Powell v. Lennon, No. 88-3892
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Writing for the Court | Before JOHNSON and HATCHETT; JOHNSON |
| Citation | 914 F.2d 1459 |
| Parties | Thomas D. POWELL, Plaintiff-Appellant, v. M.C. LENNON, John Magathlin, Larry Parrish, Bobby Moore, C.W. Ala, Ed Averette, Defendants-Appellees. |
| Decision Date | 15 October 1990 |
| Docket Number | No. 88-3892 |
Page 1459
v.
M.C. LENNON, John Magathlin, Larry Parrish, Bobby Moore,
C.W. Ala, Ed Averette, Defendants-Appellees.
Eleventh Circuit.
Page 1461
Robert A. Harper, Jr., Tallahassee, Fla., Thomas D. Powell, Treasure Island, Fla., for plaintiff-appellant.
Lyndia F. Padgett, Asst. U.S. Atty., Tim Jansen, Tallahassee, Fla., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Florida.
Before JOHNSON and HATCHETT, Circuit Judges, and SMITH *, Senior Circuit Judge.
JOHNSON, Circuit Judge:
This case arises on appeal from the district court's order of October 21, 1988, dismissing the plaintiff's complaint.
I. FACTS
A. Background
Thomas Powell ("the plaintiff") is an inmate at the Tallahassee Federal Correctional Institute ("the TFCI"). The plaintiff arrived at the TFCI in early January 1987. Shortly after his arrival, the plaintiff noticed in his cell exposed ends of pipes covered with what appeared to be friable asbestos. He asked fellow inmates about the pipes, and they told him that during November or December 1986 an inmate work crew removed steam pipes covered with friable asbestos from the ceiling of the prison dormitory. 1 The inmate crew cut the pipes with a power saw, releasing large quantities of asbestos into the air of the dormitory. The crew beat the asbestos off the pipes with a hammer in order to apply the saw blade directly to the pipes. Throughout the removal process, the inmates assigned to the dormitory were required to live in the dormitory and sleep in the affected areas. 2
The plaintiff wrote numerous letters to public officials complaining of his forced exposure to asbestos. On February 23, 1987, the plaintiff delivered a letter to his Unit Manager explaining the danger to the inmates and staff. The Unit Manager stated that the matter fell outside the scope of his authority, so the plaintiff had the letter sent to the Warden, the defendant M.C. Lennon. 3 Lennon never responded to this letter. 4 The plaintiff also requested that
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he be transferred to a dormitory without asbestos, but his Unit Manager refused this request.His initial requests for help having been ignored, the plaintiff wrote more letters to public officials and agencies. One letter, to the Environmental Protection Agency ("the EPA"), placed the EPA on notice that it was subject to civil suit if it failed to act. The EPA launched an investigation, which resulted in an OSHA finding that the prison authorities had committed thirteen violations during the asbestos removal. As a result, the prison paid a $51,800 fine.
B. Proceedings in the District Court
On June 8, 1987, the plaintiff filed the present action alleging three counts: intentional and negligent failure to warn the plaintiff of the danger and provide adequate safety procedures, see 28 U.S.C.A. Sec. 2674; failure to comply with the Clean Air Act, 42 U.S.C.A. Secs. 7401-7642; and violation of the plaintiff's constitutional rights under color of law. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint recites the facts relating to asbestos releases at TFCI, alleges that the level of asbestos in the air at TFCI was unsafe, and asserts that the plaintiff suffers from respiratory problems as a result of exposure to asbestos at TFCI. The complaint further alleges that the defendants knew or should have known of the danger and that inmates had no choice but to stay in the dormitory and breathe the asbestos-contaminated air. The plaintiff sought monetary and injunctive relief. The district court referred the case to a magistrate.
The government filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). It argued that the plaintiff's tort claim against the United States should be dismissed under the Federal Tort Claims Act, 28 U.S.C.A. Secs. 2671-80 ("the FTCA"), for failure to exhaust administrative remedies and that his tort claim against the individual defendants was prohibited by the FTCA. The government also argued that the Bivens claim failed to state a constitutional violation because the defendants' actions were at worst negligent and unintentional and failed to shock the conscience. Finally, the government argued that the defendants were entitled to qualified immunity because their actions did not violate clearly established constitutional doctrine. 5
The magistrate recommended that the motion to dismiss be granted. The magistrate concluded that the plaintiff had failed to exhaust his administrative remedies and that his claim under the FTCA therefore should be dismissed without prejudice to his refiling the claim against the United States after exhaustion. 6 The magistrate also found that the Clean Air Act did not provide the plaintiff with a private right of action. 7 Finally, the magistrate recommended that the plaintiff's Bivens action be dismissed because the plaintiff failed to allege a constitutional deprivation. The district court adopted the report and recommendation and dismissed the plaintiff's complaint. In this appeal we consider
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whether the district court erred in dismissing the plaintiff's Bivens...To continue reading
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Hayden v. Alabama Dep't of Public Safety, Civil Action No. 2:06cv948-ID (WO).
...the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Browe......
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Mays v. US Postal Service, Civ. No. 95-D-559-E.
...are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See e.g., Sofarelli v. P......
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Farrow v. Henderson, No. 6:01CV371-ORL-22JGG.
...355 U.S. at 45 — 46, 78 S.Ct. 99; see Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990); Wright v. Page 1324 795 F.2d 964, 967 (11th Cir.1986); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11......
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Harris v. McDonald's Corp., No. 94-1067-CIV-T-17.
...allegations are true. United States v. Gaubert, 499 U.S. 315, 327-28, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). A court must view the complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. ......
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Hayden v. Alabama Dep't of Public Safety, Civil Action No. 2:06cv948-ID (WO).
...the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Browe......
-
Mays v. US Postal Service, Civ. No. 95-D-559-E.
...are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See e.g., Sofarelli v. P......
-
Farrow v. Henderson, No. 6:01CV371-ORL-22JGG.
...355 U.S. at 45 — 46, 78 S.Ct. 99; see Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990); Wright v. Page 1324 795 F.2d 964, 967 (11th Cir.1986); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11......
-
Harris v. McDonald's Corp., No. 94-1067-CIV-T-17.
...allegations are true. United States v. Gaubert, 499 U.S. 315, 327-28, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). A court must view the complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. ......