by Matt Clarke
The U.S. Court of Appeals for the Eighth Circuit held that Arkansas jailers were entitled to qualified immunity in a lawsuit brought by prisoners in 2017 who alleged their shower area was covered in black mold and they were never given any cleaning supplies. The court also held that it lacked jurisdiction to hear the county’s interlocutory appeal. The case was reversed and remanded in August 2020.
When Sam Edward Thurmond, Sr., James Cunningham, Rashan Dixon, Khalan Ellington, Bobby Ray Wales, Jr., Terry Don Beaver, and Jeremy Todd Haley were incarcerated at Arkansas’ Faulkner County Detention Center, they filed written complaints about the presence of “black mold” on the walls, ceiling, floors and shower curtains of the prisoners’ shower area. This led to their filing a federal civil rights action pursuant to 42 U.S.C. § 1983, against the Faulkner County Sheriff Tim Ryals, jail Captain Chris Riedmueller, jail Lieutenant Gary Andrews and Faulkner County. All parties moved for summary judgment. The court held a hearing on the motions.
Andrews testified that, months after he became aware of the mold problem, he started using prisoner labor to paint the walls with primer or sealer, power-wash the showers twice weekly and scrub them using cleaning chemicals and a brush daily. About a year later, the jail hired a professional engineering and environmental consulting company, ATOKA, Inc., to perform a mold and indoor air quality assessment. ATOKA found no airborne mold, but did discover a common indoor mold called Cladosporium on four of eleven tested indoor surfaces. The company concluded the mold problem was confined to areas that remained wet and there was “no widespread, building-related mold problem.” It recommended sanitizing the showers using a two-part chemical cleaning regime, limiting the showers’ hours of operation, and drying them after use. The jail did not implement those recommendations.
The plaintiffs hired an allergy and immunology expert physician, Dr. Jim Ingram, who tested them and found one who was allergic to Cladosporium. Ingram testified that a person who was allergic to a mold would suffer “deleterious health effects” if exposed to the mold. [For more on mold, see: PLN, Apr. 2019, p.15]
The trial court held that prisoners have a clearly established right to sanitary prison conditions and no genuine disputes of material fact as to whether the jail staff violated it. It denied defendant’s motion.
On interlocutory appeal, the Eighth Circuit held, finding a right to sanitary prison conditions was impermissibly broad, citing Anderson v. Creighton, 483 U.S. 635 (1987). The court found no controlling Eighth Circuit prison conditions cases addressing mold or other allergens and little outside the circuit. Therefore, it held that the right asserted by plaintiffs was not clearly established. Further, because this issue was not inextricably intertwined with the issue of whether the county is liable for failing to train jail staff, the court lacked jurisdiction over the county’s appeal. The order of the district court was reversed and the case remanded. See: Thurmond v. Andrews, 972 F.3d 1007 (8th Cir. 2020). The case settled on remand in August 2021. PLN is seeking settlement details.