IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

Alan Trojcak Reg. No. 06311-078 Andre Ford Reg. No. 29802-177 Bennie Steptoe Reg. No. 88650-079 Carlos Romero Reg. No. 12727-064 Austin Demetrius Reg. No. 51607-019 Donald Givens Reg. No. 28525-180 Douglas Fusilier Reg. No. 97592-079 Edward Hubbard Reg. No. 13634-179 Elluard Jackson Reg. No. 69292-079 Eric Hampton Reg. No. 72874-079 Floyd Richard Reg. No. 06574-078 Fredrick Jackson Reg. No. 91854-080 David Sostre Reg. No. 40014-018 Jimmy Skinner Reg. No. 31441-077 Johnny Calderon Reg. No. 57114-080 Juan Castro Reg. No. 98524-079 Juan Cisneros Reg. No. 40178-079 Larry Callum Reg. No. 48858-080

CIVIL ACTION NO. _____

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Louis Mayer Reg. No. 97437-079
Luis Sicard Reg. No. 87846-079
Mitchell Foxworth Reg. No. 09376-026
Pablo Brito Reg. No. 64441-080
Roland Samaniego Reg. No. 43425-180
Ronald Simmons Reg. No. 06188-043
Terrick Durham Reg. No. 31336-179
Tibursio Martinez Reg. No. 16116-047
Tony Anderson Reg. No. 30126-077
Victor Valencia Reg. No. 25649-034
Willie Harmon Reg. No. 04749-078 F.C.I. Beaumont Medium P.O. Box 26040 Beaumont, Texas 77720
Brian Johnson Reg. No. 27814-034
Eric McPherson Reg. No. 24919-086
Gene Williamson Reg. No. 83620-079
Wilson Moreno Reg. No. 83480-079
Michael Hodges Reg. No. 27884-034 F.C.I. Beaumont Low P.O. Box 26020 Beaumont, Texas 77720
Alberto Alaniz Jr. Reg. No. 08779-045
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F.C.I. Milan Low P.O. Box. 1000 Milan, Michigan 48160
Nazanzo Hill Reg. No. 03015-180
George Salinas Reg. No. 12627-179
Arturo Apaez Reg. No. 13816-179 F.C.I. Bastrop Low P.O. Box 1010 Bastrop, Texas 78602
Benjamin Stone Reg. No. 84453-080 F.C.I. El Reno Medium P.O. Box 1500 El Reno, Oklahoma 73036
Charles Douglas Reg, No. 59931-079 Houston CCM Community Corrections Office 515 Rusk, Room 12102 Houston, Texas 77002
Charles Ross Jr. Reg. No. 10626-035 Forrest City Medium P.O. Box 3000 Forrest City, Arkansas 72336
Daniel Anderson Reg. No. 11633-052 Brooklyn Metropolitan Detention Center P.O. Box 329002 Brooklyn, N. Y. 11232
Darrell Mask Reg. No. 08536-078 F.C.I. Low Texarkana P.O. Box 7000 Texarkana, Texas 75505
Oscar Martinez Reg. No. 26438-179 Oklahoma City Federal Transfer Center
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P.O. Box 898801 Oklahoma City, Oklahoma 73189 Raul Reyna- Rodriguez Reg. No. 13579-179 Big Spring Correctional Center / Flightline Unit 2001 Rickabaugh Drive Big Spring, Texas 79720 Terry Estes Reg. No. 35537-180 F.C.I. Manchester Medium P.O. Box 4000 Manchester, Ky. 40962 Cornelius Bell Reg. No. 08869-078 3505 Stone Road Kilgore, Texas 75662
Plaintiffs, vs.
UNITED STATES OF AMERICA Defendant.
PLAINTIFFS ORIGINAL COMPLAINT On behalf of themselves, Plaintiffs [hereafter Claimants or Plaintiffs], acting through counsel, state the following complaint against Defendant:
Jurisdiction and Venue 1. Jurisdi ction is conferred upon this court by 28 U.S.C. § 1331 which authorizes federal courts to decide cases concerning federal questions.
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2. Venue is proper in this Court becau se the true party in interest is an agency of the United States, to wit the Federal Bureau of Prisons. Pursuant to 28 U.S.C. § 1391 (e) (2), a civil ac tion may be brought in any judicial district in which a substantial part of the event or omissions giving rise to the claim occurred. All of these events a nd omissions took place at the Federal Correctional Complex at Beaumont, Texas on Knauth Road, Beaumont, Texas 77705, thus satisfying the venue criteria for 28 U.S.C. § 1391 (e)(2). Applicable Federal Statutes
3. Plaintiffs bring t his action against the United States under the Federal Tort Claims Act, in accordance with 28 U.S.C. § 1346 (b)(2).
4. At all times material to the events referenced hereafter, the individual employees and agents of the Federal Govern ment were acting within the scope of their employment as defined in 28 U.S.C. § 2671.
5. All plaintiffs were inmates living at the Beau mont Federal Correctional Institution Medium . All pl aintiffs have presented a prior showing of physical injury in accordance with 28 U.S.C. § 1346(b), compounded by bot h mental and em otional injuries which are inextricably intertwined with these physical inj uries. All plainti ffs point t o a common source for these physical and mental injuries, namely coerced labor requiring 12 hour days, running seven days a week, coupled with close and prolonged
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proximity and repeated over exposure to hazardous products at a UNICOR factory, further exacerbated by living in a condemned building with only contaminated and unsafe water to dri nk. The physical deprivations suffered and the resulting injuries are of such a nature that these physical and mental injuries will be lingering and will persist for a long period of time
6. If the United States were a priv ate party, it would be liable to Plaintiffs for acts and om issions of its employees and agents under the law of the place wher e said acts and omissi ons occurred, to wit in the State o f Texas under comm on law tort claim s for: (1) negl igence, (2) coercion; (3) reckless disregard for another’s welfare or deliberate indifference, (4) malice and (5) cruel and unusual punishment as a constitutional tort.
The Parties 7. Pursuant to 28 U.S.C. § 2675(a), administrative remedies must be exhausted before seeking relief in a U.S. District Court. If an ad ministrative claim is denied, a lawsuit must be commenced in six months. 8. There are 47 cl aimants that ha ve exhausted their adm inistrative remedies. Less than six m onths has elapsed since these clai ms were denied. Accordingly, this Court has jurisdiction to decide these claims. 9. All claimants are wards of the Federal Bureau of Prisons, housed at the Beaumont Federal Correctional In stitution Medium. Claimants are also
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employees of a prison indust ry called UNICOR, which is a self-sustaining corporation established to create a real world work environment for inmates.
10. Claimants were present when Hurricane Rita landed on September 25, 2008. In the next 4 to 10 days, cl aimants were evacuated to other federal prisons. On or about November 7th, and again on Novem ber 18th, 2005, the first claimants were first brought back to Beau mont Medium against t heir wills. The remaining claimants returned in late Novem ber and December of 2005. This occurred 5 and 6 m onths before the Beaum ont Medium prison was repaired to the point t hat it c ould pass an inspection conducted by the Federal Bureau of Prison’s Regional Office in Dallas – Fort Worth and once again serve as a prison. All material events set fort h in this Complaint took place between November of 2005 and exte nded to February of 2006, before the Medium prison in Beaumont could pass an inspection.
11. Defendant is the Unites States Government, under whose auspices both the Beau mont Federal Correcti onal Institution Medium prison in Beaumont and the UNICOR factory associated with this prison, operate.
Allegations Common to all Claims 12. The Beau mont Federal Correc tional Institution Medium is operated by the Federal Bureau of Prison s and, like every other federal adul t prison, it is accredited by the American Correctiona l Association and it has
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embraced standards in Program Statements set by the American Correctional
Association. Bureau of Prison Director Harley Lappin sits on t he American
Correctional Association’s Standard s Committee, which establishes
standards for the accreditation of correctional institutions nationally.
13. Beaumont Federal Correctional Institution Medium at Beaumont
is subject to the American Correcti onal Association standards and it i s
regularly audited to insure that it maintains these standards.
14. The Beaumont Federal Correctional Institution Medium operates a
UNICOR factory which manufactures the PASGT Kevlar [hereafter Kevlar]
military helmet for the U.S. Department of Defense [a/k/a military].
15. American Correctional Association Standard 3-4401 states:
“Written policy, procedure and practice provide that all institutional work, industry and vocational education progra ms must meet minimum applicable federal, state or local wor k, health and safety standards. There is documentation that th e programs are inspected by federa l state or local health and safety officials at least a nnually. The program s are also inspected weekly by qualified de partmental staff and m onthly by a safety officer.”
16. The written policy of the Federal Bureau of Prisons im plementing
the above Standard is attached as Exhibit 1 and, in relevant part, states:
“3. Operating m achinery without use of safety guard(s) as provided is forbidden and subject to disciplinary action.
5. To protect against physical injury and / or health hazard, each in mate worker is required to use all saf ety
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equipment provided. Personal protective equipment such as hard hats, hearing protection, goggles, respirators, aprons, arm guards, wire mesh gloves and safe ty shoes are to be used i n designated areas and must be worn in the proper mann er. [Emphasis in original text.]
6. Safety goggles must be worn when perform ing any grinding, chiseling, filing or sanding operation. Landscape operations involving the operation of weed eaters or edgers also require the use of safety goggles.
11. Safety hazards are to be reported to your work supervisor immediately. If the work supervisor does not agree that an unsafe condition exists, you are to report t he unsafe condition to the institution’s Safety Manager for further consideration.”
17. American Correctional Association Standard 3-4404 states:
“Written policy, procedure, and practice provide that the number of inm ates assigned to industries operations m eet the realistic workload needs of each industries operating unit.”
18. On September 25, 2005, the Federal Prison Complex at Beaumont
was struck by the eye of Hurricane R ita. As the hurricane approached, the
first building struck was the Medium prison. This means it was the first to be
rocked by airborne debris carried from locations beyond the prison complex.
19. At the eye of the hu rricane, where winds are the most intense, the
Medium prison was struck by sustai ned winds averaging 125 m iles an hour
or more. At this speed, the force of these winds equals 1,250 pounds per
square inch or roughly the weight of 32 concrete build ing blocks slamming
against each square inch of wall and glass window encountered.
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20. Prison staff was not prepared for this hurricane and its devastating effects. The prison lost its electricity and there was no back-up source of power. Immediately, the prison could no longer run its ventilation and air conditioning system. Plumbing became nonfunctional. Plastic bags had to be issued for the urine and feces of prisoners. Water became contaminated.
21. Outside, the temperatures hove red above 90 degrees. Inside these cells, the tem perature was between 100 and 110 degrees. As one claimant described, the heat was unbearable, th ere was no sanitary drinki ng water, severe hydration, overpowering sten ch from body waste with no possibility of showering or getting a clean set of sheets or even fresh clothing.
22. To avoid suffering from dehydration, every occupant of t he Medium prison had to drink large quantities of contaminated drinking water. This continued until they were finally evacuated, in some cases for a week.
23. Once inmates were evacu ated, the edifice lef t standing was a condemned building in every sense of t he term. The Medium prison was unsuitable for hum an habitation and fo r use as a functioni ng prison. The perimeter fence was either gone or on t he ground, large parts of t he roof were blown away, electricity and plumbing were non-existent, water damage was extensive throughout the interior a nd, along with this water damage, the hurricane left interior walls extensively infested with Black Mold.
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24. Claimants were evacuated to Federal prisons at Leavenworth, Kansas, Bennettsville and Williamsburg, South Carolina and other prisons.
25. For the last week of Septem ber, all of October and the first week of November, 2005, not a single Kevl ar helmet was m anufactured at the UNICOR factory in the Beaumont Federal Correctional Institution Medium.
26. UNICOR is the sole source supplie r to the Department of Defense for the Kevlar military helmet. The order for Kevlar helmet s is placed by the Defense Supply Center Philadelphia , an entity operating under the Department of Defense’s Defense Logistics Agency . In its website, the Defense Supply Center Philadelphi a prides itself on transitions from managing items to managing the supply chain.
27. The order from the Defense Supply Center Philadelphi a is placed with UNICOR’s Central Office at 320 Fi rst Street, N.W., Washington, D.C. 20534, which is also the Central Offi ce address for the Federal Bureau of Prisons. Within UNICOR, the ad ministration of this order for Kevlar helmets is placed with the Electronics Mfg. and Plastics Program.
28. Upon inform ation and belief, in the course of m onitoring the supply chain for Kevlar helmets, the Defense Supply Center Philadelphia became aware of a shorta ge sometime in October or early Novem ber. Given the events which unfolded in November and December of 2005, a flash point
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was obviously reach ed and enorm ous pressure was soon applied by the Defense Supply Center Philadelphia to UNICOR’ s Electronics Mfg. and Plastics Program in Washington, D.C. This is the only plausible explanation for an extraordinary sequence of events which unraveled thereafter in Texas. Transfer Back to Beaumont Medium and Daily Work Schedule
29. Claimants were first orde red back to Beaum ont Federal Correctional Institution Medium on November 8, 2005. After just survi ving a hurricane, followed by 4 to 10 days of being forced to drink contam inated water and living i n the stench of th eir own body waste, none of t hese claimants wanted to return. In every cas e, claimants were told that they had no choice. They were compelled to return. They arrived by bus and by plane.
30. Claimants were taken to cells in the least damaged K/A Unit, still left filthy from its earlier departed o ccupants who, like them selves, had to endure a hurricane’s ravages until evacuated. Claimants arrived late at night, sometimes after 11 p.m. They were given no cleaning supplies and their own supplies were still in trans it. They were told that they would be woken up at 6 a.m. the next day and left to sleep on a filthy mat containing the dri ed up sweat and dirt of an unknown earlier occupant. Hy giene and sanitation was nonexistent. K/A Unit sustaine d roof l eaks, exposed wires, water damage and extensive mold. It was the least damaged but far from being undamaged.
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31. American Correctional Association Standard 3-4317 states: “Written policy, procedure, and practice provide for the issue of suitable clothing to all in mates. Clothing is properly fitted, climactically suitable, durable, and presentable.” 32. Clothing was issued to claimant s at random from the Laundry. In most cases, the clothing either did not fit or, if it c ould be worn, the fitting was such that it made a person’s appearance look comical. 33. When claimants awoke at 6 a.m. and left K/A Unit, they noticed signs informing guards that t he water was not safe to be drunk. Despite this warning, claimants had to drink, wash , cook and bath in this contam inated water. They only received one small bottle of sanitary water each day. 34. From the Medium prison, they went to the Chow Hall, where they were bluntly told by Warden Mors e, Superintendent of Industries Hollingsworth and others, that they were brought back to complete a million dollar UNICOR contract and nothi ng else. They would not get recreation time, no law library time, no time to do anything but work at UNICOR. 35. Claimants were further told that if they did not want to work, they would go to the Special Housing Unit (i.e. the hole). The hole consisted of a 23 hour lockdown, and carried the po ssibility of losing earned good time, which was equivalent to post poning their projected releases and keeping them in prison longer. Under coercion and duress, claimants agreed to work.
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36. The Chow Hall floor was cove red with water which dripped from gaping holes in the ceiling. After eati ng breakfast, claimants were taken to the UNICOR factory by 7:30 a.m..
37. Claimants returning on November 8, 2005 re-opened the UNICOR factory. After a lunch break, their 8 hour shift ended at 3:30 p.m. Claimants were compelled to work overtime.
38. In the first weeks of November, they worked 14 hour days, 7 days a week. In late November and the first half of December, the shifts went 12 hours, for 10 or 12 straight days before getting a day off. For the m ost part through November and December, 2005, claimants worked from 7:30 a.m. until 9 p. m. at night. Around Christ mas, production was finally brought current and they were given a few days off for the holidays.
39. While they worked, claimants were constantly ridi culed, tormented and yelled at because of dead lines on million dollar contracts. If they faltered, they were told in no un certain terms that they would be taken to the hole. Duress and coercion were unrelenting and ubiquitous.
40. Claimants were forced to work at an accelerated pace. They were pushed to m ake as many helmets as possible. The produc tion from these hundred or so workers in two months was equal to the output of a work force more than double their size working normal eight hour shifts.
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41. In return, Claimants were paid $1.00 an hour for regular ti me and $2.00 an hour for overtime.
42. Asking for m edical attention or reporting to sick call was not an option. The medical area of the pr ison was badly dama ged by water and totally infested with black mold on its walls, running from the doctor offices to the examining rooms. The medical care part of the prison was shut down.
43. At the end of t he work day, th ey would come back to their cells with sore and aching feet, blisters on their hands and exposed parts of their skin, feeling totally exhausted and in many cases, traumatized by the ordeal.
44. American Correctional Association Standard 3-4400 states: “Written policy, procedure, and pract ice provide that the
inmate workday approximates the workday in the community.” The normal workday does not appr oximate getting woken at 6 a.m. and ordered to work until 9 p.m. seven days a week, w ith an hour or less of personal time. This standard has been deliberately and recklessly violated. 45. American Correctional Association Standard 3-4134 states:
“Inmates have access to operable showers with temperature-controlled hot an d cold runni ng water at a minimum ratio of one shower fo r every eight inmates. Wat er for showers is therm ostatically controlled to tem peratures ranging from 100 Fahrenheit to 12 0 Fahrenheit t o ensure t he safety of inmates and to promote hygienic practices.”
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In support, the American Correctional Association’s comment reads, “…Water temperatures below 100 Fahr enheit are uncom fortable and may deter an individual from pursuing good hygienic practices. …”
46. There was no hot water in the showers of the K/A Unit and the water coming out fel t ice cold. After working a 12 hour shi ft and being on their legs all day, this shower was just added puni shment. The cold water also did nothing to promote hygiene and sanitation.
47. In addition to cold temperatures, water from the showerhead had a brown color to it and the shower ceili ng had leaks in the roof. You woul d feel water coming from the ceiling and roof as well as the showerhead.
48. Lights were off at 10 p.m. Claimants were given an hour or less to take a shower and tend to any personal matters before they went to bed.
49. The Beaumont Federal Correctional Institution Medium did not reopen and begin to repopulate until April of 2006. It was not until March of 2006 that sufficient repairs could be ma de to pass an inspection. The m ost severe state of disrepair occurred in November and December of 2005, and it gradually improved thereafter. The actionable span of time set forth in t hese tort claims is from November 8, 2005 to the end of February, 2006. During this time period, this prison was closed because it could not pass an inspection. Moving claimants before it reopened in April violated every rule.
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UNICOR Factory Operations and Materials
50. The UNICOR factory man ufacturing these Kevlar helmets has 12
press machines that run at temperatures of about 175 degrees. In the int erior
spaces, there is no vapor control and there is no ventilation. Heat build-up in
summer, due to the temperatures given off by the presses, often exceeds 100
degrees because the hot air has no where to escape.
51. To make a Kelvar military helmet, the following products are used
in the production process:
(1) DuPont Kevlar Fibers; (2) Sherwin-Williams Kem Aqua Hydralon B, high gloss waterborne
topcoat (Chemical Warfare Resistant Coating); (3) Sherwin-Williams MIL-DTL-64159 Type I Chemical Resistant
Coating; (4) 3M Fastbond Contact Adhesive 30-NF Green; (5) 3M Acryl-Green Spot Putty 05960; (6) Solarez Polyester Laminating Resin;
52. American Correctional Association Standard 3-4318 states:
“Written policy, procedure, and practice provide for the issue of special and, when appropriate, protective clothing and equipment to inmates assigned to the institution's f ood service, hospital, farm, garage, physical plant maintenance shops, and other special work details.” [Emphasis added.]
In support, the American Correctional Association’s comment reads,
“Inmates assigned to special work areas should be cl othed in accordance with
the requirements of their work assignment and, when appropriate, be furnished
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with suitable protective equipment (disposable f ace masks and gloves, protective helmets, goggles, etc.).”
53. Every one of the ab ove mentioned products used for manufacturing these helmets either contained hazardous ingredients or, in processing, it could release hazardous vapors, mists and harmful solid matter, necessitating safety apparel. Claimants were not issued protective clot hing calculated to protect them from harmful vapors, mists and inhalation of microscopic solid matter.
54. Processing and handling of Kevl ar fibers can produce airborne respirable fibrils. The product’s material safety data sheet recommends using ventilation or a respirator to minim ize fibril inhala tion. Over exposure and long term exposure to high doses of resp irable fibers can lead to pulm onary inflammation and subsequent development of chronic lung disease. If ther e is inadequate ventilation, the product’s safety data sheet recommends use of an air purifying respirator wit h a dust / mist / fume cartridge or canister. Claimants were subjected to overexpo sure and to repeated long te rm exposure of Kevlar respirable fibril s in an unventilated area and without the recommended safety apparel. Accord ingly, claimants have all inhaled respirable fibrils, and they are all at risk for contracting chronic lung disease.
55. The material safety data sheet for Sherwin William s’ Kem Aqua Hydralon B, high gloss waterborne topc oat states, “Use only with adequate
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ventilation. Avoid breathing vapor or spra y mist. Do not get in eyes or on skin.” Two ingredients are hazardous. If ventilation is inadequate, the safety data sheet recomm ends a properly fitted organic vapor / partic ulate respirator and safety gla sses with unperforated side shields. Claimants were subjected to overexposure and long term repeated exposure of this product’s vapor and mist and this occurred without the recommended safety apparel.
56. The product safety data sh eet for Sherwin-William s MIL-DTL64159 Type I Chemical Resistant coati ng warns against i nhalation of vapor or spray m ist. If this enters the upper respiratory system, it can cause headache, nausea or dizziness. It furt her warns, “Use only with adequate ventilation.” The safety apparel reco mmended for this product includes a positive pressure air supplied respirator, protective gloves and safety glasses with unperforated sideshields. Claimants were subjected to overexposure and to long term repeated exposure to this product’s vapor and spray mist, in an unventilated area and without the recommended safety apparel.
57. The product safety data sheet for 3M Fastbond Contact Adhesive 30-NF Green warns against eye contact, skin contact, inhalation, i ngestion and prolonged and repeated exposur e. The safety apparel recommended includes safety glasses with side shie lds, gloves or protecti ve clothing to avoid skin contact, and a half or full f ace mask air purifying respirator with
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organic vapor cartridges and N95 particul ate prefilters. Without this safety apparel, prolonged and repeated overexposure can cause blurred or im paired vision, hearing impairment, balance dysfunction, ringing in ears, headache, dizziness, drowsiness, incoordination, slow reaction time, slurred speech and complete loss of smell. Neu rological damage may consist of personality changes, tingling and num bness in extr emities, tremors, sensory loss and changes in blood pressure and heart rate. Claimants were subjected to overexposure and to repeated long term exposure to the hazardous effects of this product in an unventilated area without the recommended safety apparel.
58. The product safety data sheet for 3M Acryl-Green Spot Putty No. 05960 warns against eye contact and skin contact. It further states, “Use in a well ventilated area.” The safety apparel recommended for this product includes safety glasses with side shie lds, gloves made from nitrile rubber, and a half mask organic vapor respirator with dust/mist prefilter, or full face organic vapor respirator with dust / mist prefilter or full face organic vapor respirator with dust/mist prefilter. Without this safety apparel, prolonged and repeated overexposure can cause kidney effects (i.e. reduced urine volume, blood in urine), back pain, liver e ffects (i.e. yellow skin and tender upper abdomen), central neuropathy dam age (i.e. dizziness, incoordination, visual changes, emotional changes, trem ors and convulsions). Claimants were
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subjected to overexposure and repeated long term exposure to hazards of this product in an unventilated area, without the recommended safety apparel.
59. The product safety data sheet for Solarez Polyester Lam inating Resin warns against inhaling its vapor or mist. Recommended safety apparel includes splash goggles, polyvinyl alco hol gloves and full face atm osphere supplying respirator or air purifying respirator for organic vapors if ventilation is not adequate. Without th is safety appare l, prolonged and repeated overexposure can cause severe eye irritation (i.e. redness, tearing and blurred vision), moderate skin irritation, nasal and respiratory irritation, dizziness, weakness, fatigue, nausea a nd headache. High concentration may result in narcosis (i.e. a condition of deep stupor or unconsciousness produced by a chemical). Claimants we re subjected to overexposure and to repeated long term exposure to hazardous effects of this product in an unventilated area and without the recommended safety apparel. Walsh – Healey Act Compliance / Non-Compliance
60. Federal prisoners are considered employees under the Federal Fair Labor Standards Act by virtue of the fact that they are absent from the list of exemptions set forth in this law (i.e. see 29 U.S.C. § 213 Exemptions).1
1 See also Carter v. Dutchess Community College, 735 F. 2 nd 813 (2 nd Cir. 1984); Woodall v. Partilla, 581 F. Supp. 1066 (N.D. Ill. 1984).
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61. Federal prisoners engaged in the m anufacture of commodities for use by the Federal Government under an approved inmate work program are specifically exempted from paragraph (c ) of the Walsh-Healey Act, which otherwise excludes convict labor from its protections. 2 Accordingly, claimants are entitled to the protections of the Wash-Healey Act.
62. The contract between the Defense Supply Center Philadelphia and UNICOR’s Electronics Mfg. and Plasti cs Program exceeds $10,000. A March 2003 contract is worth $5,533,080. A ttached as an exhi bit is a series of contracts confirming that the Walsh-Healey Act applied to these helmets.3
63. Paragraph (a) of the Walsh-H ealey Act requires the contractor, UNICOR’s Electronics Mfg. and Plastics Program, to pay minimum wages. This provision was violated. Claimants were paid only $1.00 an hour for regular time and $2.00 an hour for overtime.
64. Paragraph (b) of the Walsh-Healey Act requires the contractor, UNICOR’s Electronics Mfg. and Plast ics Program, to work its em ployees only 40 hours a week. This provision was also violated.
2 See 18 U.S.C. § 1761 (b) stating: “Thi s chapter shall not apply to … commodities manufactured in a Federal … institution fo r use by the Federal Governm ent,” and (c) which states: “In addition to the exc eptions set forth in subsection (b) of this section…” The Walsh-Healey Act states: “… no convict labor will b e employed by the contractor …except that this section … shall not a pply to convict labor which satisfies the conditions of section 1761(c) of T itle 18.” UNICOR com es within this W alsh-Healey exemption because it is referenced in both paragraphs (b) and (c) of 18 U.S.C. § 1761. 3 See Exhibit 2, UNICOR contracts awarded and confirming how Walsh-Healey applies.
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65. Paragraph (d) of the Walsh-Healey Act requires the contractor, UNICOR’s Electronics Mfg. and Plastics Program, to certify that no part of such contract will be performed under working conditions which are unsanitary or hazardous or dangerous to the health and safety of em ployees. This provision was violated in ways that are shocking to the conscience.
66. It is incontrovertible that the terms of the Walsh-Healey Act apply to this contract and all of these provisi ons were violated. Notwithst anding this overt conduct, Defendant’s UNI COR supervisors certified com pliance with Walsh-Healey Act provisions to the U.S. Department of Defense. Physical Injuries
67. Morgellons disease is a ski n disorder characterized by disfiguring sores and crawling sensations on and under the ski n. From these severe skin sores, strange fibers are "growing" or protruding out of t he sores. There is strong data indicating that this diso rder is assciated with nanotechnol ogy, which refers to applied science involving the control of m atter on an atomic or molecular scale. The outer casing of its fiber specimen is made of high density polyethylene, the same mat erial used for fiber optics. Morgellons disease was unknown prior to Hurricane Rita. Chevron Chemical's ethylene plant in Port Arthur, Texas manufactures this material, which was caught in Hurricane Rita’s storm surge and transported inland, contaminating water.
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68. Symptoms of Morgellons dis ease include skin rashes or sores accompanied by intense itching; threads, fibers, or black speck-like materials beneath the skin; crawling sensations on and under the skin akin to tiny worms, sometimes with biting and stinging sensations. There are also mental symptoms including inability to concen trate and difficulty with short-term memory. There is al so joint and m uscle pain, changes in vi sion, mental confusion, fatigue and changes in skin texture and color.
69. There is presently no cure for Morgellons disease. The man-made fibers are immune to antibodies a nd similar remedies. The high density casing will not burn until temperatures reach 1750 degrees Fahrenheit. Many claimants are experiencing all of the symptoms of Morgellons disease.
70. Stachybotrys Chartarum , referred to as black mold, entered the prison through the roof, t hrough window calking and by way of ventil ation ducts. Claimants lived in close proximity and suffered long term exposure to this mold, making inhaling of its harmful spores virtually unavoidable.
71. Symptoms of black m old include shortness of breath, breathing problems, tightness in chest, chroni c fatigue, watery and reddened eyes, memory problems, mood swings and ski n sores in a reas subject to perspiration. Once this m old becomes rooted in the respiratory track or the lungs, it is almost impossible to di slodge and results i n chronic, typic ally
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irreversible lung damage and atte ndant physical lim itations caused by a n impaired ability to breath. Claimants are experiencing all of these symptoms.
72. MRSA Staph is a highly contagious bacterium that spreads b y contact. It could have been picked up from one of the filthy mats used by a prior occupant of the cell. Sy mptoms include pimples or boils, red pus filled skin sores, shortness of breath, feve r and chills and urinary track problem s. If MRSA Staph is not diag nosed and treated at th e outset, it can spread quickly and become life threatening, part icularly when it is drilling holes in the lungs and poisoning t he bloodstream. Claimants are experiencing all of these symptoms and there was no medical care available to treat this disease. Furthermore, these symptoms did not arise prior to Hurricane Rita’s arrival.
73. H. pyl ori (i.e. helicobacter pylori) is a bact eria that infects th e stomach’s lining. It is caught by inge sting feces. Many people have h. pylori and typically this disease is harm less. When the bacterial infection becomes deeply embedded, it can cause these symptoms; a bloated feeling after a small meal, excessive gas or burping, a change in appetite with weight loss, nausea, bloody diarrhea, and pain in the abdomen which goes away when you eat or drink. Cl aimants are experiencing all of these sym ptoms from h pylori and these sym ptoms did not exist before they were forced to drink contaminated water. If not treated, H pylori can cause sto mach ulcers and
25

stomach cancers. M any claimants are at risk of contracting stomach ulcers and stomach cancer after being forced to drink contaminated water for a prolonged period of time with no access to medical care.
74. Respiratory problem s can result from breathing and re-breathing air containing hazard ous industrial ch emicals. Claimants were overexposed and repeatedly exposed to hazardous va pors, mists and airborne solid matter that can cause long term breathing and lung problems and, in som e cases, neurological damage. Many claimants are experiencing these symptoms.
75. Claimants suffered from high stress. When the hippocam pus portion of our brain is subjected to large amounts of stress, a hormone called glucocorticiods is released throug hout the body. The daily loading of enormous stress for a prolonge d and uni nterrupted period of time releases this hormone and, in the process the memory storing function performed by the hippocampus portion of the brain is damaged and im paired, leading to loss of memory. Claimants are all at risk of memory loss due to the extended period of high stress to which they were all subjected.
76. Sleep Deprivation will severely impair the human body's ability to metabolize glucose, which can lead to early-stage Diabetes Type 2. Lack of sleep will also cause blurred vision, impaired motor skills and irritability. All of these physical and behavior impairments were widely experienced.
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Mental Injuries 77. The mental strain caused by this ordeal has left indeli ble scars
upon claimants that are inst antly triggered by the sm allest reminders. Claimants have experienced depression, lack of self esteem and insomnia as a direct result of this ordeal. These ment al states are manifested in a reduced ability to function, a higher incidence of diabetes 2 and abandonment issues.
78. Upon inform ation and belief, additiona l mental illnesses are expected to becom e apparent during the course of discovery, and these mental illnesses are hereby incorporated by reference as if fully printed here. Obstructing Access to Courts
79. Defendant’s agents were well aware of their tortious conduct. They clearly threatened and, in so me cases, actually retaliated against claimants for filing a tort claim. Over t sanctions consisted of baring them from continuing to work overtime. More subtle forms of retaliation consisted of taking them off a desirable job and moving them to a more stressful task.
80. For those that braved these thr eats and filed a tort claim anyway , they received a denial decision from the Regional Counsel. These l etters are designed to do more than just deny them administrative relief. The clai m is characterized as frivolous and the tone of the letter is such, it is calculated to
27

discourage claimants and cause them as well as others from pursuing these tort claims. This is precisely the result achieved.
81. Once denial letters were issued and began circulating through the prison, the sacrifices made to pursue these claims no longer seemed worthwhile, given the attitude reflected in these denial decisions.
82. As late as October of 2007, with only a month before the tw o year statute of lim itation would to ll, not one tort cl aim had been pursued. These tort filings only became possible once counsel was able to become involved and do the Form 95’s for them.
Claim 1 – Negligence 83. The elements of negligence incl ude: (1) Plaintiff m ust show that Defendant owed them a duty of care; (2) the Defendant breached that duty of care; (3) Plaintiffs suffered damage s and (4) Defendants’ breach was the proximate cause of Plaintiffs’ damages. 84. The existence of a duty is question of law to be decided from facts surrounding the occurrence in question. Pursuant to 18 U.S.C. § 4042 (a)(2), titled Duties of Bureau of Prisons , Defendant has a duty to provi de suitable quarters, and provi de for the safekeeping, care and subsistence of all persons held in custody by the Federal Bureau of Prisons. This dut y of care is further defined in the standards of the American Correctional Association.
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85. A condemned building is not suitable quarters within the meaning of 18 U.S.C. § 4042 (a)(2). Com pelling claimants to drink contam inated water with brown matter floating violat es the duty of Defendants to provide for their care and safekeeping. A number of mandatory standards set by the American Correctional Association were not followed.
86. Claimants suffered damages in th e form of diseases and infections contracted from drinking this contaminated water. Defendants’ movement of claimants back to Beaumont to produce military helmets is a self serving and wholly inadequate reason for com promising claimants’ health and it is th e sole and proxim ate cause of claim ants’ damages. As a re sult, Defendant is liable to claimants for negligence.
Claim 2 – Walsh – Healey Act Violations 87. Claimants are covered by protec tions in the Walsh – Healey Act. If a legislative enact ment is violated by doing a prohibi ted act, or failing to do a required act, the interest of the indi vidual sought to be protected by this statute has been violated. This rule is more than merely a can on of statutory interpretation. The disregard of a statute is a wrongful act and a tort. 4 88. Under § (a) [41 U.S.C. § 35(a)] of the Walsh – Healey Act, Defendant is required to pay claimants minimum wages. In paying claimants
4 See Kardon v. National Gypsum Co., 69 F.Supp. 512, 513 (D.C. Pa. 1946). See also Vol. 2, Restatement Torts, § 286.
29

only $1 an hour for regular time, Defe ndant violated § (a) of the Walsh – Healey Act by failing to do a required act.
89. Under § (b) [41 U.S.C. § 35( b)] of the Walsh – Healey Act, Defendant is prohibited from requiring claimants to work i n excess of fort y hours a week without their voluntary consent to do so. Claim ants were compelled to work overtime o n their daily shift, where th ey worked nearly double shifts during the week, and they were compelled to work weekends. All of this overtime and weekend work exceeded the forty hour work week. All of thi s overtime work was invol untary. Defendant vi olated § (b) by doing a prohibited act.
90. Defendant paid claimants only $2 an hour for overtim e, which is also way below the m inimum wage and constitutes a third violation of the Walsh Healey Act and the second time they failed to do a required act.
91. Under § (d) [41 U.S.C. § 35(d)] of the Walsh – Healey Act, the buildings used for manufactu ring goods are r equired to be non-hazardous and sanitary, and there must be nothing unsafe about the working conditions. Claimants were comp elled to work in a building that was not adequately ventilated and they were not issued the proper safety apparel specified by the product safety data sheets used for manufacturing helmets. Defendants were subjected to overexposure and repeat ed long term exposure of hazardous
30

vapors, mists and m icroscopic solid m atter and ar e experiencing eye, s kin, lung, kidney and neurological damage due to this long term proximity.
92. Defendants refused to do tw o acts required of them under the Walsh – Healey Act and they have done three overt acts prohibi ted by this law. The acts required but not performed consisted of: (1) paying $1 an hour for regular time instead of the minimum wage, and (2) paying $2 an hour for overtime instead of a wage above th e minimum wage. The t hree overt acts prohibited consisted of requiri ng claimants to work in excess of 40 hours a week under duress, failing to provide a properly ventilated work area suitable for m anufacturing the finished end product and failing to provide proper safety apparel to protect them from hazardous chemical ingredients.
Claim 3 – Reckless Disregard for Welfare / Deliberate Indifference 93. The torts reckless disregard for the welfar e of another and
deliberate indifference overlap one another. Because of this co mmonality, both types of torts are considered together as one claim.
94. The definition of reckless disregard for the welfare of another in Texas exceeds negligence and requires such want of care as to equate to gross negligence. In proving this claim, there is no requirement to prove any mental state of the person whose acts or omissions are subject to the claim. Reckless disregard for one’ s welfare can be proven externally by acts and
31

omissions and the readily foreseeable consequences flowing from those acts and omissions, leading up to and occurring at the time of the incident.5

95. Deliberate indifference is invoked to describe system

ic

deficiencies and can also be proven through external evidence either through

an established pattern or by systemic def iciencies which make widespread suffering inevitable.6 Like reckless disregard for another’s welfare,

deliberate indifference requires conduct more blameworthy than negligence.

96. Common sense and everyday experience informs us that you

cannot compel a p erson to work from 7:30 a.m . to 9 p.m . without

extracting a huge t oll from them physically, emotionally and mentally.

This inherently stressful situation is exacerbated by compelling them to

work in a building that traps and holds hazar dous chemical vapors and

by not providing them with the safe ty apparel specified by the product

safety data sheets. Finally, letting them return to a condemned building,

where they are forced to drink c ontaminated water, ta ke an ice cold

shower and allowing less than an hour of time for thei r personal needs

is calculated to keep them agitated and deprive them of time to heal.

5 See Rice v. Schiller, 241 S.W . 2nd 330, 338 (Tex. App. 1951) “r eckless disregard of the rights of others does not depend upon the actual mental state of the person whose acts or omissions are complained of, but is determined externally by his acts and conduct and the facts and circum stances in evidence before you leading up to and at the tim e of the accident in question.” This authority has been overruled on another, unrelated matter. The point of law referenced herein has been cited and reaffirmed on several occasions. 6 See Ruiz v. Estelle, 503 F. Supp. 1265, 1329 (D.C. Tex. 1980)

32

97. Throughout t his time, there was no func tioning sick bay or medical care available b ecause the prison was cl osed and the medical care area in particular had sustaine d extensive water damage and mold infestation, necessitating the fact th at this had to be closed because it was in no state to pass inspection.
98. Subjecting anyone to this regimen is self ev ident proof of both deliberate indifference and a reckless disregard for their welfare.
Claim 4 – Cruel and Unusual Punishment (as a Constitutional Tort) 99. Routine discomfort is part of the penalty that crim inal offenders
pay for committing crim es. Only those deprivations denying “the m inimal civilized measure of life' s necessities” are sufficiently grave to form the basis of an Eighth Amendment violation.” It is obduracy and wantonness, not inadvertence or error i n good f aith that characterize the con duct prohibited by the Cruel and Unusual Punishments Clause …” 7
100. The Supreme Court has held that the Eighth Am endment’s prohibition against cruel and unusual punishment will be violated if prison officials expose an inmate to a conditio n that poses an unreasonable risk to that person’s future health. 8 This violates the Eighth Amend ment because it
7 Wilson v. Seiter, 501 U.S. 294, 298 – 299 (1991) [Emphasis in original text.] 8 See Helling v. McKinney, 509 U.S. 25, 33 (1993) “I t is “cruel and unusual punishment to hold convicted criminals in unsafe conditions.”
33

amounts to an unnecessary and wanton infliction of pai n contrary t o contemporary standards of decency. 9
101. Allegations of contam inated water 10 and toxic fum es 11 have both been held to state an Eighth Amendment claim.
102. Claimants have been afflicted with a peculiarly unique set of diseases. The evidence is irrefutable th at Hurricane Rita brought black mold into this prison and claimants’ health has been seriously compromised by the damage of these spores to the l ungs and the entire respiratory track. Morgellons disease was unknown until the hurri cane’s storm surge and powerful winds ble w this m an made material inland and contam inated the water. Just one of t hese diseases would be sufficient to m ake out an Ei ghth Amendment claim. The harm posed by both diseases is totally debilitating.
103. With regard to MRSA Staph and H. Pylori, both diseases are readily preventable. But with cold showers and a total absence of hygiene and sanitation in li ving quarters, co mpounded by a lack of medical care at the prison, it was inevitable that each disease would flou rish and spread. Because these diseases are preventable, their wide-spread inflictions could
9 See Helling v. McKinney, 509 U.S. 25, 32 (1993). 10 See Jackson v. Arizona, 885 F. 2 nd 639, 641 (9th Cir. 1989) and Jackson v. Duckworth, 955 F. 2nd 21, 22 (7th Cir. 1992). 11 Johnson-Eli v. Schoe mehl, 878 F. 2 nd 1043, 1054-55 (8 th Cir. 1989); Cody v. Hillard, 599 F. Supp. 1025, 1032 (D.S.D. 1984).
34

not occur, indeed necessitated delib erate indifference an d a reckl ess disregard for the welfare of claimants.
104. Claimants have all suffered cruel and unusual puni shment due to the contaminated water they were for ced to drink, and the toxic chemi cal fumes they were forced to breat h. Claimants were overexposed and repeatedly exposed to hazardous and toxic chemicals, and none of these dangers can be justified as furthering any justifiable penological purpose.
Claim 5 - Malice 105. One definition for m alice consists of reckless disregard of the law or of a person’s l egal rights. 12 Claimants are incarcerated. Their access to the law is limited. As a consequence of being incarcerated, it is defined by acts and just as indelibly by omissions of prison staff, who hold the power to give them full access, or no access, and any kind of access in between. 106. Prison staff employed a num ber of different strategies, ranging from outright retaliation to subtle, below the radar screen forms of retaliation to discourage the filing of t ort claims. An overt form of retaliation consisted of no longer letting a claimant work ove rtime once they found out they had joined this lawsuit. A m ore subtle form of retaliation consi sted of gi ving them a new and much less desirable job. Sometimes, both forms were used.
12 See Black’s Law Dictionary, 8th Edition, online version, under “malice.” 35

107. Once denial letters began circulating through the prison, the sacrifices made to pursue these cl aims no longer seemed worthwhile, given the attitude reflected in these denial decisions.
108. Through these practices, Defendant effectively discouraged the filing of tort claims u ntil counsel came to their assistance. These acts and omissions were driven by a reckless disregard for the law and of claimant’s legal rights, and constitute malice.
109. Plaintiffs request a trial before a Judge. WHEREFORE, Plaintiffs request the following relief. 1. Issue an order adjudging and declaring the pre-requisites of th e Federal Tort Claim Act an d, in particular, the requirement imposed by 28 U.S.C. § 1346 (b)(2) [i.e. the physiolog ical basis for a mental disorder ] satisfied and further finding that Defendant is liable to claimants for damages. 2. Declare that Plaintiffs have proven all of the elements for negligence and that Defendant has in fact been negligent toward claimants. 3. Declare that Plaintiffs have proven violations of the Walsh Healey Act, paragraphs (a), (b) and (d), and that Defendant is liable for damages. 4. Declare that Plaintiffs have proven all elements for reckless disregard for the welfare of another and / or de liberate indifference, and that Defendant has in fact been reckless and deliberately indifferent toward claimants.
36

5. Declare that Plaintiffs have proven all el ements for proving the

constitutional tort of cruel and unusual punishments and that Defendant has in

fact arbitrarily and without good cause imposed cr uel and unusual

punishments upon claimants.

6. Declare that Plaintiffs have proven all elements for malice and that

Defendant has in fact acted with malice toward claimants.

7. Declare that for all claimants, the measure of damages is $250,000 per

claimant.

8. Find that counsel has taken this case on a contingency fee basis and is

entitled to attorney fees as set forth in the Federal Tort Claim Act, up to but not

exceeding 25% of the award granted to claimants. Pl aintiffs further request

reimbursement of litigation fees of a non-hourly nature, su ch as travel and

expert witness fees.

9. A Trustee should be appointed to issue awards granted to claimants.

10. Claimants seek any other relief developed by t he evidence and

consistent with allegations pled herein, which is necess ary, expedient or

consequential to the relief herein requested.

Respectfully submitted;

Ohio

/s/ Norman L. Sirak ____________________ Norman L. Sirak
Reg. OH0038058

37

4974 Higbee Ave. – Suite 203 Canton, Ohio 44718 Phone (330) 493 – 7462 Fax (330) 493 – 7851 Email nsirak@parolereform.com
38

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

ALAN TROJACK, ET AL.

§

VS.

§ CIVIL ACTION NO. 1:08cv593

UNITED STATES OF AMERICA

§

ORDER

The defendant has filed a motion to dismiss or, in the

alternative, for summary judgment. Plaintiffs have filed a

motion asking that three of the declarations submitted in support

of the motion be stricken.

After considering plaintiffs’ arguments and the response

filed by the defendant, the court is of the opinion the

declarations constitute competent summary judgment proof. It is

therefore

ORDERED that the motion to strike is DENIED.

In light of this ruling, the court is of the opinion

plaintiffs should be given an opportunity to file a supplemental

response to the defendant’s motion. Plaintiffs may therefore, if

they deem such action appropriate, file a supplemental response

within 30 days of the date set forth below. If a supplemental

response is filed, the defendant will have 10 days to file a

reply.

In light of the above, the motion to dismiss, or in the alternative, for summary judgment is DENIED for administrative and statistical purposes only. Once a supplemental response is filed, or the time for doing so has expired, the court will issue a ruling on the motion to dismiss or for summary judgment.

Hello This is a Test
SIGNED this 24 day of

August

, 2009.

KEITH F. GIBLIN UNITED STATES MAGISTRATE JUDGE

2

 
 Case 1:08-cv-00593-MAC-KFG Document 10 Filed 02/17/09 Page 1 of 21 PageID #: 80

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

ALAN TROJCAK, et al, Plaintiffs,
v. UNITED STATES OF AMERICA,
Defendant.

§ § § § CIVIL ACTION NO. 1:08CV593 § § JUDGE MARCIA A. CRONE § MAGISTRATE KEITH F. GIBLIN § § §

DEFENDANT’S MOTION TO DISMISS UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6) AND IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT

Defendant, United States of America, by and through Rebecca A. Gregory, United States

Attorney for the Eastern District of Texas, and Andrea L. Parker, Assistant United States

Attorney for the Eastern District of Texas, files this Defendant’s Motion to Dismiss under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative, Motion for Summary

Judgment, and for the reasons set forth in the incorporated Memorandum of Law, respectfully

moves this honorable Court to dismiss the complaint, or, in the alternative, grant summary

judgment in favor of the defendant.

MEMORANDUM OF LAW

I. INTRODUCTION AND LEGAL STANDARDS

A. Background.

This case concerns an action filed by forty-seven federal inmates under the Federal Tort

Claims Act (FTCA), 28 U.S.C § 2674. Plaintiffs generally complain about conditions at the

Federal Correctional Complex in Beaumont, Texas, resulting from the aftermath from Hurricane

Case 1:08-cv-00593-MAC-KFG Document 10 Filed 02/17/09 Page 2 of 21 PageID #: 81
Rita in 2005. Plaintiffs allege the United States is liable because the Federal Bureau of Prisons (BOP) breached its duty of care under 18 U.S.C. 4042(a)(2) by failing to provide suitable quarters, safekeeping, care and subsistence at the Federal Correctional Complex - Medium Security Institution in Beaumont, Texas (FCC Beaumont Medium). See generally Compl. Plaintiffs claim the United States is liable under Texas law for: (1) negligence; (2) coercion (Walsh-Healey Act violations); (3) reckless disregard for another’s welfare or deliberate indifference; (4) malice; and (5) cruel and unusual punishment as a constitutional tort. Id. at 6.
Plaintiffs have filed administrative claims as required by 28 U.S.C. § 2675. According to Plaintiffs’ suit, the time frame of material events to this suit and the actionable span of time for their claims is from November 8, 2005 through the end of February 2006. Id. ¶¶ 10 & 49. Each claimant seeks $250,000.000 in damages. Id. at 37. Plaintiffs also request an award for attorney’s fees. Id.
B. Summary Judgment Standard. As a procedural vehicle for disposing of deficient claims, summary judgment is not a “disfavored procedural shortcut”; rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)(quoting FED.R.CIV.P. 1). Summary Judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” FED.R.CIV.P. 56(c). While the party seeking summary judgment carries the burden of demonstrating that there is no actual dispute as to any material fact in the case, this burden does not require the movant to produce evidence showing the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 325. The moving party
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satisfies its burden by “pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party’s case.” Id.
Once the moving party satisfies its burden, the nonmovant must “set forth specific facts showing that there is a genuine issue for trial.” FED.R.CIV.P. 56(e). The nonmovant must also articulate the precise manner in which the evidence he sets forth supports his claims. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)(citation omitted). Moreover, in designating specific facts, the nonmovant must “‘go beyond the pleadings’” and use “‘his own affidavits, . . . deposition[s], answers to interrogatories, and admissions on file.”’ Jones v. Sheehan & Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)(citation omitted). If the nonmovant fails to set forth specific facts in support of allegations essential to that party’s claim and on which that party will bear the burden of proof, then summary judgment is appropriate. Celotex, 477 U.S. at 323. Even if the nonmovant brings forth evidence in support of its allegations, summary judgment will be appropriate unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)(citations omitted). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id.
C. Applicable Standard for Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss filed under Rule 12(b)(1) challenges the federal district court’s subject matter jurisdiction. FED.R.CIV.P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182 (2d. Cir. 1996)).
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Case 1:08-cv-00593-MAC-KFG Document 10 Filed 02/17/09 Page 4 of 21 PageID #: 83
Federal courts are courts of limited jurisdiction and lack the power to adjudicate claims absent jurisdiction conferred by the Constitution or legislation. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996); see also Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). Subject matter jurisdiction cannot be waived or conferred by agreement of the parties. Id. “In ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMack V.O.F., 241 F.3d 420, 424 (5th Cir. 2001), cert. denied, 534 U.S. 1127 (2002)(citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
Furthermore, the party seeking to invoke the court’s jurisdiction bears the burden of establishing the basis for such jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 1991); see also Harvey Constr. Co. v. Robertson-Ceco Corp., 10 F.3d 300, 303 (5th Cir. 1994). Thus, when a challenge is made to the exercise of jurisdiction, the burden falls on the plaintiff to demonstrate that such jurisdiction is proper. Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). Upon a motion to dismiss for lack of subject matter jurisdiction, the district court is entitled to consider disputed facts as well as undisputed facts in the record. Ramming, 281 F.3d at 161. In resolving the question of subject matter jurisdiction, the district court can refer to evidence outside the pleadings. Luckett v. Bure, 290 F.3d 493, 496-97(2d Cir.2002); see also Rosemound Sand & Gravel Co., v. Lambert Sand & Gravel Co., 469 F.2d 416, 417-18 (5th Cir.1972); O’Rourke v. U.S., 298 F.Supp.2d 531, 534. Unlike with a motion for failure to state a claim under FED.R.CIV.P. 12(b)(6), the attachment of exhibits to an FED.R.CIV.P. 12(b)(1)
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Case 1:08-cv-00593-MAC-KFG Document 10 Filed 02/17/09 Page 5 of 21 PageID #: 84
motion does not convert it to an FRCP motion for summary judgment. Gonzales, v. U.S., 284 F.3d 281, 288 (1st Cir.2002). As set forth below, the Court lacks subject matter jurisdiction on certain of Plaintiffs’ claims.
D. Applicable Standard for Federal Rule of Civil Procedure 12(b)(6). Motions to dismiss for failure to state a claim are appropriate where the defendant attacks the complaint because it fails to state a cognizable claim. FED.R.CIV.P. 12(b)(6). A complaint may be dismissed for failure to state a claim where it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir 1997). Such dismissal is also appropriate where a plaintiff’s allegations are conclusory or where the complaint shows relief is barred by an affirmative defense. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). As set forth below, Plaintiffs’ fail to state a claim on certain of their claims. II. ARGUMENT AND ANALYSIS The United States is immune from suit unless it has waived its immunity and consented to suit. Price v. United States, 69 F.3d 46, 49 (5th Cir. 1995). The FTCA constitutes the federal government’s waiver of its immunity to a variety of suits and sets forth the specific conditions of that waiver. McNeil v. United States, 897 F.Supp. 309, 311-312 (E.D. Tex. 1995)(Cobb, J.). As a waiver of sovereign immunity, the FTCA must be construed narrowly. Id. Any ambiguity in construction must be resolved in favor of the government. Leleux v. United States. 178 F.3d 750, 754 (5th Cir. 1999). The FTCA permits suits “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the
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Case 1:08-cv-00593-MAC-KFG Document 10 Filed 02/17/09 Page 6 of 21 PageID #: 85
act or omission occurred.” 28 U.S.C. § 1346(b). The FTCA applies to negligent torts as well as to certain specifically enumerated intentional torts. See 28 U.S.C. § 2680(h).
Claim 1 - Negligence. Plaintiffs claim the United States was negligent and breached its duty of care under 18 U.S.C. § 4042(a)(2) by failing to provide suitable quarters, safekeeping, care and subsistence. Compl. ¶ 84. Plaintiffs also claim the Government violated American Correctional Association standards 3-4317 and 3-4134. Specifically, Plaintiffs claim Unit K/A and the medical department at FCC Beaumont Medium was not suitable as they were allegedly infested with mold. Id. ¶ 85. Plaintiffs further allege the United States violated the duty of care and safekeeping by compelling Plaintiffs to “drink contaminated water with brown matter floating” in it. Id. “Under Texas law, the elements of a negligence claim are (1) a legal duty on the part of the defendant; (2) breach of that duty; and (3) damages proximately resulting from that breach.” Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 466 (5th Cir.2003)(citing Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998);and Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998)). The United States does not dispute that it has a duty of care under 18 U.S.C. § 4042 to provide suitable quarters or to provide for the safekeeping, care and subsistence of inmates in its custody. The United States does contest, however, that it breached that duty or that Plaintiffs suffered any damages as a result of their assignment to Unit K/A and work in the UNICOR factory at FCC Beaumont Medium.
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A. Mold Claims. Unit K/A at FCC Beaumont Medium was suitable to house Plaintiffs in November 2005. Prior to Plaintiffs’ assignment to Unit K/A, it was cleaned. See Exh. 1 ¶ 3, Declaration of Jessica Cline, Counselor at FCC Beaumont Medium. The cleaning was done by FCC Beaumont Camp inmates and supervised by FCC Beaumont Medium staff. Id. Cleaning the unit included removing wax from the floors, scrubbing the walls, wiping the mattresses, and scrubbing and disinfecting the toilets, sinks and showers. Id. Supplies to clean the unit included QD-64, which is a germicidal cleaner, disinfectant, and deodorizer effective against HIV, staphylocidal, fungus, etc.; Ajax, with oxygenated bleach; and a mold and mildew remover. See Exh. 2 ¶ 3, Declaration of Rebecca Kays, Safety Specialist at FCC Beaumont Medium. There was no mold in Unit K/A. Exh. 1 ¶ 7; Exh. 2 ¶ 4. Further, Counselor Cline never received any verbal or written complaints about mold from any Plaintiff. Exh 1 ¶ 7. In fact, Counselor Cline’s office is in Unit K/A and neither the current inmates assigned to the Unit nor other Unit staff have complained or commented about mold in Unit K/A. Id. If anyone would have been concerned about mold in Unit K/A it would have been the staff that worked there everyday like Counselor Cline. The fact that neither staff nor inmates expressed concern about mold is strong evidence that Unit K/A was not infested with black mold. Likewise, Plaintiffs allegations that the medical department at FCC Beaumont Medium was infested with mold is not true. Health Systems Specialist David Miller is assigned to medical at FCC Beaumont Medium. Exh. 4 ¶ 5. When Plaintiffs returned to FCC Beaumont Medium the medical department was fully functional and operational. Id. Mr. Miller had an office in the medical department and never heard any complaints from inmates or staff that the department
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was infested with mold. Id. In fact, if medical staff had suspected mold, because of their specialized knowledge, they would have immediately informed the warden that the area was a health hazard. Id. That did not happen because the medical department was not infested with black mold.
There was, however, some mold at the FCC Beaumont after Hurricane Rita in 2005. Exh. 2 at ¶ 4. This mold, however, was restricted to the records room at the Central Administration Building and the outside Warehouse. Id. These buildings are not within the secure perimeter of FCC Beaumont Medium where Plaintiffs were assigned. Id. The mold was remediated by a contract firm. Id. There was no mold in Unit K/A nor the medical department at FCC Beaumont Medium. Id.
It is undisputed that current staff and inmates assigned to Unit K/A and staff assigned to the medical department have not complained about black mold. It is undisputed that there has never been any mold remediation of Unit K/A or the medical department at FCC Beaumont Medium. If Plaintiffs’ claims are true, Unit K/A and the medical department would be condemned buildings as it has been over three years since both places, without remediation, were allegedly infested with black mold. The medical department and Unit K/A are still used today at FCC Beaumont Medium. Inmates currently live in Unit K/A and staff such as Counselor Cline still work and have an office there. Further, the medical Department is still treating inmates at FCC Beaumont Medium and Health Systems Specialist Miller still has an office there. The United States did provide suitable quarters for Plaintiffs and did not breach its duty under 18 U.S.C. § 4042.
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B. Contaminated Water Claims. Next, Plaintiffs cannot prove the United States breached its duty to provide care and safekeeping by compelling them to drink contaminated water. According to Exhibit 3, declaration of Steven McBride, Utilities System Repairer Operator Foreman at FCC Beaumont, water received by FCC Beaumont from the City of Beaumont must be sampled and independently tested by the State of Texas. Exh. 3 ¶ 2. These samples are tested for Coliform and Escherichia Coli. Id. Water samples were taken and tested on the following dates: August 24, 2005, September 21, 2005, October 20, 2005, November 21, 2005, December 28, 2005, January 25, 2006, February 16, 2006, and March 30, 2006. Id. Not a single one of these test results demonstrate that the water at FCC Beaumont contained Coliform and Escherichia Coli. Id. ¶ 3. The results demonstrate the water at FCC Beaumont was within state requirements and safe to drink. Assuming arguendo that the United States did breach its duty to provide suitable quarters and provide care and safekeeping, Plaintiffs cannot produce one shred of independent, nonsecondary-gain, non-malingering medical evidence that they suffered any harm or damages that were proximately caused by the breach of the duty to provide suitable quarters and provide care and safekeeping. Accordingly, because there was no mold present in Unit K/A nor the medical department at FCC Beaumont Medium, the United states did not breach its duty to provide suitable quarters to Plaintiffs. Further, because independent water quality analysis demonstrates that the water at FCC Beaumont was safe to drink, the United States did not breach its duty to provide for the care and safekeeping of Plaintiffs. Finally, because Plaintiffs cannot produce any independent medical
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evidence of injury or damages from the alleged breach of duty, Plaintiffs’ negligence claim fails. The United States is entitled to summary judgment on Plaintiffs’ negligence claim that it failed to provide suitable quarters, care and safekeeping.
Claim 2 - Walsh- Healey Act Violations. A. Plaintiffs’ Walsh-Healey claims.
Plaintiffs allege that they are entitled to better wages, hours, and benefits, based upon the Walsh-Healey Act, 41 U.S.C. § 35, et seq. Because the provisions of the Walsh-Healey Act clearly do not apply, however, Claim 2 of the Complaint must be dismissed.
1. Inmates are not FPI employees. Federal Prison Industries, Inc. (FPI or trade name UNICOR) is a statutorily-created, wholly-owned government corporation of the District of Columbia, created by Act of Congress in 1934. It is charged with “determining in what manner and to what extent industrial operations shall be carried on in Federal penal and correctional institutions.” 18 U.S.C. § 4121; see 28 C.F.R. § 345.11 (2001). FPI’s mission is to provide “work simulation programs and training opportunities for inmates confined in Federal correctional facilities.” 28 C.F.R. § 345.11. In order to achieve this goal, FPI operates factories in over 100 Federal prisons across the country. It manufactures products and services in eight different business groups: Electronics, Clothing & Textiles, Fleet Management & Vehicular Components, Services, Office Furniture, Recycling, Industrial Products, and Graphics. Typically, each prison (with the exception of minimum security and administrative/pretrial facilities) in the Federal system contains one UNICOR factory which is a division of one of the
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above referenced business groups. USP Lompoc, for example, has a factory which is affiliated
with the electronics business group.1
The issue of whether an inmate is an employee of FPI may have been a novel question in
1934, when FPI was created by President Roosevelt. However, any such question has long
since been resolved, in numerous contexts, most importantly the FLSA, which is closely
analogous to the Walsh-Healey Act. In that context, the Fifth Circuit held:
We have held that prisoners not sentenced to hard labor, who worked outside the jail for a private firm, were FLSA employees of the private firm. Watson v. Graves, 909 F.2d 1549, 1556 (5th Cir.1990). In a similar situation, we held that a jailer was not the FLSA employer of an inmate working in a work-release program for a private employer outside the jail. Reimonenq v. Foti, 72 F.3d 472, 475-76 (5th Cir.1996). We have also held that inmates who work inside a prison for a private enterprise are not FLSA employees of the private company. Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir.1983). However, until today we have not expressly stated whether there is any FLSA employment relationship between the prison and its inmates working in and for the prison.
... We join these other circuits and hold that a prisoner doing work in or for the prison is not an employee” under the FLSA and is thus not entitled to the federal minimum wage.
Loving v. Johnson, 455 F.3d 562, 563 (5th Cir. 2006). See also Coupar v. U.S. Department of
Labor, 105 F.3d 1263 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387 (9th Cir.); cert. denied 510
U.S. 946 (1993). As in those previous cases, the Plaintiffs in the present case do not have a
pecuniary relationship with FPI. Their relationship with the government is purely penological
1 Although participation in the FPI program is voluntary, all medically eligible sentence inmates in the Bureau of Prisons are required to have a prison work assignment Coupar v. United States Department of Labor, 105 F.3d 1265 (9th Cir. 1997); 18 U.S.C. § 4121 note; 28 C.F.R. § 545.20(a).
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in nature and, therefore, they cannot be considered an employee of FPI. Coupar, 105 F.3d at 1264-65; Hale, 993 F.2d at 1392-94.2
Although the present case involves the Walsh-Healey Act, not the FLSA, the relationship between the inmate-worker and FPI under both statutes is identical: penal not pecuniary. As such, while these inmates can be said to be working at, assigned to, or in the service of FPI, they clearly are not employees. Id. See also Nicastro v. Reno, 84 F. 3d 1446, 1446-47 (D.C. Cir. 1996);Walton v. United States, 551 F.3d 1367, 1369 (Fed. Cir. 2009). As such, it is clear that where, as in the present case, inmates have been assigned to work for FPI, and all work was performed within the prison walls, there is absolutely no basis upon which to find that inmate are employees of FPI or the United States. As such, the provisions of the Walsh-Healey Act do not apply, and Plaintiffs’ second claim must be dismissed with prejudice.3
2. This Court lacks jurisdiction over Walsh-Healey claims. Even assuming arguendo that inmates were somehow employees of FPI or the United States, this court is without jurisdiction over the Walsh-Healey Act claims. First, by its own terms, the Walsh-Healey Act specifically exempts inmates assigned to FPI from its provisions. In Section 8, which is codified at 41 U.S.C. § 42, the statute reads:
2 To be sure, incarceration with no work assignment at all would be well within the bounds of the sentence imposed. James v. Quinlan, 866 F.2d 627, 629-30 (3rd Cir.), cert. denied 493 U.S. 870 (1989)(Prisoners have no Constitutionally protected liberty or property interest in their prison work assignments); Bulger v. BOP, 65 F.3d 48, 50 (5th cir 1995)(Prisoner has no legitimate claim of entitlement to continuing UNICOR employment).
3 Plaintiffs’ reliance on the criminal statute for the transportation or importation of prison-made goods, 18 U.S.C. § 1761, as the basis for their claim of entitlement to the protections of the Walsh-Healey Act is nonsensical and wholly without merit.
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sections 35 to 45 of this title shall not be construed to modify or amend Title III of the Act entitled “An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes”, approved May 3, 1933 (commonly known as the Buy American Act) [41 U.S.C.A. § 10a et seq.], nor shall the provisions of sections 35 to 45 of this title be construed to modify or amend sections 3141 to 3144, 3146, 3147 of Title 40, nor the labor provisions of Title II of the National Industrial Recovery Act, approved June 16, 1933, as extended, or of section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935; nor shall the provisions of sections 35 to 45 of this title be construed to modify or amend chapter 307 and section 4162 of Title 18. Of course, Chapter 307 of Title 18 includes FPI’s statute, which is found at 18 U.S.C. § 4121-4129. So, it is clear on its face that the Walsh-Healey Act is not intended to apply to inmates assigned to FPI (or any other inmate work assignment within the institution.) Furthermore, Section 1 of the Walsh-Healey Act makes it clear that the Act applies to, “persons employed by contractors of the United States.” 41 U.S.C. § 35. FPI, however, is not a contractor of the United States. It is a government corporation, created by Congress in 1934, and is a component of the Federal Bureau of Prisons. Sales by FPI to other government agencies, including DoD, are considered intragovernmental transfers, not contracts. 18 U.S.C. § 4124( c); Nicastro v. Clinton, 882 F. Supp. 1128, 1129 n. 2 (D. D.C.), aff’d 84 F.3d 1446 (D.C. Cir. 1996). There is no basis upon which to apply the Walsh-Healey Act to intragovernmental transfers. Id. Finally, as a procedural matter, the Walsh-Healey Act does not create an independent right of action in the Federal District Court against the United States. Instead, it specifically lays out an administrative procedure in which such claims must be adjudicated before the Secretary of Labor. 41 U.S.C. §§ 37-38. Plaintiffs provide no evidence to indicate that they participated in this procedure in any way, or otherwise involved the Secretary of Labor, as required by the
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statute. As such, this Court is without jurisdiction to hear this claim pursuant to the explicit provisions of the Walsh-Healey Act.
Based upon the above discussion, it is abundantly clear that there is absolutely no basis upon which the Walsh-Healey Act (or, for that matter the FLSA) could be applied to Federal inmates assigned to FPI. As such, Claim 2 of the Complaint is without merit and should be dismissed in its entirety with prejudice.
B. Plaintiffs’ on-the-job claims of injury. It is well settled that the exclusive remedy for any injury suffered by an inmate during the course of his work assignment is the Inmate Accident Compensation system, 18 U.S.C. § 4126(c)(4). United States v. Demko, 385 U.S. 149, 151-52, 87 S.Ct. 382, 384 (1966); Aston v. United States, 625 F.2d 1210, 1211 (5th Cir. 1980)(citing Demko); Joyce v. United States, 474 F.2d 215, 219 (3rd Cir. 1973)(discussing the same issue with respect to the analogous FECA statute); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996)(Demko establishes that 18 U.S.C. § 4126 is the exclusive remedy against the government); Granade v. United States, 356 F.2d 837, 840-41 (2d Cir.), cert. denied 385 U.S. 1012, 87 S.Ct. 720 (1967). Thus, the FTCA’s waiver of sovereign immunity does not and cannot extend to actions relating to an injury suffered by an inmate during the course of performing his institution work assignment. Demko, 385 U.S. at 15152, 87 S.Ct. at 384. Therefore, if Plaintiffs’ allegations indicate that his injury was incurred while working, then this Court must dismiss the Complaint for lack of Subject Matter Jurisdiction. Demko, 385 U.S. at 153, 87 S.Ct. at 385; Aston, 625 F.2d at 1211 (where an inmate was injured “on the job,” the district court lacks jurisdiction to hear a cause of action grounded on the Federal Tort
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Claims Act); Premachandra v. United States, 739 F.2d 392, 394 (8th Cir. 1984)(a precisely drawn, detailed statute pre-empts more general remedies);Wooten v. United States, 825 F.2d 1039, 1044 (6th Cir. 1987)(whether Plaintiff’s injuries were caused by the performance of work is irrelevant; as long as the injury occurred while the inmate was on the job, section 4126 is the exclusive remedy.)
In the present complaint, Plaintiffs make several allegations regarding the UNICOR factory, primarily relating to hazardous materials which were allegedly released into the air while manufacturing Kevlar helmets. Compl. ¶¶ 50-59. Because these allegations relate specifically to the conditions within the UNICOR factory, they are precluded by the Prison Industries Fund, 18 U.S.C. § 4126(c)(4). Accordingly, Plaintiffs’ claim of injury as a result of hazardous chemical vapors must be dismissed under Federal Rule of Civil Procedure 12(b)(1), as the Court lacks subject matter jurisdiction over this claim.
Claim 3 - Reckless Disregard for Welfare / Deliberate Indifference. Plaintiffs allege the United States acted recklessly and with deliberate indifference by compelling them to work from 7:30 a.m. to 9:00 p.m. in a building that contained hazardous vapors; failing to provide safety apparel; housing them in a condemned building; making them drink contaminated water and take cold showers; and allowing them less than an hour for their personal needs. Compl ¶ 96. “There is no precise statutory or case law definition for ‘reckless disregard for the safety of others.’” City of San Antonio v. Schneider, 787 S.W.2d 459, 465 (Tex.App.- San Antonio 1990). “It appears that the breach of such duty lies between ‘ordinary’ and ‘gross’ negligence.” Id. “[R]eckless disregard includes essential characteristic of gross negligence, and indicates an entire
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want of care sufficient to raise the belief or presumption that the act or omission complained of was the result to conscious indifference to the rights, welfare, or safety of the person or persons affected by it.” Id. “[R]eckless disregard means more than momentary thoughtlessness, inadvertence or error of judgment.” Thus, “reckless disregard and gross negligence are synonymous terms.” Id.; see also Western Guaranty Loan Co. v. Dean, 309 S.W.2d 857, 860 (Tex. Civ.App. 1957).
In Texas “gross negligence involves two components: (1) viewed objectively from the actor’s standpoint, the act or omission complained of must involve an extreme degree or risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.” Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)(citing Transportation Insurance C. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994)). “The first element, ‘extreme risk,’ means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Id. (citations omitted). “The second element, ‘actual awareness,’ means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care.” Id. (citations omitted).
Here, Plaintiffs cannot prove gross negligence. Certainly, there is no extreme degree or risk of harm from working 7:30am to 9:00pm, taking a cold shower, or allowing less than an hour of time for their personal needs. As to the allegations of being forced to work in a building that contained hazardous vapors, not being provided safety apparel, being housed in a condemned building and drinking contaminated water, it is impossible for Plaintiffs to prove the
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second element of gross negligence. Plaintiffs must prove that there was actual awareness of the peril, but the United States took no action because it did not care.
Plaintiffs will find it insurmountable to prove “actual awareness” that housing Unit K/A was condemned. According to Counselor Cline and Safety Specialist Kays, there was no black mold in Unit K/A. Exh. 1 ¶ 7, Exh. 2 ¶ 4. The Unit was operational and inspected and cleaned before inmates were returned to the Unit in November 2005. Exh. 1 ¶ 6. Because these staff members indicate no mold was present in Unit K/A, actual awareness is impossible for Plaintiffs to prove.
Plaintiffs will find it impossible to prove that the United States was actually aware that the water at FCC Beaumont Medium was contaminated. As set forth supra, according Steven McBride, Utilities System Repairer Operator Foreman at FCC Beaumont, water received at FCC Beaumont is sampled and independently tested by the State of Texas. Exh. 3 ¶ 3. These samples are tested for Coliform and Escherichia Coli. Id. Water samples taken and tested from November 2005 through March 2006 indicate the water at FCC Beaumont was within state requirements and safe to drink. Id.
In addition, as demonstrated supra, the claims of working hazards in UNICOR are precluded by United States v. Demko, 385 U.S. 149, 151-52, 87 S.Ct. 382, 384 (1966). The United States did not waive sovereign immunity for those claims. Accordingly, Plaintiffs’ claims of being forced to work in a building that contained hazardous vapors and not being provided safety apparel should be dismissed under Federal Rule of Civil Procedure 12(b)(1).
Finally, as discussed infra in Defendant’s response to Claim 4, Plaintiffs’ deliberate indifference claims are constitutional claims which are not cognizable under the FTCA.
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Accordingly, Defendant should be granted summary judgment on Plaintiffs’ gross negligence claim, and their deliberate indifference claim should be dismissed under Federal Rule of Civil Procedure 12(b)(1).
Claim 4 - Cruel and Unusual Punishment (as a Constitutional Tort). Plaintiffs claim the United States violated the Eighth Amendment by “denying [them] the minimal civilized measures of life’s necessities.”4 Compl. ¶¶ 99-104. They claim they were forced to drink contaminated water and were exposed to toxic fumes that were spawned by the presence of black mold in Unit K/A. Id. They further claim that the Eighth Amendment was violated because there was an absence of hygiene and sanitation in Unit K/A and that there was a lack of medical care. Id. The FTCA waives sovereign immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674. Accordingly, there is no waiver of sovereign immunity to suits predicated on tort causes of action cognizable under state law and the waiver is inapplicable to constitutional torts. Brown v. United States, 653 F.2d 196, 201-02 (5th Cir. 1981); see also Keene Corp v. United States, 700 F.2d 836, 845 n. 13 (2d Cir. 1983)(no waiver of sovereign immunity for constitutional torts.); Allen v. Travis, 2008 WL 1849171, *4 (N.D. Tex. 2008)(Constitutional torts are excepted from the FTCA.); Reed v. Hadden, 473 F.Supp. 658, 660 n.2 (D. Colo. 1979)(A private individual could not violate another
4 Plaintiffs have not identified a cause of action in tort recognized by Texas that can be asserted alleging the same constitutional theory of recovery.
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individual’s constitutional rights, thus, the United States could not be liable under the FTCA for violation of constitutional rights.).
Plaintiffs’ claim of constitutional tort violations against the United States fails and must be dismissed. The United States has not waived sovereign immunity to be sued for the individual actions of FCC Beaumont Medium staff for violations of the Constitution. To be successful, Plaintiffs’ constitutional tort claims must be brought against federal officials in their individual capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Here, only the United States is a defendant.
Plaintiffs’ claim is barred by sovereign immunity. “The United States must consent to be sued, and that consent is a prerequisite to federal jurisdiction.” Delta Commercial Fisheries Ass'n v. Gulf of Mexico Fishery Management Council, 364 F.3d 269, 273 (5th Cir. 2004)(citing United States v. Navajo Nation, 537 U.S. 488, 502, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003)). Accordingly, Plaintiffs’ claim of an Eighth Amendment violation against the United States should be dismissed under Federal Rule of Civil Procedure 12(b)(1).
Claim 5 - Malice. Plaintiffs claim the prison employees acted with malice by failing to give them access to the law. Compl. ¶¶ 105-108. Defendant presumes this claim refers to Plaintiffs’ access to courts allegations as mentioned in paragraphs 79-82 of the complaint. There, Plaintiffs complain that staff threatened and retaliated against them for filing tort claims. While Plaintiffs’ allege malice, the gravamen of the allegations is one of retaliation. A retaliation claim in this context is essentially an access to courts claim under the First Amendment. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). As discussed supra, a constitutional claim
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against the United States should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for failure to state a claim.
If Plaintiffs truly intend to assert a claim for malice under Texas law, that claim wholly lacks merit. In Texas, malice means:
(A) a specific intent by the defendant to cause substantial injury to the claimant; or (B) and act or omission: (i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with the conscious indifference to the rights, safety, or welfare of others. V.T.C.A., Civ. Prac. & Rem. Code § 41.001. Malice in Texas is an element of and related to an exemplary (punitive) damages claim. Hartford Cas. Ins. v. Powell, 19 F.Supp.2d 678, 696 (N.D.Tex.1998); see also V.T.C.A., Civ. Prac. & Rem. Code § 41.003. Defendant can find no Texas case law where a private person was sued for malice as a cause of action in tort, nor do Plaintiffs cite to any cases. Further, under the FTCA, the United States is not liable for punitive damages. 28 U.S.C. § 2674. Accordingly, Plaintiffs’ malice claim should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. III. CONCLUSION Plaintiffs suit should be dismissed. Defendant is entitled to summary judgment on the negligence claim as it did not breach its duty of care. Further, even if Defendant was negligent, Plaintiffs can prove no damages proximately caused by that negligence. Further, Plaintiffs’ Walsh-Healey Act claims fail because the United States did not waive sovereign immunity for that type of claim. Plaintiffs’ reckless disregard / deliberate indifference / cruel and
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unusual punishment (as a Constitutional tort) claims fail for the same reason. Finally, Plaintiffs malice claim fails because Texas does not recognize a cause of action in tort for malice.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that its Motion to Dismiss be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and in the alternative that its motion for summary judgment be granted and that the above-styled and numbered case be dismissed in its entirety with Plaintiff taking nothing by this suit.
Respectfully submitted, REBECCA A. GREGORY UNITED STATES ATTORNEY /s/ Andrea L. Parker ANDREA L. PARKER Assistant United States Attorney TxSBN: 00790851 350 Magnolia Avenue, Suite 150 Beaumont, Texas 77701 Telephone: (409) 839-2538 Facsimile: (409) 839-2643 Email: andrea.parker@usdoj.gov
CERTIFICATE OF SERVICE The undersigned counsel certifies that on this 17th day of February, 2009, a true and correct copy of the foregoing documents was delivered by electronic mail to plaintiffs’ counsel of record.
/s/ Andrea L. Parker ANDREA L. PARKER Assistant United States Attorney
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 Case 1:08-cv-00593-MAC-KFG Document 40 Filed 03/12/12 Page 1 of 1 PageID #: 1699

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

ALAN TROJACK, ET AL.

§

VS.

§ CIVIL ACTION NO. 1:08cv593

UNITED STATES OF AMERICA

§

ORDER

The court notes that a dispositive motion filed by the

defendant is pending before the court. The parties have filed

responses and replies and supplied the court with a voluminous

amount of material. As a result, the court is not yet prepared

to rule on the motion. It is therefore

ORDERED that this matter is ADMINISTRATIVELY CLOSED. The

dispositive motion is under active consideration by the court,

and the court anticipates that a ruling will be issued shortly.

Hello This is a Test
SIGNED this 12 day of

March

, 2012.

KEITH F. GIBLIN UNITED STATES MAGISTRATE JUDGE

 
 Case 1:08-cv-00593-MAC-KFG Document 41 Filed 12/20/13 Page 1 of 2 PageID #: 1700

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

ALAN TROJACK, ET AL.

§

VS.

§ CIVIL ACTION NO. 1:08cv593

UNITED STATES OF AMERICA

§

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

The above-styled lawsuit was filed through counsel by 47

inmates pursuant to the Federal Tort Claims Act. This matter was

referred to the undersigned United States Magistrate Judge pursuant

to 28 U.S.C. § 636 for findings of fact, conclusions of law, and

recommendations for the disposition of the case.

The undersigned has determined that counsel for the plaintiffs

died on October 7, 2012. None of the plaintiffs have contacted the

court since that date. Nor has anyone acting on behalf of any of

the plaintiffs contacted the court. As a result, the undersigned

is of the opinion that this matter should be dismissed for want of

prosecution pursuant to Federal Rule of Civil Procedure 41(b).

Recommendation

This lawsuit should be dismissed without prejudice pursuant to

Federal Rule of Civil Procedure 41(b).

Objections

Objections must be (1) specific, (2) in writing, and (3)

served and filed within 14 days after being served with a copy of

this report. 28 U.S.C. § 636(b)(1).

Case 1:08-cv-00593-MAC-KFG Document 41 Filed 12/20/13 Page 2 of 2 PageID #: 1701

Failure to file objections bars a party from (1) entitlement to de novo review by a district judge of the proposed findings and recommendations contained herein, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass'n., 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

Hello This is a Test
SIGNED this 20 day of

December

, 2013.

KEITH F. GIBLIN UNITED STATES MAGISTRATE JUDGE

2

 
 Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 1 of 10
CASREF,CLOSED,SA6
U.S. District Court [LIVE] Eastern District of TEXAS (Beaumont) CIVIL DOCKET FOR CASE #: 1:08−cv−00593−MAC−KFG

Trojcak et al v. United States of America Assigned to: Judge Marcia A. Crone Referred to: Magistrate Judge Keith F. Giblin Demand: $250,000 Cause: 28:1346 Tort Claim Plaintiff Alan Trojcak
Plaintiff Andre Ford
Plaintiff Bennie Steptoe
Plaintiff Carlos Romero
Plaintiff Austin Demetrius
Plaintiff Donald Givens
Plaintiff Donald Fusilier

Date Filed: 10/08/2008 Date Terminated: 01/09/2014 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: U.S. Government Defendant
represented by Norman L Sirak Norman L Sirak Attorney At Law 4035 Cinwood Street Massillon, OH 44646 330/493−1947 Fax: 330−478−1991 Email: nsirak@parolereform.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 2 of 10

Plaintiff Edward Hubbard

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Elluard Jackson

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Eric Hampton

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Floyd Richard

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Fredrick Jackson

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Sostre

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jimmy Skinner

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Johnny Calderon

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Juan Castro

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Juan Cisneros

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 3 of 10

Plaintiff Larry Callum
Plaintiff Luis Sicard
Plaintiff Mitchell Foxworth
Plaintiff Pablo Brito
Plaintiff Roland Samaniego
Plaintiff Ronald Simmons
Plaintiff Terrick Durham
Plaintiff Tibursio Martinez
Plaintiff Tony Anderson
Plaintiff Victor Valencia

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Norman L Sirak (See above for address) LEAD ATTORNEY

Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 4 of 10

ATTORNEY TO BE NOTICED

Plaintiff Willie Harmon

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Brian Johnson

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Eric McPherson

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gene Williamson

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Wilson Moreno

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Hodges

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Alberto Alaniz

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Nazanzo Hill

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff George Salinas

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Arturo Apaez

represented by Norman L Sirak (See above for address)

Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 5 of 10

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Benjamin Stone

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charles Douglas

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charles Ross

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Daniel Anderson

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Darrell Mask

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Oscar Martinez

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Raul Reyna−Rodriguez

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Terry Estes

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Cornelius Bell

represented by Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff all plaintiffs

represented by

Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 6 of 10

Norman L Sirak (See above for address) LEAD ATTORNEY

Plaintiff Louis Charles Mayes

represented by Louis Charles Mayes 4458 Tampico Street Houston, Tx 77016 PRO SE

Norman L Sirak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States of America

represented by Andrea Hedrick Parker U S Attorney 350 Magnolia Suite 150 Beaumont, TX 77701 409/839−2538 Fax: 14098392643 Email: andrea.parker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/08/2008
10/08/2008 10/09/2008 10/10/2008 10/14/2008 11/12/2008 11/12/2008 11/12/2008 12/11/2008

# Docket Text
1 COMPLAINT under the Federal Tort Claim Act against United States ( Filing fee $ 350 receipt number 05400000000001722877.), filed by Eric Hampton, et al,. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Uniform Basic Safety Regulations, # 3 Exhibit Unicor Contracts)(Sirak, Norman) Modified on 10/15/2008 (mrp, ). (Entered: 10/08/2008)
Case Assigned to Judge Marcia A. Crone. (aam, ) (Entered: 10/09/2008)
2 Magistrate Consent Form sent electronically to plas' atty Norman Sirak (aam, ) (Entered: 10/09/2008)
3 Summons Issued as to United States of America by serving The U.S. Attorney and The U.S. Attorney General &e−mailed to plas' atty for service. (aam, ) (Entered: 10/10/2008)
4 ORDER REFERRING CASE to Magistrate Judge Magistrate Judge Keith F. Giblin to conduct all pretrial proceedings. Signed by Judge Marcia A. Crone on 10/14/08. (mrp, ) (Entered: 10/15/2008)
5 SUMMONS Returned Executed by certified mail as to United States of America by serving United States Attorney on 10/20/2008, answer due 12/19/2008. (bjc, ) (Entered: 11/18/2008)
6 E−GOV SEALED SUMMONS Returned Executed by certified mail as to Joyce Zoldak Federal Bureau of Prisons on 10/20/08 (bjc, ) (Entered: 11/18/2008)
7 E−GOV SEALED SUMMONS Returned Executed by certified mail as to United States of America by serving United States Attorney General on 10/24/08 (bjc, ) (Entered: 11/18/2008)
8 MOTION for Extension of Time to File First Responsive Pleading by United States of America. (Attachments: # 1 Proposed Order)(Parker, Andrea) (Entered: 12/11/2008)

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01/07/2009 02/17/2009 02/25/2009 03/04/2009 03/05/2009 03/11/2009 03/12/2009
03/12/2009
03/16/2009
03/19/2009

9 ORDER granting 8 Motion for Extension of Time to File First Responsive Pleading. The Court orders that the Defendant is directed to answer or otherwise plead in response to Plaintiffs' complaint on or before 2/17/09. Signed by Magistrate Judge Keith F. Giblin on 1/7/09. (mrp, ) (Entered: 01/07/2009)
10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative, MOTION for Summary Judgment by United States of America. (Attachments: # 1 Exhibits 1 &2, # 2 Exhibit 3 (Part 1), # 3 Exhibit 3 (Part 2), # 4 Exhibit 4, # 5 Proposed Order)(Parker, Andrea) (Entered: 02/17/2009)
11 MOTION for Extension of Time to File Response/Reply as to 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Sirak, Norman) (Entered: 02/25/2009)
12 MOTION to Seal Document as part of Plaintiffs Response to Defendants' Motion to Dismiss and Alternatively Motion for Summary Judgment, Docket No. 10 by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Sirak, Norman) (Entered: 03/04/2009)
13 MOTION To Strike Three Declarations in Support of Defendant's Motion to Dismiss or Alternatively for Summary Judgment re 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Sirak, Norman) (Entered: 03/05/2009)
14 ORDER granting 11 Motion for Extension of Time to File Response. The deadline to file a response is extended from 3/1/09, up until 3/15/09. The Motion to Seal 12 is granted and the Plaintiffs are granted leave to file their response in opposition under seal as it will include a classified attachment. Signed by Magistrate Judge Keith F. Giblin on 3/11/09. (mrp, ) (Entered: 03/11/2009)
15 SEALED RESPONSE to Motion filed by all plaintiffs. (Attachments: # 1 Exhibit 1 Roof Repairs after Hurricane Rita, # 2 Exhibit 2 Sample Questionnaire for Diseases Rampant after Hurricane Rita, # 3 Exhibit 3 Survey of Toxic Mold among Plaintiffs, # 4 Exhibit 4 Toxic Mold Prevalence among Unicor and Penitentiary Claimants, # 5 Exhibit 5 Classified Expert Report Submitted for Spotts v. U.S.A., case # 08−376, # 6 Exhibit 6 Warden's Letter Health Warning, # 7 Exhibit 7 Weather Temperatures from Sept. 22 to Oct. 28, 2005)(Sirak, Norman) (Entered: 03/12/2009)
16 ADDITIONAL ATTACHMENTS TO SEALED RESPONSE # 15 . (Attachments: # 1 Unclassified Expert Report with attachments, # 2 Exhibit 9 Article on Algae, # 3 Exhibit 10 Table of Contents for Exhibits 10A, 10B, 10C and 10D, # 4 Exhibit 10A H. Pylori among Unicor Claimants, # 5 Exhibit 10B Prevalence of H Pylori among Unicor and Penitentiary Claimants, # 6 Exhibit 10C Morgellons Disease among Plaintiffs, # 7 Exhibit 10D Morgellons Disease among Plaintiffs and Penitentiary Claimants, # 8 Exhibit 11 Unicor Contracts to Manufacture army helmets, # 9 Exhibit 12 Sample Administrative Claim, # 10 Text of Proposed Order)(Sirak, Norman) Modified on 3/13/2009 (mrp, ). (Entered: 03/12/2009)
17 RESPONSE to Motion re 13 MOTION To Strike Three Declarations in Support of Defendant's Motion to Dismiss or Alternatively for Summary Judgment re 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION to D MOTION To Strike Three Declarations in Support of Defendant's Motion to Dismiss or Alternatively for Summary Judgment re 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION to D filed by United States of America. (Parker, Andrea) (Entered: 03/16/2009)
18 MOTION for Extension of Time to File Response/Reply as to 15 Sealed Response to Motion,, by United States of America. (Attachments: # 1 Proposed Order)(Parker, Andrea) (Entered: 03/19/2009)

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03/20/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/25/2009
03/25/2009
03/30/2009
03/30/2009 04/09/2009
08/10/2009 08/24/2009 09/19/2009

19 ORDER granting 18 Motion for Extension of Time to File Response. Defendant's deadline to file a reply to the Plaintiff's response is extended up to and including 3/25/09. Signed by Magistrate Judge Keith F. Giblin on 3/19/09. (mrp, ) (Entered: 03/20/2009)
20 MOTION to Seal Reply to Plaintiffs Response to Defendants Motion to Dismiss by United States of America. (Attachments: # 1 Proposed Order)(Parker, Andrea) (Entered: 03/24/2009)
21 MOTION for Leave to File Excess Pages for Reply to Plaintiffs Response to Defendants Motion to Dismiss by United States of America. (Attachments: # 1 Proposed Order)(Parker, Andrea) (Entered: 03/24/2009)
22 ORDER granting 20 Motion to Seal signed by Magistrate Judge Keith F. Giblin on 03/24/2009. (ksd ) (Entered: 03/24/2009)
23 ORDER granting 21 Motion for Leave to File Excess Pages signed by Magistrate Judge Keith F. Giblin on 03/24/2009. (ksd, ) (Entered: 03/24/2009)
24 SEALED REPLY to Response to Motion re 10 MOTION to Dismiss filed by USA. (Attachments: # 1 Exh 1 − Dec of Gerhart Bradley, # 2 Exh 2 − Dec of David Miller, # 3 Exh 2 − Att A, # 4 Exh 2 − Att B1 thru B5, # 5 Exh 2 − Att B6 thru B8, # 6 Exh 2 − Att B9 thru B13, # 7 Exh 2 − Att B14 thru B15, # 8 Exh 2 − Att B16 thru B18, # 9 Exh 2 − Att B19 thru B22, # 10 Exh 2 − Att B23 thru B25)(Parker, Andrea) Modified on 3/25/2009 (mrp, ). (Entered: 03/25/2009)
25 SEALED ADDITIONAL ATTACHMENTS to Main Document: 24 Sealed Reply to Response to Motion. (Attachments: # 1 Exh 2 − Att B26 − B28, # 2 Exh 2 − Att B29 − B30, # 3 Exh 2 − Att B31 − B33, # 4 Exh 2 − Att B34 − B38, # 5 Exh 2 − Att B39 − B41, # 6 Exh 2 − Att B42 − B46, # 7 Exh 2 − Att B47, # 8 Exh 3)(Parker, Andrea) Modified on 3/25/2009 (mrp, ). (Entered: 03/25/2009)
26 MOTION to Strike the Declaration of Gerhart Bradley and David Miller re 24 Sealed Reply to Response to Motion, 25 Sealed Additional Attachments to Main Document, by all plaintiffs. (Attachments: # 1 Exh 1 Decl of David Miller, # 2 Exh 2 Duties of Pharm, # 3 Exh 3 Decl of Mary Hupp, # 4Exh 4 Decl of Rhonda Gray, # 5 Proposed Order(Sirak, Norman) Modified on 3/31/2009 (mrp, ). (Entered: 03/30/2009)
27 SUR−REPLY to Reply to Response to Motion re 10 MOTION to Dismiss. (Attachments: # 1 Exh 1 Warden's Letter, # 2 Exh 2 Exp Rpt of George Jackson, # 3 Proposed Order)(Sirak, Norman) Modified on 3/31/2009 (mrp, ). (Entered: 03/30/2009)
28 RESPONSE to Motion re 26 MOTION Strike the Declaration of Gerhart Bradley and David Miller's second declaration along with all documents filed with David Miller's Declaration re 24 Sealed Reply to Response to Motion, 25 Sealed Additional Attachments to Main Docu MOTION Strike the Declaration of Gerhart Bradley and David Miller's second declaration along with all documents filed with David Miller's Declaration re 24 Sealed Reply to Response to Motion, 25 Sealed Additional Attachments to Main Docu filed by United States of America. (Attachments: # 1 Exhibit A)(Parker, Andrea) (Entered: 04/09/2009)
29 MOTION for reconsideration; to intervene as a plaintiff by Jonathan lee Riches. (mrp, ) (Entered: 08/11/2009)
30 ORDER denying Motion to Strike and denying Motion to Dismiss, or in the alternative for summary judgment.Signed by Magistrate Judge Keith F. Giblin on 8/24/09. (mrp, ) (Entered: 08/24/2009)
31 ***DOCUMENT TERMINATED; ATTY WILL REFILE***

RESPONSE in Opposition to 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment MOTION filed by all plaintiffs. (Attachments: # 1 Exh 1 Excerpts Unicor Contracts, # 2 Exh 2 Sample Admin Claim, # 3 Exh 3 Skinner Decl, # 4 Exh 4 Cullum Decl, # 5 Exh 5 Calderon Decl, # 6 Exh 6 Cisineros Decl, # 7 Exh 7 Samaniego Decl)(Sirak, Norman) Modified on 9/21/2009 (mrp, ). Modified on

Case: 1:08-cv-00593-MAC-KFG As of: 02/12/2015 10:28 PM CST 9 of 10

09/19/2009
09/19/2009
09/21/2009 09/21/2009
09/29/2009 10/09/2009 10/13/2009 03/23/2010 08/09/2010

9/21/2009 (mrp, ). (Entered: 09/19/2009)
32 ***DOCUMENT TERMINATED; ATTY WILL REFILE***
RESPONSE in Opposition re 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative Supplemental Response Authorized by Court Order August 24, 2009 Doc. No. 30 filed by all plaintiffs. (Attachments: # 1 Exhibit 8 Inmate Issue Committee Memos, # 2 Exhibit 9 Sample Questionnaire for Survey of Disease Symptoms, # 3 Exhibit 10 Unicor Survey of Toxic Mold Syndrome Symptoms, # 4 Exhibit 11 Comparison of Toxic Mold Symptoms Unicor and Penitentiary Claimants, # 5 Exhibit 12 September and October 2005 Water Lab Reports, # 6 Exhibit 13 Charles Pierce Expert Report for Unicor)(Sirak, Norman) Modified on 9/21/2009 (mrp, ). (Entered: 09/19/2009)
33 ***DOCUMENT TERMINATED; ATTY WILL REFILE***
RESPONSE in Opposition re 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative Supplemental Response Authorized by Court Order August 24, 2009 Docket No. 30 filed by all plaintiffs. (Attachments: # 1 Exhibit 14 Dr. Jackson Curriculum Vitae and Compensation, # 2 Exhibit 15 Dr. Jackson Expert Report, # 3 Exhibit 16 H Pylori Symtoms for Unicor Claimants, # 4 Exhibit 17 Mary Hupp Expert Declaration, # 5 Exhibit 18 Brandon Henderson Declaration, # 6 Exhibit 19 Dr. Kris Sperry Curriculum Vitae, # 7 Exhibit 20 Dr. Kris Sperry Expert Report, # 8 Text of Proposed Order)(Sirak, Norman) Modified on 9/21/2009 (mrp, ). (Entered: 09/19/2009)
Documents 31−33 were filed in error as separate responses. Atty will refile as one response plus additional attachments if needed. (mrp, ) (Entered: 09/21/2009)
34 RESPONSE in Opposition to 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment filed by all plaintiffs. (Attachments: # 1 Exh 1 Unicor Contracts, # 2 Exh 2 Admin Claim, # 3 Exh 3 Skinner Decl, # 4 Exh 4 Cullum Decl, # 5 Exh 5 Calderon Decl, # 6 Exh 6 Cisineros Decl, # 7 Exh 7 Samaniego Decl, # 8 Exh 8 Inmate Comm, # 9 Exh 9 Questionnaire, # 10 Exh 10 Toxic Mold Survey, # 11 Exh 11 2nd Mold Survey, # 12 Exh 12 Water lab reports, # 13 Exh 13 Pierce Report, # 14 Exh 14 Dr. Jackson Expertise, # 15 Exh 15 Jackson Report, # 16 Exh 16 Pylori Survey, # 17 Exh 17 Hupp Decl, # 18 Exh 18 Henderson Decl, # 19 Exh 19 Sperry Expertise, # 20 Exh 20 Sperry Report, # 21 Proposed Order)(Sirak, Norman) Modified on 9/21/2009 (mrp, ). (Entered: 09/21/2009)
35 MOTION for Extension of Time to File Response/Reply as to 34 Response in Opposition to Motion,,, by United States of America. (Attachments: # 1 Proposed Order)(Parker, Andrea) (Entered: 09/29/2009)
36 MOTION for Leave to File Excess Pages by United States of America. (Attachments: # 1 Proposed Order)(Parker, Andrea) (Entered: 10/09/2009)
37 REPLY to Response to Motion re 10 MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative MOTION for Summary Judgment MOTION to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the Alternative filed by United States of America. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibits B−G)(Parker, Andrea) (Entered: 10/13/2009)
38 ORDER denying 26 Motion to strike a declaration by Gerhart Bradley and David Miller; and denying 29 Motion to Intervene. Signed by Magistrate Judge Keith F. Giblin on 3/23/10. (pkb, ) (Entered: 03/23/2010)
39 ORDER denying as moot 35 Motion for Extension of Time to File Response/Reply ; granting 36 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Keith F. Giblin on 8/8/10. (pkb, ) (Entered: 08/09/2010)

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03/12/2012 10/09/2013
12/20/2013 01/09/2014 01/09/2014 01/14/2014 03/19/2014 06/26/2014

40 ORDER. It is ordered that this case is administratively closed. The dispositive motion is under active consideration by the court, and the court anticipates that a ruling will be issued shortly. Signed by Magistrate Judge Keith F. Giblin on 3/12/12. (mrp, ) (Entered: 03/12/2012)
Per General Order 13−19 all civil actions pending in the Eastern District of Texas wherein the United States or an agency, corporation, officer or employee of the United States is a party are STAYED. All such cases are stayed until such time as an appropriations bill or a continuing resolution is enacted restoring funding to the Department of Justice.(mjc, ) (Entered: 10/09/2013)
41 REPORT AND RECOMMENDATION OF U. S. Magistrate Judge that the Complaint filed by Austin Demetrius et al., that this lawsuit should be dismissed without prejudice pursuant to FRCP 41(b). Signed by Magistrate Judge Keith F. Giblin on 12/20/13. (mrp, ) (Entered: 12/20/2013)
42 MEMORANDUM ORDER ADOPTING 41 Report and Recommendations. A final judgment shall be entered dismissing this lawsuit. Signed by Judge Marcia A. Crone on 1/8/14. (pkb, ) (Entered: 01/09/2014)
43 FINAL JUDGMENT that the plaintiffs take nothing and that this lawsuit is DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure 41(b). All motions not previously ruled on are denied. Signed by Judge Marcia A. Crone on 1/8/14. (pkb, ) (Entered: 01/09/2014)
44 MOTION for Extension of Time to File Response to 41 Report and Recommendations by Louis Charles Mayes. (mrp, ) (Entered: 01/15/2014)
45 NOTICE of Change of Address to 4458 Tampico Street; Houston, Tx 77016. by Louis Charles Mayes. Docket sheet mailed on 3/19/14. (mrp, ) (Entered: 03/19/2014)
46 ORDER granting 44 Motion for Extension of Time to File Response. Mr. Mayes is allowed an extension of time through 7/15/14 to file the response. Signed by Magistrate Judge Keith F. Giblin on 6/26/14. (mrp, ) (Entered: 06/26/2014)