Swiderski v. Harmon, CIVIL ACTION NO. 19-2321

• Decision Date: 27 October 2020
• Docket Number: CIVIL ACTION NO. 19-2321
• Parties: JASON SWIDERSKI v. JOHN HARMON, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

JASON SWIDERSKI v. JOHN HARMON, et al.

CIVIL ACTION NO. 19-2321

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 27, 2020

MEMORANDUM

KEARNEY, J.

An incarcerated man alleging toxic black mold in his Northampton County Prison cell and shower facilities must do more than conclude the alleged mold harmed his health. To defeat a motion for summary judgment, he needs to adduce evidence the alleged mold creates a substantial risk of harm rising to the level of deliberate indifference under the Eighth Amendment. After extended discovery, there is a question of fact as to whether the Northampton County Prison exposed the incarcerated man to black mold and the specific nature of his grievances. But there is no evidence of any sort allowing us to infer the black mold created a substantial risk of harm, harmed the incarcerated man, or the state actors did not timely address his grievances. The possible existence of unsanitary conditions is not enough, by itself, to proceed under the Eighth Amendment. Absent genuine issues of material facts as to the absence of these necessary findings, we must grant summary judgment in favor of the state actors and dismiss the incarcerated man's claim.

I. Undisputed facts¹

Jason Swiderski began a six week period of detention in the Northampton County Prison on May 17, 2018.² One week later, Mr. Swiderski began complaining of mold in the shower, on the shower heads, the window, "rotten food out [sic] the cell window, rotten food covered with mold, wind blows through you can smell it an taste it."³ In the approximately six weeks of detention, Mr. Swiderski submitted nine grievances and grievance appeals to the Prison, the Prison's medical provider, and the Prison Advisory Board complaining of exposure to black mold on his cell windows, in the trash, in the showers and shower heads.⁴ Mr. Swiderski attributed his joint problems, fatigue, and sinus issues to his exposure to mold. The Commonwealth released Mr. Swiderski from the Prison on July 3, 2018 on bail.

Mr. Swiderski began a second year-long period of incarceration at the Prison on February 22, 2019 until his transfer to a state correctional institution on February 20, 2020.⁵ Mr. Swiderski began filing multiple grievances and medical requests regarding the alleged toxic black mold outside his cell window, in the showers, and on the shower heads.⁶ Mr. Swiderski again claimed his exposure to toxic black mold caused problems with breathing, nasal and vision problems, headaches, stiff neck, and joint pain.

After about three months into his second tenure at the Prison, Mr. Swiderski pro se sued the Prison Warden, Deputy Warden, Director of Corrections, and other Prison officials and officers as well as members of the Prison's Advisory Board⁷ for violating his civil rights through deliberate indifference to his exposure to toxic black mold in adversely affecting his health under the Eighth Amendment.⁸ Around a week later, Mr. Swiderski moved to amend his complaint to sue Northampton County and bring a class action complaint on behalf of other inmates at the Prison.⁹ We granted Mr. Swiderski's motion, directed his amended Complaint to be filed, and denied his request for class certification before service of the amended Complaint finding no common issues of fact and law required for certification without prejudice to be renewed following the close of the pleadings as Mr. Swiderski may be inadequate to represent the interests of his fellow inmatesas a person not licensed to practice law in this Court.¹⁰ Mr. Swiderski never renewed his motion for class certification.

The Northampton County Department of Corrections'

Sanitation, Maintenance, and Safety Inspection Policy.

Mr. Swiderski's claim is based on a lack of sanitary inspection in the Prison allowing black mold to grow in his cell and shower facilities. The Northampton County Department of Corrections maintains a sanitation, maintenance, and safety inspection policy consistent with Pennsylvania's Department of Labor & Industry regulations and any applicable state and local code inspections.¹¹ The Department's policy is "to achieve effective and efficient facility sanitation, maintenance, and safety" through "daily, weekly monthly and quarterly" inspections "to maintain conditions that provide for a neat and clean facility while meeting or exceeding the established standards."¹²

Cells, day space, and other areas of each housing unit in the Prison are inspected daily by Corrections Officers who are required to verify cells are "clean and neat, beds are made, and there are no maintenance or security problems" and record daily inspections in the Post Log.¹³ Corrections Officers are required to notify shift supervisors or submit an incident report, where applicable, if maintenance is needed.¹⁴ Weekly sanitation, maintenance, and safety inspections of all areas are conducted by shift supervisors who complete a report and submit it to the Public Safety Administrator and the Deputy Warden of Operations each Friday.¹⁵ The Public Safety Administrator and Deputy Warden of Operations conduct random housing and support area inspections weekly to ensure the Department is compliant with all requirements.¹⁶ The Public Safety Administrator, a representative from the medical department, and the Corrections Operations Associate Supervisor conduct "comprehensive and thorough monthly inspections" and a monthly security audit is performed by the Captain of Security and Deputy Warden of Custody and Security.¹⁷

There is at least one annual inspection by federal, state, and/or local sanitation and health officials.¹⁸ Any violations discovered during the inspections must be corrected immediately.¹⁹ The Director or Warden of a prison is required to conduct weekly/bi-weekly inspections to ensure compliance with all requirements. "Selected Administration" conducts entire facility inspections quarterly, inspecting housing units, support areas, offices, and perimeters.²⁰ Inmate cells, air vents, bathrooms and fixtures are all required to be cleaned with appropriate sanitation standards.²¹

Cleaning supplies are also made available to inmates to clean and disinfect their cells.²² The Prison provided Mr. Swiderski cleaning supplies to clean his cell.²³ The Deputy Warden advised Mr. Swiderski in September 2019, "[c]leaning supplies and instructions on how to use them are available on your housing unit to address any potential mold issues. If you suspect a mold issue outside of your window please alert your block officer so he/she may contact the maintenance department to investigate the matter."²⁴

Pennsylvania Department of Corrections' inspection of the Prison.

On September 18, 2018, the Pennsylvania Department of Corrections conducted a standards compliance inspection of the Prison under Pennsylvania regulations.²⁵ After Department of Corrections' personnel physically inspected the Prison, the inspectors concluded, inter alia, the "overall conditions of confinement and quality of life were consistent with [Pennsylvania regulations] requirements. The housing and support areas were clean and maintained in conditions that appeared appropriate for the age of the facility"; "[c]limate conditions, floor space, heating, ventilation, lighting, bathing/toilet areas, and housekeeping in the housing units were observed by the Inspectors during the physical inspection. The housing units were clean, quiet, and orderly. Cell content was minimal and cells were clean. Temperature and airflow appeared to be adequate. Showers were clean and maintained. . . ."; and "[i]nspectors observed conditions during the tourof the physical plant that showed evidence of compliance with preventive maintenance and routine housekeeping as required by [Pennsylvania regulations]."²⁶

The September 18, 2018 inspection revealed one area of non-compliance: the Prison lacked an emergency plan for responding to emergency incidents such as "escape, fire, disturbances, hostage taking, bomb threat, terrorism, biological/chemical incidents, utility outages, natural disasters and evacuation/relocation."²⁷ The Department of Corrections gave the Prison thirty days to correct the issue. Inspectors found no other issues.

On October 22, 2018, the Department of Corrections notified the Prison it "achieved full compliance" with Pennsylvania regulations, and because of its achievement, exempted the Northampton County Department of Corrections from the normal one-year inspection cycle until 2020.²⁸

Mr. Swiderski's grievances and complaints about mold

During his May to July 2018 period of incarceration, Mr. Swiderski filed nine grievances and grievance appeals to the Prison and Prison Advisory Board including after Mr. Swiderski filed his complaint here. Mr. Swiderski's grievances raise a host of issues, such as the denial of a prison job, access to the law library, handling of his legal mail, as well as exposure to mold.²⁹

On July 12, 2018, Deputy Warden Mark Bartholomew upheld the denial of Mr. Swiderski's July 2, 2018 grievances. With regard to mold in the shower, Deputy Warden Bartholomew responded, "You are provided the opportunity to shower on a daily basis. . . . Cleaning supplies are also available to all inmates and can be used to maintain cleanliness on the unit and common areas (Showers)."³⁰

During his second period of incarceration—February 22, 2019 to February 20, 2020—Mr. Swiderski submitted approximately twenty grievances or appeals to the Prison complaining about exposure to mold.³¹ The Prison or its Advisory Board responded to Mr. Swiderski's grievances.³²

In the September 26, 2019 response, a Prison Grievance Coordinator found Mr. Swiderski's September 14, 2019 grievance "not grievable," explaining "[t]rash is removed several times on a daily basis. Cleaning supplies and instructions on how to use them are available on your housing unit to address any potential mold issues. If you suspect a mold issue outside of your window please...