶¶ 5, 13, 22. Defendant D. Vasquez (the LCCF Fire Safety Manager) periodically assisted in this oversight. See Id. at ¶¶ 4, 30-31, 44.
When the cleaning crew was formed, Defendant Solomon had safety sheets about the paint, which stated that it contained crystalline silica, a mineral that poses health risks when inhaled. Id. at ¶¶ 13-14. He did not share this information with Plaintiff and the cleaning crew, train them on how to remove paint without inhaling this substance, or provide them with protective equipment. See Id. at ¶¶ 13-16.
As a member of the cleaning crew, [4] Plaintiff worked up to eight hours a day grinding and scraping paint off doors in LCCF housing units and facilities. Id. at ¶ 23. The scraping and grinding covered him from head to toe in crystalline silica dust. Id. at ¶ 29. It also generated, and exposed other prisoners and LCCF staff to, clouds of this dust that lingered for hours and covered surfaces, including phones, window ledges, and tables where prisoners dined. Id. at ¶¶ 23, 27-28.
Sometime in August 2016, Plaintiff requested Defendants Smith and Solomon to provide him and the cleaning crew with safety goggles and masks to protect them from the dust. See Id. at ¶ 17. As a result, through October 2016, Plaintiff and the cleaning crew “were issued work gloves, wraparound safety glasses and masks (that were made for light painting projects).” Id. at ¶ 19. This equipment, however, did not prevent the dust from getting in their noses or eyes. See Id. at ¶ 29. Therefore, Plaintiff asked Defendant Solomon to provide him and the cleaning crew with respirators, goggles, disposable clothing, and dust masks like those worn by LCCF staff, but Defendant Solomon declined to do so. Id. at ¶¶ 20-21, 23.
Prisoners' exposure to the crystalline silica dust prompted them to file numerous complaints and grievances. Id. at ¶ 34. One of these prisoners, Donte Powell, told Defendants Smith, Solomon, Mindy Lewis-Ortega (the LCCF Health Service Administrator), and Moriama Valeriano (the LCCF grievance coordinator), other LCCF staff, and LCCF prisoners that the dust contained crystalline silica. Id. at ¶ 24. In response, Defendants Smith and Vasquez twice “shook-down” Mr. Powell's cell and confiscated his material on crystalline silica and evidence of paint grinding. Id. at ¶ 25. Defendants Smith and Solomon also directed Plaintiff to continue to remove paint from LCCF facilities but not grind the paint off doors in Mr. Powell's housing pod until things “cooled off.” Id. at ¶ 26.
At some point, Mr. Powell informed Plaintiff that the paint and the dust generated by its removal contained crystalline silica, that inhalation of this mineral could cause lung cancer, and that Plaintiff and the other members of the cleaning crew needed training to remove the paint safely. Id. at ¶¶ 32-33. This information prompted Plaintiff to reiterate his request to Defendants Smith and Solomon for a respirator, goggles, and protective clothing. Id. at ¶ 32. Again, these Defendants refused it. Id.
Eight months after joining the cleaning crew, Plaintiff filed an informal complaint about the inadequate protective equipment that he had received to remove the paint. Id. at ¶¶ 38-39. On April 21, 2017, Defendant Solomon gave Plaintiff and the cleaning crew one pair of goggles and one respirator to share. Id. at ¶ 40. Plaintiff then filed a grievance about the inadequate protective equipment. See Id. at ¶ 56. Defendant Valeriano responded to it by stating that Defendant Vasquez would conduct safety classes about paint removal. Id. at ¶ 57. Plaintiff appealed the resolution of this grievance to Defendant Franco, who affirmed it without any investigation. Id. at ¶¶ 61- 62. No safety classes or training were ever conducted. Id. at ¶ 58.
While Plaintiff's informal complaint and grievance were pending, Defendants Smith and Solomon ordered him and the cleaning crew to remove paint from the doors in the medical unit. Id. at ¶ 41. Removing paint in this enclosed area created clouds of crystalline silica dust that covered Plaintiff. Id. at ¶¶ 41, 44. Plaintiff also inhaled this dust because he and the cleaning crew had to share a single respirator. Id. at ¶ 41. During this time, Plaintiff's exposure to crystalline silica exceeded the Occupational Safety and Health Administration's (“OSHA”) permissible exposure limit for an eight-hour shift. Id. at ¶ 43. On several occasions, LCCF medical staff had the cleaning crew pause its work to allow the dust to settle. Id. at ¶¶ 42-43. During this time, Defendants Solomon and Vasquez periodically checked in on Plaintiff and the cleaning crew and saw that they were covered in crystalline silica dust and that poor ventilation was causing clouds of dust to gather. Id. at ¶ 44.
Then, from September 2017 to February 2018, Defendant Solomon had Plaintiff and the cleaning crew grind paint off the showers in housing unit 1-A to prepare it for an upcoming audit. Id. at ¶¶ 63, 65. Initially, Defendant Solomon detailed two members of his maintenance crew to help, but these members quit after one day to escape from the clouds of crystalline silica dust that the job generated. Id. at ¶¶ 63-64.
Sometime between August 2016 and February 2018, a LCCF staff member reported the crystalline silica dust to OSHA, which conducted an inspection. Id. at ¶ 72. During the inspection, Defendants Smith and Solomon directed Plaintiff and the cleaning crew to stop removing paint and hide their supplies in an electrical room. Id. Once the OSHA inspectors departed, Defendants Smith and Solomon had Plaintiff and cleaning crew resume their work. Id. Eventually, Defendant Smith left LCCF and Defendant Solomon disbanded the cleaning crew. Id. at ¶ 68.
Around the time that Mr. Powell briefed Plaintiff on the dangers of crystalline silica, Plaintiff began to suffer from nosebleeds and coughing fits from having inhaled it. Id. at ¶ 38. Over time, his symptoms worsened to include shortness of breath, fatigue, and “blood in his mucus membranes.” Id. at ¶ 46. He filed several medical requests to be checked and treated for exposure to this substance, but only saw the acting physician twice. Id. at ¶¶ 47, 49-52. On the first visit in April 2017, the physician examined his lungs, informed him that his chest was congested, and suggested that he exercise more. Id. at ¶ 47. On the second visit, a month later, the physician reexamined his lungs, expressed concern that Plaintiff was trying to file a class action lawsuit because numerous other prisoners had been going to...
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