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Vidlak v. Cox

United States District Court, S.D. Illinois

April 25, 2018

JONATHAN VIDLAK, Plaintiff,
v.
JUSTIN COX, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 26) of Magistrate Judge Stephen C. Williams recommending that the Court deny defendant Justin Cox's motion to dismiss (Doc. 16). Cox has objected to the Report (Doc. 27), and plaintiff Jonathan Vidlak has responded to that objection (Doc. 28).

         I. Standard of Review

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         II. Background

         This case arose after Cox, the supervisor of the electrical shop at the United States Penitentiary at Marion, Illinois (“USP-Marion”) broke several boxes of fluorescent lightbulbs, which contain small amounts of mercury, to dispose of the bulbs. Without taking any measures to protect against the mercury, Cox ordered Vidlak and other inmates at USP-Marion to clean up the broken bulbs. Several days later, Cox instructed Vidlak and other inmates to break additional fluorescent bulbs for disposal without taking appropriate safety measures. Vidlak now alleges Cox exhibited deliberate indifference to his safety in violation of his Eighth Amendment rights by exposing him to mercury, a toxic chemical, without taking appropriate safety measures.

         III. The Report

         Magistrate Judge Williams found in the Report that the Court already decided in its April 12, 2017, threshold review order (Doc. 10) that Vidlak had adequately stated an Eighth Amendment claim. He therefore declined to reexamine this question. Magistrate Judge Williams further found that Cox was not entitled to qualified immunity because it was clearly established by McNeil v. Lane, 16 F.3d 123 (7th Cir. 1993), and Helling v. McKinney, 509 U.S. 25 (1993), that government officials could not deliberately expose inmates to levels of toxic substances that posed an unreasonable risk of serious damage to the inmate's future health, and whether Cox acted deliberately and whether the mercury level in this case satisfied that requirement were questions of fact to be decided later in the case. Magistrate Judge Williams also found that, in light of Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997), the Court should continue to recognize a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), based on work-related injuries of federal inmates.

         IV. Objections

         Cox raises several objections to the Report. In light of those objections, the Court conducts a de novo review of the motion.

         A. Clearly Established Law

         Cox first argues that Magistrate Judge Williams was wrong to find a clearly established right because the prior cases did not involve broken fluorescent lightbulbs or mercury exposure. Instead, McNeil v. Lane, 16 F.3d 123 (7th Cir. 1993), involved exposure to in-place asbestos which was found not to pose a sufficiently serious risk, and the Court only noted in passing that he might have stated a claim had friable asbestos filled the air. Id. at 125. Helling v. McKinney, 509 U.S. 25 (1993), involved exposure to levels of second-hand tobacco smoke that were alleged to have posed an unreasonable risk of serious damage to his future health. Id. at 27-28. Cox claims neither of these cases are particular enough to clearly establish the law such that a reasonable officer in Cox's position would have known he was violating the law by exposing Vidlak to mercury in the concentration alleged.

         It is true that the right at issue must be established with some specificity in order to be clearly established. The inquiry must be made focusing on the specific context of the case, not at a high level of generality. White v. Pauly, 137 S.Ct. 548, 552 (2017). “[T]he clearly established law must be ‘particularized' to the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.'” Id. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987); internal citations omitted). “[E]xisting precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

         The Court believes McNeil and Helling were sufficient to put a reasonable officer in Cox's position on notice that deliberate exposure of inmates to an unreasonably high level of a toxic chemical, whatever the chemical and whatever the means of exposure, violates the Eighth Amendment. At this stage of the case, Vidlak has alleged in the complaint, viewed liberally in his favor, that Cox deliberately exposed him to dangerous levels of mercury without providing protective measures. This is sufficient to overcome qualified immunity at the motion to dismiss stage. ...


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