Vega v. SempleVega v. Semple
The Defendants moved to dismiss the complaint, under
This case presents two questions: (1) Whether Defendants are entitled to qualified immunity where they are alleged to have been deliberately indifferent to an unreasonable risk of serious harm to inmates posed by exposure to a toxic substance (here, radon gas), in violation of inmates’ rights under the United States Constitution; and (2) Whether the doctrine of state sovereign immunity prohibits the prospective relief that Plaintiffs seek against Defendants, namely prospective medical screening, monitoring, and treatment, and radon testing and mitigation.
We conclude, like the District Court, that Defendants’ alleged conduct violated clearly established law as of the date of Helling. We also conclude that the District Court erred in failing to dismiss Plaintiffs’ claims for prospective relief for violations of state law, but did not err in declining to dismiss Plaintiffs’ claims for prospective relief for violations of federal law on grounds of sovereign immunity.
Plaintiffs are current and former inmates of the Connecticut Department of Correction (“DOC“) incarcerated within Garner Correctional Institution (“Garner“) who initiated suit in the United States District Court for the District of Connecticut. They purport to bring a class action on behalf of all current and former inmates incarcerated at Garner since the prison opened in 1992, including pre-trial detainees and post-conviction prisoners. A class has not yet been certified. Plaintiffs allege they were “exposed involuntarily to indoor radon gas, a recognized human carcinogen, far in excess of any published safe level” while incarcerated at Garner.1 They contend that Defendants, who are current and former DOC officials, were deliberately indifferent to their safety when building the Garner facility at the Newtown, Connecticut site and by failing to test for or mitigate the alleged radon exposure thereafter.2 Further, Plaintiffs assert that Defendants Dzurenda, Semple, Link, and Falcone were deliberately indifferent to inmate safety by failing to notify inmates that radon testing and remediation were being conducted at Garner during 2013 and 2014, after elevated radon levels were discovered in late 2013.3 Plaintiffs allege that Defendants “knew that inmates housed at Garner from its inception until the installation of the radon
Defendants moved to dismiss the complaint, under
This case presents two questions: (1) Whether Defendants are entitled to qualified immunity where they are alleged to have been deliberately indifferent to a unreasonable risk of serious harm to inmates posed by exposure to a toxic substance (here, radon gas), in violation of inmates’ rights under the United States Constitution; and (2) Whether the doctrine of state sovereign immunity prohibits the prospective relief that Plaintiffs seek against Defendants, namely prospective medical screening, monitoring, and treatment, and radon testing and mitigation.
We conclude, like the District Court, that Defendants’ alleged conduct violated clearly established law as of the date of Helling. We also conclude that the District Court erred in failing to dismiss Plaintiffs’ claims for prospective relief for violations of state law, but did not err in declining to dismiss Plaintiffs’ claims for prospective relief for violations of federal law on grounds of sovereign immunity. Accordingly, we AFFIRM the District Court‘s judgment insofar as it determined that Defendants violated clearly established law as of the date of the Supreme Court‘s decision in Helling v. McKinney, 509 U.S. 25, 29 (1993); AFFIRM in part the District Court‘s judgment insofar as it denied Defendants’ motion to dismiss Plaintiffs’ federal claims for injunctive and declaratory relief; REVERSE in part the District Court‘s judgment insofar as it denied Defendants’ motion to dismiss Plaintiffs’ state-law claims for prospective relief against the official-capacity
I. BACKGROUND7
Plaintiff Harry Vega brings this action on behalf of a putative class (jointly, the “Plaintiffs“) of all current and former post-conviction prisoners and pre-trial detainees at DOC‘s Garner facility in Newtown, from Garner‘s opening in 1992 to the present. Defendants are former and current DOC officials during the same time period.8
Radon gas is a radioactive gas that results from the natural decay of uranium found in most soil and many varieties of rock.9 It is odorless, colorless, imperceptible to the senses, and it is also dangerous to humans.10 It is a known carcinogen and alleged to be the “leading environmental cause of cancer mortality in the United States.”11 It is also alleged to be the leading cause of lung cancer among persons who have never smoked.12
The risks of radon exposure have been known for some time. Congress listed radon as a toxic substance in 1988.13 Not surprisingly, the World Health Organization (“WHO“) and U.S. Environmental Protection Agency (“EPA“) recommend that homes be tested for radon gas. Although radon may be dangerous to humans in any quantity, the EPA sets its “action level” for indoor radon exposure at 4.0 pCi/L, a measurement of the radon concentration in the air.14 The EPA recommends that home dwellers take steps to mitigate radon
B.
In 1988, the DOC announced its plan to construct a prison facility in Newtown, CT that would become Garner; it was opened on November 17, 1992.18 According to the EPA and the U.S. Geological Survey, which “evaluated the radon potential in the United States and developed a Map of Radon Zones to assist national, state and local organizations and building code officials in deciding whether radon-resistant features should be applicable to new construction[,]” Newtown, CT is located in “Zone 1- Highest Potential (greater than 4.0
Plaintiffs allege that Defendant Meachum, who was responsible for site selection and construction of the Garner facility, and Defendant Batten, who advised Meachum about the site, knowingly decided to have Garner built in an area where the radon levels would likely exceed the EPA action level if no mitigation system were implemented.20 Meachum decided to construct Garner on top of what was formerly a waste site for a different Connecticut facility. Because radon in the ground can enter a building through small cracks in the foundation, and because the former waste site rendered Garner‘s foundation vulnerable to cracking, the prison site was particularly vulnerable to radon gas seepage.
Plaintiffs maintain that they were involuntarily exposed to excessive levels of radon in violation of their constitutional rights. They allege Meachum acted with deliberate indifference to inmate safety and violated their constitutional rights by building Garner in a high-risk area for radon exposure without installing any radon mitigation systems.21 They also claim that Defendants were
In addition to the allegations that Garner was constructed on a site likely to present a greater risk of radon exposure, Plaintiffs point to a series of incidents throughout Garner‘s history that, in their view, are probative on the issue of whether Defendants were aware of a substantial risk of serious harm of radon exposure.
Plaintiffs allege that Garner‘s heating, ventilation, and air conditioning (“HVAC“) system, which was installed in part to help circulate fresh air throughout the prison facility, was inadequate from its inception.23 The original HVAC was inadequate for the size of Garner, and the replacement HVAC did not circulate fresh air year-round, as contemplated by the original system specifications. That failure further increased the risk of radon exposure in Garner.24
Plaintiffs also allege that, in the fall of 1996, a Connecticut Department of Public Health survey, which tested well water in Newtown, revealed high levels of radon in the water. Plaintiffs allege that these high radon levels and the health risks presented were widely publicized.25 Additionally, Plaintiffs allege that test results
C.
Garner was not, however, tested for radon gas until 2013, and even then, testing was only limited to the facility‘s classroom area. Garner offers educational programs to inmates and has classrooms designated for that purpose on the second floor of the facility. Pursuant to Connecticut General Statute § 10-220(d)(2), public schools in the state must be specifically tested for radon.28 In 2013, a non-
Following the school-area testing and discovery of undesirable radon levels at Garner, Defendants promptly began to address the problem of radon exposure in that limited area. On March 13, 2014,
Although DOC employees were informed of the elevated radon levels, this information was not shared with the inmates.36 Defendants Semple, Dzurenda, Falcone, Link, as well as Does 1–3,37 were informed that follow-up testing was needed beyond only the school area that was tested, but they allegedly made the deliberate choice that the cell blocks where inmates are housed would not be tested.38 Plaintiffs allege that this choice was made because state law would have
Defendants acted promptly in attempting to remedy the radon levels in those areas that were tested. A May 2, 2014 e-mail indicates that Defendant Link had received a draft remediation design for Garner.40 Bids were entertained for the installation contract, and on October 10, 2014, the emergency radon mitigation system was completed. Plaintiffs allege that this mitigation system was only designed to mitigate the tested areas, which excluded the cell block where inmates are housed. Accordingly, Plaintiffs aver that the mitigation system was intentionally designed so as not to remedy excessive radon gas in the cell blocks.41 Plaintiffs maintain that Defendants acted with deliberate indifference to their serious medical needs in failing to notify them that elevated radon levels were detected and in failing to mitigate allegedly dangerous levels of radon in the cell blocks.
D.
In February 2017, Plaintiffs filed this action, captioned Cruz v. Semple, 3:17-cv-0348 (JBA).42 On July 24, 2017, Judge Arterton held a
Plaintiffs filed their amended complaint, which is now before us on appeal.45 They allege violations of the Eighth and Fourteenth Amendments to the United States Constitution (Count One), and violations of the Connecticut Constitution, Article First, Section Eight (Count Two).46 They seek monetary damages and prospective relief in the form of an injunction compelling radon testing in Garner, medical
Defendants moved to dismiss the amended complaint (hereinafter, “the complaint“), arguing that they are entitled to qualified immunity on the damages claim and to sovereign immunity on the injunction claim. With regard to the qualified immunity defense, Defendants do not argue that Plaintiffs’ claims cannot amount to constitutional violations; rather, they argue only that at relevant times there was no clearly established law that they violated through their actions or inaction.47
During the pendency of this action before the District Court, Defendants filed a notice of supplemental authority on June 29, 2018, including an administrative directive from the Connecticut DOC requiring correctional facilities to develop procedures for, among other things, detection of radon.48 The policy did not go into effect until June 29, 2018, the day the supplemental authority was filed with the District Court. The District Court allowed both Plaintiffs and Defendants to file supplemental authority and briefing regarding the new directive.
This timely appeal by Defendants followed.
DISCUSSION
II. The Damages Claim Against Individual-Capacity Defendants
Defendants challenge the denial of their motion to dismiss on grounds of qualified immunity for conduct occurring after the Supreme Court‘s decision in Helling, issued on June 18, 1993.
A. Standard of Review
Because we are presented with a question of law, the District Court‘s denial of qualified immunity presents a final reviewable order.51 We review a denial of qualified immunity de novo.52 Having presented their immunity defense on a
B. Qualified Immunity
The Supreme Court has instructed that “[q]ualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”56 To strike the proper balance, the doctrine of qualified immunity protects government officials from suits brought against them in their individual capacity for money damages where their conduct does “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”57
Accordingly, “[q]ualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
The Defendants in this appeal have staked their defense on the second step. For the purposes of their motion to dismiss in the District Court, the Defendants merely asserted that they had not violated any clearly established law; they did “not disput[e] . . . that the plaintiffs’ alleged conditions of confinement at Garner . . . amounted to or could amount to a constitutional violation.”59 Accordingly, the District Court considered only the second step—whether the right was clearly established at the relevant times pleaded in the complaint. Like the District Court, our inquiry is only as to whether the Defendants violated clearly established law.60
C. Conditions of Confinement Claims – “Deliberate Indifference”
The putative class in this case includes both post-conviction prisoners and pre-trial detainees. The former bring suit under the
To state a claim under the
To state a claim of deliberate indifference under the Due Process Clause of the
Plaintiffs have alleged that, from Garner‘s inception until the installation of the radon mitigation system in October 2014, Defendants knew that inmates housed at Garner faced substantial risk of serious harm from indoor radon exposure and that Defendants disregarded that risk by failing to take reasonable measures to abate it.66 At this stage in the litigation, we must assume these factual allegations are true.
Defendants argue that Plaintiffs are trying to press claims for negligence and that a failure to discover radon is not actionable under the
Inasmuch as we assume on this appeal that Plaintiffs have sufficiently alleged violations of their constitutional rights, we turn to the question of whether the Defendants violated clearly established law.
D. Whether Defendants Violated “Clearly Established” Law
“A Government official‘s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”68 It is understood that this analysis is undertaken to “ensure that the official being sued had fair warning that his or her actions were unlawful.”69 Because we assess the official‘s conduct at the time it is alleged to have occurred,
Though the rule is stated simply enough, the application of the rule often presents challenges. As Dean John C. Jefferies, Jr. has commented, “determining whether an officer violated ‘clearly established’ law has proved to be a mare‘s nest.”71 Defining the precise right at issue poses a “chronic difficulty” for courts.72 By framing the relevant right too narrowly, we may unduly permit officials to escape liability; by framing the relevant right too generally, however, we risk allowing plaintiffs “to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”73
On the one hand, “the clearly established right must be defined with specificity.”74 Indeed, the Supreme Court instructs courts that “[t]he dispositive question is whether the violative nature of particular conduct is clearly established,” and that “[t]his inquiry must be undertaken in light of the specific context of the case, not as a
In attempting to determine the right at issue here, the District Court turned to a Supreme Court case decided in 1993, Helling v. McKinney.77 In Helling, the plaintiff alleged that defendant prison officials housed him with a cellmate who smoked five packs of cigarettes per day, and that officials permitted cigarettes to be sold to inmates without proper warnings regarding the hazard of tobacco smoke.78 Even though the plaintiff had not developed health complications from exposure to environmental tobacco smoke (“ETS“), he maintained that the officials’ actions manifested deliberate indifference to the serious health risks to which they exposed him in violation of the
The District Court concluded that Helling established a prisoner‘s right to be free from toxic environmental substances that, like ETS, posed an unreasonable risk of some future harm. Accordingly, the District Court denied Defendants qualified immunity for conduct alleged to have occurred after Helling, decided on June 18, 1993, finding the right to be clearly established as of that date.
On de novo review, we hold the same: as of June 18, 1993, reasonable officials were on notice that deliberate indifference to Plaintiffs’ excessive exposure to radon, then a known toxic environmental substance, violated their
Reasonable officials had such “fair notice”81 as of that date because of Helling‘s clear pronouncement: inmates exposed to toxic substances did not need to wait to get sick to file a lawsuit; they did
But in what context would a reasonable official know that right to be violated? This court has stated that “after Helling it was clearly established that prison officials could violate the
But what about radon exposure? Were the “contours of the right” in Helling “sufficiently clear that a reasonable officer would understand” that deliberate indifference to radon exposure “violates that right” as well?85
The answer is “yes.” As the District Court concluded: “[i]f anything, knowing or reckless exposure of prisoners to radon, given the facts alleged by Plaintiffs, is more obviously unconstitutional than
Given that we have found the contours of rights to be defined by similar sources—such as the right to be free from friable asbestos, which originated in decisional law but was given definition by, among other things, Clean Air Act regulations88—we agree with the District Court that the right at issue here was clearly established as of 1993. If a reasonable officer was aware of the future risk of ETS by that point, then surely a reasonable officer would have been aware of the future risk of a known carcinogen like radon.
This conclusion extends with even more force to the allegations of deliberate indifference after 2014, when Defendants implemented a partial radon mitigation system in the classroom area of Garner. Plaintiffs have alleged that the mitigation system installed in 2014 was
E. Defendants’ Arguments
Defendants raise three principal arguments challenging the conclusion that they violated clearly established law at any time. We address each in turn, and we reject all as without merit.
i.
First, Defendants argue that they are entitled to qualified immunity on the basis that no binding decision discusses the constitutional implications of radon exposure to inmates. Essentially, they argue that qualified immunity must be granted absent binding precedent that addresses the very same carcinogen in this case. The
ii.
Defendants next argue that the District Court erred by relying on statutes, not case law, in partially denying qualified immunity. We disagree. While “[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision,”93 we have previously held that “we may examine statutory or administrative provisions in conjunction with prevailing circuit or Supreme Court law to
The District Court did not rely exclusively on any alleged violation of statutes or regulations to determine that Defendants had violated clearly established rights. Rather, the District Court relied on the binding case law in Helling and this Circuit‘s decision in LaBounty v. Coughlin, recognizing a prisoner‘s right to be free from exposure to friable asbestos,95 to establish the contours of the right. In conjunction with those cases, it referred to regulations and statutes provided in the complaint to bolster the conclusions that radon is a dangerous carcinogen; that society is unwilling to tolerate the risks accompanying certain levels of radon exposure; and that such risks are—and have been since 1988—well known. Both the Supreme Court and this Court have similarly considered statutes as part of the qualified immunity analysis.96 Moreover, our decision also relies on our binding decisional
iii.
Third, Defendants argue that the denial of their qualified immunity motion is inconsistent with the Supreme Court‘s decision in Taylor v. Barkes.98 We think that Taylor is distinguishable and does not preclude our ruling on qualified immunity.
In Taylor, the plaintiffs, including the widow of a deceased prisoner named Christopher Barkes, alleged that the defendants-officials failed to properly supervise medical contractors in the prison they oversaw, and thus failed to ensure that those contractors undertook necessary suicide screenings of incoming prisoners like Barkes, who ultimately took his own life. This failure, plaintiffs alleged, amounted to an
The Third Circuit agreed, defining the specific right at issue as the “right to the proper implementation of adequate suicide
But the Supreme Court reversed, concluding that no decision of the Supreme Court, nor the weight of circuit precedent, nor Third Circuit precedent, clearly established “a right to the proper implementation of adequate suicide prevention protocols.”100
A brief recitation of the facts in that case helps clarify how it is distinct from the allegations in this appeal. The prison in Taylor contracted with a private vendor to provide suicide prevention screening during inmate intake in accordance with standards published by the National Commission on Correctional Health Care (“NCCHC“) in 1997 and revised in 2003.101 Barkes alleged that the vendor failed to properly implement those standards and failed to implement NCCHC‘s 2003 revisions. However, NCCHC accredited the prison approximately one year before Barkes‘s suicide.102 Indeed, Barkes was screened at intake in 2004 for suicide risk by a licensed
In reversing the Third Circuit‘s denial of qualified immunity, the Supreme Court first emphasized that Third Circuit precedent had not “identif[ed] any minimum screening procedures or prevention protocols that facilities must use.”104 To highlight that point, the Supreme Court noted that in the case on which the Third Circuit relied in denying qualified immunity, the court ruled for defendants on all claims, despite the fact that the “booking process of the jail at issue included no formal physical or mental health screening.”105 Accordingly, the Supreme Court concluded that no case gave fair warning to officials that their existing risk mitigation regime, even with its alleged deficiencies, was constitutionally deficient.
And so, the Supreme Court did not address the distinct possibility that complete inaction in the face of a risk to a prisoner‘s health—or complete indifference to that risk once it was known—could be unreasonable, in violation of a prisoner‘s clearly established constitutional rights.
With that in mind, we see no difficulty in appreciating the difference between the present appeal and Taylor. In this case, Plaintiffs have alleged that prior to 2014, Defendants failed to take any steps to mitigate the substantial risk of excessive radon exposure.106 Unlike Taylor, where there was a risk-mitigation system in place that allegedly should have been better, the Plaintiffs here complain that Defendants took no action whatsoever. Worse still, Plaintiffs here plausibly allege that Defendants had knowledge of the radon exposure risk and still failed to act. Taylor granted immunity to prison guards who took some effort to remediate the health risks of the prisoners they
* * *
In sum: Plaintiffs have alleged that from Garner‘s inception, Defendants had knowledge of an unreasonable risk of serious harm to the inmates’ health, namely excessive radon exposure, and that Defendants were deliberately indifferent in failing to take any
Defendants also appeal the denial of their motion to dismiss Plaintiffs’ claims for injunctive and declaratory relief. They argue that these claims are barred by state sovereign immunity under the
Our review of a district court‘s denial of a motion to dismiss based on a claim of
A. Sovereign Immunity
Absent proper Congressional abrogation or State waiver, the
Plaintiffs seek two forms of injunctive relief: (1) individual medical screening, monitoring, and treatment; and (2) facility radon testing and mitigation.115 Defendants contend that the first category of
B. Retrospective versus Prospective Relief
i.
We turn first to Defendants’ argument that Plaintiffs’ claims for medical screening, monitoring, and treatment seek impermissible retrospective relief. In doing so, we look to the substance rather than to the form of the relief sought.116 As a result, relief that is “tantamount to an award of damages for a past violation of federal law, even though styled as something else,” is barred.117 Importantly, however, “relief that serves directly to bring an end to a present violation of federal law
Plaintiffs have alleged that they are entitled to baseline x-rays and prospective medical monitoring and treatment as a function of their
Defendants are correct, however, in arguing that this prospective relief cannot be granted to those putative class members who are not currently incarcerated, as there is no ongoing violation of
ii.
We next address Defendants’ argument that Plaintiffs’ request for facility testing and mitigation fail as a function of their failure to allege a continuing violation of federal law. During the pendency of their motion to dismiss, Defendants filed a notice of supplemental authority with the District Court that reflected a new DOC administrative directive, which requires radon testing and mitigation in corrections facilities throughout Connecticut.121 Defendants contend these new policies remedy any alleged ongoing violation of federal law stated in the complaint. The District Court rejected that argument and so do we.
We agree with the District Court that given “the long history of alleged cover-up and failure to remediate radon,” Plaintiffs’ allegations of an ongoing violation of federal law were not speculative.122 Even if we were to take “judicial notice of the newly-announced DOC directive on radon testing, the result or impact of this directive remains for discovery, and, on a fully developed record, a
C. The Pennhurst Doctrine
Finally, Defendants contend that the injunctive relief sought in the complaint is barred by Pennhurst State School & Hospital v. Halderman.124 In Pennhurst, the Supreme Court held that sovereign immunity prohibits federal courts from entering injunctions against state officials on the basis of state law, notwithstanding the Ex parte Young exception to sovereign immunity with respect to violations of federal law.125
Plaintiffs seek prospective relief—in the form of medical screening, monitoring, and treatment, and radon testing and mitigation—to remedy alleged violations of both federal and state law.126 In response, Defendants press two arguments. First, they argue that the Pennhurst doctrine prohibits Plaintiffs’ prayer for prospective relief for violations of federal law because Plaintiffs point to Connecticut law in discussing the federal constitutional standard allegedly violated. Second, Defendants argue that the Pennhurst doctrine requires dismissal at least of those claims for injunctive relief
Defendants’ first point is unavailing. Plaintiffs allege deliberate indifference to their serious medical needs in violation of federal law. As the District Court correctly observed, Plaintiffs “cite state standards merely as evidence that helps inform the
Defendants’ second point, however, has merit. The
To the extent Plaintiffs seek prospective relief against Defendants in their official capacity for violations of the “Connecticut Constitution” and “state law,”130 those claims are indeed barred by the
III. CONCLUSION
To summarize, we hold as follows:
- (1) As of the date of the Supreme Court‘s decision in Helling (June 18, 1993), reasonable officials would recognize that a failure to take any reasonable steps to abate the risk of excessive radon exposure, of which risk they were actually aware, would constitute deliberate indifference to a serious medical need that violated inmates’ clearly established
Eighth Amendment rights; - (2) Installing a radon mitigation system that was intentionally designed or installed in a manner that caused it to not address the risk of excessive radon exposure in the area where inmates are housed does not constitute a reasonable measure to abate that allegedly known risk;
(3) In light of the Pennhurst doctrine, the District Court erred in failing to dismiss Plaintiffs’ claims for prospective relief for violations of state law; and - (4) The District Court did not err in denying Defendants’ motion to dismiss on grounds of sovereign immunity Plaintiffs’ claims for prospective relief for violations of federal law.
Accordingly, we AFFIRM the District Court‘s judgment insofar as it determined that Defendants violated clearly established law as of the date of the Supreme Court‘s decision in Helling v. McKinney, 509 U.S. 25, 29 (1993); AFFIRM in part the District Court‘s judgment insofar as it denied Defendants’ motion to dismiss Plaintiffs’ federal claims for injunctive and declaratory relief; REVERSE in part the District Court‘s judgment insofar as it denied Defendants’ motion to dismiss Plaintiffs’ state-law claims for prospective relief against official-capacity defendants; and REMAND the cause to the District Court for further proceedings consistent with this opinion, including supervised discovery as to the DOC‘s recent radon-mitigation directive and the Defendants’ knowledge of the radon risk alleged—see e.g., notes 63, 67, 90, 108, and 122—and, thereafter, such summary judgment motions as may be appropriate under the circumstances.
Notes
Prior to January 1, 2008, and every five years thereafter, for every school building that is or has been constructed, extended, renovated or replaced on or after January 1, 2003, a local or regional board of education shall provide for a uniform inspection and evaluation program of the indoor air quality within such buildings, such as the Environmental Protection Agency‘s Indoor Air Quality Tools for Schools Program. The inspection and evaluation program shall include, but not be limited to, a review, inspection or evaluation of the following: . . . (2) radon levels in the air.
(1) “comprehensive baseline medical examination of all class members – including either a chest X-ray or pulmonary CAT Scan, the determination of which shall be made by a medical provider knowledgeable about radon toxicity and based on that class member‘s individual health history;”
(2) “medical monitoring, including but not limited to periodic comprehensive physical examinations, and updated chest X-rays and/or a pulmonary CAT Scan, the determination of which shall be made by a medical provider knowledgeable about radon toxicity and based on that class member‘s individual health history;” and
(3) “follow-up health care treatment for all diagnosed medical conditions as have been previously identified, or may in the future be identified, with exposure to radon by one or more of these entities: the federal Environmental Protection Agency; the National Research Council of the National Academy of Sciences; the National Cancer Institute; the American Medical Association; and the World Health Organization. At this time, those medical conditions include lung cancer and chronic, nonmalignant lung diseases such as chronic obstructive pulmonary disease (COPD), emphysema, chronic interstitial pneumonia and pulmonary fibrosis.”
Id. at 42, ¶¶ 4–6. Plaintiffs also seek widespread testing for radon throughout the Garner facility and possible expenditure of state funds for mitigation or remediation systems in addition to those already conducted and installed in 2013 and 2014. Id. ¶ 3.