Vega v. Semple

18-3176-pr

Vega v. Semple

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2019

No. 18-3176-pr

HARRY VEGA,

Plaintiff-Appellee,

Michael Cruz, on behalf of themselves and all others similarly

situated, Kenya Brown, On behalf of themselves and all others

similarly situated, Jeffrey Perry, On behalf of themselves and all

others similarly situated, Lee Grenier, On behalf of themselves and

all others similarly situated, Tavorus Fluker, On behalf of themselves

and all others similarly situated, Anthony Rogers, On behalf of

themselves and all others similarly situated, Thomas Marra, On

behalf of themselves and all others similarly situated, Terrence

Easton, On behalf of themselves and all others similarly situated,

Lamont Samuel, On behalf of themselves and all others similarly

situated, Ian Cooke, On behalf of themselves and all others similarly

situated, J. Michael Farren, Lawrence Townsend, On behalf of

themselves and all others similarly situated, John Bosse, On behalf of

themselves and all others similarly situated,

Consolidated-Plaintiffs - Appellees,

v.

SCOTT SEMPLE, Commissioner of Correction, in their individual and

official capacities *; JAMES DZURENDA, former Commissioner of

Correction, in their individual and official capacities; LEE ARNONE,

former Commissioner of Correction, in their individual and official

capacities; THERESA LANTZ, former Commissioner

of Correction, in their individual and official capacities; JAMES

ARMSTRONG, former Commissioner of Correction, in their individual

and official capacities; LAWRENCE MEACHUM, former Commissioner

of Correction, in their individual and official capacities; HENRY

FALCONE, Warden, Garner Correctional Institution, in their

individual and official capacities; STEVEN LINK, Director, Department

of Correction Engineering and Facilities Management, in their

individual and official capacities; DAVID BATTEN, former Director,

Department of Correction Engineering and Facilities Management, in

their individual and official capacities,

Defendants-Appellants,

JOHN DOES, 1-3,

Defendants.

On Appeal from the United States District Court

for the District of Connecticut

ARGUED: OCTOBER 31, 2019

DECIDED: JUNE 29, 2020

* Scott Semple no longer holds this office. He has been replaced by Rollin

Cook, who is automatically substituted as the official-capacity party. See Fed. R.

Civ. P. 25(d); Fed. R. App. P. 4(c)(2).

2

Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, Judge. †

Plaintiffs are current and former inmates of the Connecticut

Department of Correction incarcerated within Garner Correctional

Institution (“Garner”), who initiated suit in the United States District

Court for the District of Connecticut. They purport to bring a class

action on behalf of all current and former inmates ever incarcerated at

Garner since the prison opened in 1992, including pre-trial detainees

and post-conviction prisoners. A class has not yet been certified.

Plaintiffs allege they were “exposed involuntarily to indoor radon gas,

a recognized human carcinogen, far in excess of any published safe

level” while incarcerated at Garner. They claim Defendants, who are

Department of Correction officials, were deliberately indifferent to

inmate safety in building the Garner facility at the Newtown,

Connecticut site and in failing to test for, or to remediate, the alleged

radon exposure thereafter.

The Defendants moved to dismiss the complaint, under Fed. R.

Civ. P. 12(b)(1) and (6), on grounds of qualified immunity and

Eleventh Amendment sovereign immunity. The District Court (Janet

Bond Arterton, Judge) framed the right at issue by holding that

“reasonable prison officials were on notice that they could not

† Judge Edward R. Korman, of the United States District Court for the

Eastern District of New York, sitting by designation.

3

knowingly or recklessly subject prisoners in their custody to toxic

substances that pose a serious risk of harm.” The District Court

concluded that Defendants’ alleged conduct violated clearly

established law as of the date of the Supreme Court’s decision in

Helling v. McKinney, 509 U.S. 25, 29 (1993). Accordingly, it granted

Defendants’ motion to dismiss on qualified immunity grounds with

respect to conduct alleged to have occurred prior to Helling and denied

the motion with respect to conduct alleged to have occurred after

Helling. The District Court also denied Defendants’ motion to dismiss

Plaintiffs’ claims for prospective relief on grounds of Eleventh

Amendment sovereign immunity.

This case presents two questions: (1) Whether Defendants are

entitled to qualified immunity where they are alleged to have been

deliberately indifferent to an unreasonable risk of serious harm to

inmates posed by exposure to a toxic substance (here, radon gas), in

violation of inmates’ rights under the United States Constitution; and

(2) Whether the doctrine of state sovereign immunity prohibits the

prospective relief that Plaintiffs seek against Defendants, namely

prospective medical screening, monitoring, and treatment, and radon

testing and mitigation.

We conclude, like the District Court, that Defendants’ alleged

conduct violated clearly established law as of the date of Helling. We

also conclude that the District Court erred in failing to dismiss

Plaintiffs’ claims for prospective relief for violations of state law, but

did not err in declining to dismiss Plaintiffs’ claims for prospective

relief for violations of federal law on grounds of sovereign immunity.

4

Accordingly, we AFFIRM the District Court’s judgment insofar as it

determined that Defendants violated clearly established law as of the

date of the Supreme Court’s decision in Helling v. McKinney, 509 U.S.

25, 29 (1993); AFFIRM in part the District Court’s judgment insofar as

it denied Defendants’ motion to dismiss Plaintiffs’ federal claims for

injunctive and declaratory relief; REVERSE in part the District Court’s

judgment insofar as it denied Defendants’ motion to dismiss Plaintiffs’

state-law claims for prospective relief against the official-capacity

defendants; and REMAND the cause to the District Court for further

proceedings consistent with this opinion.

STEPHEN R. FINUCANE, Assistant Attorney

General, for William Tong, Attorney General

of Connecticut, Hartford, CT, for Defendants-

Appellants.

LORI WELCH-RUBIN (Martin Minnella, on the

brief), Minnella, Tramuta & Edwards, LLC,

Middlebury, CT, for Plaintiffs-Appellees.

Alexander A. Reinert, Benjamin N. Cardozo

School of Law, New York, NY, for Amicus

Curiae Human Rights Defense Center.

5

JOSÉ A. CABRANES, Circuit Judge:

Plaintiffs are current and former inmates of the Connecticut

Department of Correction (“DOC”) incarcerated within Garner

Correctional Institution (“Garner”) who initiated suit in the United

States District Court for the District of Connecticut. They purport to

bring a class action on behalf of all current and former inmates

incarcerated at Garner since the prison opened in 1992, including pre-

trial detainees and post-conviction prisoners. A class has not yet been

certified. Plaintiffs allege they were “exposed involuntarily to indoor

radon gas, a recognized human carcinogen, far in excess of any

published safe level” while incarcerated at Garner.1 They contend that

Defendants, who are current and former DOC officials, were

deliberately indifferent to their safety when building the Garner

facility at the Newtown, Connecticut site and by failing to test for or

mitigate the alleged radon exposure thereafter. 2 Further, Plaintiffs

assert that Defendants Dzurenda, Semple, Link, and Falcone were

deliberately indifferent to inmate safety by failing to notify inmates

that radon testing and remediation were being conducted at Garner

during 2013 and 2014, after elevated radon levels were discovered in

late 2013. 3 Plaintiffs allege that Defendants “knew that inmates housed

at Garner from its inception until the installation of the radon

1 Plaintiffs’ Amended Complaint (“Am. Compl.”) ¶¶ 1, 41, 46.

2 Id. ¶¶ 1, 90–96, 98, 103, 110–11, 114, 135–36.

3 Id. ¶¶ 140, 142–43, 146–47, 150–53, 157–61.

6

mitigation system in October 2014 faced substantial risk of serious

harm from indoor radon exposure, and disregarded that risk by failing

to take reasonable measures to abate it.” 4 They also allege that the

mitigation system installed in 2014 was intentionally designed so as

not to remedy the risk of excessive radon exposure prisoners faced in

the area of Garner where inmates are housed.5

Defendants moved to dismiss the complaint, under Fed. R. Civ.

P. 12(b)(1) and (6), on grounds of qualified immunity and Eleventh

Amendment sovereign immunity. The District Court (Janet Bond

Arterton, Judge) framed the right at issue by holding that “reasonable

prison officials were on notice that they could not knowingly or

recklessly subject prisoners in their custody to toxic substances that

pose[] a serious risk of harm.” 6 It concluded that Defendants’ alleged

conduct violated clearly established law as of the date of Helling v.

McKinney, 509 U.S. 25 (1993), in which the Supreme Court held that an

inmate can state a claim under the Eighth Amendment by alleging that

prison officials have, with deliberate indifference, exposed him to

levels of environmental tobacco smoke that pose an unreasonable risk

of serious damage to his future health. Accordingly, it granted

Defendants’ motion to dismiss on qualified immunity grounds with

regard to conduct alleged to have occurred prior to Helling and denied

the motion with regard to conduct alleged to have occurred after

4 Id. ¶ 136.

5 Id. ¶ 46(A).

6 Special Appendix (“SA”) at 12.

7

Helling. It also denied Defendants’ motion to dismiss Plaintiffs’ claims

for prospective relief on grounds of state sovereign immunity.

This case presents two questions: (1) Whether Defendants are

entitled to qualified immunity where they are alleged to have been

deliberately indifferent to a unreasonable risk of serious harm to

inmates posed by exposure to a toxic substance (here, radon gas), in

violation of inmates’ rights under the United States Constitution; and

(2) Whether the doctrine of state sovereign immunity prohibits the

prospective relief that Plaintiffs seek against Defendants, namely

prospective medical screening, monitoring, and treatment, and radon

testing and mitigation.

We conclude, like the District Court, that Defendants’ alleged

conduct violated clearly established law as of the date of Helling. We

also conclude that the District Court erred in failing to dismiss

Plaintiffs’ claims for prospective relief for violations of state law, but

did not err in declining to dismiss Plaintiffs’ claims for prospective

relief for violations of federal law on grounds of sovereign immunity.

Accordingly, we AFFIRM the District Court’s judgment insofar as it

determined that Defendants violated clearly established law as of the

date of the Supreme Court’s decision in Helling v. McKinney, 509 U.S.

25, 29 (1993); AFFIRM in part the District Court’s judgment insofar as

it denied Defendants’ motion to dismiss Plaintiffs’ federal claims for

injunctive and declaratory relief; REVERSE in part the District Court’s

judgment insofar as it denied Defendants’ motion to dismiss Plaintiffs’

state-law claims for prospective relief against the official-capacity

8

defendants; and REMAND the cause to the District Court for further

proceedings consistent with this opinion.

I. BACKGROUND 7

Plaintiff Harry Vega brings this action on behalf of a putative

class (jointly, the “Plaintiffs”) of all current and former post-conviction

prisoners and pre-trial detainees at DOC’s Garner facility in Newtown,

from Garner’s opening in 1992 to the present. Defendants are former

and current DOC officials during the same time period. 8

7 The following facts are drawn from the Plaintiffs’ Amended Complaint.

For the purposes of this appeal, we assume the truth of Plaintiffs’ factual

allegations. See Edrei v. Maguire, 892 F.3d 525, 529 (2d Cir. 2018).

8 As of August 16, 2017, the date that the operative complaint was filed, the

Defendants are described as follows: Defendant Scott Semple (“Semple”) has

served as the Commissioner of DOC since August 2014; from mid-2009 through

November 26, 2013, Semple was the Warden at Garner, after which time he was

promoted to Deputy Commissioner for Operations. Defendant James Dzurenda

(“Dzurenda”) served as Warden at Garner from 2005 to 2009, and was Deputy

Commissioner for Operations from July 2010 to April 2013, when he became

Commissioner. Defendant Leo Arnone was the Commissioner of DOC from 2010

to 2013. Defendant Theresa Lantz was the Commissioner of DOC from 2003 to 2009.

Defendant James Armstrong was the Commissioner of DOC from 1995 to 2003.

Defendant Lawrence Meachum (“Meachum”) was the Commissioner of DOC from

1987 to 1995. Defendant Henry Falcone (“Falcone”) has been the Warden at Garner

since March 7, 2014; Defendant Falcone became a captain when he was first

assigned to Garner in 2006; he thereafter was promoted to Deputy Warden at

Garner in 2011. Defendant Steven Link (“Link”) is the Director, Department of

Correction Engineering and Facilities Management for DOC. Defendant David

Batten (“Batten”) was the former Director, Department of Correction Engineering

and Facilities Management during times that inmates were exposed to radon.

9

A.

Radon gas is a radioactive gas that results from the natural

decay of uranium found in most soil and many varieties of rock. 9 It is

odorless, colorless, imperceptible to the senses, and it is also

dangerous to humans. 10 It is a known carcinogen and alleged to be the

“leading environmental cause of cancer mortality in the United

States.” 11 It is also alleged to be the leading cause of lung cancer among

persons who have never smoked. 12

The risks of radon exposure have been known for some time.

Congress listed radon as a toxic substance in 1988. 13 Not surprisingly,

the World Health Organization (“WHO”) and U.S. Environmental

Protection Agency (“EPA”) recommend that homes be tested for

radon gas. Although radon may be dangerous to humans in any

quantity, the EPA sets its “action level” for indoor radon exposure at

4.0 pCi/L, a measurement of the radon concentration in the air. 14 The

EPA recommends that home dwellers take steps to mitigate radon

9 Am Compl. ¶ 72.

10 Id. ¶ 73.

11 Id. ¶ 76.

12 Id. ¶ 83.

13 Id. ¶ 88.

14 Defendants-Appellants’ Appendix (“A.”) at 156. pCi/L stands for

picocuries per liter of air. See Am. Compl. ¶ 153.

10

exposure until tests read below that “action level” measurement. 15 The

WHO recommends a lesser action level of 2.7 pCi/L, in part because

indoor exposure to radon at 4.0 pCi/L is equivalent to smoking eight

cigarettes per day. 16 Indeed, the risk of lung cancer rises sixteen

percent with every 2.7 pCi/L increase in radon exposure. 17 Put simply,

radon is a silent but known killer.

B.

In 1988, the DOC announced its plan to construct a prison

facility in Newtown, CT that would become Garner; it was opened on

November 17, 1992. 18 According to the EPA and the U.S. Geological

Survey, which “evaluated the radon potential in the United States and

developed a Map of Radon Zones to assist national, state and local

organizations and building code officials in deciding whether radon-

resistant features should be applicable to new construction[,]”

Newtown, CT is located in “Zone 1- Highest Potential (greater than 4.0

15 A. at 157.

16 Am. Compl. ¶ 138.

17 Id. ¶ 84.

18 Id. ¶¶ 90–91.

11

pCi/L) . . . .” 19 That designation refers to the average short-term radon

measurement in a building without radon mitigation systems.

Plaintiffs allege that Defendant Meachum, who was responsible

for site selection and construction of the Garner facility, and Defendant

Batten, who advised Meachum about the site, knowingly decided to

have Garner built in an area where the radon levels would likely

exceed the EPA action level if no mitigation system were

implemented. 20 Meachum decided to construct Garner on top of what

was formerly a waste site for a different Connecticut facility. Because

radon in the ground can enter a building through small cracks in the

foundation, and because the former waste site rendered Garner’s

foundation vulnerable to cracking, the prison site was particularly

vulnerable to radon gas seepage.

Plaintiffs maintain that they were involuntarily exposed to

excessive levels of radon in violation of their constitutional rights.

They allege Meachum acted with deliberate indifference to inmate

safety and violated their constitutional rights by building Garner in a

high-risk area for radon exposure without installing any radon

mitigation systems. 21 They also claim that Defendants were

19 Id. ¶ 93.

20 Id. ¶¶ 82, 90–92, 94.

21 Id. ¶ 99.

12

deliberately indifferent to inmate safety in failing to test for or mitigate

radon exposure thereafter. 22

In addition to the allegations that Garner was constructed on a

site likely to present a greater risk of radon exposure, Plaintiffs point

to a series of incidents throughout Garner’s history that, in their view,

are probative on the issue of whether Defendants were aware of a

substantial risk of serious harm of radon exposure.

Plaintiffs allege that Garner’s heating, ventilation, and air

conditioning (“HVAC”) system, which was installed in part to help

circulate fresh air throughout the prison facility, was inadequate from

its inception. 23 The original HVAC was inadequate for the size of

Garner, and the replacement HVAC did not circulate fresh air year-

round, as contemplated by the original system specifications. That

failure further increased the risk of radon exposure in Garner. 24

Plaintiffs also allege that, in the fall of 1996, a Connecticut

Department of Public Health survey, which tested well water in

Newtown, revealed high levels of radon in the water. Plaintiffs allege

that these high radon levels and the health risks presented were

widely publicized. 25 Additionally, Plaintiffs allege that test results

22 Id. ¶¶ 1, 90-96, 98, 103, 110-114, 135-136.

23 Id. ¶ 101.

24 Id.

25 Id. ¶ 106.

13

publicly released in 2001 revealed that a Newtown school that shared

a water well with Garner had elevated uranium levels, approximately

eight times greater than the EPA guideline for uranium in drinking

water; it bears recalling that radon results from the natural decay of

uranium. 26 Plaintiffs further allege that, around this time, Defendants

managing Garner temporarily closed the facility’s water supply on

false pretenses, banned showers, and provided the inmates with

bottled water. 27

C.

Garner was not, however, tested for radon gas until 2013, and

even then, testing was only limited to the facility’s classroom area.

Garner offers educational programs to inmates and has classrooms

designated for that purpose on the second floor of the facility.

Pursuant to Connecticut General Statute § 10-220(d)(2), public schools

in the state must be specifically tested for radon. 28 In 2013, a non-

26 Id. ¶ 112.

27 Id. ¶ 115.

28 Connecticut General Statute 10-220(d) provides in relevant part that:

Prior to January 1, 2008, and every five years thereafter, for

every school building that is or has been constructed,

extended, renovated or replaced on or after January 1, 2003,

a local or regional board of education shall provide for a

uniform inspection and evaluation program of the indoor air

quality within such buildings, such as the Environmental

Protection Agency's Indoor Air Quality Tools for Schools

Program. The inspection and evaluation program shall

14

inmate teacher at Garner requested that the classroom area of the

facility be tested for radon pursuant to that statute. Following this

request, Garner’s school area was tested for radon in December 2013

and early 2014. As discussed in greater detail below, Plaintiffs allege

that Defendants tested only the school area and that the cell blocks

were intentionally not tested for radon. 29 Of those areas that were

tested, the results varied by location, between measurements of 5.0

pCi/L to 23.7 pCi/L. 30 Exposure to indoor radon at 10.0 pCi/L is

equivalent to smoking more than 1 pack of cigarettes a day; and

exposure to indoor radon at 20.0 pCi/L is equivalent to smoking more

than 2.5 packs of cigarettes a day. 31 Plaintiffs’ amended complaint

avers that at least two members of the putative class have already been

diagnosed with lung cancer. 32

Following the school-area testing and discovery of undesirable

radon levels at Garner, Defendants promptly began to address the

problem of radon exposure in that limited area. On March 13, 2014,

include, but not be limited to, a review, inspection or

evaluation of the following: . . . (2) radon levels in the air.

Conn. Gen. Stat. Ann. § 10-220 (West).

29 Am. Compl. ¶ 141.

30 Id. ¶ 139.

31 Id. ¶ 138.

32 Id. ¶¶ 15, 21.

15

Defendant Henry Falcone, the Warden of Garner, 33 informed DOC

staff that elevated radon levels were detected in the facility and that

such radon exposure required remediation. 34 A complete report of the

radon test results was made available to the DOC staff. DOC

employees were informed on May 8, 2014 that they could file a “WC

207 package” to preserve their right to workers’ compensation benefits

should they develop any future medical condition resulting from

prolonged radon exposure at Garner. 35

Although DOC employees were informed of the elevated radon

levels, this information was not shared with the inmates. 36 Defendants

Semple, Dzurenda, Falcone, Link, as well as Does 1–3, 37 were informed

that follow-up testing was needed beyond only the school area that

was tested, but they allegedly made the deliberate choice that the cell

blocks where inmates are housed would not be tested. 38 Plaintiffs

allege that this choice was made because state law would have

33 See Note 8, ante.

34 Am. Compl. ¶ 142.

35 Id. ¶¶ 151–54; A. at 160, 224–25.

36 Am. Compl. ¶¶ 150–151.

37 See Note 8, ante.

38 Am Compl. ¶ 141.

16

required that the inmates be notified in writing of any testing done

where they were housed. 39

Defendants acted promptly in attempting to remedy the radon

levels in those areas that were tested. A May 2, 2014 e-mail indicates

that Defendant Link had received a draft remediation design for

Garner. 40 Bids were entertained for the installation contract, and on

October 10, 2014, the emergency radon mitigation system was

completed. Plaintiffs allege that this mitigation system was only

designed to mitigate the tested areas, which excluded the cell block

where inmates are housed. Accordingly, Plaintiffs aver that the

mitigation system was intentionally designed so as not to remedy

excessive radon gas in the cell blocks. 41 Plaintiffs maintain that

Defendants acted with deliberate indifference to their serious medical

needs in failing to notify them that elevated radon levels were detected

and in failing to mitigate allegedly dangerous levels of radon in the

cell blocks.

D.

In February 2017, Plaintiffs filed this action, captioned Cruz v.

Semple, 3:17-cv-0348 (JBA). 42 On July 24, 2017, Judge Arterton held a

39 Id.

40 Id. ¶ 150.

41 Id. ¶¶ 46(A), 141.

42 Cruz DC ECF 1.

17

telephone conference, during which the District Court allowed

Plaintiffs to amend their complaint in response to the Defendants’

proposed motion to dismiss. 43 At this conference, the District Court

also discussed with the parties the possibility of consolidating their

case with the action of Harry Vega, which was filed on January 26,

2017. After the conference, the two cases were indeed consolidated on

September 1, 2017, with Vega dropping his individual suit and joining

the putative class in the case brought by Cruz. 44

Plaintiffs filed their amended complaint, which is now before us

on appeal. 45 They allege violations of the Eighth and Fourteenth

Amendments to the United States Constitution (Count One), and

violations of the Connecticut Constitution, Article First, Section Eight

(Count Two). 46 They seek monetary damages and prospective relief in

the form of an injunction compelling radon testing in Garner, medical

43 A. at 269–271.

44 A. at 227, 270.

45 A. at 002.

46 The Eighth Amendment to the U.S. Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment’s

prohibition against cruel and unusual punishment is incorporated by the

Fourteenth Amendment. McDonald v. City of Chicago, Ill., 561 U.S. 742, 764 n.12

(2010). The Fourteenth Amendment to the U.S. Constitution provides, in relevant

part that, no state shall “deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. The Connecticut Constitution also

provides, in relevant part, that “[n]o person shall . . . be deprived of life, liberty, or

property without due process of law.” Conn. Const. art. 1, § 8.

18

monitoring of current- and former-inmate health for radon-related

illness, and medical treatment of any such illnesses.

Defendants moved to dismiss the amended complaint

(hereinafter, “the complaint”), arguing that they are entitled to

qualified immunity on the damages claim and to sovereign immunity

on the injunction claim. With regard to the qualified immunity

defense, Defendants do not argue that Plaintiffs’ claims cannot amount

to constitutional violations; rather, they argue only that at relevant

times there was no clearly established law that they violated through

their actions or inaction. 47

During the pendency of this action before the District Court,

Defendants filed a notice of supplemental authority on June 29, 2018,

including an administrative directive from the Connecticut DOC

requiring correctional facilities to develop procedures for, among

other things, detection of radon. 48 The policy did not go into effect until

June 29, 2018, the day the supplemental authority was filed with the

District Court. The District Court allowed both Plaintiffs and

Defendants to file supplemental authority and briefing regarding the

new directive.

47See, e.g., Taylor v. Barkes, 575 U.S. 822, 822 (2015) (“When properly applied,

qualified immunity protects all but the plainly incompetent or those who

knowingly violate the law.” (internal brackets, quotation marks, and citation

omitted)).

48 A. at 229.

19

On September 27, 2018, the District Court granted in part and

denied in part Defendants’ motion to dismiss. 49 Specifically, the

District Court denied Defendants’ sovereign immunity defense to

Plaintiffs’ claims for equitable relief. Regarding the money damages

claims, the District Court granted in part and denied in part

Defendants’ qualified immunity defense, dismissing the claims arising

from conduct that preceded the Supreme Court’s decision in Helling v.

McKinney, 509 U.S. 25 (1993). 50

This timely appeal by Defendants followed.

DISCUSSION

II. The Damages Claim Against Individual-Capacity

Defendants

Defendants challenge the denial of their motion to dismiss on

grounds of qualified immunity for conduct occurring after the

Supreme Court’s decision in Helling, issued on June 18, 1993.

49 The District Court also granted the Defendants’ motion to dismiss

Plaintiffs’ access-to-court claim. SA at 18. Plaintiffs do not challenge that decision

on appeal.

50Although the District Court granted Defendants’ motion to dismiss on the

basis of qualified immunity with regard to all conduct alleged to have occurred

before June 18, 1993, it did not make clear whether that grant applied to both the

pre- and post-conviction Plaintiffs or only the latter. Both parties on appeal agree

that the District Court effectively dismissed both the pre- and post-conviction

claims—brought under the Fourteenth and Eighth Amendments, respectively—

alleged to have occurred before June 18, 1993. Appellants’ Br. at 37; Appellees’ Br.

at 38. We agree with that construction of the District Court’s judgment.

20

Defendants assert that they have not violated any clearly established

law and that they are entitled to qualified immunity for conduct

alleged to have occurred at all relevant times described in the

complaint. We disagree.

A. Standard of Review

Because we are presented with a question of law, the District

Court’s denial of qualified immunity presents a final reviewable

order. 51 We review a denial of qualified immunity de novo. 52 Having

presented their immunity defense on a Rule 12(b)(6) motion “instead

of a motion for summary judgment, the defendants must accept the

more stringent standard applicable to this procedural route.” 53

Accordingly, “we accept the complaint’s factual allegations as true and

draw all reasonable inferences in the plaintiffs’ favor, including both

51 Edrei, 892 F.3d at 532.

52 Looney v. Black, 702 F.3d 701, 706 (2d Cir. 2012).

53 Edrei, 892 F.3d at 532 (brackets omitted).

21

those that support the claim and those that defeat the immunity

defense.” 54 This standard represents a “formidable hurdle.” 55

B. Qualified Immunity

The Supreme Court has instructed that “[q]ualified immunity

balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” 56 To strike the proper balance, the

doctrine of qualified immunity protects government officials from

suits brought against them in their individual capacity for money

damages where their conduct does “not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known.” 57

Accordingly, “[q]ualified immunity shields federal and state

officials from money damages unless a plaintiff pleads facts showing

(1) that the official violated a statutory or constitutional right, and (2)

that the right was ‘clearly established’ at the time of the challenged

54 Id. (internal quotation marks and citations omitted).

55 Id.

56 Pearson v. Callahan, 555 U.S. 223, 231 (2009).

57 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

22

conduct.” 58 If a plaintiff fails at either step, the official is entitled to

qualified immunity.

The Defendants in this appeal have staked their defense on the

second step. For the purposes of their motion to dismiss in the District

Court, the Defendants merely asserted that they had not violated any

clearly established law; they did “not disput[e] . . . that the plaintiffs’

alleged conditions of confinement at Garner . . . amounted to or could

amount to a constitutional violation.” 59 Accordingly, the District Court

considered only the second step—whether the right was clearly

established at the relevant times pleaded in the complaint. Like the

District Court, our inquiry is only as to whether the Defendants

violated clearly established law. 60

C. Conditions of Confinement Claims – “Deliberate Indifference”

The putative class in this case includes both post-conviction

prisoners and pre-trial detainees. The former bring suit under the

Eighth Amendment; the latter bring suit under the Due Process Clause

of the Fourteenth Amendment. Both advance their claims based on

58 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

59 A. at 281–82 (District Court Oral Argument Transcript).

60See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006) (Where “Defendants

have assumed, for the purposes of this appeal that as a threshold matter, plaintiffs

have shown a deprivation of a constitutional right[,] [w]e need only . . . concern

ourselves with the second part of the qualified immunity inquiry.” (internal

quotation marks omitted)).

23

allegations of deliberate indifference to unlawful conditions of

confinement that pose a serious risk of harm to health.

To state a claim under the Eighth Amendment on the basis that

a defendant has failed to prevent harm, a plaintiff must plead both (a)

conditions of confinement that objectively pose an unreasonable risk

of serious harm to their current or future health, and (b) that the

defendant acted with “deliberate indifference.” 61 Deliberate

indifference under the Eighth Amendment standard means the official

must “know[ ] of and disregard[ ] an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” 62 We have observed that “[e]vidence

that a risk was ‘obvious or otherwise must have been known to a

defendant’ may be sufficient for a fact finder to conclude that the

defendant was actually aware of the risk.” 63

To state a claim of deliberate indifference under the Due Process

Clause of the Fourteenth Amendment, a plaintiff must allege both (a)

conditions that objectively “pose an unreasonable risk of serious

61 Farmer v. Brennan, 511 U.S. 825, 834 (1994).

62 Id. at 837.

63Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Brock v. Wright,

315 F.3d 158, 164 (2d Cir. 2003)); see also Farmer, 511 U.S. at 843 n.8 (noting that

prison official “would not escape liability if the evidence showed that he merely

refused to verify underlying facts that he strongly suspected to be true, or declined

to confirm inferences of risk that he strongly suspected to exist . . . ”).

24

damage to . . . health”; 64 and (b) that the “defendant-official acted

intentionally to impose the alleged condition, or recklessly failed to act

with reasonable care to mitigate the risk that the condition posed to

the pretrial detainee even though the defendant-official knew, or

should have known, that the condition posed an excessive risk to health

or safety.” 65 Accordingly, the “deliberate indifference” prong under

the Fourteenth Amendment is said to be defined objectively.

Plaintiffs have alleged that, from Garner’s inception until the

installation of the radon mitigation system in October 2014,

Defendants knew that inmates housed at Garner faced substantial risk

of serious harm from indoor radon exposure and that Defendants

disregarded that risk by failing to take reasonable measures to abate

it. 66 At this stage in the litigation, we must assume these factual

allegations are true.

Defendants argue that Plaintiffs are trying to press claims for

negligence and that a failure to discover radon is not actionable under

the Eighth Amendment deliberate indifference standard. We agree,

and Plaintiffs do not dispute, that Defendants cannot be liable under

the Eighth Amendment for mere negligence. Indeed, Plaintiffs

expressed that understanding at oral argument before the District

Court. There, they argued that on the issue of subjective deliberate

64 Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017).

65 Id. at 35 (emphasis added).

66 Am. Compl. ¶¶ 1, 46(A), 57, 135–36.

25

indifference, they enjoy a pleading standard at this stage that draws

all inferences in their favor but conceded that they must ultimately

prove that Defendants were aware of the risk of harm. 67

Inasmuch as we assume on this appeal that Plaintiffs have

sufficiently alleged violations of their constitutional rights, we turn to

the question of whether the Defendants violated clearly established

law.

D. Whether Defendants Violated “Clearly Established” Law

“A Government official’s conduct violates clearly established

law when, at the time of the challenged conduct, the contours of a right

are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” 68 It is understood

that this analysis is undertaken to “ensure that the official being sued

had fair warning that his or her actions were unlawful.” 69 Because we

assess the official’s conduct at the time it is alleged to have occurred,

A. at 292–293. Of course, on any future motion for summary judgment,

67

unlike on a motion to dismiss, Plaintiffs must actually point to record evidence

creating a genuine dispute as to the specific facts alleged. See, e.g., Salahuddin v.

Goord, 467 F.3d 263, 282 (2d Cir. 2006).

68 Ashcroft, 563 U.S. at 741 (brackets and internal quotation marks omitted).

69 Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (internal quotation

marks omitted); see also Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 60 (2d Cir.

2014) (“The salient question instead is whether the case law at the time in question

would have put reasonable officers on fair warning that their conduct violated the

plaintiff’s rights.” (internal quotation marks omitted)).

26

we look to precedent of the Supreme Court and our own Court

existing at the time of the alleged violation to determine whether the

conduct (or inaction) violated a “clearly established right.” 70

Though the rule is stated simply enough, the application of the

rule often presents challenges. As Dean John C. Jefferies, Jr. has

commented, “determining whether an officer violated ‘clearly

established’ law has proved to be a mare’s nest.” 71 Defining the precise

right at issue poses a “chronic difficulty” for courts. 72 By framing the

relevant right too narrowly, we may unduly permit officials to escape

liability; by framing the relevant right too generally, however, we risk

allowing plaintiffs “to convert the rule of qualified immunity . . . into

a rule of virtually unqualified liability simply by alleging violation of

extremely abstract rights.” 73

On the one hand, “the clearly established right must be defined

with specificity.” 74 Indeed, the Supreme Court instructs courts that

“[t]he dispositive question is whether the violative nature

of particular conduct is clearly established,” and that “[t]his inquiry

must be undertaken in light of the specific context of the case, not as a

70 Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004).

John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L. REV.

71

851, 852 (2010).

72 LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998).

73 Anderson v. Creighton, 483 U.S. 635, 639 (1987).

74 City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019).

27

broad general proposition.” 75 On the other hand, the Supreme Court

has also emphasized that, while the “contours of the right must be

sufficiently clear[,]” that “is not to say that an official action is

protected by qualified immunity unless the very action in question has

previously been held unlawful.” 76

In attempting to determine the right at issue here, the District

Court turned to a Supreme Court case decided in 1993, Helling v.

McKinney. 77 In Helling, the plaintiff alleged that defendant prison

officials housed him with a cellmate who smoked five packs of

cigarettes per day, and that officials permitted cigarettes to be sold to

inmates without proper warnings regarding the hazard of tobacco

smoke.78 Even though the plaintiff had not developed health

complications from exposure to environmental tobacco smoke

(“ETS”), he maintained that the officials’ actions manifested deliberate

indifference to the serious health risks to which they exposed him in

violation of the Eighth Amendment. The Supreme Court agreed,

holding that the plaintiff “state[d] a cause of action under the Eighth

75 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks

omitted).

76 Anderson, 483 U.S. at 640; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002)

(noting that “officials can still be on notice that their conduct violates established

law even in novel factual circumstances”); Back v. Hastings On Hudson Union Free

Sch. Dist., 365 F.3d 107, 129 (2d Cir. 2004) (“[T]he right in question must not be

restricted to the factual circumstances under which it has been established.”).

77 509 U.S. 25; see also SA at 14–15.

78 Helling, 509 U.S. at 27.

28

Amendment by alleging that [the officials] have, with deliberate

indifference, exposed him to levels of ETS that pose an unreasonable

risk of serious damage to his future health.” 79 The Court explained that

“it would be odd to deny [relief] to inmates who plainly proved an

unsafe, life-threatening condition in their prison on the ground that

nothing yet had happened to them.” 80

The District Court concluded that Helling established a

prisoner’s right to be free from toxic environmental substances that,

like ETS, posed an unreasonable risk of some future harm.

Accordingly, the District Court denied Defendants qualified

immunity for conduct alleged to have occurred after Helling, decided

on June 18, 1993, finding the right to be clearly established as of that

date.

On de novo review, we hold the same: as of June 18, 1993,

reasonable officials were on notice that deliberate indifference to

Plaintiffs’ excessive exposure to radon, then a known toxic

environmental substance, violated their Eighth Amendment right.

Reasonable officials had such “fair notice” 81 as of that date

because of Helling’s clear pronouncement: inmates exposed to toxic

substances did not need to wait to get sick to file a lawsuit; they did

79 Id. at 35.

80 Id. at 33.

81 Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

29

not need to wait, in other words, for “a tragic event” to occur. 82 Rather,

they could bring a claim under the Eighth Amendment as soon as an

“unreasonable risk of serious damage to . . . future health” existed. 83

But in what context would a reasonable official know that right

to be violated? This court has stated that “after Helling it was clearly

established that prison officials could violate the Eighth Amendment

through deliberate indifference to an inmate’s exposure to levels of

ETS that posed an unreasonable risk of future harm to the inmate’s

health.” 84 Put another way, as of 1993, no reasonable prison official

could be unaware that deliberate indifference to levels of ETS that

posed an unreasonable risk of future harm to the inmate's health was

a Constitutional violation.

But what about radon exposure? Were the “contours of the

right” in Helling “sufficiently clear that a reasonable officer would

understand” that deliberate indifference to radon exposure “violates

that right” as well? 85

The answer is “yes.” As the District Court concluded: “[i]f

anything, knowing or reckless exposure of prisoners to radon, given

the facts alleged by Plaintiffs, is more obviously unconstitutional than

82 Helling, 509 U.S. at 33.

83 Id. at 35.

84 Warren v. Keane, 196 F.3d 330, 333 (1999).

85 LaBounty, 137 F.3d at 74 (quoting Anderson, 483 U.S. at 640).

30

exposure of prisoners to ETS was in 1993.” 86 The District Court reached

this conclusion because, while the dangers of ETS were still being

debated in 1993, “radon in 1993 had already five years earlier been

identified ‘as a human carcinogen by the International Agency for

Research on Cancer . . . and added by Congress that same year to the

Toxic Substances Control Act.” 87

Given that we have found the contours of rights to be defined

by similar sources—such as the right to be free from friable asbestos,

which originated in decisional law but was given definition by, among

other things, Clean Air Act regulations 88—we agree with the District

Court that the right at issue here was clearly established as of 1993. If

a reasonable officer was aware of the future risk of ETS by that point,

then surely a reasonable officer would have been aware of the future

risk of a known carcinogen like radon.

This conclusion extends with even more force to the allegations

of deliberate indifference after 2014, when Defendants implemented a

partial radon mitigation system in the classroom area of Garner.

Plaintiffs have alleged that the mitigation system installed in 2014 was

86 Vega v. Semple, No. 3:17-cv-107 (JBA), 2018 WL 4656236, at *6 (D. Conn.

Sept. 27, 2018); SA at 11–12.

87 Id. (citing Am. Compl. ¶ 57).

LaBounty, 137 F.3d at 74, n. 5; see also Warren, 196 F.3d at 333 (relying in

88

part on prison’s internal “Policy and Procedure,” which expressly recognized

harms of ETS exposure, in concluding ETS exposure violated clearly established

law).

31

“only designed to test areas that revealed radon”—which excluded the

cell block area of Garner where prisoners were housed—and

“intentionally did not remedy any excessive indoor radon gas where

inmates [are] housed.” 89 Taking the allegations as true, we conclude

that the mitigation effort implemented was not a reasonable measure

taken to abate the risk of excessive radon exposure in the cell block;

instead, the allegedly excessive radon in the cell block went

unattended. A conscious decision not to address a known risk of

excessive radon exposure, as described by Plaintiffs, would violate

clearly established law for all the reasons we have expressed above. 90

E. Defendants’ Arguments

Defendants raise three principal arguments challenging the

conclusion that they violated clearly established law at any time. We

address each in turn, and we reject all as without merit.

i.

First, Defendants argue that they are entitled to qualified

immunity on the basis that no binding decision discusses the

constitutional implications of radon exposure to inmates. Essentially,

they argue that qualified immunity must be granted absent binding

precedent that addresses the very same carcinogen in this case. The

89 Am. Compl. ¶ 46(A) (emphasis added).

90 We do not consider, much less decide, how the implementation of the

radon mitigation system in 2014 would affect the qualified immunity analysis if

Plaintiffs’ allegations in ¶ 46(A) of the complaint are inaccurate.

32

argument is not compelling. The Supreme Court has held that

“officials can still be on notice that their conduct violates established

law even in novel factual circumstances.” 91 We have repeatedly

rejected this type of argument, 92 and we do so once more today.

ii.

Defendants next argue that the District Court erred by relying

on statutes, not case law, in partially denying qualified immunity. We

disagree. While “[o]fficials sued for constitutional violations do not

lose their qualified immunity merely because their conduct violates

some statutory or administrative provision,” 93 we have previously

held that “we may examine statutory or administrative provisions in

conjunction with prevailing circuit or Supreme Court law to

91 Hope, 536 U.S. at 741.

92 Edrei, 892 F.3d at 542 (“Defendants’ first argument echoes a common

refrain in qualified immunity cases—pointing to the absence of prior case law

concerning the precise weapon, method, or technology employed by the police. But

novel technology, without more, does not entitle an officer to qualified immunity.”

(citation and internal quotation marks omitted)); Jones v. Parmley, 465 F.3d 46, 57

(2d Cir. 2006) (“[Defendants] essentially argue that we should find qualified

immunity unless a Supreme Court or Second Circuit case expressly denies it, but

that standard was rejected by the Supreme Court in favor of one in which courts

must examine whether in the light of pre-existing law the unlawfulness is

apparent.” (alterations and internal quotation marks omitted)).

93 Davis v. Scherer, 468 U.S. 183, 194 (1984).

33

determine whether an individual had fair warning that his or her

behavior would violate the victim’s constitutional rights.” 94

The District Court did not rely exclusively on any alleged

violation of statutes or regulations to determine that Defendants had

violated clearly established rights. Rather, the District Court relied on

the binding case law in Helling and this Circuit’s decision in LaBounty

v. Coughlin, recognizing a prisoner’s right to be free from exposure to

friable asbestos, 95 to establish the contours of the right. In conjunction

with those cases, it referred to regulations and statutes provided in the

complaint to bolster the conclusions that radon is a dangerous

carcinogen; that society is unwilling to tolerate the risks accompanying

certain levels of radon exposure; and that such risks are—and have

been since 1988—well known. Both the Supreme Court and this Court

have similarly considered statutes as part of the qualified immunity

analysis. 96 Moreover, our decision also relies on our binding decisional

94 Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 433–34 (2d

Cir. 2009).

95 See 137 F.3d at 73–74.

96 Hope, 536 U.S. at 741–45 (considering binding circuit precedent, applicable

state regulations, and a Department of Justice report informing the state’s

Department of Correction of the “constitutional infirmity” of alleged practice, to

conclude a clearly established right was violated); see also Warren, 196 F.3d at 333

(relying in part on prison’s internal “Policy and Procedure”, which expressly

recognized harms of ETS exposure, in concluding ETS exposure violated clearly

established law); Labounty, 137 F.3d at 74 n.5 (relying in part on Congressional

recognition of asbestos toxicity and Clean Air Act regulations to decide that

exposing prisoners to friable asbestos could violate clearly established law); cf.

Tooly v. Schwaller, 919 F.3d 165, 173 (2d Cir. 2019) (rejecting district court analysis

34

law in Warren v. Keane, which held that, after Helling, it was “clearly

established” that defendants could violate the inmates’ Eighth

Amendment rights by exposing them to unreasonable levels of ETS

with deliberate indifference. 97

iii.

Third, Defendants argue that the denial of their qualified

immunity motion is inconsistent with the Supreme Court’s decision in

Taylor v. Barkes. 98 We think that Taylor is distinguishable and does not

preclude our ruling on qualified immunity.

In Taylor, the plaintiffs, including the widow of a deceased

prisoner named Christopher Barkes, alleged that the defendants-

officials failed to properly supervise medical contractors in the prison

they oversaw, and thus failed to ensure that those contractors

undertook necessary suicide screenings of incoming prisoners like

Barkes, who ultimately took his own life. This failure, plaintiffs

alleged, amounted to an Eighth Amendment violation.

The Third Circuit agreed, defining the specific right at issue as

the “right to the proper implementation of adequate suicide

that relied “almost exclusively” on state statutes and “did not assess” whether the

conduct alleged violated constitutional rights “as laid out” in case law).

97 Warren, 196 F.3d at 333.

98 575 U.S. 822 (2015).

35

prevention protocols.” 99 That court determined that the right was

clearly established by the time of Barkes’ intake and affirmed the

denial of the defendants-officials’ summary judgment motion for

qualified immunity.

But the Supreme Court reversed, concluding that no decision of

the Supreme Court, nor the weight of circuit precedent, nor Third

Circuit precedent, clearly established “a right to the proper

implementation of adequate suicide prevention protocols.” 100

A brief recitation of the facts in that case helps clarify how it is

distinct from the allegations in this appeal. The prison in Taylor

contracted with a private vendor to provide suicide prevention

screening during inmate intake in accordance with standards

published by the National Commission on Correctional Health Care

(“NCCHC”) in 1997 and revised in 2003. 101 Barkes alleged that the

vendor failed to properly implement those standards and failed to

implement NCCHC’s 2003 revisions. However, NCCHC accredited

the prison approximately one year before Barkes’s suicide. 102 Indeed,

Barkes was screened at intake in 2004 for suicide risk by a licensed

99 Id. at 822 (quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 327 (3d Cir.

2014)).

100 Id. (emphasis added).

Barkes, 766 F.3d at 312–13 (3d Cir. 2014), cert. granted, judgment rev'd sub

101

nom. Taylor v. Barkes, 575 U.S. 822 (2015).

102 Id. at 313.

36

nurse practitioner, who employed a screening form based on

NCCHC’s 1997 standards. The form included seventeen questions

designed to assess suicide risk. Barkes was not entirely candid in

responding to these questions and was subsequently not labeled a

suicide risk. 103 Among the constitutional deficiencies alleged by

Barkes’s widow was that a physician, not a nurse, should have

administered the screening.

In reversing the Third Circuit’s denial of qualified immunity,

the Supreme Court first emphasized that Third Circuit precedent had

not “identif[ed] any minimum screening procedures or prevention

protocols that facilities must use.” 104 To highlight that point, the

Supreme Court noted that in the case on which the Third Circuit relied

in denying qualified immunity, the court ruled for defendants on all

claims, despite the fact that the “booking process of the jail at issue

included no formal physical or mental health screening.” 105

Accordingly, the Supreme Court concluded that no case gave fair

warning to officials that their existing risk mitigation regime, even

with its alleged deficiencies, was constitutionally deficient.

103 Taylor, 575 U.S. at 822.

104Id. By contrast, our opinion is based on a failure to take steps to mitigate

a known risk. We do not hold that Defendants should have taken affirmative steps

to discover a risk of which they had no knowledge, nor could we under the Eighth

Amendment standard.

105 Id. (alterations and internal quotation marks omitted).

37

But just as important as what the Supreme Court did conclude

in Taylor is what it did not conclude. It did not conclude that it would

have been reasonable for the prison guards to completely forego

suicide-prevention screening—to simply not act at all. Nor did it

conclude that it would have been consistent with clearly established

law for the prison guards to forego preventive measures if they were

aware that an inmate posed a suicide risk—to operate in a state of

knowing indifference.

And so, the Supreme Court did not address the distinct

possibility that complete inaction in the face of a risk to a prisoner’s

health—or complete indifference to that risk once it was known—

could be unreasonable, in violation of a prisoner’s clearly established

constitutional rights.

With that in mind, we see no difficulty in appreciating the

difference between the present appeal and Taylor. In this case,

Plaintiffs have alleged that prior to 2014, Defendants failed to take any

steps to mitigate the substantial risk of excessive radon exposure. 106

Unlike Taylor, where there was a risk-mitigation system in place that

allegedly should have been better, the Plaintiffs here complain that

Defendants took no action whatsoever. Worse still, Plaintiffs here

plausibly allege that Defendants had knowledge of the radon exposure

risk and still failed to act. Taylor granted immunity to prison guards

who took some effort to remediate the health risks of the prisoners they

106See also Part II.D, ante, discussing allegations of deliberate indifference

occurring after the installation of a partial mitigation system in 2014.

38

oversaw; but it hardly stands for the principle that prison guards are

immune even where no action is taken, especially when a health risk

is known. 107

* * *

In sum: Plaintiffs have alleged that from Garner’s inception,

Defendants had knowledge of an unreasonable risk of serious harm to

the inmates’ health, namely excessive radon exposure, and that

Defendants were deliberately indifferent in failing to take any

107 Our recent decision in McCray v. Lee, 2020 WL 3273346 (2d Cir. June 18,

2020), is also instructive on this point. Plaintiff there brought a damages claim

under the Eighth Amendment, alleging that the defendant prison officials’ policy

of allowing naturally occurring snow and ice to remain uncleared in the prison’s

recreational yard for the entire winter constituted a violation of his right to some

meaningful opportunity for exercise. Id. at *5. In denying defendants qualified

immunity on this claim, we first noted that a prisoner’s right to a meaningful

opportunity for physical exercise had been clearly established since 1985. Id. at *6

(citing Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)). Defendants argued that,

notwithstanding that proposition, they were entitled to qualified immunity

because—as the District Court concluded—"there is no clearly established

constitutional right to a prison yard without naturally accumulating ice or snow

during winter months.” Id. (internal quotation marks omitted). We rejected that

argument because “[t]he right need not be described with specific references to the

weather or characteristics of the seasons of the year in order for a reasonable prison

official to understand that climatic features may necessitate responsive measures to

ensure that the right to a meaningful opportunity for physical exercise not be

denied.” Id. In other words—the prison officials were on notice that they needed to

take some action in the case that the prison yard was inaccessible, even if the Court

refrained from saying what the proper action was. At the very least, they could not

get away with not acting.

39

reasonable steps (including testing and mitigation) to abate this risk. 108

On the basis of these allegations, accepted as true, we conclude that a

failure to take any steps to abate the risk of excessive radon exposure

violated Plaintiffs’ clearly established right to be free from deliberate

indifference to exposure to excessive radon gas, a toxic substance that

poses a serious health risk—a right clearly established in Helling. 109

108We emphasize that Plaintiffs seeking to recover against any individual

defendant under the Eighth Amendment must ultimately prove that the individual

defendant had subjective knowledge of the objectively serious risk alleged. We

express no view about whether they can do so. At this juncture, Plaintiffs have

plausibly alleged subjective knowledge and deliberate intent by pleading, inter alia,

that Defendants took no action in response to various triggering events, such as the

discovery of unsafe uranium levels in a school that shared Garner’s water supply

and, most significantly, the discovery of unsafe radon levels in Garner’s classroom

areas. Am. Compl. ¶¶ 112–16, 120–21. Taken as true, these allegations easily admit

an inference that Defendants were deliberately indifferent to a serious health risk

to prisoners from radon exposure. Indeed, the pleadings admit no obvious

alternative explanation. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (holding

allegations of discriminatory purpose implausible where the facts alleged admitted

“obvious alternative explanation”).

109 It is worth noting that we are not the only Circuit to have relied on the

Helling line of cases to reject qualified immunity in similar circumstances. In Board

v. Farnham, 394 F.3d 469, 485 (7th Cir. 2005), the Seventh Circuit affirmed the denial

of qualified immunity where plaintiffs alleged deliberate indifference to a deficient

ventilation system, which caused a “flow of black fiberglass dust into cells [and]

numerous nosebleeds and respiratory problems” for the inmates. Id. at 486. The

Seventh Circuit held that such conduct violated the clearly established “right to

adequate and healthy ventilation.” Id. at 487. In making that determination, the

Court relied on both Helling and its own precedent discussing the constitutionality

of a ventilation system that allegedly exposed inmates to unconstitutional

temperatures. Id.

40

III. Prospective Relief

Defendants also appeal the denial of their motion to dismiss

Plaintiffs’ claims for injunctive and declaratory relief. They argue that

these claims are barred by state sovereign immunity under the

Eleventh Amendment. Defendants also argue that Plaintiffs’ claims for

injunctive relief under state law are barred by Pennhurst State School &

Hospital v. Halderman. 110

Our review of a district court’s denial of a motion to dismiss

based on a claim of Eleventh Amendment immunity is de novo. 111

A. Sovereign Immunity

Absent proper Congressional abrogation or State waiver, the

Eleventh Amendment bars a federal court from hearing suits at law or

in equity against a State brought by citizens of that State or another. 112

There is a well-known exception to this rule—established by the

Supreme Court in Ex parte Young 113 and its progeny—by which suits

for prospective relief against an individual acting in his official

capacity may be brought to end an ongoing violation of a federal law.

110 465 U.S. 89 (1984).

111 State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir.

2007).

112 Papasan v. Allain, 478 U.S. 265, 276 (1986).

209 U.S. 123 (1908). See generally 13 Charles Alan Wright et al., Federal

113

Practice & Procedure § 3524.3 (3d ed. 2008).

41

In determining whether a litigant’s claim falls under the Ex parte

Young exception, we ask two questions: whether the complaint (1)

alleges an ongoing violation of federal law; and (2) seeks relief

properly characterized as prospective. 114

Plaintiffs seek two forms of injunctive relief: (1) individual

medical screening, monitoring, and treatment; and (2) facility radon

testing and mitigation. 115 Defendants contend that the first category of

114 In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372 (2d Cir. 2005).

115 Plaintiffs seek injunctive relief compelling widespread medical care for

an injunctive class allegedly “number[ing] in the thousands.” Am. Compl. ¶¶ 1–2,

46(A), 50, p. 42 ¶¶ 4–6. This includes:

(1) “comprehensive baseline medical examination of all class members –

including either a chest X-ray or pulmonary CAT Scan, the determination of which

shall be made by a medical provider knowledgeable about radon toxicity and based

on that class member’s individual health history;”

(2) “medical monitoring, including but not limited to periodic

comprehensive physical examinations, and updated chest X-rays and/or a

pulmonary CAT Scan, the determination of which shall be made by a medical

provider knowledgeable about radon toxicity and based on that class member’s

individual health history;” and

(3) “follow-up health care treatment for all diagnosed medical conditions as

have been previously identified, or may in the future be identified, with exposure

to radon by one or more of these entities: the federal Environmental Protection

Agency; the National Research Council of the National Academy of Sciences; the

National Cancer Institute; the American Medical Association; and the World

Health Organization. At this time, those medical conditions include lung cancer

and chronic, nonmalignant lung diseases such as chronic obstructive pulmonary

disease (COPD), emphysema, chronic interstitial pneumonia and pulmonary

fibrosis.”

42

these claims is, in substance, a claim for retrospective damages poorly

disguised as prospective relief, and is therefore barred. They also

contend that the second category of claims is barred because the

current DOC radon testing policy provides even greater relief than

Plaintiffs seek, which demonstrates that Plaintiffs have failed to allege

an ongoing violation of federal law.

B. Retrospective versus Prospective Relief

i.

We turn first to Defendants’ argument that Plaintiffs’ claims for

medical screening, monitoring, and treatment seek impermissible

retrospective relief. In doing so, we look to the substance rather than

to the form of the relief sought. 116 As a result, relief that is “tantamount

to an award of damages for a past violation of federal law, even though

styled as something else,” is barred. 117 Importantly, however, “relief

that serves directly to bring an end to a present violation of federal law

Id. at 42, ¶¶ 4–6. Plaintiffs also seek widespread testing for radon throughout the

Garner facility and possible expenditure of state funds for mitigation or

remediation systems in addition to those already conducted and installed in 2013

and 2014. Id. ¶ 3.

116 Edelman v. Jordan, 415 U.S. 651, 668 (1974).

117 Papasan, 478 U.S. at 278.

43

is not barred by the Eleventh Amendment even though accompanied

by a substantial ancillary effect on the state treasury.” 118

Plaintiffs have alleged that they are entitled to baseline x-rays

and prospective medical monitoring and treatment as a function of

their Eighth and Fourteenth Amendment rights to be free from

deliberate indifference to serious medical needs. 119 This alleged

ongoing constitutional violation—deliberate indifference to serious

medical needs of incarcerated persons—is the type of continuing

violation for which a remedy may permissibly be fashioned under Ex

parte Young. 120

Defendants are correct, however, in arguing that this

prospective relief cannot be granted to those putative class members

who are not currently incarcerated, as there is no ongoing violation of

118 Id.

119 Estelle, 429 U.S. at 104; A. at 10–11; 14–15; 39–40.

120 We do not express a view on the merits of whether Plaintiffs can

ultimately obtain the relief sought. See In re Deposit Ins. Agency, 482 F.3d 612, 621

(2d Cir. 2007) (“[T]he Supreme Court explained that ‘the inquiry into whether suit

lies under Ex parte Young does not include an analysis of the merits of the claim.’”

(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n, 153 U.S. 635, 646 (2002))). Rather,

we note only that an ongoing violation of federal law has been alleged. See id. at 623

(“When a court reviews the legal merits of a claim for purposes of Ex parte Young, it

reviews only whether a violation of federal law is alleged; appellate review of

allegations is necessarily deferential, and only frivolous and insubstantial claims

will not survive its scrutiny.”).

44

federal law with regard to class members who are not in custody.

Accordingly, we agree with the District Court that Defendants will be

entitled at the class certification stage to raise their objection to the fact

that most of the putative class is not presently incarcerated.

ii.

We next address Defendants’ argument that Plaintiffs’ request

for facility testing and mitigation fail as a function of their failure to

allege a continuing violation of federal law. During the pendency of

their motion to dismiss, Defendants filed a notice of supplemental

authority with the District Court that reflected a new DOC

administrative directive, which requires radon testing and mitigation

in corrections facilities throughout Connecticut. 121 Defendants

contend these new policies remedy any alleged ongoing violation of

federal law stated in the complaint. The District Court rejected that

argument and so do we.

We agree with the District Court that given “the long history of

alleged cover-up and failure to remediate radon,” Plaintiffs’

allegations of an ongoing violation of federal law were not

speculative. 122 Even if we were to take “judicial notice of the newly-

announced DOC directive on radon testing, the result or impact of this

directive remains for discovery, and, on a fully developed record, a

121 See Part I.D, ante.

SA at 23; see also Part I, ante (discussing allegations of Defendants’ alleged

122

propensity to cover up unsafe conditions at Garner).

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determination of the scope of injunctive relief, if and when the

[District] Court determines that Plaintiffs have established their

entitlement to such relief.” 123

C. The Pennhurst Doctrine

Finally, Defendants contend that the injunctive relief sought in

the complaint is barred by Pennhurst State School & Hospital v.

Halderman. 124 In Pennhurst, the Supreme Court held that sovereign

immunity prohibits federal courts from entering injunctions against

state officials on the basis of state law, notwithstanding the Ex parte

Young exception to sovereign immunity with respect to violations of

federal law. 125

Plaintiffs seek prospective relief—in the form of medical

screening, monitoring, and treatment, and radon testing and

mitigation—to remedy alleged violations of both federal and state

law. 126 In response, Defendants press two arguments. First, they argue

that the Pennhurst doctrine prohibits Plaintiffs’ prayer for prospective

relief for violations of federal law because Plaintiffs point to

Connecticut law in discussing the federal constitutional standard

allegedly violated. Second, Defendants argue that the Pennhurst

doctrine requires dismissal at least of those claims for injunctive relief

123 SA at 24.

124 465 U.S. 89.

125 Id. at 106.

126 Am. Compl. ¶ 46(A); A. at 38–44.

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that are expressly based on violations of state law. We find only the

latter argument compelling.

Defendants’ first point is unavailing. Plaintiffs allege deliberate

indifference to their serious medical needs in violation of federal law.

As the District Court correctly observed, Plaintiffs “cite state standards

merely as evidence that helps inform the Eighth Amendment analysis,

and not as a mandate that they seek to enforce via injunctive relief.”127

While any relief ultimately granted must serve to remedy a violation

of federal law, the Pennhurst doctrine does not compel dismissal of

claims for prospective relief against state officers in their official

capacities for alleged violations of federal law simply because the

party seeking such relief refers to state law in order to bolster their

federal claim.

Defendants’ second point, however, has merit. The Eleventh

Amendment presents a jurisdictional bar that deprives federal courts

of the power to hear certain claims. “A federal court must examine

each claim in a case to see if the court's jurisdiction over that claim is

barred by the Eleventh Amendment.” 128 The Pennhurst Court

concluded “that a claim that state officials violated state law in

carrying out their official responsibilities is a claim against the State

that is protected by the Eleventh Amendment,” and the Court

127 SA at 24–25.

128 Pennhurst, 465 U.S. at 121.

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extended the principle to apply equally to “state-law claims brought

into federal court under pendent jurisdiction.” 129

To the extent Plaintiffs seek prospective relief against

Defendants in their official capacity for violations of the “Connecticut

Constitution” and “state law,” 130 those claims are indeed barred by the

Eleventh Amendment under the Pennhurst doctrine.

III. CONCLUSION

To summarize, we hold as follows:

(1) As of the date of the Supreme Court’s decision in Helling

(June 18, 1993), reasonable officials would recognize that a

failure to take any reasonable steps to abate the risk of

excessive radon exposure, of which risk they were actually

aware, would constitute deliberate indifference to a serious

medical need that violated inmates’ clearly established

Eighth Amendment rights;

(2) Installing a radon mitigation system that was intentionally

designed or installed in a manner that caused it to not

address the risk of excessive radon exposure in the area

where inmates are housed does not constitute a reasonable

measure to abate that allegedly known risk;

129 Id.

130 Am. Compl. ¶¶ 171–76.

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(3) In light of the Pennhurst doctrine, the District Court erred in

failing to dismiss Plaintiffs’ claims for prospective relief for

violations of state law; and

(4) The District Court did not err in denying Defendants’ motion

to dismiss on grounds of sovereign immunity Plaintiffs’

claims for prospective relief for violations of federal law.

Accordingly, we AFFIRM the District Court’s judgment insofar

as it determined that Defendants violated clearly established law as of

the date of the Supreme Court’s decision in Helling v. McKinney, 509

U.S. 25, 29 (1993); AFFIRM in part the District Court’s judgment

insofar as it denied Defendants’ motion to dismiss Plaintiffs’ federal

claims for injunctive and declaratory relief; REVERSE in part the

District Court’s judgment insofar as it denied Defendants’ motion to

dismiss Plaintiffs’ state-law claims for prospective relief against

official-capacity defendants; and REMAND the cause to the District

Court for further proceedings consistent with this opinion, including

supervised discovery as to the DOC’s recent radon-mitigation

directive and the Defendants’ knowledge of the radon risk alleged—

see e.g., notes 63, 67, 90, 108, and 122—and, thereafter, such summary

judgment motions as may be appropriate under the circumstances.

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