UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT

18-3176-pr
Docket Number(s): ________________________________________

_______________Caption [use short title]_____________________

Leave to File Amicus Brief
Motion for: ______________________________________________
________________________________________________________
________________________________________________________
Set forth below precise, complete statement of relief sought:

Movant Human Rights Defense Center seeks leave to
________________________________________________________
file the attached amicus brief beyond the time
________________________________________________________

Vega, et al. v. Semple, et al.

contemplated by FRAP 29(a)(6).
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________

Scott Semple, et al., Defendants-Appellees
Human Rights Defense Center
MOVING PARTY:_______________________________________
OPPOSING PARTY:____________________________________________
___Plaintiff

___Defendant

___Appellant/Petitioner

___Appellee/Respondent

Alexander A. Reinert
Stephen R. Finucane
MOVING ATTORNEY:___________________________________
OPPOSING ATTORNEY:________________________________________
[name of attorney, with firm, address, phone number and e-mail]
55 Fifth Ave., Room 1005
Assistant Attorney General
________________________________________________________
_______________________________________________________________
New York, NY 10003
110 Sherman Street, Hartford, CT 06105
________________________________________________________
_______________________________________________________________
(212) 790-0403; areinert@yu.edu
(860) 808-5450; stephen.finucane@ct.gov
________________________________________________________
_______________________________________________________________
District Court for the District of Connecticut, Judge Arterton
Court- Judge/ Agency appealed from: _________________________________________________________________________________________
Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1):
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FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUCTIONS PENDING APPEAL:
Has this request for relief been made below?
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Has this relief been previously sought in this court?
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Requested return date and explanation of emergency: ________________
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If yes, enter date:_______________________________________________________

Signature
nat
atture of
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o vin
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July 2, 2019
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_________________________________
Date:__________________
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Form T
F
T-1080
1080 ((rev.12-13)
12 13)

CERTIFICATION OF SERVICE
I certify that on July 2, 2019, I electronically filed the attached Motion for
Leave to File Amicus Curiae Brief with the Clerk of Court using the CM/ECF
system, which will send a notice of electronic filing to counsel for all Parties in
this matter.
s:/Alexander A. Reinert
Alexander A. Reinert
c/o Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, New York 10007
Counsel for Amicus Curiae

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT COURT OF APPEALS
---------------------------------------------------------X
HARRY VEGA, ET AL.,
Plaintiffs-Appellees,
-against-

AFFIRMATION IN
SUPPORT OF
MOTION FOR LEAVE
TO FILE AMICUS
CURIAE BRIEF
Docket No. 18-3176-pr

SCOTT SEMPLE, ET AL.,
Defendants-Appellants.
--------------------------------------------------------X
ALEXANDER A. REINERT, an attorney duly admitted to the practice of law in
this Court, affirms under penalty of perjury as follows:
1.

I am an attorney for amicus curiae Human Rights Defense Center

(HRDC). I submit this affidavit in support of amicus curiae’s motion, pursuant to
Federal Rule of Appellate Procedure 29(a)(6) and Local Rule 29.1, seeking leave to
file an amicus brief in the within case outside of the time limits contemplated by
FRAP 29(a)(6). A true and correct copy of the proposed amicus brief is attached
hereto at Exhibit A.
2.

The proposed amicus brief is in support of Plaintiffs-Appellees.

Pursuant to this Court’s scheduling order (ECF No. 27), Plaintiffs-Appellees’ brief
was due on May 22, 2019 and was filed on that date. Accordingly, the proposed

amicus brief is untimely.
3.

HRDC advocates on behalf of the human rights of people held in state

and federal prisons, local jails, immigration detention centers, civil commitment
facilities, Bureau of Indian Affairs jails, juvenile facilities, and military prisons.
Included within that advocacy is HRDC’s Prison Ecology Project, which
investigates, documents, and addresses the ways in which mass incarceration
degrades the natural environment and the human health of those inside or nearby
prisons and jails.
4.

Amicus HRDC only recently became aware of the pending appeal in

this matter during the course of its research efforts on topics very closely related to
the core issue in the underlying case. The fruits of that research, as well as HRDC’s
longstanding advocacy, give amicus HRDC a unique perspective to share with the
Court and an interest in the disposition of this appeal.
5.

Oral argument has not yet been scheduled in this case, reducing any

prejudice to the parties by granting the instant request.
6.

Counsel for Plaintiffs-Appellees consent to this request; counsel for

Defendants-Appellants oppose this request and have indicated that they will seek
the opportunity to file a response should the Court grant the motion for leave to file
the attached amicus curiae brief.
7.

Accordingly, counsel for amicus curiae respectfully request leave to

file the proposed amicus curiae brief despite the fact that it is presented beyond the
time limits contemplated by FRAP 29(a)(6).

s:/Alexander A. Reinert
Alexander A. Reinert
Dated:

July 2, 2019
New York, New York

EXHIBIT A

18-3176-pr
United States Court of Appeals
for the

Second Circuit
HARRY VEGA,
Plaintiff-Appellee,
MICHAEL CRUZ, On behalf of themselves and all others similarly situated, KENYA
BROWN, On behalf of themselves and all others similarly situated, JEFFREY PERRY,
On behalf of themselves and all others similarly situated, LEE GRENIER, On behalf of
themselves and all others similarly situated, TAVORUS FLUKER, On behalf of
themselves and all others similarly situated, ANTHONY ROGERS, On behalf of
themselves and all others similarly situated, THOMAS MARRA, On behalf of
themselves and all others similarly situated, TERRENCE EASTON, On behalf of
themselves and all others similarly situated, LAMONT SAMUEL, On behalf of
themselves and all others similarly situated, IAN COOKE, On behalf of themselves and
all others similarly situated, J. MICHAEL FARREN, LAWRENCE TOWNSEND, On
behalf of themselves and all others similarly situated, JOHN BOSSE, On behalf of
themselves and all others similarly situated,
Consolidated-Plaintiffs-Appellees
– v. –
SCOTT SEMPLE, Commissioner of Correction, In their individual and
official capacities, (continued on next page)
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF CONNECTICUT
(Arterton, J.)

BRIEF AMICUS CURIAE OF THE HUMAN
RIGHTS DEFENSE CENTER IN SUPPORT OF
PLANTIFFS-APPELLEES
ALEXANDER A. REINERT, ESQ.
55 Fifth Avenue, Suite 1005
New York, New York 10003
(212) 790-0403
areinert@yu.edu
Attorney for Amicus Curiae

JAMES DZURENDA, former Commissioner of Corrections, In their individual and official
capacities, LEE ARNONE, former Commissioner of Correction, In their individual and official
capacities, THERESA LANTZ, former Commissioner of Corrections, In their individual and
official capacities, JAMES ARMSTRONG, former Commissioner of Corrections, In their
individual and official capacities, LAWRENCE MEACHUM, former Commissioner of
Correction, In their individual and official capacities, HENRY FALCONE, Warden, Garner
Correctional Institution, In their individual and official capacities, STEVEN LINK, Director,
Department of Correction Engineering and Facilities Management, In their individual and official
capacities, DAVID BATTEN, former Director, Department of Correction Engineering and
Facilities Management, In their individual and official capacities,
Defendants-Appellants
JOHN DOES, 1-3,
Defendants.

DISCLOSURE STATEMENTS PURSUANT TO RULES 26.1 AND 29 OF
THE FEDERAL RULES OF APPELLATE PROCEDURE
Pursuant to Federal Rule of Appellate Procedure 26.1 and Local Rule 26.1,
counsel for amicus curiae hereby disclose that the Human Rights Defense Center is
a non-profit corporation. It has no parent corporations.
Pursuant to Federal Rule of Appellate Procedure 29(c)(5) and Local Rule
29.1, amicus states that no party’s counsel authored the brief in whole or in part; no
party or party’s counsel contributed money that was intended to fund preparing or
submitting the brief; and no person – other than amicus curiae, its members, or its
counsel – contributed money that was intended to fund preparing or submitting the
brief.

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................. ii
INTEREST OF AMICUS CURIAE .......................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2
ARGUMENT ........................................................................................................... 3
I.

Davis Does Not Foreclose the Consideration of Statutes, Regulations, and
Guidelines for the Purposes of Determining Whether Prison Officials
Knew of and Disregarded a Risk of Harm to People in Prison
. .................................................................................................................. 3

II.

This Court has Already Determined the Scope of the Right in Question,
and It Clearly Encompasses Plaintiffs’ Allegations. ................................. 7

III.

The Denial of Qualified Immunity to Defendant Officials will Not Open
the Door to Conditions of Confinement Claims for Commonplace
Exposures................................................................................................. 11

CONCLUSION ...................................................................................................... 13

i

TABLE OF AUTHORITIES
Cases
Anderson v. Creighton, 483 U.S. 635 (1987) .......................................................... 8
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) ............................................................. 8
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) . 8
Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011) ............................................... 5
Davis v. Scherer, 468 U.S. 183 (1984) .............................................................passim
Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018) ...................................................9, 10
Estelle v. Gamble, 429 U.S. 97 (1976) ............................................................... 2, 11
Farmer v. Brennan, 511 U.S. 825 (1994) ...................................................10, 11, 12
Helling v. McKinney, 509 U.S. 25 (1993) .................................................. 2, 5, 7, 12
Hope v. Pelzer, 536 U.S. 730 (2002) .................................................................3, 5, 8
LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998) ........................................ passim
Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994) ...................................................... 9
Nagle v. Marron, 663 F.3d 100 (2d Cir. 2011) ......................................................... 9
Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990) ................................................... 6
State Emp. Bargaining Agent Coal. v. Rowland,
718 F.3d 126 (2d Cir. 2013) .....................................................................................8
Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000) ............................................................ 3
Terebesi v. Torreso, 764 F.3d 217 (2d Cir. 2014) .................................................... 9
Walker v. Schult, 717 F.3d 119 (2d Cir. 2013) .......................................................... 5
ii

Williams v. Greifinger, 97 F.3d 699 (2d Cir. 1996) .................................................. 8
Rules and Regulations
36 Fed. Reg. 5931 (1971) ..........................................................................................5
Statutes
Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. ......................................... 6
Prison Litigation Reform Act, 42 U.S.C. § 1997e ...................................................12

iii

INTEREST OF AMICUS CURIAE
The Human Rights Defense Center (HRDC) is a non-profit charitable
corporation headquartered in Florida that advocates on behalf of the human rights of
people held in state and federal prisons, local jails, immigration detention centers,
civil commitment facilities, Bureau of Indian Affairs jails, juvenile facilities, and
military prisons. HRDC’s advocacy efforts include publishing two monthly
publications, Prison Legal News (PLN), which covers national and international
news and litigation concerning prisons and jails, as well as Criminal Legal News
(CLN), which is focused on criminal law and procedure and policing issues. HRDC
also publishes and distributes self-help reference books for prisoners and engages in
state and federal court litigation on issues relating to the rights of people held in
prisons and jails, including wrongful death, public records, class actions, and Section
1983 civil rights litigation. Additionally, HRDC founded the Prison Ecology Project
(PEP) to investigate, document, and address the ways in which mass incarceration
degrades the natural environment and the human health of those inside or nearby
prisons and jails.

1

INTRODUCTION AND SUMMARY OFARGUMENT
In this case, the District Court correctly held, pursuant to Helling v. McKinney,
509 U.S. 25 (1993), and LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998), that the
defendants

were

not

entitled

to

qualified

immunity

because

“reasonable prison officials were on notice that they could not knowingly or
recklessly subject prisoners in their custody to toxic substances that posed a serious
risk of harm.” Vega v. Semple, No. 3:17-CV-107 (JBA), 2018 U.S. Dist. LEXIS
167362, at *18 (D. Conn. Sep. 27, 2018).
The Court should take this opportunity to affirm the District Court’s
understanding of well-established Eighth Amendment jurisprudence which
prohibits exposing people in prison to known toxic substances with deliberate
indifference to the consequences. As early as 1998, this Court made clear, in the
context of asbestos exposure, that prison officials violate the Constitution when,
with deliberate indifference, they expose people in prison to known toxic
substances. LaBounty, 137 F.3d at 74. At that time, this Court understood the
right to be free of reckless exposure to toxins was easily encompassed by “the right
to be free from deliberate indifference to serious medical needs.” 137 F.3d at 74
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Defendants’ improperly
narrow definition of the right would foreclose any Eighth Amendment conditions
of confinement cases based on exposure to a given toxin without a prior United
2

States Supreme Court opinion dealing specifically with that toxin.
Exposure to radon is just as obviously harmful to people as exposure to
asbestos. Therefore, when analyzing the deliberate indifference claim herein, the
District Court properly considered the longstanding, unequivocal recognition of
radon gas as a carcinogen by federal and state governments. Contrary to
Defendants’ arguments, the Supreme Court’s holding in Davis v. Scherer, 468 U.S.
183 (1984), does not foreclose all references to state and federal statutes and
regulations in the adjudication of constitutional claims under § 1983. Indeed, well
after Davis, the Supreme Court itself relied in part on a state regulation to conclude
that qualified immunity was improper for prison officials sued under the Eighth
Amendment. See Hope v. Pelzer, 536 U.S. 730, 743-44 (2002); see also Tellier v.
Fields, 280 F.3d 69, 86 (2d Cir. 2000) (“[W]e simply cannot accept that [qualified
immunity] would ever confer protections on egregious violations of a federal
regulation.”).
I.

Davis Does Not Foreclose the Consideration of Statutes, Regulations,
and Guidelines for the Purposes of Determining Whether Prison
Officials Knew of and Disregarded a Risk of Harm to People in Prison
In Davis, the Supreme Court rejected the broad assertion that, regardless of

the “clearly established” analysis, officials forfeit any claim to qualified immunity
when their conduct violates a state regulation, holding that “[o]fficials sued for
constitutional violations do not lose their qualified immunity merely because their

3

conduct violates some statutory or administrative provision.” 468 U.S. at
194. Defendants would have this Court interpret that holding to afford qualified
immunity to officials in any case in which the plaintiffs make any reference to any
statute,

regulation,

or

guideline

when

making

out

a

constitutional

claim. But Davis rightly says nothing about reference to other, non-constitutional
sources of law for the purposes of proving elements of constitutional
claims. Defendants’ reading betrays the letter of Davis and conflicts with the postDavis precedent of this Court.
Plaintiffs indeed reference ubiquitous and publicly-known safety standards
from the Environmental Protection Agency (EPA), the World Health Organization
(WHO), and the Connecticut Department of Public Health (DPH) in their complaint.
Unlike in Davis, however, plaintiffs here did not argue that violation of those
standards deprived officials of their right to qualified immunity. Rather, plaintiffs
point to standards describing “safe” radon levels for indoor air and the dangers
posed by exposure to various levels of radon in order to demonstrate not only that a
risk exists and that society is unwilling to tolerate that risk, but that the risk is so
obvious that the defendants in this case would have general knowledge of that
risk. Ample precedent from the Supreme Court and this Court endorses such a
reliance on state and federal policies pertaining to risk assessment and tolerance. See,
e.g., Hope v. Pelzer, 536 U.S. 730, 743-44 (2002) (relying on existence of Albama
4

Department of Corrections regulation to reject qualified immunity); Helling v.
McKinney, 509 U.S. 25, 36, 113 (1993) (“determining whether . . . conditions of
confinement violate the Eighth Amendment requires more than a scientific and
statistical inquiry into the seriousness of the potential harm[;] . . . [i]t also requires a
court to assess whether society considers the risk that the prisoner complains of to
be so grave that it violates contemporary standards of decency to expose anyone
unwillingly to such a risk”); Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)
(“Evidence that a risk was “obvious or otherwise must have been known to a
defendant” may be sufficient for a fact finder to conclude that the defendant was
actually aware of the risk.”); Cash v. County of Erie, 654 F.3d 324, 335 (2d Cir.
2011) (in municipal liability case, concluding that reasonably jury could have
concluded that risk of sexual exploitation of female deteinees by mail deputies was
obvious to municipality and sheriff because state law prohibited all sexual activity
between people in custody and prison and jail guards); LaBounty v. Coughlin, 137
F.3d 68, 74 n.5 (2d Cir. 1998) (concluding that exposure to friable asbestos was a
known risk that could form the basis of Eighth Amendment claim based in part on
Congress’s recognition of friable asbestos as a dangerous toxic chemical in the early
1970s and EPA’s “hazardous air pollutant” Clean Air Act regulation at 36 Fed. Reg.
5931 (1971)).
Most tellingly, this Court’s decision in LaBounty came over a decade after the
5

Supreme Court decided Davis. If Davis operated as defendants contend, it would
have foreclosed the decision in LaBounty denying qualified immunity to prison
officials for allegedly exposing prisoners to friable asbestos. Instead, this Court had
no trouble concluding that qualified immunity was inappropriate, relying on citation
to federal statutory and regulatory treatment of asbestos in doing so. See LaBounty,
137 F.3d at 74 & n.5. Similarly, the Eleventh Circuit rejected a qualified immunity
defense to a claim regarding exposure to asbestos in a federal correctional facility
despite explicit references to the Clean Air Act in plaintiff’s complaint. See Powell
v. Lennon, 914 F.2d 1459, 1462 (11th Cir. 1990) (noting that plaintiff separately pled
Clean Air Act and constitutional claims). Indeed, courts should welcome the helpful
citation to scientific expertise that has been enshrined in law and policy when
deciding cases predicated on assessments of environmental and human health risks.
Accordingly, plaintiffs in the case at bench appropriately pointed to the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq. (1976)), as well as EPA, WHO,
and Connecticut DPH safety standards in alleging that Garner officials knowingly
disregarded the unreasonable risk presented by radon exposure. To the extent that
the District Court relied on those aforementioned citations to establish the obvious
risk of radon exposure, it did not err in concluding that the defendants were not
entitled to qualified immunity.

The District Court accurately noted that “[i]f

anything, knowing or reckless exposure of prisoners to radon, given the facts alleged
6

by Plaintiffs, is more obviously unconstitutional than exposure of prisoners to ETS
was [when the Supreme Court decided Helling] in 1993.” Vega, 2018 U.S. Dist.
LEXIS 167362, at *17. That some of the facts alleged by plaintiffs also happen to
be recognized by federal and state standards only bolsters, rather than detracts from,
the strength of their constitutional claim.

II.

This Court has Already Determined the Scope of the Right in
Question, and it Clearly Encompasses Plaintiffs’ Allegations.
In LaBounty, this Court confronted “[t]he chronic difficulty with [qualified

immunity] analysis” and proceeded to “accurately defin[e] the right at issue” in the
context of Eighth Amendment conditions of confinement claims based on alleged
exposure to toxic substances. 137 F.3d at 73. The Court found that “the right to be
free from deliberate indifference to serious medical needs best encompasses the
alleged conduct.” Id. at 74. Adhering to that definition, plaintiffs’ allegations of
exposure to high levels of radon gas fit squarely within the clearly established right.
Defendants cite a curated selection of recent decisions from the Supreme
Court and the Second Circuit reversing denials of qualified immunity to suggest,
not so subtly, that this Court got it wrong in LaBounty. Defendants contend that
the right in question is substance-specific; according to their reading, the right to
be free from exposure to environmental tobacco smoke (ETS) is distinct from the
right to be free from exposure to asbestos, which is distinct from the right to be
7

from exposure to radon, and so on. Nothing in Eighth Amendment jurisprudence
supports this prohibitively narrow construction of constitutional rights. Indeed,
this Court rejected that very same argument in LaBounty, finding that “the district
court erred in describing the right at issue as ‘the right to be free from crumbling
asbestos.’” 137 F.3d at 74. Furthermore, both the Supreme Court and this Court
have been careful to state a different conception of the requisite specificity for
defining rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“We do not
require a case directly on point.”); Hope, 536 U.S. at 739 (rejecting argument that
“an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful.”); Anderson v. Creighton, 483 U.S.
635, 640 (1987) (“This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful.”);
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 129 (2d Cir.
2004) (“In order to prevent the margin of immunity from overshadowing our
interests in recovery, however, the right in question must not be restricted to the
factual circumstances under which it has been established.”); Williams v.
Greifinger, 97 F.3d 699, 703 (2d Cir. 1996) (“A court need not have passed on the
identical course of conduct in order for its illegality to be ‘clearly established.’”);
see also State Emp. Bargaining Agent Coal. v. Rowland, 718 F.3d 126, 132 (2d
Cir. 2013), cert. denied, 134 S. Ct. 1002 (2014) (denying qualified immunity even
8

though the Court had “never articulated a standard for determining whether, and
under what circumstances” the particular right would be violated); Nagle v.
Marron, 663 F.3d 100, 115-16 (2d Cir. 2011) (denying qualified immunity even
though case law was not precisely on point).
Two very recent cases make clear the error in Defendants’ argument. First,
in Terebesi v. Torreso, 764 F.3d 217 (2d Cir. 2014), cert. denied, 135 S. Ct. 1842
(2015), this Court held that officers were not entitled to qualified immunity for the
use of stun grenades in a routine search. The officers in Terebesi argued that
qualified immunity was appropriate because there was no specific Circuit
precedent addressing the use of a stun grenade in a search. This Court rejected that
argument, citing Hope for the proposition that qualified immunity is not
appropriate “every time a novel method is used to inflict injury.” 764 F.3d at 237
(internal quotation marks omitted); see also Mendoza v. Block, 27 F.3d 1357, 1362
(9th Cir. 1994) (cited in Terebesi and holding that officers do not need a
“particularized expression of the law” for each kind of force used).
Second, in Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018), cert. denied, 2019
WL 2166409 (U.S. May 20, 2019), the defendants argued that they were entited to
qualified immunity because no decision from this Court or the Supreme Court had
held that it was unconstitutional to use a particular technology -- Long Range
Acoustic Devices -- to disperse protesters. Edrei, 892 F.3d at 542. This court
9

properly rejected the argument – identical to the Defendants’ here – that one needs
to have a case regarding the particular instrument of harm in order to reject
qualified immunity. Id. at 542-44 (“[N]ovel technology, without more, does not
entitle an officer to qualified immunity.”) In so doing, this Court relied explcicitly
on Hope and Terebesi.
Taken out of the environmental hazards context, the narrow, harm-causingagent-specific conception of the right is even more pernicious – the rights to be free
from each specific type of physical harm (e.g., bludgeoning, strangling, rape, etc.)
surely have not been conceived as separate rights. See, e.g., Farmer v. Brennan, 511
U.S. 825, 833, 114 S. Ct. 1970, 1976 (1994) (in a case involving alleged failure of
officials to protect a prisoner from rape, construing the “particular” constitutionally
imposed duty in question as a duty “to protect prisoners from violence at the hands
of other prisoners” (internal quotation marks omitted)).
What defendants conveniently fail to state explicitly is that if the Court adopts
their position, it would not only overrule its decision in LaBounty, but it would also
essentially foreclose relief to prisoners exposed to toxic substances other than ETS.
That result would condone cruel and unusual punishment. The definition of a
constitutional right poses a simultaneously vexing and important task, particularly
in the context of qualified immunity. In LaBounty, this Court contemplated the risks
associated with both ends of the breadth spectrum when considering conduct almost
10

identical to the case now before it, ultimately deciding to carefully thread the needle
in reliance on the Supreme Court’s decision in Estelle v. Gamble. 429 U.S. 97
(1976).
Finally, even if the Court were convinced that LaBounty erred in its framing
of the scope of the right in question in 1998, it would not change the outcome of this
case. For in this case, the relevant question is what LaBounty established as a matter
of Eighth Amendment jurisprudence moving forward, not how it resolved the
specific issue of qualified immunity in 1998, which addressed when it became
obvious that exposure to asbestos posed an obvious risk of harm to people in prison.
And even putting aside this Court's resolution of qualified immunity, LaBounty
makes clear that as of 1998, recklessly exposing people in prison to toxic substances
like asbestos is a violation of the Eighth Amendment. No reasonable officer could
believe that it was unconstitutional to recklessly expose prisoners to asbestos but
constitutional to recklessly expose the same individuals to radon, a powerful
carcinogen.

III.

The Denial of Qualified Immunity to Defendant Officials will Not
Open the Door to Conditions of Confinement Claims for
Commonplace Exposures.

The Supreme Court’s Eighth Amendment conditions of confinement
jurisprudence has already established a demanding framework for plaintiffs seeking
11

relief under Bivens or Section 1983. To succeed, a prisoner-plaintiff must prove that
a prison official actually knew of, and disregarded, an objectively unreasonable risk
to health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994) (rejecting a purely
objective formulation of the test for deliberate indifference and explaining that
plaintiff must show that “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference”) (emphasis added).

Proving both the objective

unreasonableness of the risk and the subjective knowledge of that risk on the part of
the official defendant presents a daunting task for plaintiffs. This test will foreclose
relief for exposure to toxic substances in the majority of cases, regardless of the
application of qualified immunity.1
In a case such as the one at bench, prisoner-plaintiffs must show that: 1)
exposure to the substance presents a substantial risk of future harm (e.g., the
substance is a carcinogen); 2) the level of exposure is objectively unreasonable; 3)
prison officials either have actual knowledge of the exposure and the danger it
presents or have awareness of facts that cause them to draw the inference of that
dangerous condition; and 4) prison officials failed to take reasonable measures to
mitigate the dangerous condition. See generally Helling v. McKinney, 509 U.S. 25

The Prison Litigation Reform Act places additional burdens on prisoner-plaintiffs in bringing
conditions of confinement cases by, inter alia, requiring exhaustion of administrative remedies
and a showing of physical injury. See 42 U.S.C. § 1997e(a), (e).
1

12

(1993) and Farmer, 511 U.S. at 837. Affirming the District Court’s denial of
qualified immunity merely provides the plaintiffs with the opportunity to present
evidence on these elements; meeting their burden of proof remains a significant
hurdle on the path towards relief. Defendants argue as if, absent qualified immunity,
not only this case, but countless fanciful others, will be lost and drown the state in
liability. Defendants suggest that allowing prisoners to work with garden pesticides,
laundry detergent, and manufacturing process chemicals would all somehow subject
the state to liability if this case proceeds to the next phase of trial. (Reply Br. at 67, ECF No. 50).

The history in this Circuit belies defendants alarm ringing;

LaBounty has been good law for over twenty years, and the parade of horribles
posited by defendants has not materialized.

CONCLUSION
For the reasons set forth above, and those outlined in Plaintiffs’ brief (ECF
No. 45), amicus curiae respectfully maintain that the Court should affirm the
District Court’s denial of qualified immunity in this case. 2

2

Should this Court decide to reverse the District Court, amici urge the Court to heed the oftrepeated advice of the Supreme Court in Pearson v. Callahan and perform both steps of the
qualified immunity analysis. As the Supreme Court advised in that important decision,
“[a]lthough we now hold that the Saucier protocol should not be regarded as mandatory in all
cases, we continue to recognize that it is often beneficial.” Pearson v. Callahan, 555 U.S. 223,
236, 129 S. Ct. 808, 818 (2009). The exposure of inmates to toxic substances is areas an area
where a full consideration of the constitutional question and the contours of the Eighth
13

Respectfully submitted,
s:/Alexander A. Reinert
Alexander A. Reinert
c/o Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, New York 10003
(212) 790-0403
areinert@yu.edu
Counsel for Amicus Curiae

Amendment right would be beneficial. As the briefs in this case evidence, very few courts have
yet considered similar cases; the law requires further explanation and development.
14

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(g)(1) of the Federal Rules of Appellate Procedure, I
certify that, according to the word-count feature of the word processing program,
this brief contains 3170 words and therefore is in compliance with the type-volume
limitation set forth in Rule 32(a)(7)(B) and Local Rule 29.1(c).

s:/Alexander A. Reinert
Alexander A. Reinert
55 Fifth Avenue, Suite 1005
New York, New York 10007
Counsel for Amicus Curiae