×
You have 1 more free article available this month. Subscribe today.
Asbestos Exposure States Claim
A district court in Massachusetts has held that a suit claiming exposure to asbestos states a claim for violation of the eighth amendment. County jail prisoners filed suit claiming they were exposed to "raw, open and dry asbestos fibers" on exposed pipes within the jail. The plaintiffs stated they had received copies of numerous Department of Health and Public Safety reports listing health code violations at the jail related to the asbestos covered pipes. They also claimed that despite the reports jail officials took no steps to protect jail prisoners from asbestos exposure. The defendants filed a motion to dismiss for failure to state a claim.
The district court noted that prisoners may bring an eighth amendment claim that environmental hazards in prison, such as exposed asbestos, pose an unreasonable risk of serious damage to future health. See: Helling v. McKinney, 113 S.Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); and Smith v. Fiedler, 867 F. Supp. 832 (ED WI 1994). "A well plead complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind?).... plaintiffs must plead facts which show a deliberate indifference to a risk of serious damage to their future health, specifically exposure to an unreasonable level of asbestos."
The court held that the plaintiff's complaint in this case met that standard because they alleged that there were free floating asbestos fibers in the prison environment. "It is significant that plaintiffs further claim that the presence of asbestos fibers violates state health codes and that the prison has been cited for these violations." "With respect to prison health hazards, state health codes reflect established public attitudes as to what those hazards are." This established the objective component of the their claim.
"The allegations that prison officials knew for years that unacceptable levels of asbestos fibers contaminated living and eating facilities in the prison, if true, would undoubtedly show a deliberate indifference to a serious health risk." This established the subjective component of their claim. Readers should note that other courts have held that the mere presence of asbestos covered pipes in a prison, without more, does not violate the Eighth amendment. See: McNeil v. Lane, 16 F.3d 123 (7th Cir. 1994).
The court held that while the plaintiffs may not be able to prevail on their claim, at this stage of the proceedings they had met their burden of stating a claim upon which relief could be granted. See: Gonyer v. McDonald, 874 F. Supp. 464 (D MA 1995).Asbestos Exposure States Claim
A district court in Massachusetts has held that a suit claiming exposure to asbestos states a claim for violation of the eighth amendment. County jail prisoners filed suit claiming they were exposed to "raw, open and dry asbestos fibers" on exposed pipes within the jail. The plaintiffs stated they had received copies of numerous Department of Health and Public Safety reports listing health code violations at the jail related to the asbestos covered pipes. They also claimed that despite the reports jail officials took no steps to protect jail prisoners from asbestos exposure. The defendants filed a motion to dismiss for failure to state a claim.
The district court noted that prisoners may bring an eighth amendment claim that environmental hazards in prison, such as exposed asbestos, pose an unreasonable risk of serious damage to future health. See: Helling v. McKinney, 113 S.Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); and Smith v. Fiedler, 867 F. Supp. 832 (ED WI 1994). "A well plead complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind?).... plaintiffs must plead facts which show a deliberate indifference to a risk of serious damage to their future health, specifically exposure to an unreasonable level of asbestos."
The court held that the plaintiff's complaint in this case met that standard because they alleged that there were free floating asbestos fibers in the prison environment. "It is significant that plaintiffs further claim that the presence of asbestos fibers violates state health codes and that the prison has been cited for these violations." "With respect to prison health hazards, state health codes reflect established public attitudes as to what those hazards are." This established the objective component of the their claim.
"The allegations that prison officials knew for years that unacceptable levels of asbestos fibers contaminated living and eating facilities in the prison, if true, would undoubtedly show a deliberate indifference to a serious health risk." This established the subjective component of their claim. Readers should note that other courts have held that the mere presence of asbestos covered pipes in a prison, without more, does not violate the Eighth amendment. See: McNeil v. Lane, 16 F.3d 123 (7th Cir. 1994).
The court held that while the plaintiffs may not be able to prevail on their claim, at this stage of the proceedings they had met their burden of stating a claim upon which relief could be granted. See: Gonyer v. McDonald, 874 F. Supp. 464 (D MA 1995).
The district court noted that prisoners may bring an eighth amendment claim that environmental hazards in prison, such as exposed asbestos, pose an unreasonable risk of serious damage to future health. See: Helling v. McKinney, 113 S.Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); and Smith v. Fiedler, 867 F. Supp. 832 (ED WI 1994). "A well plead complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind?).... plaintiffs must plead facts which show a deliberate indifference to a risk of serious damage to their future health, specifically exposure to an unreasonable level of asbestos."
The court held that the plaintiff's complaint in this case met that standard because they alleged that there were free floating asbestos fibers in the prison environment. "It is significant that plaintiffs further claim that the presence of asbestos fibers violates state health codes and that the prison has been cited for these violations." "With respect to prison health hazards, state health codes reflect established public attitudes as to what those hazards are." This established the objective component of the their claim.
"The allegations that prison officials knew for years that unacceptable levels of asbestos fibers contaminated living and eating facilities in the prison, if true, would undoubtedly show a deliberate indifference to a serious health risk." This established the subjective component of their claim. Readers should note that other courts have held that the mere presence of asbestos covered pipes in a prison, without more, does not violate the Eighth amendment. See: McNeil v. Lane, 16 F.3d 123 (7th Cir. 1994).
The court held that while the plaintiffs may not be able to prevail on their claim, at this stage of the proceedings they had met their burden of stating a claim upon which relief could be granted. See: Gonyer v. McDonald, 874 F. Supp. 464 (D MA 1995).Asbestos Exposure States Claim
A district court in Massachusetts has held that a suit claiming exposure to asbestos states a claim for violation of the eighth amendment. County jail prisoners filed suit claiming they were exposed to "raw, open and dry asbestos fibers" on exposed pipes within the jail. The plaintiffs stated they had received copies of numerous Department of Health and Public Safety reports listing health code violations at the jail related to the asbestos covered pipes. They also claimed that despite the reports jail officials took no steps to protect jail prisoners from asbestos exposure. The defendants filed a motion to dismiss for failure to state a claim.
The district court noted that prisoners may bring an eighth amendment claim that environmental hazards in prison, such as exposed asbestos, pose an unreasonable risk of serious damage to future health. See: Helling v. McKinney, 113 S.Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); and Smith v. Fiedler, 867 F. Supp. 832 (ED WI 1994). "A well plead complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind?).... plaintiffs must plead facts which show a deliberate indifference to a risk of serious damage to their future health, specifically exposure to an unreasonable level of asbestos."
The court held that the plaintiff's complaint in this case met that standard because they alleged that there were free floating asbestos fibers in the prison environment. "It is significant that plaintiffs further claim that the presence of asbestos fibers violates state health codes and that the prison has been cited for these violations." "With respect to prison health hazards, state health codes reflect established public attitudes as to what those hazards are." This established the objective component of the their claim.
"The allegations that prison officials knew for years that unacceptable levels of asbestos fibers contaminated living and eating facilities in the prison, if true, would undoubtedly show a deliberate indifference to a serious health risk." This established the subjective component of their claim. Readers should note that other courts have held that the mere presence of asbestos covered pipes in a prison, without more, does not violate the Eighth amendment. See: McNeil v. Lane, 16 F.3d 123 (7th Cir. 1994).
The court held that while the plaintiffs may not be able to prevail on their claim, at this stage of the proceedings they had met their burden of stating a claim upon which relief could be granted. See: Gonyer v. McDonald, 874 F. Supp. 464 (D MA 1995).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Gonyer v. McDonald
| Year | 1995 |
|---|---|
| Cite | 874 F. Supp. 464 (D MA 1995) |
| Level | District Court |
JAMES M. GONYER, CRAIG S. HILL SR. and other similarly situated inmates at the Franklin County House of Correction, Plaintiffs vs. FRANKLIN COUNTY SHERIFF FREDRICK McDONALD, TOWN OF GREENFIELD and FRANKLIN COUNTY HOUSE OF CORRECTION
CIVIL ACTION NO. 94-30213-MAP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
874 F. Supp. 464; 1995 U.S. Dist. LEXIS 1486
February 1, 1995, Decided
COUNSEL: [**1] For Plaintiff: James M. Gonyer, PRO SE, Franklin County House of Correction, Greenfield, MA. For Plaintiff: Craig S. Hill, Sr., PRO SE, Franklin County House of Correction, Greenfield, MA.
For FREDRICK MCDONALD, Franklin County Sheriff, Defendant: Charles B. Straus, III, Richard C. Van Nostrand, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA. For GREENFIELD, TOWN OF, Defendant: Charles B. Straus, III, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA.
JUDGES: MICHAEL A. PONSOR, U. S. District Judge
OPINIONBY: MICHAEL A. PONSOR
OPINION:
[*465] MEMORANDUM REGARDING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFFS' MOTIONS TO AMEND THE COMPLAINT
(Docket Nos. 8, 9 & 14)
PONSOR, D.J.
February 1, 1995
I. INTRODUCTION
Pro se plaintiffs James M. Gonyer and Craig S. Hill, Sr., inmates at the Franklin County House of Correction, allege that pervasive exposure to airborne asbestos fibers throughout the prison facility violates prisoners' Eighth Amendment right to be free from cruel and unusual punishment. In their amended complaint, plaintiffs further allege that the presence of asbestos fibers in the prison living and eating areas violates Massachusetts health and sanitation codes.
Gonyer and Hill contend that [**2] defendants, Franklin County Sheriff Fredrick McDonald, Franklin County House of Correction and the City of Greenfield, have known of inmates' exposure to asbestos for years and have done nothing, indeed ignored, the substandard health conditions at the prison. Plaintiffs seek injunctive relief and monetary damages.
Defendants have moved to dismiss the complaint because the original pleadings and first amended complaint incorrectly asserted diversity of citizenship between the parties, 28 U.S.C. ç 1332, as the basis for this court's jurisdiction.
As currently set forth, plaintiffs' jurisdictional claim is technically not cognizable since it is alleged pursuant to nonexistent federal statutes -- the "Toxic Exposure to Asbestos Tort Claim . . . [and] 28 U.S.C. 1943." In their amended filings, plaintiffs allege that the legal deficiencies in their complaint are due, at least in part, to their lack of access to legal assistance or to an adequate, updated law library. It is quite possible that plaintiffs confused the statute numbers, intending to allege jurisdiction pursuant to 42 U.S.C. ç 1983. [**3] In any case, these drafting flaws are not fatal to the complaint.
In a third amended complaint, dated November 20, 1994, the plaintiffs set forth factual and legal allegations sufficient to make out a violation of the Eighth Amendment. Therefore, in accordance with the liberal standards used to review pleadings from pro se prisoner litigants, the court will allow plaintiffs' motions to amend and deny defendants' motion to dismiss on jurisdictional grounds. The court's reasoning is set forth below.
[*466] II. THE COMPLAINT AND STANDARD OF REVIEW
At the outset, the court notes that pleadings filed by pro se litigants are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). This looser standard requires the court to be especially indulgent in accepting the truth of the factual averments of the complaint and to consider every inference helpful to the plaintiffs' cause. See Garita Hotel Ltd. Partnership v. Ponce Fed. Bank., F.S.B., 958 F.2d 15, 17 (1st Cir. 1992). [**4] Accordingly, in ruling on these motions, the court is required to look to the allegations of the complaint, and "if under any theory they are sufficient to state a cause of action in accordance with the law, a motion to dismiss the complaint must be denied." Knight v. Mills, 836 F.2d 659 (1st Cir. 1987).
Plaintiffs claim that upon incarceration at the Franklin County House of Correction, they realized that prisoners were exposed to "raw, open and dry asbestos fibers." Gonyer and Hill claim to have received a Department of Health and Public Safety report listing numerous health code violations at the prison for exposed asbestos-covered pipes. Plaintiffs allege that, despite their knowledge of the serious health hazard posed by exposure to asbestos, defendants took no action to "cure and amend these violations." Finally, Gonyer and Hill point out the accepted medical wisdom that exposure to asbestos fibers may cause serious disease.
III. DISCUSSION
Pursuant to 42 U.S.C. ç 1983, a county prisoner may bring an Eighth Amendment claim that environmental hazards in a prison, such as exposed asbestos, pose an unreasonable [**5] risk of serious damage to future health. Helling v. McKinney, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); Smith v. Fiedler, 867 F. Supp. 832 (E.D.Wis. 1994). A well pled complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind?). Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). In other words, plaintiffs must plead facts which show a deliberate indifference to a risk of serious damage to their future health, specifically exposure to an unreasonable level of asbestos. Helling v. McKinney, 113 S. Ct. at 2481-2482.
Plaintiffs' allegations comport with this standard. Pertinent to the objective inquiry are allegations that there are free-floating asbestos fibers in the prison environment. [**6] Cf. McNeil v. Lane, 16 F.3d 123, 124-125 (7th Cir. 1994) (mere presence of asbestos-covered pipes does not constitute an Eighth Amendment violation). It is significant that plaintiffs further claim that the presence of asbestos fibers violates state health codes and that the prison has been cited for these violations. The Court has long held that, in determining what is to be considered cruel and unusual punishment, reference must be made to the evolving standards of decency that mark the progress of society. Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). With respect to prison health hazards, state health codes reflect established public attitudes as to what those standards are. Good v. Commissioner of Correction, 417 Mass. 329, 335, 629 N.E.2d 1321 (1994). The factual allegations of the complaint adequately support the claim that defendants' action is sufficiently serious to constitute an Eighth Amendment violation. See DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). n1
n1 Strikingly similar facts were alleged by plaintiffs in Scarpa v. Dubois, 25 F.3d 1037 (1st Cir. 1992) (Table). However, Fist Circuit Local Rule 36.2(b)(6) prevents the court from citing this unpublished disposition as precedent. The parties may nonetheless find the unpublished disposition instructive. See Scarpa v. Dubois, 1994 WL 242146 (1st Cir. Mass. June 6, 1994).
[**7]
Gonyer and Hill maintain that the chief prison official, defendant McDonald, knew for several years that the presence of [*467] asbestos in the prison air violated state health codes. On the pleadings, this allegation is sufficient to satisfy the subjective component of the Eighth Amendment inquiry: did the official/s act with a sufficiently culpable state of mind? Id. The allegations that prison officials knew for years that unacceptable levels of asbestos fibers contaminated living and eating facilities in the prison, if true, would undoubtedly show a deliberate indifference to a serious health risk.
Plaintiffs' assertion that exposure to asbestos fibers causes cancer states a cognizable Eighth Amendment harm. As the Court has aptly noted, a prison inmate may successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Helling v. McKinney, 113 S. Ct. at 2480. Indeed, the Court further stated that it "would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prisons on the ground that nothing yet had happened to them . . . A remedy for unsafe [**8] conditions need not await a tragic event." Id. at 2480.
Plaintiffs will undoubtedly face serious, possibly insurmountable, challenges in proving both the objective and subjective elements of this Eighth Amendment claim. However, the court's role at this stage is only to determine whether plaintiffs' allegations, if true, state a cognizable claim. On this limited issue, plaintiffs must prevail. At this stage it is plain that, despite technical deficiencies, the factual allegations in the complaint provide sound jurisdictional and legal grounds upon which plaintiffs may proceed.
IV. CONCLUSION
For the foregoing reasons, plaintiffs' motions to amend their complaint are ALLOWED and defendants' motion to dismiss is DENIED. The court will take under advisement plaintiffs' renewed motion seeking appointment of counsel (Docket No. 10) and attempt to secure the services of an attorney for subsequent proceedings in this matter.
A separate order will issue.
MICHAEL A. PONSOR
U.S. District Judge
ORDER
February 1, 1995
PONSOR, D.J.
For the reasons stated in the accompanying Memorandum, defendants' Motion to Dismiss (Docket No. 8) is hereby DENIED and plaintiffs' Motions to Amend [**9] Complaint (Docket Nos. 9 & 14) are hereby ALLOWED. Plaintiffs' renewed Motion for Appointment of Counsel (Docket No. 10) is hereby taken under advisement. The court will attempt to secure the services of an attorney for subsequent proceedings in this matter.
MICHAEL A. PONSOR
U. S. District Judge
CIVIL ACTION NO. 94-30213-MAP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
874 F. Supp. 464; 1995 U.S. Dist. LEXIS 1486
February 1, 1995, Decided
COUNSEL: [**1] For Plaintiff: James M. Gonyer, PRO SE, Franklin County House of Correction, Greenfield, MA. For Plaintiff: Craig S. Hill, Sr., PRO SE, Franklin County House of Correction, Greenfield, MA.
For FREDRICK MCDONALD, Franklin County Sheriff, Defendant: Charles B. Straus, III, Richard C. Van Nostrand, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA. For GREENFIELD, TOWN OF, Defendant: Charles B. Straus, III, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA.
JUDGES: MICHAEL A. PONSOR, U. S. District Judge
OPINIONBY: MICHAEL A. PONSOR
OPINION:
[*465] MEMORANDUM REGARDING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFFS' MOTIONS TO AMEND THE COMPLAINT
(Docket Nos. 8, 9 & 14)
PONSOR, D.J.
February 1, 1995
I. INTRODUCTION
Pro se plaintiffs James M. Gonyer and Craig S. Hill, Sr., inmates at the Franklin County House of Correction, allege that pervasive exposure to airborne asbestos fibers throughout the prison facility violates prisoners' Eighth Amendment right to be free from cruel and unusual punishment. In their amended complaint, plaintiffs further allege that the presence of asbestos fibers in the prison living and eating areas violates Massachusetts health and sanitation codes.
Gonyer and Hill contend that [**2] defendants, Franklin County Sheriff Fredrick McDonald, Franklin County House of Correction and the City of Greenfield, have known of inmates' exposure to asbestos for years and have done nothing, indeed ignored, the substandard health conditions at the prison. Plaintiffs seek injunctive relief and monetary damages.
Defendants have moved to dismiss the complaint because the original pleadings and first amended complaint incorrectly asserted diversity of citizenship between the parties, 28 U.S.C. ç 1332, as the basis for this court's jurisdiction.
As currently set forth, plaintiffs' jurisdictional claim is technically not cognizable since it is alleged pursuant to nonexistent federal statutes -- the "Toxic Exposure to Asbestos Tort Claim . . . [and] 28 U.S.C. 1943." In their amended filings, plaintiffs allege that the legal deficiencies in their complaint are due, at least in part, to their lack of access to legal assistance or to an adequate, updated law library. It is quite possible that plaintiffs confused the statute numbers, intending to allege jurisdiction pursuant to 42 U.S.C. ç 1983. [**3] In any case, these drafting flaws are not fatal to the complaint.
In a third amended complaint, dated November 20, 1994, the plaintiffs set forth factual and legal allegations sufficient to make out a violation of the Eighth Amendment. Therefore, in accordance with the liberal standards used to review pleadings from pro se prisoner litigants, the court will allow plaintiffs' motions to amend and deny defendants' motion to dismiss on jurisdictional grounds. The court's reasoning is set forth below.
[*466] II. THE COMPLAINT AND STANDARD OF REVIEW
At the outset, the court notes that pleadings filed by pro se litigants are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). This looser standard requires the court to be especially indulgent in accepting the truth of the factual averments of the complaint and to consider every inference helpful to the plaintiffs' cause. See Garita Hotel Ltd. Partnership v. Ponce Fed. Bank., F.S.B., 958 F.2d 15, 17 (1st Cir. 1992). [**4] Accordingly, in ruling on these motions, the court is required to look to the allegations of the complaint, and "if under any theory they are sufficient to state a cause of action in accordance with the law, a motion to dismiss the complaint must be denied." Knight v. Mills, 836 F.2d 659 (1st Cir. 1987).
Plaintiffs claim that upon incarceration at the Franklin County House of Correction, they realized that prisoners were exposed to "raw, open and dry asbestos fibers." Gonyer and Hill claim to have received a Department of Health and Public Safety report listing numerous health code violations at the prison for exposed asbestos-covered pipes. Plaintiffs allege that, despite their knowledge of the serious health hazard posed by exposure to asbestos, defendants took no action to "cure and amend these violations." Finally, Gonyer and Hill point out the accepted medical wisdom that exposure to asbestos fibers may cause serious disease.
III. DISCUSSION
Pursuant to 42 U.S.C. ç 1983, a county prisoner may bring an Eighth Amendment claim that environmental hazards in a prison, such as exposed asbestos, pose an unreasonable [**5] risk of serious damage to future health. Helling v. McKinney, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); Smith v. Fiedler, 867 F. Supp. 832 (E.D.Wis. 1994). A well pled complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind?). Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). In other words, plaintiffs must plead facts which show a deliberate indifference to a risk of serious damage to their future health, specifically exposure to an unreasonable level of asbestos. Helling v. McKinney, 113 S. Ct. at 2481-2482.
Plaintiffs' allegations comport with this standard. Pertinent to the objective inquiry are allegations that there are free-floating asbestos fibers in the prison environment. [**6] Cf. McNeil v. Lane, 16 F.3d 123, 124-125 (7th Cir. 1994) (mere presence of asbestos-covered pipes does not constitute an Eighth Amendment violation). It is significant that plaintiffs further claim that the presence of asbestos fibers violates state health codes and that the prison has been cited for these violations. The Court has long held that, in determining what is to be considered cruel and unusual punishment, reference must be made to the evolving standards of decency that mark the progress of society. Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). With respect to prison health hazards, state health codes reflect established public attitudes as to what those standards are. Good v. Commissioner of Correction, 417 Mass. 329, 335, 629 N.E.2d 1321 (1994). The factual allegations of the complaint adequately support the claim that defendants' action is sufficiently serious to constitute an Eighth Amendment violation. See DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). n1
n1 Strikingly similar facts were alleged by plaintiffs in Scarpa v. Dubois, 25 F.3d 1037 (1st Cir. 1992) (Table). However, Fist Circuit Local Rule 36.2(b)(6) prevents the court from citing this unpublished disposition as precedent. The parties may nonetheless find the unpublished disposition instructive. See Scarpa v. Dubois, 1994 WL 242146 (1st Cir. Mass. June 6, 1994).
[**7]
Gonyer and Hill maintain that the chief prison official, defendant McDonald, knew for several years that the presence of [*467] asbestos in the prison air violated state health codes. On the pleadings, this allegation is sufficient to satisfy the subjective component of the Eighth Amendment inquiry: did the official/s act with a sufficiently culpable state of mind? Id. The allegations that prison officials knew for years that unacceptable levels of asbestos fibers contaminated living and eating facilities in the prison, if true, would undoubtedly show a deliberate indifference to a serious health risk.
Plaintiffs' assertion that exposure to asbestos fibers causes cancer states a cognizable Eighth Amendment harm. As the Court has aptly noted, a prison inmate may successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Helling v. McKinney, 113 S. Ct. at 2480. Indeed, the Court further stated that it "would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prisons on the ground that nothing yet had happened to them . . . A remedy for unsafe [**8] conditions need not await a tragic event." Id. at 2480.
Plaintiffs will undoubtedly face serious, possibly insurmountable, challenges in proving both the objective and subjective elements of this Eighth Amendment claim. However, the court's role at this stage is only to determine whether plaintiffs' allegations, if true, state a cognizable claim. On this limited issue, plaintiffs must prevail. At this stage it is plain that, despite technical deficiencies, the factual allegations in the complaint provide sound jurisdictional and legal grounds upon which plaintiffs may proceed.
IV. CONCLUSION
For the foregoing reasons, plaintiffs' motions to amend their complaint are ALLOWED and defendants' motion to dismiss is DENIED. The court will take under advisement plaintiffs' renewed motion seeking appointment of counsel (Docket No. 10) and attempt to secure the services of an attorney for subsequent proceedings in this matter.
A separate order will issue.
MICHAEL A. PONSOR
U.S. District Judge
ORDER
February 1, 1995
PONSOR, D.J.
For the reasons stated in the accompanying Memorandum, defendants' Motion to Dismiss (Docket No. 8) is hereby DENIED and plaintiffs' Motions to Amend [**9] Complaint (Docket Nos. 9 & 14) are hereby ALLOWED. Plaintiffs' renewed Motion for Appointment of Counsel (Docket No. 10) is hereby taken under advisement. The court will attempt to secure the services of an attorney for subsequent proceedings in this matter.
MICHAEL A. PONSOR
U. S. District Judge