18-3176-pr
Vega v. Semple




                               In the
             United States Court of Appeals
                     for the Second Circuit


                         AUGUST TERM 2019

                           No. 18-3176-pr

                           HARRY VEGA,
                          Plaintiff-Appellee,

     Michael Cruz, on behalf of themselves and all others similarly
     situated, Kenya Brown, On behalf of themselves and all others
   similarly situated, Jeffrey Perry, On behalf of themselves and all
 others similarly situated, Lee Grenier, On behalf of themselves and
all others similarly situated, Tavorus Fluker, On behalf of themselves
     and all others similarly situated, Anthony Rogers, On behalf of
    themselves and all others similarly situated, Thomas Marra, On
     behalf of themselves and all others similarly situated, Terrence
  Easton, On behalf of themselves and all others similarly situated,
   Lamont Samuel, On behalf of themselves and all others similarly
situated, Ian Cooke, On behalf of themselves and all others similarly
     situated, J. Michael Farren, Lawrence Townsend, On behalf of
themselves and all others similarly situated, John Bosse, On behalf of
               themselves and all others similarly situated,
                     Consolidated-Plaintiffs - Appellees,



                                  v.
 SCOTT SEMPLE, Commissioner of Correction, in their individual and
    official capacities *; JAMES DZURENDA, former Commissioner of
  Correction, in their individual and official capacities; LEE ARNONE,
 former Commissioner of Correction, in their individual and official
           capacities; THERESA LANTZ, former Commissioner
    of Correction, in their individual and official capacities; JAMES
ARMSTRONG, former Commissioner of Correction, in their individual
 and official capacities; LAWRENCE MEACHUM, former Commissioner
    of Correction, in their individual and official capacities; HENRY
      FALCONE, Warden, Garner Correctional Institution, in their
individual and official capacities; STEVEN LINK, Director, Department
    of Correction Engineering and Facilities Management, in their
  individual and official capacities; DAVID BATTEN, former Director,
Department of Correction Engineering and Facilities Management, in
                 their individual and official capacities,
                            Defendants-Appellants,

                               JOHN DOES, 1-3,
                                 Defendants.



            On Appeal from the United States District Court
                   for the District of Connecticut



                         ARGUED: OCTOBER 31, 2019
                          DECIDED: JUNE 29, 2020

       * Scott Semple no longer holds this office. He has been replaced by Rollin
Cook, who is automatically substituted as the official-capacity party. See Fed. R.
Civ. P. 25(d); Fed. R. App. P. 4(c)(2).




                                        2
Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, Judge. †




      Plaintiffs are current and former inmates of the Connecticut
Department of Correction 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 ever 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. They claim Defendants, who are
Department of Correction officials, were deliberately indifferent to
inmate safety in building the Garner facility at the Newtown,
Connecticut site and in failing to test for, or to remediate, the alleged
radon exposure thereafter.

      The Defendants moved to dismiss the complaint, under Fed. R.
Civ. P. 12(b)(1) and (6), on grounds of qualified immunity and
Eleventh Amendment sovereign immunity. The District Court (Janet
Bond Arterton, Judge) framed the right at issue by holding that
“reasonable prison officials were on notice that they could not


      †  Judge Edward R. Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.




                                     3
knowingly or recklessly subject prisoners in their custody to toxic
substances that pose a serious risk of harm.” The District Court
concluded that Defendants’ alleged conduct violated clearly
established law as of the date of the Supreme Court’s decision in
Helling v. McKinney, 509 U.S. 25, 29 (1993). Accordingly, it granted
Defendants’ motion to dismiss on qualified immunity grounds with
respect to conduct alleged to have occurred prior to Helling and denied
the motion with respect to conduct alleged to have occurred after
Helling. The District Court also denied Defendants’ motion to dismiss
Plaintiffs’ claims for prospective relief on grounds of Eleventh
Amendment sovereign immunity.

      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.




                                    4
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
defendants; and REMAND the cause to the District Court for further
proceedings consistent with this opinion.




                         STEPHEN R. FINUCANE, Assistant Attorney
                         General, for William Tong, Attorney General
                         of Connecticut, Hartford, CT, for Defendants-
                         Appellants.

                         LORI WELCH-RUBIN (Martin Minnella, on the
                         brief), Minnella, Tramuta & Edwards, LLC,
                         Middlebury, CT, for Plaintiffs-Appellees.

                         Alexander A. Reinert, Benjamin N. Cardozo
                         School of Law, New York, NY, for Amicus
                         Curiae Human Rights Defense Center.




                                  5
JOSÉ A. CABRANES, Circuit Judge:

      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


      1   Plaintiffs’ Amended Complaint (“Am. Compl.”) ¶¶ 1, 41, 46.
      2   Id. ¶¶ 1, 90–96, 98, 103, 110–11, 114, 135–36.
      3   Id. ¶¶ 140, 142–43, 146–47, 150–53, 157–61.




                                           6
mitigation system in October 2014 faced substantial risk of serious
harm from indoor radon exposure, and disregarded that risk by failing
to take reasonable measures to abate it.” 4 They also allege that the
mitigation system installed in 2014 was intentionally designed so as
not to remedy the risk of excessive radon exposure prisoners faced in
the area of Garner where inmates are housed.5

      Defendants moved to dismiss the complaint, under Fed. R. Civ.
P. 12(b)(1) and (6), on grounds of qualified immunity and Eleventh
Amendment sovereign immunity. The District Court (Janet Bond
Arterton, Judge) framed the right at issue by holding that “reasonable
prison officials were on notice that they could not knowingly or
recklessly subject prisoners in their custody to toxic substances that
pose[] a serious risk of harm.” 6 It concluded that Defendants’ alleged
conduct violated clearly established law as of the date of Helling v.
McKinney, 509 U.S. 25 (1993), in which the Supreme Court held that an
inmate can state a claim under the Eighth Amendment by alleging that
prison officials have, with deliberate indifference, exposed him to
levels of environmental tobacco smoke that pose an unreasonable risk
of serious damage to his future health. Accordingly, it granted
Defendants’ motion to dismiss on qualified immunity grounds with
regard to conduct alleged to have occurred prior to Helling and denied
the motion with regard to conduct alleged to have occurred after


      4   Id. ¶ 136.
      5   Id. ¶ 46(A).
      6   Special Appendix (“SA”) at 12.




                                           7
Helling. It also denied Defendants’ motion to dismiss Plaintiffs’ claims
for prospective relief on grounds of state sovereign immunity.

      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




                                    8
defendants; and REMAND the cause to the District Court for further
proceedings consistent with this opinion.

                             I.     BACKGROUND 7

       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



       7 The following facts are drawn from the Plaintiffs’ Amended Complaint.
For the purposes of this appeal, we assume the truth of Plaintiffs’ factual
allegations. See Edrei v. Maguire, 892 F.3d 525, 529 (2d Cir. 2018).
       8 As of August 16, 2017, the date that the operative complaint was filed, the
Defendants are described as follows: Defendant Scott Semple (“Semple”) has
served as the Commissioner of DOC since August 2014; from mid-2009 through
November 26, 2013, Semple was the Warden at Garner, after which time he was
promoted to Deputy Commissioner for Operations. Defendant James Dzurenda
(“Dzurenda”) served as Warden at Garner from 2005 to 2009, and was Deputy
Commissioner for Operations from July 2010 to April 2013, when he became
Commissioner. Defendant Leo Arnone was the Commissioner of DOC from 2010
to 2013. Defendant Theresa Lantz was the Commissioner of DOC from 2003 to 2009.
Defendant James Armstrong was the Commissioner of DOC from 1995 to 2003.
Defendant Lawrence Meachum (“Meachum”) was the Commissioner of DOC from
1987 to 1995. Defendant Henry Falcone (“Falcone”) has been the Warden at Garner
since March 7, 2014; Defendant Falcone became a captain when he was first
assigned to Garner in 2006; he thereafter was promoted to Deputy Warden at
Garner in 2011. Defendant Steven Link (“Link”) is the Director, Department of
Correction Engineering and Facilities Management for DOC. Defendant David
Batten (“Batten”) was the former Director, Department of Correction Engineering
and Facilities Management during times that inmates were exposed to radon.




                                         9
                                    A.
      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




      9   Am Compl. ¶ 72.
      10   Id. ¶ 73.
      11   Id. ¶ 76.
      12   Id. ¶ 83.
      13   Id. ¶ 88.
      14  Defendants-Appellants’ Appendix (“A.”) at 156. pCi/L stands for
picocuries per liter of air. See Am. Compl. ¶ 153.




                                    10
exposure until tests read below that “action level” measurement. 15 The
WHO recommends a lesser action level of 2.7 pCi/L, in part because
indoor exposure to radon at 4.0 pCi/L is equivalent to smoking eight
cigarettes per day. 16 Indeed, the risk of lung cancer rises sixteen
percent with every 2.7 pCi/L increase in radon exposure. 17 Put simply,
radon is a silent but known killer.

                                      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




      15   A. at 157.
      16   Am. Compl. ¶ 138.
      17   Id. ¶ 84.
      18   Id. ¶¶ 90–91.




                                      11
pCi/L) . . . .” 19 That designation refers to the average short-term radon
measurement in a building without radon mitigation systems.

      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




      19   Id. ¶ 93.
      20   Id. ¶¶ 82, 90–92, 94.
      21   Id. ¶ 99.




                                   12
deliberately indifferent to inmate safety in failing to test for or mitigate
radon exposure thereafter. 22

      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


      22   Id. ¶¶ 1, 90-96, 98, 103, 110-114, 135-136.
      23   Id. ¶ 101.
      24   Id.
      25   Id. ¶ 106.




                                            13
publicly released in 2001 revealed that a Newtown school that shared
a water well with Garner had elevated uranium levels, approximately
eight times greater than the EPA guideline for uranium in drinking
water; it bears recalling that radon results from the natural decay of
uranium. 26 Plaintiffs further allege that, around this time, Defendants
managing Garner temporarily closed the facility’s water supply on
false pretenses, banned showers, and provided the inmates with
bottled water. 27

                                          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-


      26   Id. ¶ 112.
      27   Id. ¶ 115.
      28   Connecticut General Statute 10-220(d) provides in relevant part that:

                 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




                                          14
inmate teacher at Garner requested that the classroom area of the
facility be tested for radon pursuant to that statute. Following this
request, Garner’s school area was tested for radon in December 2013
and early 2014. As discussed in greater detail below, Plaintiffs allege
that Defendants tested only the school area and that the cell blocks
were intentionally not tested for radon. 29 Of those areas that were
tested, the results varied by location, between measurements of 5.0
pCi/L to 23.7 pCi/L. 30 Exposure to indoor radon at 10.0 pCi/L is
equivalent to smoking more than 1 pack of cigarettes a day; and
exposure to indoor radon at 20.0 pCi/L is equivalent to smoking more
than 2.5 packs of cigarettes a day. 31 Plaintiffs’ amended complaint
avers that at least two members of the putative class have already been
diagnosed with lung cancer. 32

      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,




                 include, but not be limited to, a review, inspection or
                 evaluation of the following: . . . (2) radon levels in the air.

      Conn. Gen. Stat. Ann. § 10-220 (West).
      29   Am. Compl. ¶ 141.
      30   Id. ¶ 139.
      31   Id. ¶ 138.
      32   Id. ¶¶ 15, 21.




                                           15
Defendant Henry Falcone, the Warden of Garner, 33 informed DOC
staff that elevated radon levels were detected in the facility and that
such radon exposure required remediation. 34 A complete report of the
radon test results was made available to the DOC staff. DOC
employees were informed on May 8, 2014 that they could file a “WC
207 package” to preserve their right to workers’ compensation benefits
should they develop any future medical condition resulting from
prolonged radon exposure at Garner. 35

      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




      33   See Note 8, ante.
      34   Am. Compl. ¶ 142.
      35   Id. ¶¶ 151–54; A. at 160, 224–25.
      36   Am. Compl. ¶¶ 150–151.
      37   See Note 8, ante.
      38   Am Compl. ¶ 141.




                                          16
required that the inmates be notified in writing of any testing done
where they were housed. 39

      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


      39   Id.
      40   Id. ¶ 150.
      41   Id. ¶¶ 46(A), 141.
      42   Cruz DC ECF 1.




                                  17
telephone conference, during which the District Court allowed
Plaintiffs to amend their complaint in response to the Defendants’
proposed motion to dismiss. 43 At this conference, the District Court
also discussed with the parties the possibility of consolidating their
case with the action of Harry Vega, which was filed on January 26,
2017. After the conference, the two cases were indeed consolidated on
September 1, 2017, with Vega dropping his individual suit and joining
the putative class in the case brought by Cruz. 44

        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

        43   A. at 269–271.
        44   A. at 227, 270.
        45   A. at 002.
        46 The Eighth Amendment to the U.S. Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment’s
prohibition against cruel and unusual punishment is incorporated by the
Fourteenth Amendment. McDonald v. City of Chicago, Ill., 561 U.S. 742, 764 n.12
(2010). The Fourteenth Amendment to the U.S. Constitution provides, in relevant
part that, no state shall “deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1. The Connecticut Constitution also
provides, in relevant part, that “[n]o person shall . . . be deprived of life, liberty, or
property without due process of law.” Conn. Const. art. 1, § 8.




                                           18
monitoring of current- and former-inmate health for radon-related
illness, and medical treatment of any such illnesses.

       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.



       47See, e.g., Taylor v. Barkes, 575 U.S. 822, 822 (2015) (“When properly applied,
qualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.” (internal brackets, quotation marks, and citation
omitted)).
       48   A. at 229.




                                          19
       On September 27, 2018, the District Court granted in part and
denied in part Defendants’ motion to dismiss. 49 Specifically, the
District Court denied Defendants’ sovereign immunity defense to
Plaintiffs’ claims for equitable relief. Regarding the money damages
claims, the District Court granted in part and denied in part
Defendants’ qualified immunity defense, dismissing the claims arising
from conduct that preceded the Supreme Court’s decision in Helling v.
McKinney, 509 U.S. 25 (1993). 50

       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.

       49   The District Court also granted the Defendants’ motion to dismiss
Plaintiffs’ access-to-court claim. SA at 18. Plaintiffs do not challenge that decision
on appeal.
       50Although the District Court granted Defendants’ motion to dismiss on the
basis of qualified immunity with regard to all conduct alleged to have occurred
before June 18, 1993, it did not make clear whether that grant applied to both the
pre- and post-conviction Plaintiffs or only the latter. Both parties on appeal agree
that the District Court effectively dismissed both the pre- and post-conviction
claims—brought under the Fourteenth and Eighth Amendments, respectively—
alleged to have occurred before June 18, 1993. Appellants’ Br. at 37; Appellees’ Br.
at 38. We agree with that construction of the District Court’s judgment.




                                         20
Defendants assert that they have not violated any clearly established
law and that they are entitled to qualified immunity for conduct
alleged to have occurred at all relevant times described in the
complaint. We disagree.

                            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 Rule 12(b)(6) motion “instead
of a motion for summary judgment, the defendants must accept the
more stringent standard applicable to this procedural route.” 53
Accordingly, “we accept the complaint’s factual allegations as true and
draw all reasonable inferences in the plaintiffs’ favor, including both




      51   Edrei, 892 F.3d at 532.
      52   Looney v. Black, 702 F.3d 701, 706 (2d Cir. 2012).
      53   Edrei, 892 F.3d at 532 (brackets omitted).




                                           21
those that support the claim and those that defeat the immunity
defense.” 54 This standard represents a “formidable hurdle.” 55

                            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




      54   Id. (internal quotation marks and citations omitted).
      55   Id.
      56   Pearson v. Callahan, 555 U.S. 223, 231 (2009).
      57   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).




                                           22
conduct.” 58 If a plaintiff fails at either step, the official is entitled to
qualified immunity.

       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
Eighth Amendment; the latter bring suit under the Due Process Clause
of the Fourteenth Amendment. Both advance their claims based on


       58   Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
       59   A. at 281–82 (District Court Oral Argument Transcript).
       60See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006) (Where “Defendants
have assumed, for the purposes of this appeal that as a threshold matter, plaintiffs
have shown a deprivation of a constitutional right[,] [w]e need only . . . concern
ourselves with the second part of the qualified immunity inquiry.” (internal
quotation marks omitted)).




                                             23
allegations of deliberate indifference to unlawful conditions of
confinement that pose a serious risk of harm to health.

       To state a claim under the Eighth Amendment on the basis that
a defendant has failed to prevent harm, a plaintiff must plead both (a)
conditions of confinement that objectively pose an unreasonable risk
of serious harm to their current or future health, and (b) that the
defendant         acted    with     “deliberate      indifference.” 61   Deliberate
indifference under the Eighth Amendment standard means the official
must “know[ ] of and disregard[ ] an excessive risk to inmate health or
safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” 62 We have observed that “[e]vidence
that a risk was ‘obvious or otherwise must have been known to a
defendant’ may be sufficient for a fact finder to conclude that the
defendant was actually aware of the risk.” 63

       To state a claim of deliberate indifference under the Due Process
Clause of the Fourteenth Amendment, a plaintiff must allege both (a)
conditions that objectively “pose an unreasonable risk of serious


       61   Farmer v. Brennan, 511 U.S. 825, 834 (1994).
       62   Id. at 837.
       63Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Brock v. Wright,
315 F.3d 158, 164 (2d Cir. 2003)); see also Farmer, 511 U.S. at 843 n.8 (noting that
prison official “would not escape liability if the evidence showed that he merely
refused to verify underlying facts that he strongly suspected to be true, or declined
to confirm inferences of risk that he strongly suspected to exist . . . ”).




                                           24
damage to . . . health”; 64 and (b) that the “defendant-official acted
intentionally to impose the alleged condition, or recklessly failed to act
with reasonable care to mitigate the risk that the condition posed to
the pretrial detainee even though the defendant-official knew, or
should have known, that the condition posed an excessive risk to health
or safety.” 65 Accordingly, the “deliberate indifference” prong under
the Fourteenth Amendment is said to be defined objectively.

      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 Eighth Amendment deliberate indifference standard. We agree,
and Plaintiffs do not dispute, that Defendants cannot be liable under
the Eighth Amendment for mere negligence. Indeed, Plaintiffs
expressed that understanding at oral argument before the District
Court. There, they argued that on the issue of subjective deliberate

      64   Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017).
      65   Id. at 35 (emphasis added).
      66   Am. Compl. ¶¶ 1, 46(A), 57, 135–36.




                                            25
indifference, they enjoy a pleading standard at this stage that draws
all inferences in their favor but conceded that they must ultimately
prove that Defendants were aware of the risk of harm. 67

        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,


         A. at 292–293. Of course, on any future motion for summary judgment,
        67

unlike on a motion to dismiss, Plaintiffs must actually point to record evidence
creating a genuine dispute as to the specific facts alleged. See, e.g., Salahuddin v.
Goord, 467 F.3d 263, 282 (2d Cir. 2006).
        68   Ashcroft, 563 U.S. at 741 (brackets and internal quotation marks omitted).
        69 Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (internal quotation
marks omitted); see also Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 60 (2d Cir.
2014) (“The salient question instead is whether the case law at the time in question
would have put reasonable officers on fair warning that their conduct violated the
plaintiff’s rights.” (internal quotation marks omitted)).




                                            26
we look to precedent of the Supreme Court and our own Court
existing at the time of the alleged violation to determine whether the
conduct (or inaction) violated a “clearly established right.” 70

         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

         70   Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004).

          John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L. REV.
         71

851, 852 (2010).
         72   LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998).
         73   Anderson v. Creighton, 483 U.S. 635, 639 (1987).
         74   City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019).




                                              27
broad general proposition.” 75 On the other hand, the Supreme Court
has also emphasized that, while the “contours of the right must be
sufficiently clear[,]” that “is not to say that an official action is
protected by qualified immunity unless the very action in question has
previously been held unlawful.” 76

       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 Eighth Amendment. The Supreme Court agreed,
holding that the plaintiff “state[d] a cause of action under the Eighth

       75   Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks
omitted).
       76 Anderson, 483 U.S. at 640; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(noting that “officials can still be on notice that their conduct violates established
law even in novel factual circumstances”); Back v. Hastings On Hudson Union Free
Sch. Dist., 365 F.3d 107, 129 (2d Cir. 2004) (“[T]he right in question must not be
restricted to the factual circumstances under which it has been established.”).
       77   509 U.S. 25; see also SA at 14–15.
       78   Helling, 509 U.S. at 27.




                                             28
Amendment by alleging that [the officials] have, with deliberate
indifference, exposed him to levels of ETS that pose an unreasonable
risk of serious damage to his future health.” 79 The Court explained that
“it would be odd to deny [relief] to inmates who plainly proved an
unsafe, life-threatening condition in their prison on the ground that
nothing yet had happened to them.” 80

        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 Eighth Amendment right.

        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


        79   Id. at 35.
        80   Id. at 33.
        81   Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).




                                             29
not need to wait, in other words, for “a tragic event” to occur. 82 Rather,
they could bring a claim under the Eighth Amendment as soon as an
“unreasonable risk of serious damage to . . . future health” existed. 83

       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 Eighth Amendment
through deliberate indifference to an inmate’s exposure to levels of
ETS that posed an unreasonable risk of future harm to the inmate’s
health.” 84 Put another way, as of 1993, no reasonable prison official
could be unaware that deliberate indifference to levels of ETS that
posed an unreasonable risk of future harm to the inmate's health was
a Constitutional violation.

       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


       82   Helling, 509 U.S. at 33.
       83   Id. at 35.
       84   Warren v. Keane, 196 F.3d 330, 333 (1999).
       85   LaBounty, 137 F.3d at 74 (quoting Anderson, 483 U.S. at 640).




                                           30
exposure of prisoners to ETS was in 1993.” 86 The District Court reached
this conclusion because, while the dangers of ETS were still being
debated in 1993, “radon in 1993 had already five years earlier been
identified ‘as a human carcinogen by the International Agency for
Research on Cancer . . . and added by Congress that same year to the
Toxic Substances Control Act.” 87

       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 regulations 88—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


       86  Vega v. Semple, No. 3:17-cv-107 (JBA), 2018 WL 4656236, at *6 (D. Conn.
Sept. 27, 2018); SA at 11–12.
       87   Id. (citing Am. Compl. ¶ 57).

        LaBounty, 137 F.3d at 74, n. 5; see also Warren, 196 F.3d at 333 (relying in
       88

part on prison’s internal “Policy and Procedure,” which expressly recognized
harms of ETS exposure, in concluding ETS exposure violated clearly established
law).




                                            31
“only designed to test areas that revealed radon”—which excluded the
cell block area of Garner where prisoners were housed—and
“intentionally did not remedy any excessive indoor radon gas where
inmates [are] housed.” 89 Taking the allegations as true, we conclude
that the mitigation effort implemented was not a reasonable measure
taken to abate the risk of excessive radon exposure in the cell block;
instead, the allegedly excessive radon in the cell block went
unattended. A conscious decision not to address a known risk of
excessive radon exposure, as described by Plaintiffs, would violate
clearly established law for all the reasons we have expressed above. 90

                        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


       89   Am. Compl. ¶ 46(A) (emphasis added).
       90  We do not consider, much less decide, how the implementation of the
radon mitigation system in 2014 would affect the qualified immunity analysis if
Plaintiffs’ allegations in ¶ 46(A) of the complaint are inaccurate.




                                          32
argument is not compelling. The Supreme Court has held that
“officials can still be on notice that their conduct violates established
law even in novel factual circumstances.” 91 We have repeatedly
rejected this type of argument, 92 and we do so once more today.

                                             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




       91   Hope, 536 U.S. at 741.
       92  Edrei, 892 F.3d at 542 (“Defendants’ first argument echoes a common
refrain in qualified immunity cases—pointing to the absence of prior case law
concerning the precise weapon, method, or technology employed by the police. But
novel technology, without more, does not entitle an officer to qualified immunity.”
(citation and internal quotation marks omitted)); Jones v. Parmley, 465 F.3d 46, 57
(2d Cir. 2006) (“[Defendants] essentially argue that we should find qualified
immunity unless a Supreme Court or Second Circuit case expressly denies it, but
that standard was rejected by the Supreme Court in favor of one in which courts
must examine whether in the light of pre-existing law the unlawfulness is
apparent.” (alterations and internal quotation marks omitted)).
       93   Davis v. Scherer, 468 U.S. 183, 194 (1984).




                                            33
determine whether an individual had fair warning that his or her
behavior would violate the victim’s constitutional rights.” 94

       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

       94 Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 433–34 (2d
Cir. 2009).
       95   See 137 F.3d at 73–74.
       96 Hope, 536 U.S. at 741–45 (considering binding circuit precedent, applicable
state regulations, and a Department of Justice report informing the state’s
Department of Correction of the “constitutional infirmity” of alleged practice, to
conclude a clearly established right was violated); see also Warren, 196 F.3d at 333
(relying in part on prison’s internal “Policy and Procedure”, which expressly
recognized harms of ETS exposure, in concluding ETS exposure violated clearly
established law); Labounty, 137 F.3d at 74 n.5 (relying in part on Congressional
recognition of asbestos toxicity and Clean Air Act regulations to decide that
exposing prisoners to friable asbestos could violate clearly established law); cf.
Tooly v. Schwaller, 919 F.3d 165, 173 (2d Cir. 2019) (rejecting district court analysis




                                          34
law in Warren v. Keane, which held that, after Helling, it was “clearly
established” that defendants could violate the inmates’ Eighth
Amendment rights by exposing them to unreasonable levels of ETS
with deliberate indifference. 97

                                       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 Eighth Amendment violation.

       The Third Circuit agreed, defining the specific right at issue as
the “right to the proper implementation of adequate suicide




that relied “almost exclusively” on state statutes and “did not assess” whether the
conduct alleged violated constitutional rights “as laid out” in case law).
       97   Warren, 196 F.3d at 333.
       98   575 U.S. 822 (2015).




                                        35
prevention protocols.” 99 That court determined that the right was
clearly established by the time of Barkes’ intake and affirmed the
denial of the defendants-officials’ summary judgment motion for
qualified immunity.

          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


          99   Id. at 822 (quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 327 (3d Cir.
2014)).
          100   Id. (emphasis added).

          Barkes, 766 F.3d at 312–13 (3d Cir. 2014), cert. granted, judgment rev'd sub
          101

nom. Taylor v. Barkes, 575 U.S. 822 (2015).
          102   Id. at 313.




                                                36
nurse practitioner, who employed a screening form based on
NCCHC’s 1997 standards. The form included seventeen questions
designed to assess suicide risk. Barkes was not entirely candid in
responding to these questions and was subsequently not labeled a
suicide risk. 103 Among the constitutional deficiencies alleged by
Barkes’s widow was that a physician, not a nurse, should have
administered the screening.

        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.




       103   Taylor, 575 U.S. at 822.
       104Id. By contrast, our opinion is based on a failure to take steps to mitigate
a known risk. We do not hold that Defendants should have taken affirmative steps
to discover a risk of which they had no knowledge, nor could we under the Eighth
Amendment standard.
       105   Id. (alterations and internal quotation marks omitted).




                                           37
       But just as important as what the Supreme Court did conclude
in Taylor is what it did not conclude. It did not conclude that it would
have been reasonable for the prison guards to completely forego
suicide-prevention screening—to simply not act at all. Nor did it
conclude that it would have been consistent with clearly established
law for the prison guards to forego preventive measures if they were
aware that an inmate posed a suicide risk—to operate in a state of
knowing indifference.

       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

       106See also Part II.D, ante, discussing allegations of deliberate indifference
occurring after the installation of a partial mitigation system in 2014.




                                         38
oversaw; but it hardly stands for the principle that prison guards are
immune even where no action is taken, especially when a health risk
is known. 107

                                  *       *       *

       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



       107  Our recent decision in McCray v. Lee, 2020 WL 3273346 (2d Cir. June 18,
2020), is also instructive on this point. Plaintiff there brought a damages claim
under the Eighth Amendment, alleging that the defendant prison officials’ policy
of allowing naturally occurring snow and ice to remain uncleared in the prison’s
recreational yard for the entire winter constituted a violation of his right to some
meaningful opportunity for exercise. Id. at *5. In denying defendants qualified
immunity on this claim, we first noted that a prisoner’s right to a meaningful
opportunity for physical exercise had been clearly established since 1985. Id. at *6
(citing Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)). Defendants argued that,
notwithstanding that proposition, they were entitled to qualified immunity
because—as the District Court concluded—"there is no clearly established
constitutional right to a prison yard without naturally accumulating ice or snow
during winter months.” Id. (internal quotation marks omitted). We rejected that
argument because “[t]he right need not be described with specific references to the
weather or characteristics of the seasons of the year in order for a reasonable prison
official to understand that climatic features may necessitate responsive measures to
ensure that the right to a meaningful opportunity for physical exercise not be
denied.” Id. In other words—the prison officials were on notice that they needed to
take some action in the case that the prison yard was inaccessible, even if the Court
refrained from saying what the proper action was. At the very least, they could not
get away with not acting.




                                         39
reasonable steps (including testing and mitigation) to abate this risk. 108
On the basis of these allegations, accepted as true, we conclude that a
failure to take any steps to abate the risk of excessive radon exposure
violated Plaintiffs’ clearly established right to be free from deliberate
indifference to exposure to excessive radon gas, a toxic substance that
poses a serious health risk—a right clearly established in Helling. 109



       108We emphasize that Plaintiffs seeking to recover against any individual
defendant under the Eighth Amendment must ultimately prove that the individual
defendant had subjective knowledge of the objectively serious risk alleged. We
express no view about whether they can do so. At this juncture, Plaintiffs have
plausibly alleged subjective knowledge and deliberate intent by pleading, inter alia,
that Defendants took no action in response to various triggering events, such as the
discovery of unsafe uranium levels in a school that shared Garner’s water supply
and, most significantly, the discovery of unsafe radon levels in Garner’s classroom
areas. Am. Compl. ¶¶ 112–16, 120–21. Taken as true, these allegations easily admit
an inference that Defendants were deliberately indifferent to a serious health risk
to prisoners from radon exposure. Indeed, the pleadings admit no obvious
alternative explanation. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (holding
allegations of discriminatory purpose implausible where the facts alleged admitted
“obvious alternative explanation”).
       109 It is worth noting that we are not the only Circuit to have relied on the
Helling line of cases to reject qualified immunity in similar circumstances. In Board
v. Farnham, 394 F.3d 469, 485 (7th Cir. 2005), the Seventh Circuit affirmed the denial
of qualified immunity where plaintiffs alleged deliberate indifference to a deficient
ventilation system, which caused a “flow of black fiberglass dust into cells [and]
numerous nosebleeds and respiratory problems” for the inmates. Id. at 486. The
Seventh Circuit held that such conduct violated the clearly established “right to
adequate and healthy ventilation.” Id. at 487. In making that determination, the
Court relied on both Helling and its own precedent discussing the constitutionality
of a ventilation system that allegedly exposed inmates to unconstitutional
temperatures. Id.




                                         40
                                III.    Prospective Relief

         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
Eleventh Amendment. Defendants also argue that Plaintiffs’ claims for
injunctive relief under state law are barred by Pennhurst State School &
Hospital v. Halderman. 110

         Our review of a district court’s denial of a motion to dismiss
based on a claim of Eleventh Amendment immunity is de novo. 111

                               A.      Sovereign Immunity

         Absent proper Congressional abrogation or State waiver, the
Eleventh Amendment bars a federal court from hearing suits at law or
in equity against a State brought by citizens of that State or another. 112
There is a well-known exception to this rule—established by the
Supreme Court in Ex parte Young 113 and its progeny—by which suits
for prospective relief against an individual acting in his official
capacity may be brought to end an ongoing violation of a federal law.


         110   465 U.S. 89 (1984).
         111   State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir.
2007).
         112   Papasan v. Allain, 478 U.S. 265, 276 (1986).

          209 U.S. 123 (1908). See generally 13 Charles Alan Wright et al., Federal
         113

Practice & Procedure § 3524.3 (3d ed. 2008).




                                              41
In determining whether a litigant’s claim falls under the Ex parte
Young exception, we ask two questions: whether the complaint (1)
alleges an ongoing violation of federal law; and (2) seeks relief
properly characterized as prospective. 114

       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


       114   In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372 (2d Cir. 2005).
       115 Plaintiffs seek injunctive relief compelling widespread medical care for
an injunctive class allegedly “number[ing] in the thousands.” Am. Compl. ¶¶ 1–2,
46(A), 50, p. 42 ¶¶ 4–6. This includes:

        (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.”




                                            42
these claims is, in substance, a claim for retrospective damages poorly
disguised as prospective relief, and is therefore barred. They also
contend that the second category of claims is barred because the
current DOC radon testing policy provides even greater relief than
Plaintiffs seek, which demonstrates that Plaintiffs have failed to allege
an ongoing violation of federal law.

                 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




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.
       116   Edelman v. Jordan, 415 U.S. 651, 668 (1974).
       117   Papasan, 478 U.S. at 278.




                                            43
is not barred by the Eleventh Amendment even though accompanied
by a substantial ancillary effect on the state treasury.” 118

       Plaintiffs have alleged that they are entitled to baseline x-rays
and prospective medical monitoring and treatment as a function of
their Eighth and Fourteenth Amendment rights to be free from
deliberate indifference to serious medical needs. 119 This alleged
ongoing constitutional violation—deliberate indifference to serious
medical needs of incarcerated persons—is the type of continuing
violation for which a remedy may permissibly be fashioned under Ex
parte Young. 120

       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


       118   Id.
       119   Estelle, 429 U.S. at 104; A. at 10–11; 14–15; 39–40.
       120 We do not express a view on the merits of whether Plaintiffs can
ultimately obtain the relief sought. See In re Deposit Ins. Agency, 482 F.3d 612, 621
(2d Cir. 2007) (“[T]he Supreme Court explained that ‘the inquiry into whether suit
lies under Ex parte Young does not include an analysis of the merits of the claim.’”
(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n, 153 U.S. 635, 646 (2002))). Rather,
we note only that an ongoing violation of federal law has been alleged. See id. at 623
(“When a court reviews the legal merits of a claim for purposes of Ex parte Young, it
reviews only whether a violation of federal law is alleged; appellate review of
allegations is necessarily deferential, and only frivolous and insubstantial claims
will not survive its scrutiny.”).




                                             44
federal law with regard to class members who are not in custody.
Accordingly, we agree with the District Court that Defendants will be
entitled at the class certification stage to raise their objection to the fact
that most of the putative class is not presently incarcerated.

                                          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

       121   See Part I.D, ante.

         SA at 23; see also Part I, ante (discussing allegations of Defendants’ alleged
       122

propensity to cover up unsafe conditions at Garner).




                                          45
determination of the scope of injunctive relief, if and when the
[District] Court determines that Plaintiffs have established their
entitlement to such relief.” 123

                            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

       123   SA at 24.
       124   465 U.S. 89.
       125   Id. at 106.
       126   Am. Compl. ¶ 46(A); A. at 38–44.




                                         46
that are expressly based on violations of state law. We find only the
latter argument compelling.

      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 Eighth Amendment analysis,
and not as a mandate that they seek to enforce via injunctive relief.”127
While any relief ultimately granted must serve to remedy a violation
of federal law, the Pennhurst doctrine does not compel dismissal of
claims for prospective relief against state officers in their official
capacities for alleged violations of federal law simply because the
party seeking such relief refers to state law in order to bolster their
federal claim.

      Defendants’ second point, however, has merit. The Eleventh
Amendment presents a jurisdictional bar that deprives federal courts
of the power to hear certain claims. “A federal court must examine
each claim in a case to see if the court's jurisdiction over that claim is
barred by the Eleventh Amendment.” 128 The Pennhurst Court
concluded “that a claim that state officials violated state law in
carrying out their official responsibilities is a claim against the State
that is protected by the Eleventh Amendment,” and the Court



      127   SA at 24–25.
      128   Pennhurst, 465 U.S. at 121.




                                          47
extended the principle to apply equally to “state-law claims brought
into federal court under pendent jurisdiction.” 129

      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
Eleventh Amendment under the Pennhurst doctrine.

                             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;



      129   Id.
      130   Am. Compl. ¶¶ 171–76.




                                     48
      (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.




                                  49
