by Panagioti Tsolkas

“There was big, dark, gray, blackish mildew around the air vent and that’s where the air was coming from … it smelled like death.” – Candie Hailey, Rikers Island pre-trial detainee

Over the past several years, Prison Legal News has focused attention on environmental health impacts that prisoners face, including from extreme heat, hurricanes and other natural disasters, and contaminated water. [See, e.g.: PLN,July 2018, p.1;May 2018, p.1; April 2018, p.1]. Exposure to mold infestations is another environmental concern for prisoners.

The chronic presence of mold is frequently a component of what is referred to as Tight Building Syndrome or Sick Building Syndrome – terms that have been coined to describe a relatively new occupational health and safety problem for people who work or spend excessive amounts of time indoors. This is not a new phenomenon; it has been a source of concern for governmental entities such as the Environmental Protection Agency (EPA) and the subject of numerous class-action lawsuits over several decades.

According to the EPA, mold is one of the most common biological contaminants responsible for Sick Building Syndrome (SBS) or Building Related Illness (BRI), both caused in part by “contaminants that may breed in stagnant water accumulated in ducts, humidifiers and drain pans, or where water has collected on ceiling tiles, carpeting, or insulation.”

 The EPA released a fact sheet as early as 1991 describing SBS as a way to “describe situations in which building occupants experience acute health and comfort effects that appear to be linked to time spent in a building, but no specific illness or cause can be identified,” and BRI as a term for “when symptoms of diagnosable illness are identified and can be attributed directly to airborne building contaminants.”

For those who are serving time in prison or jail, this is sadly familiar.

During much of her three years awaiting trial at the Rikers Island jail complex in New York City, Candie Hailey explained to an Intercept reporter that she was locked in a cell ventilated by a mold-covered air duct. The vent was supposed to pump fresh air into her 6-by-10 foot concrete room, but instead the mold made her life unbearable.

She said a guard even begged her to complain to authorities about the mold problem – as the guard feared she would be punished if she did so herself. Similar situations can be found in dozens of prisons, jails and detention facilities at any given time.

Despite widespread incidents of dangerous mold exposure, there is still confusion about specific health risks associated with mold. For example, there are over 100,000 mold species. While it’s extremely difficult to tell what type of mold is present without testing by a certified professional, some species commonly known as “black mold” are Stachybotrys chartarum (aka S. atra) and S.chlorohalonata. These are greenish-black molds that grow on material with a high cellulose and low nitrogen content, such as fiberboard, gypsum board, paper, dust and lint, and are known to release mycotoxins. 

According to the Centers for Disease Control (CDC), reports have found that toxigenic molds may cause serious health problems such as pulmonary hemorrhage or memory loss, though the CDC notes “these case reports are rare, and a causal link between the presence of the toxigenic mold and these conditions has not been definitively proven.” 

A 2004 report by the Institute of Medicine on mold exposure in general found there was “sufficient evidence to link indoor exposure to mold with upper respiratory tract symptoms, cough, and wheeze in otherwise healthy people; with asthma symptoms in people with asthma; and with hypersensitivity pneumonitis in individuals susceptible to that immune-mediated condition.”

The CDC also indicated that common health concerns from mold exposure include hay fever-like allergic symptoms, and individuals with chronic respiratory disease such as obstructive pulmonary disorder or asthma may experience difficulty breathing. Additionally, people with immune suppression may be at increased risk for infections.

Over the past 20 years, major law firms have taken on mold-related SBS cases. Haynes and Boone LLP, for example, explains on their website that they have “formed an interdisciplinary task force of lawyers from its real estate, environmental, insurance, construction and litigation groups to provide a multi-dimensional approach to solving mold, mildew, and sick building problems.” They highlight a $32 million mold-related judgment awarded to homeowners in a 2001 case in Travis County, Texas (Ballard v. Fire Ins. Exchange, Travis County District Court, Case No. 99-05232) that included allegations of negligence, negligent misrepresentation, fraud and breach of contract.

Hayne and Boone also points out that liability from mold and SBS is a serious issue for commercial and public buildings, noting a courthouse in Tulare County, California was the subject of a lawsuit brought by a district court judge and more than 150 other employees “for injuries allegedly caused by stachybotrys resulting from defects in the air-conditioning system.” 

The law firm’s report on mold litigation continues, “Ironically, newer litigation involving mold, mildew, and sick building syndrome issues is becoming increasingly prevalent. Newer buildings appear to be more prone to mold and sick building problems because they are more air-tight, with air-conditioning and heating systems recirculating contaminated air. In addition, new building materials such as synthetic stucco products [EFIS] and wall coverings trap moisture behind the walls and provide an environment for the growth of mold and mildew.”

The law on prison mold-related claims is challenging, as prisoners typically have to show some type of specific injury or health problem caused by the mold (causation), which isn’t easy. Negligence claims are the most common cause of action asserted in SBS cases. The elements for negligence claims include: 1) The defendant owed a duty of care to the plaintiff; 2) the defendant breached that duty through a failure to exercise the degree of care a reasonable person would exercise in like circumstances; 3) the plaintiff suffered injury as a result; and 4) the injury was proximately caused by the defendant’s breach of duty of care.

Prisoners and prison employees can anticipate a continued increase in mold problems after yet another season of extreme weather, including record-breaking heat and increased humidity from hurricanes, storms and flooding. 

In 2015, the Intercept conducted a year-long assessment of workplace safety complaints submitted to the Occupational Safety and Health Administration (OSHA), which showed that agency had received 81 complaints regarding mold in prisons and jails.

Cursory research on mold problems in U.S. correctional facilities reveals dozens of published reports and lawsuits in recent years, but those are merely the tip of a larger iceberg.

“For every legal challenge or journalistic investigation into black mold, we see exponentially more letters from prisoners across the country elaborating on chronic mold problems that are going unaddressed,” observed Paul Wright, director of the Human Rights Defense Center and editor of Prison Legal News.

The following is a compilation of various reports from news outlets, prisoners and staff members regarding mold contamination at correctional facilities nationwide.

Oklahoma

A dozen prisoners filed federal civil rights lawsuits over conditions at the Oklahoma County jail after the kitchen was closed in 2017 due to a mold outbreak. In September 2018, the kitchen in the facility’s basement re-opened after the mold was removed and the air conditioning system replaced. The cost for those repairs was over $850,000.

Mold removal efforts continued on the jail’s upper floors. The 13-story facility near downtown Oklahoma City was built in 1991. According to Sheriff P.D. Taylor, “There’s no way you can fix the mold until you stop the real problem and that’s all the plumbing needs to be replaced. I’ve heard rumors it would be $10 million.”

West Virginia

In May 2018, all state prisoners were removed from the Anthony Correctional Center in Sulphur Spings following an inspection report regarding the discovery of black mold at the facility. Mold was identified in the main building that includes administrative offices, the kitchen area, the gym and some housing units.

Florida

In February 2019, multiple state prison wardens testified before the legislature about abysmal conditions, including widespread water damage and mold issues. Tony Anderson, the warden at the Union Correctional Institution in Raiford, said leaking roofs were his biggest issue. In 2018, a section of roof at the Lake Butler Reception and Medical Center caved in from water damage. Reports of leaking and mold have also come from Santa Rosa CI, Putnam CI, the Florida State Prison, Union CI and Apalachee CI.

In October 2018, a county correctional supervisor sued Miami-Dade for employment violations because, she said, mold inside the county jail was so bad she couldn’t breathe. As a result, County Commissioner Esteban Bovo suggested the county partner with a private investor to build a new jail. 

“Quite frankly, I believe it’s in deplorable conditions. It could open the door in the future for a federal lawsuit from the government if we don’t do anything,” he told the Miami New Times. “I don’t think it’s safe for the inmates, and I don’t think it’s safe for the guards that work there, to be honest with you.”

In June 2018, OSHA warned the Federal Correctional Institution in Miami about a long list of workplace violations endangering both prisoners and guards. OSHA toured the facility twice, and issued warnings and citations for mold growing on walls in multiple areas, leaking ceilings and a lack of basic security equipment. 

California

In June 2018, a guard at FCI Mendota filed a whistleblower complaint alleging toxic mold inside the prison was making some staff members sick.

American Federation of Government Employees local president Aaron Mc­Glothin said mold in the subfloor under the control room might be causing Sick Building Syndrome. Mold at FCI Mendota has been on the rise as prison infrastructure has worn down amid a lack of funding for maintenance and repairs, added Eric Young, president of the Council of Prison Locals. 

New Mexico

In May 2016, Two Santa Fe County jail guards filed suit claiming they were sickened by exposure to toxic dust blown around the facility during a project to remove mold from cell block shower areas.

The whistleblower complaint was in addition to a class-action suit filed by prisoners who alleged they suffered injuries during the Santa Fe County jail mold remediation project.

As reported by The New Mexican, “Efforts to eliminate the mold began with a contractor, Industrial Commercial Coatings, applying a material known as polyurea to the showers, the lawsuit says. But according to the complaint, the material peeled, and the mold reappeared.”

Missouri

A lawsuit filed in November 2017 said prisoners at a medium-security jail in St. Louis known as the Workhouse were forced to live in “inhumane conditions,” including mold infestation.

A former prisoner, Diedre Wortham, said she breathed through a T-shirt due to mold at the jail. “I didn’t think I was going to make it out of the Workhouse alive,” she stated.

In December 2018, a report about the Greene County jail noted that prisoners had to move into modified tractor trailers as a result of moisture issues at the facility. A grand jury, tasked with inspecting county buildings, called the jail “dangerously crowded” and noted problems with mold and bad odors.

Louisiana

In July 2015, Deputy Donald Marshall, Jr. at the Orleans Parish Prison filed suit against the city and Sheriff Marlin Gusman over mold-related health problems. Marshall claimed he suffered symptoms that included coughing, difficulty breathing and allergic hypersensitivity due to the “toxic mold” present at the jail since Hurricane Katrina.

Georgia

An October 2017 investigation at the Augusta State Medical Prison found mold contaminating the ceiling in the dental unit and a wall in a second-floor corridor of the hospital, as well as bags of garbage piled up outside the operating room attracting flies and mosquitoes. In the dialysis center, water was dripping under the sink. [See: PLN, Sept. 2018, p.38].

In April 2018, news reports indicated that approximately 300 prisoners at the DeKalb County jail were relocated as work began to remove mold and repair leaking shower units.

DeKalb County Sheriff Jeffery L. Mann announced “Operation Clean Jail 2018” at a press conference, estimating a minimum $1.5 million cost and declaring that construction would begin immediately – even though the unbudgeted expense had yet to be approved by county commissioners. 

Pennsylvania

An April 2016 report indicated staff members at the Allegheny County jail in Pittsburgh voiced concerns about workplace health issues stemming from an alleged mold infestation, which the jail administration denied. 

“You definitely feel it the first few hours you walk in the door,” said one of the jail’s employees, who remained anonymous due to fear of retaliation for speaking to the press. The employee said one area of the facility was particularly infested, and some workers had developed health problems from their exposure. “These are people without ever before having allergies, and they’re suddenly getting irritable eyes, trouble breathing, scratchy throat, sneezing and coughing,” the employee noted.

Various methods can be used to remove mold, including bleach, ammonia, undiluted white vinegar, Borax (sodium borate) and hydrogen peroxide. Bleach and ammonia are only effective on non-porous surfaces, while vinegar and hydrogen peroxide can be used on porous materials. 

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Sources: epa.gov, theintercept.com, moldmanusa.com, cdc.gov, haynesboone.com, miaminewtimes.com, jacksonville.com, santafenewmexican.com, news-leader.com, huffingtonpost.com, moldsafesolutions.com, newsok.com, fresnobee.com, correctionalnews.com, wvnews.com, myajc.com, ocgnews.com, nypost.com, nola.com, recorderonline.com, corporate.findlaw.com, moldpedia.com

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