D.C. No. 1:12-CV-01276-RBJ-BNB (D. Colo.)
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT [*]
Carlos F. Lucero Circuit Judge
James Templeton and David Cowden appeal the district court's dismissal of their 42 U.S.C. § 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Templeton and Cowden are inmates at the Fremont Correctional Facility. In June 2011, both plaintiffs were assigned to a work detail removing tile from an administration building hallway. Prior to initiating this project, General Maintenance Captain Stephen Engle, Sergeant Tom Martin, and Life Safety Coordinator Peter Anderson collected samples of the tile and mastic in the area and understood that the samples did not contain asbestos. Anderson instructed Officer James Chaney on the proper manner of removing the tile, and told him that work should be halted immediately if the crew encountered mastic of any color other than brown.
On June 28, 2011, the second day of work, Templeton noticed black mastic. He alerted Cowden and Chaney at approximately 1:35 p.m. According to Templeton, Chaney told the crew to continue working. Approximately an hour later, Engle and Anderson arrived on the scene and halted work. Anderson had the inmates remove their footwear and contacted a shift commander with instructions to have them shower. Subsequent testing revealed that the black mastic and tile contained up to 8% asbestos. Anderson also ordered air quality tests, which showed asbestos concentrations below trigger levels.
Templeton, Cowden, and the other inmates exposed to the black mastic underwent chest X-rays on July 15, 2011. Templeton's X-ray was normal. A few months later, Templeton requested medical attention for breathing problems. He was found to have irritated eyes, nasal drainage, and a slightly reddened post-nasal pharynx as a result of seasonal allergies. Templeton also repeatedly requested mental health treatment for his fear of developing an asbestos-related ailment, but did not receive such treatment. Cowden's X-ray was mildly abnormal, but the abnormality was not clearly related to asbestos. Prison officials conducted a follow-up X-ray on September 7, 2011, which showed no substantial change, and did not detect any "discre[te] acute infiltrates, " meaning that there was no clear asbestos effect.
In addition to the mastic exposure, Templeton and Cowden claim that on November 29, 2011, they were exposed to asbestos in the glazing of a window that they were ordered to change. They claim that they were ordered to change hundreds of similar windows before that date, and that "Government Officials" knew the glazing contained asbestos.
Templeton, Cowden, and several other inmates filed suit in federal court alleging that numerous prison officials violated their rights under the Eighth Amendment. The district court granted the defendants' motion for summary judgment. Templeton and Cowden timely appealed.
"We review orders granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party." Howard, 534 F.3d at 1235. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Because plaintiffs are proceeding pro se, we construe their filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
To prevail on a claim under § 1983, plaintiffs must show that each defendant personally participated in the deprivation of a constitutional right. See Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). The Eighth Amendment bars prison officials from acting with "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a deliberate indifference claim, a plaintiff must establish both an objective and a subjective component. See Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014).
"The objective prong of the deliberate indifference test examines whether the prisoner's medical condition was sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause. The subjective prong examines the state of mind of the defendant, asking whether the ...