Detained in Dust

First came gritty particle dust. Then came chemical fumes.

Then they came all at once.

Along with them came coughing, burning eyes, vomiting, headaches and dizziness.

People serving time at the Santa Fe County jail and who worked there in the spring of 2014 say they became ill as layers of toxic material piled up and infiltrated beds and offices while construction crews renovated bathrooms adjacent to cell blocks.

While two county employees got payoffs for their claims of injury, a lawsuit wending its way through federal court could be the first opportunity for prisoners to see some acknowledgement that officials should have done more to protect them from harm.

Court filings in the class action list 12 inmates who suffered similar symptoms. Many are still imprisoned; others have been released on probation or parole. Felipe Trujillo, also known as Sharkie, is on parole after his release from the state prison in Santa Fe. Another man, Philip Talachy, was one of many at the jail being held in a bed the county leases to outside agencies. Talachy is now free, and his Facebook profile indicates he once received mentorship through the YouthWorks Santa Fe program.

As the men sat in cells, rancid dust billowed through doors and vents. Some who worked alongside paid contractors but had no access to safety equipment reported inhaling the dust directly.

The dozen named plaintiffs in the case filed in March of 2017 are representative of 300 to 600 other prisoners who were exposed to the same dangers and could also benefit from a resolution in the case.

"This involves people trapped in cages who were being contaminated with dust and poison," says Mark Donatelli, the lead attorney on the case. "You'd think a case like that would be settled relatively quickly. Why the county decided to go to this length in litigation, only they would know."

Donatelli's firm filed a 46-page complaint on behalf of current and former inmates, arguing the avoidable dangers from the construction work inside the jail caused them harm. In December, the litigation cleared a major hurdle after Albuquerque-based US Magistrate Judge Laura Fashing ordered the firm hired by the county to provide additional documents to attorneys handling the class action suit.

With the county signaling an unwillingness to settle, the sprawling matter appears headed toward a jury trial.

“I’m still having the same symptoms!”

The first request for medical attention Philip Talachy submitted to the Santa Fe County jail health staff in March 2014, less than a month into his incarceration, blames the shower renovations for his illness.

Construction workers "cleaned showers in unit," Talachy, then 24 years old, wrote from his cell. As a result, Talachy noted, he had headaches, dizziness, and bouts of bloody mucus.

Talachy, who declined to be interviewed for the story, submitted his request after the contractor, an Albuquerque-based company called Industrial Commercial Coatings, started to remove years' worth of paint, glue and mildew that had hardened to an intractable crust.

Despite suggestions from the county that the contractor use a water blaster to remove the gunk, ICC instead used a grinding blade to pulverize shower surfaces so that their concrete foundations were exposed, as disclosed by the company in court documents. Then, the company says its workers applied a coating of a polyurea sealer containing isocyanate, a poisonous but common material meant to protect surfaces from erosion, to 19,000 square feet of jail bathroom surface area over the course of a few months.

Grievance forms Talachy filed with the county at the time and released as part of the lawsuit show health staff didn't act on his complaints for four months, and his symptoms persisted.

Talachy submitted two requests for medical attention, in March and April. He finally saw a doctor in July. The next month, Talachy filed a grievance form to see another doctor for a second opinion.The first doctor, he writes on Aug. 5, told him he had a sinus infection, but the medication the doctor prescribed was ineffective.

A month later, Talachy submitted another complaint in which he wrote, "I'm still having the same symptoms!" and reiterated his request to see another doctor.

Officials tell SFR they can't talk about the case or respond to allegations, and contract attorneys with the Modrall Sperling Law Firm are representing the government in court. Mark Gallegos, the warden from mid-2012 to the end of 2015, is also a defendant in the lawsuit. SFR was unable to reach Gallegos, who is on military leave from his job as detention administrator of the adult and juvenile detention centers in Clovis.

A separate lawsuit filed by two former jail caseworkers who say they were sickened by the shower renovations alleges Gallegos retaliated against them for voicing their concerns. The matter was settled in August for $50,000, split in half between the workers.

The cases place Santa Fe among other states in which a growing awareness of prison toxicity is sparking litigation and reporting on the subject. Courts have ruled against jail handlers elsewhere for creating toxic environments, including in Texas, where a federal judge condemned prison officials at one sweltering jail for providing only drinking water with high levels of arsenic.

In Pennsylvania, where inmates and workers at a state prison sitting atop a coal-ash dump have grown ill and died, the state's ACLU chapter is suing to close the lockup and move inmates elsewhere. And in Kentucky, a lawsuit filed to stop the construction of a $444 million federal prison planned on a former coal mine is drawing attention to environmental discrimination inmates face.

“The dust and isocyanate vapors entered the vents”

Individual statements provided to the federal court by 12 inmates who were held in Santa Fe County at some point between February and July 2014 allege that people housed in all four cell blocks suffered the same symptoms from the two waves of renovation.

"During the renovation process, a cloud of construction demolition dust permeated the pod living environment and settled on surfaces within the pod," the complaint alleges, noting later, "when the [polyurea] sealer was sprayed, a strong odor of chemicals remained for a long time."

The suit frames the renovation as a process in which captive inmates, some with jobs as porters assisting in the re-installation of shower doors and other fixtures, worked and lived in suffocating conditions.

In the county's invitation for a bid on the project in October 2013, it acknowledges the potential for dust generated by the first phase of renovation to disturb inmates' living quarters.

"All areas to be cleared of existing paint, glue or mildew using water abrasive blasting equipment with self-containment, such as a Geoblaster, to ensure that dust and mildew particles due not [sic] inhibit the living conditions of the residents," the bid reads.

But after the county awarded the contract to ICC and agreed to pay $307,160.62 for the job, the company instead used a "7-inch grinder with diamond blade wheel" to remove surfaces in 50 shower stalls, court documents say. According to inmate and county employee accounts, this created an ever-present cloud.

Donatelli, who has been suing over jail and prison conditions since the 1970s and represented prisoner interests in the Duran consent decree, says it's unusual the county appears not to have made arrangements to move inmates to areas where they weren't exposed to the dust—particularly since about 200 beds remained empty at the time, according to the county's own numbers.

"In my experience, in any significant renovation prisoners are evacuated. Even when they paint, [the inmates] are not forced to sleep in the cell," he tells SFR. "It's just basic mismanagement."

In the absence of self-contained blasting equipment, the complaint alleges that inmates were tasked with "placing a strip of tape across the bottom of each cell door in preparation for the demolition." These efforts did not prevent dust from piling up under cell doors or seeping through ceiling vents.

An earlier lawsuit, filed by a different attorney for former jail caseworkers Matthew De Lora and Michael Lepic in state District Court in 2016, similarly alleges that inmates were given tape to keep out the dust. At various points, both complaints say, the dust was so thick it was hard to see. A photo from inside the "Alpha" cell block, taken by a corrections staff member during that time, appears to show dust covering surfaces like snow.

Contract workers at the jail were outfitted with professional-quality face shields, leather work gloves and coveralls, goggles, safety glasses and dust masks throughout the project. In contrast, both the inmate lawsuit and the one filed by the former jail caseworkers say they got next to nothing by way of protective gear; some porters say they were given only "cheap sunglasses."

The jail's ventilation system also spread both the dust and the fumes throughout the building, according to both lawsuits.

"Consequently, both the massive amounts of dust generated by the grinding process and the toxic fumes created by the isocyanate-containing sealant were circulated into inmates' cells throughout the facility," the inmate complaint reads.

The fumes even reportedly seeped into rooms that were unconnected with the jail's cell blocks.

Santa Fe attorney Dan Cron recalls a "prickly" feeling in his lungs each time he visited the attorney-client room during renovations, which was in the same wing as administrative offices on the opposite end of the prison cells.

"I have never experienced tear gas, but in my mind's eye, it's what I thought tear gas would feel like breathing," says Cron, who is not involved in the litigation but could be called as a witness at trial. "I'm a really healthy person, and I have no lung issue, and I had no lung issues at the time."

Cron tells SFR he suffered no long-term health effects from his limited exposure. For inmates who were exposed to the fumes around the clock, particularly those who were in solitary confinement, the answer is likely different: The CDC says sustained exposure to drywall dust, an approximate comparison to the mildewy shower wall dust, causes a lifetime of respiratory issues. The Occupational Safety and Health Administration defines the sealant material as hazardous, and respiratory infections are a common side effect of constant exposure.

"Millions" of pages

The nearly two-year-old litigation has been slow moving.

Last year, the county sought to dismiss claims from at least three defendants who did not appear at scheduled depositions—an action that, had it been successful, would have undermined the class action status of the case.

In a ruling from last November denying the motion, a chief US district judge wrote that seven of the 12 named plaintiffs were still incarcerated, and of the five who weren't, the county alleged each "failed in one respect or another to participate in significant discovery matters in this litigation."

SFR also could not convince any of the plaintiffs to go on the record. Some cited advice from their attorneys in refusing. Others did not respond to inquiries.

The court warned that future failures by plaintiffs to participate in discovery could result in sanctions against them, including dismissal of their claims. Donatelli says his legal team has even hired private investigators just to keep track of his clients' whereabouts—but he says the scale of the offense makes the case worth pursuing.

"The jail is too big," says Donatelli, whose firm is suing the county for medical neglect at the jail in at least two other cases. "It'd be better to shut it down, get rid of the rent beds [leased by the county to other jurisdictions], and keep the administrative staff."

Another challenge has been the sheer volume of records stored at the county which may factor into the case. While the county's attorneys have argued that the paper chase is burdensome, those arguments haven't persuaded the court.

The county claimed that in order to account for all the people who were held at the jail during the renovation project, the government would have to create a master list of hundreds, if not thousands, of records, since the average length of stay is just nine days.

"Depending on the total number of inmates who were housed at ADF at any time and for any length of time between February 17, 2014 and July 15, 2014, the number of pages to be manually reviewed could easily reach into the millions," county attorneys wrote in one filing.

So too has the contractor, ICC, been reluctant to produce discovery material that could be relevant in a jury trial.

In response to Donatelli's request, the contractor provided limited information about ventilation equipment used by its employees during the renovation, the use of the grinders, the manufacturer of the polyurea product and other solvents and materials, and protective materials used by contractor workers.

ICC claimed it could not locate any emails from either the company's owner, Chris Perea, nor the company foreman on the project, Ron Lucero, that mentioned the shower job. On Christmas Eve, Judge Laura Fashing ruled that ICC must disclose those materials to the plaintiff.

“They were exposed 24/7”

For all the back and forth, the outcome of the separate suit filed in 2016 by jail caseworkers Lepic and De Lora make it difficult to believe that nobody got sick from the renovations.

That lawsuit says the two complained to their supervisors that particulate dust from the air was unsafe for corrections staff and inmates. Nothing was done, and additional complaints resulted in both of them being transferred from their case manager roles to the booking room—one of the least desirable jobs at the jail. Neither were given protective gear.

Lepic died in March 2017. His obituary doesn't state the cause, and his family members wouldn't speculate about whether they thought the shower renovations had anything to do with it. His former attorney, Philip Davis, says the case lost momentum after it was transferred over to his grieving wife, Karen Lepic.

The lawsuit Lepic filed says the grueling work schedule on the booking floor, an assignment Lepic said he received in retaliation for complaining, may have contributed to his deteriorating health.

"He was so upset no one cared about him," says Pekabo Mente, Lepic's daughter. "But mostly about the inmates because they couldn't go home, you know; they were exposed 24/7."

The federal government declared him disabled in late 2015, and Lepic took disability retirement through PERA in 2016.

SFR's attempts to reach his wife Karen, who settled in his name, were not successful. Multiple phone calls and messages from SFR to Matthew De Lora went unanswered.

Davis, his former attorney, says De Lora was similarly upset that his treatment by the county got little attention and in the end yielded a relatively low sum of $25,000.

"He wanted to move on with his life," Davis tells SFR.

“Take it through to conclusion“

Institutional barriers to redress, from long and cumbersome grievance processes to the difficulty of getting a large class of harmed former inmates to participate in litigation, have kept the full extent of toxic exposure in prisons unknown.

Panagioti Tsolkas, an organizer with the Fight Toxic Prisons activist group, says there are many reasons incarcerated people don't try to seek justice through formal channels.

"One obstacle is a lot of people who file lawsuits or who are named in lawsuits end up facing retaliation, solitary, using their good time or brutal abuse and violence against them," Tsolkas tells SFR.

Fight Toxic Prisons is mainly based around a campaign supporting a lawsuit filed against the US Bureau of Prisons over a prison planned for Letcher County, Kentucky, with at least 1,200 beds. An associated group, the Abolitionist Law Center—made up of lawyers who want to abolish mass imprisonment—filed the suit.

That complaint argues that a prison built on a mountaintop coal mine in rural Appalachia will present a public health risk to people who live there and drink the groundwater, pointing to peer-reviewed articles that found rates of cancer and birth defects to be higher near mountaintop mining sites.

The inmate plaintiffs are 21 federal prisoners in the Mid-Atlantic region who are likely to be transferred to the new prison if it is built. The suit alleges, among other claims, that the federal agency conducted an environmental analysis of the planned facility in a skewed way "that would promote the construction of a new" penitentiary.

While the circumstances are different, Tsolkas draws a comparison between the Santa Fe lawsuit and the one based in Kentucky. Unlike the local case, Tsolkas and others have been able to keep in touch with inmate plaintiffs through political organizing.

"The lawsuit we filed on behalf of prisoners was sort of similar; it was prisoners saying they don't deserve to be subjected to these conditions," Tsolkas tells SFR. "In our case, it's anticipating the conditions, the impacts from construction in an area where coal mining is occurring and continues to occur on adjacent land. But it's a similar position."

Without organizers assisting with the shower renovation suit against Santa Fe County, lawyers have had a tougher time keeping track of complainants. Donatelli claims this won't dissuade him from dropping the case.

"We don't take on a case unless we're prepared to take it through conclusion, whether it's a hearing before the judge or a jury trial," he tells SFR.

In the first days of 2019, lawyers for the county filed motions indicating they were continuing to collect depositions from witnesses in the case. Judge Fashing set a status conference via telephone for March 21.

A trial date has not been set.

How shower renovations polluted a jail

According to two lawsuits filed by inmates and jail caseworkers, people inside the Santa Fe County jail experienced respiratory and digestive sickness after a renovation crew began to replace shower surfaces in 2014. Lawyers for inmates allege the jail's ventilation system dispersed a toxic cloud throughout the jail, affecting hundreds.

1. GRINDING AWAY SHOWER SURFACES
A renovation crew from Industrial Commercial Coatings used a metal grinder to remove shower surfaces at the jail. This created a cloud of dust made up of pulverized shower surfaces and any other materials stuck to it, including mildew, glue, paint, mold and bacteria. The CDC says sustained exposure to drywall dust, an approximate comparison to the mildewy shower wall dust, causes a lifetime of respiratory issues.

2. SPRAYING A SEALANT
After grinding away the top layer, workers then applied a polyurea sealer containing isocyanate, a poisonous but common material meant to protect surfaces from erosion. According to the Occupational Safety and Health Administration, health effects of isocyanate exposure include irritation of skin, eyes and mucous membranes, chest tightness and difficulty breathing. Isocyanates include compounds classified as potential human carcinogens and known to cause cancer in animals.

3.TOXIC DUST AND FUMES SPREAD BY JAIL VENTS
Attorneys representing a class of inmates say that a potent combination of dust and sealant seeped into the jail's vents and was dispersed throughout the entire facility. Jail staff reported breathing in the fumes in the booking room, and one lawyer said he inhaled the fumes in a room on the opposite side of the building from inmates' cells.