United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
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).
Standard of Review
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).
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.
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.
raises several objections to the Report. In light of those
objections, the Court conducts a de novo review of
Clearly Established Law
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.
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).
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.