The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
District Judge Sean J. McLaughlin
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
It is respectfully recommended that the Defendants' motion to dismiss Plaintiff's complaint or, in the alternative, for summary judgment [Doc. # 117] be granted. The Clerk of Courts should be directed to close this case.
A. Relevant Procedural History
On September 7, 2004, Plaintiff Juan Davila-Bajana, a federal inmate incarcerated at the Federal Correctional Institution at McKean ("FCI McKean"), commenced this pro se civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act ("FTCA"). He raised three separate claims. First, he contended that his Eighth Amendment rights were violated by Defendants after allegedly exposing him to an "amalgamation" of environmental tobacco smoke ("ETS") and silica dust (which was created by the cutting of Micore Board) during the course of his employment inside a prison factory run by the Federal Prison Industries (hereinafter referred to by its tradename "UNICOR").*fn1 Second, he claimed that he was removed from that work assignment in retaliation for complaints he made about the hazardous working environment. Third, he claimed that the government was liable under the FTCA for the negligent acts of its employees in exposing him to the hazardous working conditions of UNICOR. Doc. # 6. Named as Defendants in the Complaint are: Tim Holohan, UNICOR Factory Manager; Martin Sapko, UNICOR Factory Manager; Debora Forsyth, Superintendent of Industries; Dave English, UNICOR General Foreman; Robert Klark, Camp Administrator; Stephen Housler, Safety Manager; and the United States of America.*fn2
Defendants filed a motion to dismiss. The Court agreed that Plaintiff had failed to administratively exhaust his Eighth Amendment claim and, accordingly, dismissed that claim. The Court also dismissed the FTCA/negligence portion of the Complaint as untimely. See Docs. # 45, # 49, and # 52. As a result, only the retaliation claim survived.
After a period of discovery, Defendants moved for summary judgment of Plaintiff's retaliation claim. The Court granted their motion. Docs. # 90 and # 94. Plaintiff filed an appeal. On February 5, 2009, the Court of Appeals affirmed the dismissal of the retaliation and FTCA claims. However, it determined that Plaintiff had administratively exhausted his Eighth Amendment claim and therefore it vacated this Court's decision dismissing that claim and remanded the case for further proceedings. See Doc. # 100.
Thus, presently before this Court is Plaintiff's Eighth Amendment claim against the individual Defendants, alleging that they were deliberately indifferent to his health and safety by exposing him to hazardous working conditions in FCI McKean's UNICOR factory. In the Complaint, he makes the following allegations with respect to that claim:
From the genesis of Plaintiff's employment in FCI-McKean's UNICOR Factory until 3/12/2003, Plaintiff consistently complained about the excessive [ETS] and silica dust in the factory due to the gross negligence and deliberate indifference of the named Defendants to Plaintiff['s] Health and Safety.
The [ETS] cause[d] by BOP UNICOR staff and UNICOR Inmates amalgamated with the silica dust and because the named Defendants negligently and deliberately refused to control the Dust and Smoke, through proper ventilation system and by providing Plaintiff with proper equipment and adherence to Occupational Safety and Health Administration (OSHA) standard rules and regulations, Plaintiff [has] suffered and continue[s] to suffer and will suffer in the future permanent injury which include but not limited to shortness of breath, dizziness, heart blockage, chronic obstructive pulmonary disease and airway obstruction. * * * [OSHA] repeatedly sited [sic] UNICOR in 1993 for violation of air and dust acceptable level in factory.
The named defendants conducts as stated above violated my Eighth Amendment right to be free from cruel and unusual punishment by deliberately, sadistically and negligently repeatedly exposed me for years to excessive ETS and silica dust. Doc. # 6 at ¶¶ 8, 11-12.
On April 28, 2009, the Court conducted a case management conference, and thereafter, a period of discovery ensued. See Doc. # 101. On January 6, 2010, Defendants filed the pending motion to dismiss Plaintiff's complaint or, in the alternative, for summary judgment [Doc. # 117] and brief in support thereof, Doc. # 118. On January 7, 2010, the Court sent to Plaintiff at his address of record an Order notifying him that he had until February 4, 2010, to respond to the motion. Doc. # 119. No response has since been filed by Plaintiff, nor has he made a request for an extension. Accordingly, this motion is ripe for disposition by this Court.
B. Relevant Factual History
Plaintiff has not contested the following facts outline by Defendants in their brief. All Attachment ("Att.") citations are to those documents appended to their brief at Doc. # 118.
At all times relevant to this case, the UNICOR factory at FCI McKean was part of the Office Furniture Business Group.*fn3 Att. B (Decl. of Martin Sapko) at ¶ 6. Beginning in March of 1999, Plaintiff was assigned to work there. This assignment lasted only a short time before he was removed from the institution. Plaintiff returned in January 2000, and was reassigned to UNICOR, which was his work assignment for much of the time until his ultimate removal on or around March 31, 2003. During the time he was assigned to UNICOR, Plaintiff performed primarily clerical and supply functions. He rarely worked on or around any of the saws or Micore Board, except to deliver supplies to those stations. Id. at ¶¶ 9-17, and Att. B, Ex. 4 (inmate history data); Ex. 5 (inmate work history); Ex. 6 (diagram of UNICOR factory, dated 1/7/98), and Ex. 7 (diagram of UNICOR factory, dated 6/27/03).
During the period of time in question (1999-2003), inmates were not permitted to smoke in UNICOR, except in a designated break area. See Att. M (Decl. of Debora Forsyth) at ¶¶ 8-10, and Att. M, Ex. 4 (UNICOR McKean Familiarization Handbook); Exs. 5 & 6 (the diagrams of UNICOR factory); Att. N (Decl. of Tim Holohan) at ¶¶ 7-9; Att. E (Decl. of Stephen Housler) at ¶ 10. When inmates were initially assigned to UNICOR, each was provided with the UNICOR McKean Familiarization Handbook. Each inmate was required to sign and return a page titled Factory Rules. One of the rules on that page indicated: "There will be NO SMOKING in the factory, except in designated smoking areas." Id. At all times relevant to this action, the break area was located in the back corner of the factory, near the packing department. Id. at ¶ 10, and Att. M, Exs. 4-6; Att. N at ¶ 9. Also, access to the break area was limited to scheduled 10-minute breaks, which where generally at 8:50 a.m. and 1:00 p.m. during the day shift, or 7:00 p.m. and 9:00 p.m. during the night shift. Id. at ¶¶ 10-11; Att. N at ¶ 10. If an inmate was smoking in any other areas in the factory, or at any other times, he would be in violation of factory rules. Such a violation could have resulted in immediate disciplinary action and possible dismissal from UNICOR. Id. at ¶ 13; Att. N at ¶ 11.
2. Air Quality and Inspections By Microbac and OSHA
On July 3, 2001, the Area Director of OSHA sent a letter to Defendant Stephen Housler, FCI McKean's Safety Manager. The letter advised Housler that OSHA had received a notice of safety hazards regarding the ventilation system in the UNICOR factory. The notice of safety hazards alleged that ventilation was inadequate, employees were being exposed to excessive wood dust, and that dust masks were not readily available. OSHA's letter to Housler indicated that OSHA had not made any determination that the alleged hazards existed, and that OSHA did not intend to conduct an inspection at that time. Nevertheless, since allegations of violations and/or hazards had been made, OSHA requested that FCI McKean investigate the alleged conditions and make any necessary corrections or modifications. See Att. E at ¶¶ 12-14, and Att. E, Ex. 1 (7/3/01 letter).
The Warden responded to OSHA's concerns by letter dated July 27, 2001. In that letter, he described the dust collection system in the UNICOR factory and indicated that dust masks are available in the UNICOR tool room and are issued upon ...