Carroll, Ronnie W. v. DeTella, George E. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1281
Ronnie W. Carroll,
Plaintiff-Appellant,
v.
George E. DeTella, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2443--Harry D. Leinenweber, Judge.
Submitted May 3, 2001--Decided July 3, 2001
Before Fairchild, Bauer, and Posner,
Circuit Judges.
Posner, Circuit Judge. The plaintiff, a
long-time Illinois prison inmate with
extended sojourns at Stateville and
Menard, brought this suit under 42 U.S.C.
sec. 1983 for damages and injunctive
relief against Illinois prison officials
and the Illinois Environmental Protection
Agency and two of its employees. He
claims that the drinking water at
Stateville is contaminated with radium
and the drinking water at Menard with
lead. The district court granted summary
judgment for the defendants. The Illinois
EPA is a state agency and thus not a
"person" suable under section 1983, Will
v. Michigan Dept. of State Police, 491
U.S. 58, 71 (1989); Arsberry v. Illinois,
244 F.3d 558, 561 (7th Cir. 2001), and
its two employees were not served. The
plaintiff’s complaint about the lead in
the water at Menard can also be disposed
of quickly. The record establishes that
the presence of lead in the water is due
to the corrosion of the water pipes,
which are made of lead that dissolves in
the water--but only when the water is
still, as it is overnight, when no one is
using it. When the water is flowing, the
lead in the pipes does not dissolve. So
the plaintiff was told to let the water
run for a few minutes in the morning
before drinking it, which eliminates the
hazard, though it is only an interim
precaution while the prison arranges to
have the pipes treated or replaced. All
this is remote from cruel and unusual
punishment.
The radium at Stateville presents a more
difficult question. Since 1988, when he
first became an inmate of the Illinois
prison system, the plaintiff has spent a
total of almost four years at Stateville.
In 1993, in response to complaints made
by inmates to the Illinois EPA concerning
the quality of the drinking water, the
warden assured the inmates that it was
safe--yet three days later the prison
began providing its employees with
bottled water free of charge to allay
their concerns about the safety of the
prison’s water. Three years later, in
response to the plaintiff’s inquiry, the
Illinois EPA told him that the water
contained radium in excess of the maximum
level set by the federal EPA. That level,
for the combination of radium isotopes
involved (radium 226 and radium 228), is
5 pCi/l (picocuries per liter). 40 C.F.R.
sec. 141.15. The level in Stateville’s
water was almost twice that. The
plaintiff requested the prison to supply
him with bottled water free of charge,
but it refused. It was for sale in the
prison commissary but the plaintiff
claims that he can’t afford to buy it.
The following year, 1998, the Illinois
EPA told the plaintiff that while
Stateville’s water supply continued to
exceed the federal maximum and that 80
other Illinois water systems had a
similar problem (though how similar--that
is, what the level of radium in those
communities’ water is--is not indicated),
no remedial action would be taken because
the federal EPA was considering raising
the maximum level from 5 pCi/l to 20
pCi/l and at that level the concentration
of radium in Stateville’s water would be
well below the maximum. So far as we
know, the EPA has not yet raised the
level and so Stateville’s water continues
to contain a level of radium that exceeds
the federal maximum. There is some
medical evidence that a person who
ingested 5 pCi/l of radium 226 plus
radium 228 for 70 years would have a
1/10,000th higher risk of cancer; the
record contains no evidence on the
hazards if any of ingesting twice that
level of radium for four years.
Poisoning the prison water supply or
deliberately inducing cancer in a
prisoner would be forms of cruel
andunusual punishment, and might be even
if the harm was probabilistic or future
rather than certain and immediate,
Helling v. McKinney, 509 U.S. 25 (1993).
But failing to provide a maximally safe
environment, one completely free
frompollution or safety hazards, is not.
McNeil v. Lane, 16 F.3d 123, 125 (7th
Cir. 1994); Steading v. Thompson, 941
F.2d 498 (7th Cir. 1991); Harris v.
Flemming, 839 F.2d 1232, 1235-36 (7th
Cir. 1988); Clemmons v. Bohannon, 956
F.2d 1523, 1527 (10th Cir. 1992) (en
banc). Many Americans live under
conditions of exposure to various
contaminants. The Eighth Amendment does
not require prisons to provide prisoners
with more salubrious air, healthier food,
or cleaner water than are enjoyed by
substantial numbers of free Americans.
McNeil v. Lane, supra, 16 F.3d at 125;
Givens v. Jones, 900 F.2d 1229, 1234 (8th
Cir. 1990). It would be inconsistent with
this principle to impose upon prisons in
the name of the Constitution a duty to
take remedial measures against pollution
or other contamination that the agencies
responsible for the control of these
hazards do not think require remedial
measures. If the environmental
authorities think there’s no reason to do
anything about a contaminant because its
concentration is less than half the
maximum in a proposed revision of the
existing standards, prison officials
cannot be faulted for not thinking it
necessary for them to do anything either.
They can defer to the superior expertise
of those authorities.
The fact that the prison gave bottled
water free of charge to its own staff
does not show an awareness of a
substantial hazard. If an employee has an
irrational fear, that is nevertheless a
brute fact that the employer has to take
into account lest the employee quit or
demand a higher wage to compensate him
for bearing the supposed hazard. It is no
proof that the employer shares the fear.
Prison officials do not demonstrate that
deliberate indifference to the inmates’
welfare which is the sine qua non of
cruel and unusual punishment when they
refuse to take measures against hazards
that they reasonably believe to be
nonexistent or slight.
If the prison authorities are violating
federal antipollution laws, the plaintiff
may have a remedy under those laws. See,
e.g., 42 U.S.C. sec. 9659; Schalk v.
Reilly, 900 F.2d 1091, 1094-95 (7th Cir.
1990); Clinton County Comm’rs v. EPA, 116
F.3d 1018, 1024-25 (3d Cir. 1997) (en
banc); Conservation Law Foundation v.
Reilly, 950 F.2d 38, 40 (1st Cir. 1991).
His remedy is not under the Eighth
Amendment.
Affirmed.