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THE CITY
UNIVERSITY
OF NEW YORK

City University of New York Law Review

LAW REVIEW

Volume 25

Issue 2

Summer 2022

Cruel and Usual: Contaminated Water in New York State Prisons
Shannon Haupt
CUNY School of Law, shannon.haupt@live.law.cuny.edu

Phil Miller
CUNY School of Law, phil.miller@live.law.cuny.edu

Follow this and additional works at: https://academicworks.cuny.edu/clr
Part of the Law Commons

Recommended Citation
Shannon Haupt & Phil Miller, Cruel and Usual: Contaminated Water in New York State Prisons, 25 CUNY. L.
Rev. F. 120 (2022).

The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more
information please contact cunylr@law.cuny.edu.

CRUEL AND USUAL: CONTAMINATED WATER
IN NEW YORK STATE PRISONS
𝑆ℎ𝑎𝑛𝑛𝑜𝑛 𝐻𝑎𝑢𝑝𝑡 † & 𝑃ℎ𝑖𝑙 𝑀𝑖𝑙𝑙𝑒𝑟 ‡

I. INTRODUCTION .................................................................... 120
II. FIRST-HAND ACCOUNTS..................................................... 122
“Water Roulette”............................................................. 122
“The Water Smelled Like A Pond” ................................. 126
III. STATUTORY FRAMEWORK FOR DRINKING WATER
PROTECTION ..................................................................... 128
Federal Statutes and Regulations .................................... 129
New York Statutes ............................................................ 131
IV. ADMINISTRATIVE AND LEGAL BARRIERS TO REMEDY....... 132
Prison Litigation Reform Act........................................... 132
Eighth Amendment Legal Standard for Conditions of
Confinement .............................................................. 133
V. FAILURE OF THE COURTS TO ADDRESS CONTAMINATED
WATER AND ITS HEALTH IMPACTS ON INCARCERATED
PEOPLE ............................................................................. 135
Public Water Systems – The Basics ................................. 135
Three Case Studies .......................................................... 136
Cherry v. Edwards ..................................................... 137
Robinson v. Edwards ................................................ 139
Wright v. New York State Department of Corrections
............................................................................. 141
VI. A PATTERN OF DENIAL ..................................................... 143
APPENDIX A: FOIL LETTER REGARDING PRISON WATER
QUALITY .......................................................................... 145
APPENDIX B: INTERVIEW ...................................................... 147
APPENDIX C: FOIL RESPONSES ........................................... 152
I. INTRODUCTION
People who are currently or formerly incarcerated in New York State
prisons know that the water inside is often not safe to drink.1 However,

†Shannon

Haupt is a recent graduate of the City University of New York School of Law. They
participated in the CUNY Law Defenders Clinic working on Ramon Henriquez’s clemency

120

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CRUEL AND USUAL

121

when they advocate for access to clean water, they are regularly met with
retaliation and denial.
This article brings together firsthand accounts, case law, and ongoing
investigations regarding water quality in New York State prisons. Contaminated water is not an anomaly in prisons–it is one of many severe
conditions that people in prison are forced to live under which threaten
their physical, mental, and emotional health.2 The daily abuses and harms
suffered by incarcerated people are normalized by prison officials, the
courts, and accepted societal narratives around crime and punishment.
This research was born of firsthand accounts shared by Ramon Henriquez,
Phil Miller, and others who have survived or are currently surviving deplorable conditions of incarceration. Section II of the article presents written versions of two of these accounts, one written firsthand by Phil Miller,3 the other based on interviews between Shannon Haupt and Ramon
Henriquez.4
Section III summarizes the statutory mechanisms in place to monitor
public water system compliance with Federal and State drinking water
standards.5 Section IV examines barriers to due process.6 Section V discusses recent pro se litigation raising the issue of contaminated water in
application from January 2021-November 2021 and have volunteered with the Parole Preparation Project of New York since 2019. Prior to law school, Shannon worked in Detroit, Michigan as an environmental educator and advocate for clean air and water. They seek to engage
in legal work that supports frontline communities facing the most deleterious effects of climate
change and racial capitalism. This article has benefitted greatly from discussions, feedback,
and support from Susie Charlop, Ramon Henriquez, Colby Williams, Mark Shervington, Jeff
Jones, Steven Zeidman, Erin Tomlinson, Sarah Lamdan, Rebecca Bratspies, and Anthony
Moffa. Many thanks to Phil for sharing his insights and to the CUNY Law Review editors for
their careful work.
‡ Phil Miller is a third-year law student at the CUNY School of Law. He spent 17 years incarcerated in New York State prisons, where he learned to speak multiple languages, studied
theater, and worked as a “jailhouse lawyer.” Prior to law school, his career focused on criminal
justice policy and reform.
1 Char Adams, Women in New York Prisons Complain of Contaminated Water After Hurricane Ida, NBC NEWS (Sept.14, 2021, 3:15 PM), https://perma.cc/9K33-6NNB; “People who
have consumed the water have gotten extremely sick and are NOT being given proper medical
care, the facilities are also NOT providing bottled water . . . [P]eople’s family and friends are
trying to send water, but because of the rules a lot of people can’t even get it.” SURVIVED AND
PUNISHED N.Y., Take Action: People in Bedford Prison Urgently Need Support (Sept.15,
2021), https://perma.cc/29LC-QRCW.
2 See generally Emily J. Patterson, The Dose-Response of Time Served in Prison on Mortality: New York State, 1989-2003, 103 AM. J. PUB. HEALTH 523, 523-28 (2013); Emily Widra,
Incarceration Shortens Life Expectancy, PRISON POL’Y INITIATIVE (June 26, 2017),
https://perma.cc/6GBK-9LL3.
3 See infra Section II, “Water Roulette.”
4 See infra Section II, “The Water Smelled Like A Pond.”
5 See infra Section III.
6 See infra Section IV.

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New York courts.7 Section VI concludes with a discussion of current efforts to uncover more information on the current state of New York prison
water systems compliance and monitoring.8
Prisons are inherently violent9 and toxic10 places by design. The goal
of this work is to amplify the tireless work of people currently incarcerated in New York State prisons to advocate for their rights, despite the
gauntlet of administrative and legal barriers to doing so. The authors and
contributors of this work hope to advance critical discussion of how these
barriers can be not reformed but removed.
II. FIRST-HAND ACCOUNTS
“Water Roulette”
Phil Miller
At the beginning of my incarceration during a twenty-year sentence,
I never thought that the quality of water would be something I’d miss
about being free. In fact, water quality was something I had never thought
about at all. It seemed to be a given that water was always available and
always potable. But as the years went by, I repeatedly realized that I
missed good water just as much as I missed good food. There were various times throughout my prison experience when the water was not potable, and the incarcerated population was advised not to drink the water at
all, usually for a few days. Of the seven New York State maximum-security prisons that I spent time in, there were two where the water issues
were unforgettable: Auburn Correctional Facility (“Auburn”) and Sing
Sing Correctional Facility (“Sing Sing”).11

7

See infra Section V.
See infra Section VI.
9 Kaba writes: “When we sentence people to prison, we are essentially sentencing them
to judicial rape . . . think of the routine strip searches . . . Prisoners are of course subjected to
these but so too are the people who visit them . . . Oppression and domination are the main
features of the prison industrial complex (PIC).” MARIAME KABA, Introduction to ROBIN
MCDUFF ET. AL., LETTER TO THE ANTI-RAPE MOVEMENT, 6-7, (ISSUU 2020) (1977)
https://perma.cc/CL73-YDPK.
10 See FIGHT TOXIC PRISONS, https://perma.cc/CCJ5-2VQS; see also PRISON ECOLOGY
PROJECT, https://perma.cc/K6WW-UJ8W.
11 New York State currently has 17 operational, maximum-security prisons, 16 of which
are for men. See generally, Facility Map, N.Y DEP’T OF CORRS. & CMTY. SUPERVISION, (Apr.
8, 2021), https://perma.cc/FL6F-C7AL (listing and mapping all maximum-security prisons in
New York State).
8

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From the inside, Auburn looks like a dungeon from medieval times.
Opened in 1817, it is one of the country’s oldest prisons.12 There are many
other problems than just the water. For example, I’ve observed windows
near the ceiling of the housing blocks, where everyone sleeps, stay broken
for years. It got so cold in some areas of the facility during the winter that
I had to wear a sweatshirt, a hat, and coat inside of my cell in order to
sleep at night. The broken windows also allowed birds to fly in and out
all day, every day; bird feces was everywhere. Roaches were so plentiful
in certain parts of the prison that, before falling asleep at night, I had to
put tissue in my ears and nose to keep them from crawling inside. Occasionally, raccoons, skunks, and cats got inside the buildings, too.
While I can’t speak about the quality of the pipes that bring water
into the prison, I think it is safe to assume that most of them are very old
and corroded. The primary source of drinking water for most of the people
incarcerated is a small sink located inside each cell. Drinking water is also
served during meals in the mess hall, and it is also available at water fountains that are outside in the yard or in the gym. But no matter the source,
the water itself is the same, and it is most frequently consumed or used in
each person’s cell. Water in the cell is used for drinking, making tea or
coffee, boiling rice or pasta, and even doing laundry by hand. It’s impossible to avoid using water frequently.
The water at Auburn frequently had a very strong metallic flavor but,
even then, most people still drank it or at least tried to drink it. I tried to
mask the flavor by making coffee or tea, but sometimes the metallic flavor
was too strong for even that to work. The worst was when the water would
come out of the sink with a brown or reddish-brown color. During those
times, we could not drink the water at all, and we were not warned by the
facility administration of its toxicity. The water was so discolored that
after washing my white t-shirts, boxers, or sheets the first few times, they
would turn light brown. Turning on the sink and hoping the water would
be clear was like playing a game of roulette.
Most of the corrections officers that worked there would not drink
the water. They’d make comments like, “you couldn’t pay me to drink
this water” or “you guys really shouldn’t be drinking this water,” but as
an incarcerated person, I did not have a choice. Every single day each
corrections officer brought their own gallon water jug that they would
drink throughout their shift. I can’t remember a single time when I saw a
corrections officer drink the same water as me at Auburn.
One of the most memorable moments was when the facility administration instructed the incarcerated population to not drink the water until
12

EILEEN MCHUGH, CAYUGA MUSEUM, IMAGES
FACILITY 8 (2010).

OF

AMERICA: AUBURN CORRECTIONAL

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further notice. We received this announcement over the loudspeakers in
the housing blocks13 and, later that day, we received a printed document
that was taped to the wall. I don’t remember the cause of the problem, but
it was related to the quality of the pipes that the water had to pass through.
Something had recently agitated the water system, causing more contamination than usual. None of the staff knew how long we would go without
water, but thankfully the facility administration had ordered giant containers of water to be delivered to the prison so that we had drinking water
during that time. This lasted for one or two days, but it was a rare moment
that the administration acknowledged that something was wrong with the
water. We knew from daily experience that something was frequently
wrong with the water, but complaints14 about it went nowhere.15 The Incarcerated Liaison Committee (“ILC”)16 had brought the issue up with the
facility administration on behalf of the incarcerated population at some of
their monthly meetings, and the facility administration’s response was
usually a statement that the water was fine, it was tested at the source, and
sometimes harmless sediment from pipes made the water look rusty.
There was no way to counter the facility administration’s reply that the
water was fine because we did not have the ability to test it.
My friends would sometimes boil the water to kill any bacteria. I
tried to do this, but eventually I went back to playing water roulette with
my sink, becoming tolerant to the gradations of metallic taste. Sometimes
I tried to filter the water by pouring it through multiple hair nets that I got
from the mess hall, but that only helped a little. Other than extremely dry
skin as a result of the water in the showers, I didn’t suffer any maladies
from the drinking water. Well, none that I know about, at least.

A “housing block,” also known as a “housing unit” or a “cellblock,” is a building that
contains the cells in which incarcerated people live. See generally, N.Y. COMP. CODES R. &
REGS. tit. 9, § 7040.5 (2019).
14 Complaints are referred to as “grievances” in New York State prisons. They can be
filed by incarcerated individuals to seek solutions to issues or problems that affect that individual. See N.Y. DEP’T OF CORRS. & CMTY. SUPERVISION, NO. 4040, INMATE GRIEVANCE
PROGRAM 1 (2016), https://perma.cc/3QMU-6RQU.
15 I was at Auburn for the last three years of my incarceration. By that time, I had stopped
filing grievances because I lost all faith in the fairness of the grievance process. They almost
always get denied despite the validity of the underlying complaint, and they frequently result
in staff retaliation against the incarcerated people who file them. See 2018 N.Y. DEP’T OF
CORRS. & CMTY. SUPERVISION, INMATE GRIEVANCE PROGRAM ANN. REP. 25 (2020),
https://perma.cc/7PU5-DUKY.
16 Formerly known as the “Inmate Liaison Committee,” the ILC is an elected body of
incarcerated people, and its role is to bring collective issues, rather than individual complaints
(as in the grievance process), to the facility administration during monthly meetings. See N.Y.
DEP’T OF CORRS. & CMTY. SUPERVISION, NO. 4002, INCARCERATED LIAISON COMMITTEE (ILC)
2 (2021), https://perma.cc/4YE3-GGHX.
13

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Similar water problems existed at Sing Sing, also one of the oldest
operational prisons in the country.17 I spent five years in that place and
was lucky not to suffer from the water there. The same could not be said
for others, including a friend of mine. I remember the day when he had
stomach pains and was vomiting uncontrollably. He hadn’t eaten anything
that could have caused it, and he wasn’t sick with the flu or anything else
before the vomiting began. When he went to the prison infirmary to be
treated, the medical staff explained that he had contracted a spiral bacterium called Helicobacter Pylori (“H. Pylori”).18They informed him that
this was most likely caused by the contaminated drinking water. He eventually recovered, but adequate drinking water is something that an incarcerated person should not have to worry about. Based on my own experience, I know that incarcerated men tend not to discuss medical issues with
one another, so there is no way to really know how many other people
were affected in the same way.
When you’re in prison, there is no choice but to rely on the resources
given to you; there are simply no alternatives. Some commissaries19 sell
cans of soda or juice, but most people don’t have enough money20 to buy
as many cans of soda as they’d need to completely replace their reliance
on the facility’s drinking water.21 Even if they did, it would be a very
unhealthy and expensive choice. Although I wasn’t personally harmed by
the water I drank in prison, it was still a source of anxiety because it frequently had different colors and metallic tastes, the corrections officers
refused to drink it, and other incarcerated people I knew suffered physical
17

See History of Sing Sing Prison, SING SING PRISON MUSEUM, https://perma.cc/FPB7V3KC (last visited Mar. 26, 2022) (noting that construction began in 1825 and was inhabited
in 1828).
18 See Helicobacter Pylori (H. pylori) Infection, MAYO CLINIC (May 28, 2021),
https://perma.cc/969V-2SHS (describing symptoms, causes and risk factors of H. pylori). See
also Edward Lyon, Preliminary Injunction Sought Over Contaminated Drinking Water at
Connecticut Prison, PRISON LEGAL NEWS (Jan. 9, 2020), https://perma.cc/P96Y-YYSG (accounting for cases of H. Pylori due to water contamination in prisons in Connecticut).
19 Commissary, N.Y. DEP’T OF CORRS. & CMTY. SUPERVISION, https://perma.cc/ZPU98XF6 (last visited Mar. 26, 2022) (explaining that a commissary is a type of small store located
inside the prison that allows incarcerated people to purchase certain items).
20 The pay range for people incarcerated in New York State Prisons is from 10 cents to
62 cents an hour. The most common prison work assignments pay between 10 cents and 26
cents per hour. See State & Federal Prison Wage Policies & Sourcing Information, PRISON
POL’Y INITIATIVE (Apr. 10, 2017), https://perma.cc/2RB4-H4TA.
21 I do not remember bottled water being available in either Auburn or Sing Sing’s commissary when I was there. Commissary items are selected mostly once a year by the Inmate
Liaison Committee (ILC), and that Committee has to be very selective because of space limitations in the facility storage areas. See THE CORR. ASS’N OF N.Y., AUBURN CORR. FACILITY:
2011, at 41 (2011), https://perma.cc/HZW7-LB9N (“The commissary is run by five civilian
staff and seventeen inmate clerks. Items on the commissary buy sheet are updated by the ILC
about once or twice a year.”).

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harm from it. Not having regular access to clean drinking water was not
part of the sentence that the judge imposed, and no incarcerated person
should have to endure that on top of all the other problems that exist behind those walls.
“The Water Smelled Like A Pond”
An interview with Ramon Henriquez
Ramon Henriquez22 was incarcerated at Elmira Correctional Facility
from June 2016 to December 2018. For nearly eighteen months the water
from his faucet was brown and hot to the touch. “The water looks like tea,
all the time. I try straining it, through a handkerchief. I have to drink it. I
try all kinds of stuff.”23 Ramon often kept the water running at his sink in
case it ever got cold. One day, it did. “The day the pipe broke, my water
got cool and crystal clear. I filled up every bucket I had, every garbage
bag I could find to fill up with the water.”24
That night, Ramon heard rumors that the prison had a water main
break and theorized that this is what caused the sudden change in water
quality. Elmira never issued a formal statement to prisoners acknowledging the status of the water or the pipes carrying it.
When Ramon was transferred to Green Haven, it was the same story.
Ramon’s work assignment involved replacing the copper pipes that distributed water throughout the prison.
Something was eroding them, making them paper thin, so thin you
could stick your finger through them. These are thick, expensive
lines of copper and we were regularly replacing them because of
these leaks. We put in schedule 80 copper tubing, and three weeks
later you could stick your finger through [the wall] of the pipe.25
The water consistently came out of the faucets rusty and “tea colored.” Corrections officers would bring their own water to work.26 Civilians who interacted with people incarcerated at Green Haven would tell

22

Ramon Henriquez is currently serving a sentence of 40 years to life at Sullivan Correctional Facility. He has an active clemency application under review by Governor Hochul’s
office. He sought and was denied medical parole in May 2021.
23 See infra app. B at 37.
24 Id. at 33.
25 See infra app. B at 35.
26 Id.

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them not to drink the water.27 When Ramon tried to raise complaints28
about water contamination with the prison, he was met with denial and
retaliation.
I would write my grievance, hand it to the grievance supervisor,
and it would always be shut down because all the officers made
statements that water contamination was not happening, and they
would write referral letters [stating I should be sent] to a mental
health unit, calling me crazy. I had about 30-40 mental health
referrals in response to my grievances.29
The futility of the grievance process and the price of purchasing bottled water30 at the commissary led Ramon to a different kind of innovation:
I was the ice machine guy, so we had the filters behind the ice
machines, and I put spigots behind the ice machines so that everyone could drink it. All the ice machines require filters, so we
bought these big industrial filters at $75 a cartridge, some of them
take four and some take two and then a coarse filter. So, they had
this thing, this port that you can attach a valve to that’s used to,
when you replace the coarse filter you open it and it drains it, and
so I would pipe a spigot to it. And you know in some of the blocks
the officers would take the valve off so that they were the only
ones who could use it and they wouldn’t let the prisoners use it,
but as soon as the shift changed or those officers that took it leave
I would come and put another one.31
Now at Sullivan, Ramon reports that not much has changed:
They had that E. coli thing last summer and there were a lot of
people throwing up here [at Sullivan]. They didn’t tell us anything
27

Id.
The formal complaint procedure for people incarcerated in New York State prisons are
governed by the Prison Litigation Reform Act. The first action a person must take to raise an
issue is to file a grievance. The grievance process is an internal complaint system governed by
the prison itself. When a grievance is denied, the person can appeal the denial. An incarcerated
person cannot pursue legal action until they have exhausted all administrative remedies, e.g.
filed a grievance and appealed its denial. This process of “exhaustion” can take years. See 42
U.S.C. § 1997e(a); see also AM. CIV. LIBERTIES UNION, Know Your Rights: The Prison Litigation Reform Act (PLRA) (2002), https://perma.cc/S5XJ-HPYT.
29 See infra app. B at 34.
30 As of October 2020, the Federal Bureau of Prisons MCC in New York prices a bottle
of water at $1.05. See DOJ-BOP MCC NY, October 2020 Commissary Price List,
https://perma.cc/GM8A-WZP9. Most prisons only allow commissary purchases once every
two weeks. See also Commissary, supra note 19.
31 See infra app. B at 35.
28

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until someone blew the whistle. Some family members saw it
online and called the Department of Health, and the DOH
emailed the prison. Fallsburg issued a boil water advisory. My
friend used the water fountain in the yard and came back throwing up and diarrhea, but he never went to the hospital he stayed
in his cell and rode it out for two days . . . Everybody here has
gastro[intestinal] problems. Everybody.32
III. STATUTORY FRAMEWORK FOR DRINKING WATER PROTECTION
Access to clean water is internationally recognized as a human
right.33 In 2002, the United Nations Committee on Economic, Social and
Cultural Rights adopted general comment No. 15 on the right to water,
defining it as “the right of everyone ‘to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.’”34
The right to access clean water is further expressed at regional levels
across the globe.35 In 2010, the United Nations General Assembly passed
Resolution 64/292 which explicitly recognized the human right to water
and sanitation and acknowledged that clean drinking water and sanitation
are essential to the realization of all human rights. 36 The United States,
along with forty other countries, abstained from Resolution 64/292.37 In
2012, California became the first and only state to recognize the human

32

See id. at 35-36.
U.N., ECON & SOC. & CULTURAL RTS., Comm. No. 15 on the Right to Water (Arts. 11
and 12 of the International Covenant on Economic, Social and Cultural Rights), U.N. DOC.
E/C.12/11 (2003), https://perma.cc/LN7Q-VNJK.
34 See U.N. Off. of the High Comm’r for Hum. Rts., The Right to Water: Fact Sheet No.
35 at 1 (Aug. 2010), https://perma.cc/AXG9-B2WE.
35 See id. at 6 (explaining that regional charters, such as the African Charter on the Rights
and Welfare of the Child (1990) and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003) contain explicit human rights obligations related to safe drinking water, whereas others charters like the Revised European Social
Charter (1996), the American Convention on Human Rights (1969), and the African Charter
on Human and Peoples’ Rights (1969) don’t explicitly include providing access to safe drinking water but “related jurisprudence has derived protection of such access from the enjoyment
of other human rights, such as the rights to adequate housing, health or life.”).
36 G.A. Res. 64/292, The Human Right to Water and Sanitation at 2 (Aug. 3, 2010) (“Acknowledging the importance of equitable access to safe and clean drinking water and sanitation as an integral component of the realization of all human rights . . .”).
37 Press Release, General Assembly, General Assembly Adopts Resolution Recognizing
Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favor, None
Against, 41 Abstentions, U.N. Press Release GA/10967 (July 28, 2010) (citing the United
States as one of the abstentions), https://perma.cc/HRJ4-H8X8.
33

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right to water.38 Recognition of this right is the first step to ensuring meaningful access to clean water.
There are several key statutory mechanisms which govern the monitoring and assurance of clean water distribution through public water systems in the United States. A few of these statutes are discussed below.
Federal Statutes and Regulations
The Safe Drinking Water Act (“SDWA”), passed in 1974, authorized
the Environmental Protection Agency (“EPA”) to establish minimum
standards to protect tap water.39 The SDWA requires owners and operators of public water systems to comply with these minimum standards
through quality monitoring.40 These standards are referred to as Maximum Contaminant Levels (“MCL”), and where water contains more than
the permissive amount of a contaminant, this violation is referred to as an
“exceedance.”41 The EPA works with state-level agencies to ensure compliance with national MCL standards through the Public Water System
Supervision (“PWSS”) program.42 The PWSS program is responsible for
review and evaluation of analytical results of water samples collected by
public water systems.43 When the PWSS program finds an exceedance in
a water sample, the EPA is required under the Public Notification (“PN”)
Rule of the SDWA to inform the population who sources water from
where the sample was taken.44
The PN Rule requires the owner or operator of a public water system
to “provide public notice to all persons served when the system fails to
comply with certain drinking water regulations or is facing other

See Wilfredo Lopez, Access to Water is an American Human Right, PACE INT’L L. REV.
(May 2017), https://perma.cc/KD4Y-HKXU.
39 Safe Drinking Water Act (SDWA) of 1974, 42 U.S.C. § 300f, et seq.
40 See Safe Drinking Water Act Compliance Monitoring, U.S. ENV’T PROT. AGENCY,
https://perma.cc/KY3J-SVK2 (last visited Apr. 10, 2022) (“[The] EPA’s and state’s primary
means of monitoring public water system compliance with the SDWA and its implementing
regulations is the review and evaluation of analytical results of water samples collected by
public water systems.”); see also Providing Safe Drinking Water in America: National Public
Water Systems Report, U.S. ENV’T PROT. AGENCY, https://perma.cc/U78Z-CYJH (last visited
Apr. 26, 2022) (providing that snapshots of public water system violations dating back to
2014).
41 40 C.F.R. § 141.2 (2004) (“Maximum contaminant level means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.”).
42 See generally Public Water System Supervision (PWSS) Grant Program, U.S. ENV’T
PROT. AGENCY, https://perma.cc/N66V-YHWS (last visited Apr. 23, 2022) (outlining the key
activities carried out in compliance with the PWSS program).
43 Id.
44 U.S. ENV’T PROT. AGENCY, EPA 816-R-09-012, REVISED STATE IMPLEMENTATION
GUIDANCE FOR THE PUBLIC NOTIFICATION (PN) RULE (2010) at 4.
38

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situations posing a potential risk to public health.”45 The EPA explicitly
indicates that public notice is required where there is an MCL exceedance
and where there is a fecal indicator-positive groundwater source sample,
among other circumstances involving violations of testing procedures,
noncompliance, and waterborne disease outbreaks.46 For example, H. Pylori, the bacterial infection mentioned in both Phil and Ramon’s narratives, and the foundation of the claims for all three case studies examined
in Section IV, is commonly associated with fecal matter contamination in
water.47
The PN Rule organizes violations of drinking water standards along
three tiers based on the risk and severity of adverse health effects.48 When
notice is required, the EPA mandates what information must be conveyed
to the public.49
The Lead and Copper Rule50 (“LC Rule”) was enacted under the Safe
Drinking Water Act by the EPA in 1991 to “protect public health by minimizing lead and copper levels in drinking water, primarily by reducing
water corrosivity” of plumbing materials.51 The LC Rule requires that
public water systems monitor drinking water at customer taps. 52 Where
lead concentrations exceed an “action level” of 15 parts per billion
(ppb)53, or copper concentrations exceed an action level of 1.3 parts per

45

Id.
Id. at 5, 19.
47 See infra Section IV; Helicobacter Pylori, JOHNS HOPKINS MED., https://perma.cc/7
CVY-CTWD (last visited Apr. 23, 2022); Helicobacter Pylori, SAFE DRINKING WATER
FOUND., https://perma.cc/N4XC-GY47 (last visited Apr. 23, 2022) (“Transmission via the fecal-oral route would occur through the ingestion of waste-tainted food or water. Bacteria from
an infected person may end up in the food or water of an uninfected person through improper
water and sewage treatment or improper food handling.”).
48
PN Rule organizes the tiers as such: “Tier 1 applies to NPDWR violations and situations with significant potential to have serious adverse effects on human health as a result of
short-term exposure . . . Tier 2 applies to . . . violations and situations with the potential to
have serious adverse effects . . . Tier 3 applies to all other . . . violations and situations.” 40
C.F.R. § 141.202(a)-(b), § 141.203(a)-(b), § 141.204(a)-(b) (2004). See generally U.S. ENV’T
PROT. AGENCY, EPA 816-F-09-010, THE PUBLIC NOTIFICATION RULE: A QUICK REFERENCE
GUIDE (2009).
49 40 C.F.R. § 141.205 (listing public notice requirements).
50 40 C.F.R. § 141 Subpart I.
51 U.S. ENV’T PROT. AGENCY, EPA 816-F-08-018, LEAD AND COPPER RULE: A QUICK
REFERENCE GUIDE (2008).
52 See id.
53 Under the SDWA, the EPA identifies contaminants that may adversely affect public
health and occur in drinking water with a frequency and at levels that pose a threat to public
health. For each contaminant, the EPA determines a maximum contaminant level goal
(“MCLG”) for contaminants it decides to regulate. This goal is the level of a contaminant in
drinking water below which there is no known or expected risk to health. The EPA also specifies a maximum contaminant level (“MCL”) which is the maximum permissible level of
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million (ppm)54, the system “must undertake a number of additional actions to control corrosion [and] inform the public about steps they should
take to protect their health and may have to replace lead service lines under their control.”55 There are many revisions to this rule since its adoption in 1993, due in significant part by the tireless advocacy by residents
of Flint, Michigan following the Flint water crisis.56
New York Statutes
In New York State, the Department of Environmental Conservation
establishes water quality standards.57 These standards control the maximum contaminant levels for coliform bacteria, e. coli, groundwater effluent limitations, and pH levels.58 Portions of the code are currently being
revised in light of recent developments in scientific understanding of water contaminants such as PFOA, PFOS, and 1,4-Dioxane.59 As science
emerges regarding threats of water contaminants to human health, standards are updated to reflect this.60
In 2017, then-governor Cuomo signed into law the Clean Water Infrastructure Act (“CWIA”), which provided funding to “improve municipal drinking water, improve wastewater treatment infrastructure, expedite the cleanup of hazardous waste that may impact drinking water, and
support green infrastructure.”61 The $2.5 billion in funding created a lead
service line replacement grant program, emergency financial assistance
contaminant in drinking water which is delivered to any user of a public water system. These
levels are enforceable standards. The EPA considers an action level to be the point at which a
contaminant has exceeded the Maximum Contaminant Level, requiring further action to treat
the water or remove the contaminant. See U. S. ENV’T PROT. AGENCY, EPA 816-F-04-030,
UNDERSTANDING THE SAFE DRINKING WATER ACT (2004); National Primary Drinking Water
Regulations, U.S. ENV’T PROT. AGENCY, https://perma.cc/7YPS-XYAA (last visited Apr. 24,
2022); see also N.Y. COMP. CODES R. & REGS. tit. 10, § 5-1.1 (2022).
54 See N.Y. COMP. CODES R. & REGS. tit. 10, § 5-1.1 (2022); BARRY N. TAYLOR,
INTERNATIONAL SYSTEM OF UNITS (SI) 44 (Diane Publishing Company) (2009) (“the term
‘ppm,’ meaning 10^-6 relative value, or 1 in 10^6, or parts per million, is also used. This is
analogous to the meaning of percent as parts per hundred. The term ‘parts per billion,’ and
‘parts per trillion,’ and their respective abbreviations ‘ppb’ and ‘ppt,’ are also used . . . ”).
55 40 C.F.R. § 141.1 (2022).
56 See Steve Carmody, EPA Updates ‘Lead and Copper Rule’, Critics Say ‘We Can, and
Must, Do Better’, MICH. RADIO (Dec. 22, 2020, 3:56 PM), https://perma.cc/Y68W-L4BJ.
57 N.Y. COMP. CODES R. & REGS. tit. 6, § 703 (2022).
58 N.Y. COMP. CODES R. & REGS. tit. 6, §§ 703.3-703.6 (2022).
59 See DEC Releases DRAFT Guidance Values to Advance New York State’s Regulation
of Emerging Contaminants PFOA, PFOS, and 1,4-Dioxane, N.Y. DEP’T OF ENV’T
CONSERVATION (Oct. 6, 2021), https://perma.cc/3S5B-KB9R.
60 See CTR. FOR ENV’T HEALTH, Public Water Standards for PFOA, PFOS, and 1,4-Dioxane,N.Y. STATE DEP’T OF HEALTH (Sept. 2020), https://perma.cc/5GEJ-HFPQ.
61 N.Y. STATE ASSOC. OF CNTYS., CLEAN WATER INFRASTRUCTURE IN NEW YORK STATE
2 (2017), https://perma.cc/WG4R-5T9H.

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for economic hardship due to water contamination, cleanup and abatement of solid waste sites and contaminated drinking water.62 Additional
funding for the Water Infrastructure Improvement Act is included in the
larger Clean Water, Clean Air and Green Jobs Environmental Bond Act,
which is up for a vote in November 2022.63
IV. ADMINISTRATIVE AND LEGAL BARRIERS TO REMEDY
Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”)64 was enacted in 1996
to reduce the amount of lawsuits filed by and on behalf of incarcerated
people.65 In particular, the PLRA states “no action shall be brought with
respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”66 The Supreme Court has interpreted this condition broadly,67
stating, “the PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other
wrong.”68 Furthermore, in cases where plaintiffs are pursuing compensatory claims for money damages, the PLRA explicitly prohibits actions
“for mental and emotional injury suffered while in custody without a prior
showing of physical injury.”69 Thus, for an incarcerated plaintiff to file a
lawsuit, they first must exhaust their administrative remedies. In the context of prisons, the administrative remedy in question is sought through
the grievance process.70
62

Id.
Governor Hochul Announces $600 Million in Grants Available for Water Infrastructure and Resiliency Projects Statewide, Outlines New Resilient New York Agenda,
GOVERNOR’S PRESS OFF. (Sept. 21, 2021), https://perma.cc/2RU5-H2AE.
64 See generally 42 U.S.C. § 1997(e).
65 See 141 CONG. REC. S14,626 (daily ed. Sept. 29, 1995) (statement of Sen. Orrin Hatch:
“Jailhouse lawyers with little better to do are tying our courts in knots with the endless flow
of frivolous litigation.”); see also Ashley Dunn, Flood of Prisoner Rights Suits Brings Effort
to Limit Filings, N.Y. TIMES (Mar. 21, 1994), https://perma.cc/6HDQ-CLGG.
66 42 U.S.C. § 1997e(a).
67 See generally Porter v. Nussle, 534 U.S. 516 (2002).
68 Id. at 532.
69 42 U.S.C. § 1997e(e).
70 As detailed in Phil and Ramon’s accounts, a grievance is a complaint filed with the
prison, to which prison officials can either deny, resulting in inaction and the option to appeal
the denial, or grant, and change the course of action complained of. As noted above, grievances
can be filed individually or the ILC can bring collective complaints on behalf of a larger group.
See N.Y. DEP’T OF CORRS. AND CMTY. SUPERVISION, supra note Error! Bookmark not defined..
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Eighth Amendment Legal Standard for Conditions of Confinement71
Incarcerated plaintiffs typically situate conditions of confinement
claims within the framework of Eighth Amendment jurisprudence.72 The
Eighth Amendment of the Constitution outlaws “cruel and unusual punishment.”73 Amid continuous debate about what constitutes “cruel and
unusual” in the context of prison conditions, since the 1970s, courts have
recognized a growing number of cases and conditions to constitute cruel
and unusual punishment and have ordered remedies in favor of the plaintiff or plaintiffs.74 Specifically, there is a growing movement to address
heightened exposure to environmental toxins faced by people in prison.75
Successful Eighth Amendment litigation around prison conditions has

71 See Anthony Moffa, Environmental Indifference, 45 HARV. ENV’T L. REV. 333, 349359 (2021) (providing a full discussion of the history and application of the Eighth Amendment deliberate indifference standard).
72 See Farmer v. Brennan, 511 U.S. 825, 825 (1994) (alleging Eighth Amendment violation where prison officials were deliberately indifferent to petitioner’s safety from violent assault); Estelle v. Gamble, 429 U.S. 97, 97 (1976) (alleging Eighth Amendment violation where
corrections’ medical director and other officials failed to provide adequate treatment following
respondent’s prison work-related injury); Helling v. McKinney, 509 U.S. 25, 25 (1993) (alleging Eighth Amendment violation where prison officials put respondent’s health at risk by
allowing him to be exposed to cigarette smoke).
73 U.S. CONST. Amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
74 See LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (citing Estelle v. Gamble in
recognition that “the right to be free from deliberate indifference to serious medical needs”
encompassed the right to be free from exposure to asbestos); cf. Citizens Accord, Inc. v. Town
of Rochester, No. 98-CV-0715, 2000 WL 504132, at *24 (N.D.N.Y. Apr 18, 2000) (distinguishing Helling’s progeny as “cases [that] involve situations where persons are in custody,
are exposed to conditions that are substantially likely to cause serious harm, and the victims
therein are unable to take corrective action or avoid the harm because of their custodial status.”).
75 E.g., Kimberly M. S. Cartier, An Unfought Geoscience Battle in U.S. Prisons, EOS:
SCIENCE NEWS BY AGU (Nov. 10, 2020), https://perma.cc/V49T-YQHW; see also FIGHT
TOXIC PRISONS, https://perma.cc/9WZV-6MPL (last visited Apr. 24, 2022); see also NATION
INSIDE: PRISON ECOLOGY PROJECT, https://perma.cc/S6TS-WSLS (last visited Apr. 24, 2022).

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been brought regarding food76, radon gas exposure77, secondhand
smoke78, and extreme temperatures.79
In order to bring an Eighth Amendment claim, plaintiffs must establish that the conditions, when viewed objectively, “resulted in unquestioned and serious deprivation of basic human needs” serious enough to
“deprive [a prisoner] of the minimal civilized measure of life’s necessities.”80 Next, they must demonstrate that the defendants — here, prison
officials — were “deliberately indifferent” to the issue at hand.81 Deliberate indifference is established only when the defendant has actual
knowledge of the harm as alleged by the plaintiff, and then disregards that
risk by “intentionally refusing or failing to take reasonable measures to
prevent the problem.”82
In a landmark Supreme Court case, Helling v. McKinney, the Court
for the first time established the possibility of bringing an Eighth Amendment claim based on the risk of future harm from present exposure to
environmental toxins.83 Where there is not yet an injury, a plaintiff must
establish three elements of the risk for the court to determine it is “sufficiently grave”84: 1) the injury’s seriousness; 2) the likelihood of the injury
76 See Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977) (“It is much too late in the
day for states and prison authorities to think they may withhold from prisoners the basic necessities of life, which include reasonably adequate food, clothing, shelter, sanitation and necessary medical attention.”).
77 See Vega v. Semple, 963 F.3d 259, 284 (2d Cir. 2020) (“[F]ailure to take any reasonable steps to abate the risk of excessive radon exposure, of which risk they [officials] were
actually aware, would constitute deliberate indifference to a serious medical need that violated
inmates’ clearly established Eighth Amendment rights . . . ”).
78 See Reilly v. Grayson, 310 F.3d 519, 520-21 (6th Cir. 2002) (“[E]vidence from which
the district court could find that [plaintiff] suffered both an increase in the severity of his
asthma and an increase in the risk of future damage to his health as a direct result of his exposure to secondhand smoke” in prison unit supported that court’s award of damages and attorney’s fees in the § 1983 action against state prison officials for “deliberate indifference to his
serious medical needs.”).
79 See generally Matt Clarke & Christopher Zoukis, Litigation Heats up Over Extreme
Temperatures in Prisons, Jails, PRISON LEGAL NEWS (June 29, 2018), https://perma.cc/JC4D4VVZ.
80 Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981).
81 Helling v. McKinney, 509 U.S. 25, 28, 36 (1993) (explaining that “[t]he subjective
factor, deliberate indifference, should be determined in light of the prison authorities’ current
attitudes and conduct . . . ”).
82 Bruton v. Hendler, No. Civ.A.00-1032, 2004 WL 2370704, at *5 (D. Del. Oct. 15,
2004) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
83 Helling was decided three years before the enactment of the Prison Litigation Reform
Act, which then limited the ability to bring a suit for money damages without a showing of
physical injury. See Helling, 509 U.S. at 35; see also 42 U.S.C. § 1997e(e) (stating injunctive
relief, however, can still be sought on a theory of threat of future harm); see e.g., Mitchell v.
Horn, 318 F.3d 523, 534 (2003).
84 Helling, 509 U.S. at 36.

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occurring; and 3) that the risk “violates contemporary standards of decency to expose anyone unwillingly to the risk.”85 The first and second
elements can be established through statistical and scientific evidence
demonstrating the condition of incarceration which poses the risk. The
third element requires a showing that the risk itself is one which society
is unwilling to tolerate.86 In the Helling case, which concerned exposure
to secondhand smoke, Plaintiffs cited scientific studies, public opinion
polling, and a court’s finding of a changed pattern in societal attitudes and
behavior towards smoking and smokers.87 Taken together, the plaintiff
made a successful showing of society’s unwillingness to tolerate the risk
of secondhand smoke.
V. FAILURE OF THE COURTS TO ADDRESS CONTAMINATED WATER AND
ITS HEALTH IMPACTS ON INCARCERATED PEOPLE
Public Water Systems – The Basics
Many New York State Prisons source their water from community
water systems88 which often also supply water to the township in which
the prison is situated. Some New York State prisons have their own water
source and supply infrastructure.89 Water contamination in a public water

85

Id.(emphasis in original).
Anthony Moffa, Environmental Indifference, 45 HARV. ENV’T L. REV. 333, 353-354
(2021).
87 Id. at 354.
88 See N.Y. COMP. CODES R. & REGS. tit. 10, § 5-1.1 (2022) (“Community water system
(CWS) means a public water system which serves at least five service connections used by
year-round residents or regularly serves at least 25 year-round residents.”). See also 10
N.Y.C.R.R. § 128-4.1(c), N.Y. Dep’t of Health Annual Water Quality Report Certification
Form, Otisville Correctional Facility (2015); 10 N.Y.C.R.R. § 128-4.1(c), N.Y. Dep’t of
Health Annual Water Quality Report Certification Form, Greenhaven Correctional Facility
(2016).
89 See 10 N.Y.C.R.R. § 128-4.1(c); Annual Drinking Water Quality Report for 2015,
Green Haven Correctional Facility (“Our water system with eight service connections, serves
approximately 2,800 people. Our water source is a well water supply consisting of three wells.
The wells are located approximately three quarters of a mile to the northwest of the facility.”);
see also Keir Chapman & Jeff Cole, When Prison Closes, What Happens to The Water it
Supplies to Neighborhood, WWNY-TV (Feb. 16, 2021, 5:24 PM), https://perma.cc/M2M7R9DQ (“On the prison grounds [of Watertown Correctional Facility] there is a water treatment
facility. It provides town water to the prison complex and, through an agreement struck in the
1980s, extends that water service to a nearby housing development, Boulder Ridge, where
there are 40 homes.”); see also Rehabilitate Waste Water Treatment Plant, Building 44, N.Y.
STATE OFF. OF GEN. SERV. (last updated Apr. 7, 2022), https://perma.cc/XW3Q-43PX; Toxic
Waters: Green Haven Correctional Facility, N.Y. TIMES, https://perma.cc/UTH5-KWB5 (last
visited Apr. 24, 2022); Toxic Waters: Woodbourne Correctional Facility, N.Y. TIMES,
https://perma.cc/HU5A-Z6C2 (last visited Apr. 24, 2022).
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system can occur in multiple ways. Of interest in this article are source
site contamination90 and service line contamination.91
Three Case Studies
In the last twenty years, there have been numerous lawsuits by people incarcerated in New York filing pro se civil rights suits against New
York State prisons on the basis that contaminated water and its related
health effects amount to cruel and unusual punishment, barred by the
Eighth Amendment of the United States Constitution – this section will
discuss three of those cases which were dismissed at summary judgment:
Cherry v. Edwards, Robinson v. Edwards, and Wright v. New York State
Department of Corrections.92 These cases illustrate the widespread nature
of experiences like those of Ramon and Phil, and the insurmountable
standard posed to pro se incarcerated plaintiffs at the summary judgment
stage of litigation.
The summary judgment standard permits a court to dismiss a claim
only when “showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”93 In dismissing the cases, each
court held plaintiffs failed to establish an issue of material fact as to
whether the water was contaminated.94 The court must “view the evidence
90 Source site contamination refers to an issue at the source of the water used by a community water system, which can involve bacteria which develops in standing water at a well,
pond, or lake from which the system draws its water. Source cited contamination can also
develop where the source is situated near a site containing hazardous waste, which then
leaches into the source water. This can also occur where the hazardous waste is remote from
the source but leaches into the groundwater where it then encounters the source site of water
for the community water system. See Water-related Diseases and Contaminants in Public
Water Systems, CTRS. FOR DISEASE CONTROL & PREVENTION, (last updated Apr. 7, 2014),
https://perma.cc/E27P-6DTZ; see also Contaminated Land, U.S. ENV’T. PROT. AGENCY (last
updated Sept. 28, 2021), https://perma.cc/3NAD-RQJM.
91 See Water-related Diseases and Contaminants in Public Water Systems, CTRS. FOR
DISEASE CONTROL AND PREVENTION (last updated Apr. 7, 2014), https://perma.cc/E27P-6DTZ
(explaining that service line contamination); see also Basic Information About Lead in Drinking Water, U.S. ENV’T. PROT. AGENCY (last updated Feb. 1, 2022), https://perma.cc/SYX2EFVR.
92 Cherry v. Edwards, No. 01 Civ. 7886, 2005 WL 107095, at *1 (S.D.N.Y. Jan. 18,
2005); Robinson v. Edwards, No. 04 Civ. 2804, 2006 WL 1889900, at *1 (S.D.N.Y. July 5,
2006); Wright v. N.Y. State Dep’t of Corr. Serv., No. 06 Civ. 03400, 2008 WL 5055660, at
*1 (S.D.N.Y. Oct. 10, 2008).
93 FED. R. CIV. P. 56(c)(1)(B).
94 Wright, 2008 WL 5055660, at *13 (“Plaintiff’s submissions fail to undermine or sufficiently rebut Defendants’ evidence of compliance with sanitary standards so as to create an
issue of fact about H. pylori or Giardia in Green Haven’s water. The record would not permit
a reasonable jury to conclude that Green Haven’s water was actually contaminated.”); Cherry,
2005 WL 107095, at *8 (“[T]he evidence adduced by the Plaintiffs is plainly insufficient to

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in the light most favorable to the party against whom summary judgment
is sought and draw all permissible inferences in favor of that party.”95 The
court must also accept as true the non-moving party’s evidence, if supported by affidavits or other evidentiary material.96
Cherry v. Edwards
The first case is Cherry v. Edwards, in which plaintiffs incarcerated
at Otisville Correctional Facility (“OCF”) brought a pro se civil rights
lawsuit seeking compensatory and punitive damages.97 Plaintiffs Eric
Cherry (“Mr. Cherry”) and Thomas Robinson (“Mr. Robinson”) alleged
that the defendants, the Department of Corrections and Community Supervision (“DOCCS”) Commissioner, OCF Superintendent, the Director
of the DOCCS Grievance Program, and two members of the OCF Medical
Staff, were deliberately indifferent to their medical needs. Each plaintiff
alleged harm arising from H. Pylori infection – a bacteria that can pass
through water exposed to animal or human fecal matter.98
Mr. Cherry and Mr. Robinson filed their complaint in the Southern
District of New York on August 23, 2001. The complaint was originally
brought on behalf of nine plaintiffs. The presiding judge dismissed the
claims of seven plaintiffs on November 20, 2002, on the grounds that they
failed to exhaust their administrative remedies as required under the
Prison Litigation Reform Act.99
Cherry v. Edwards marks a pinpoint in a long history of contaminated water at OCF, dating back to at least 1998, when they converted
their water source from a reservoir to well water.100 Following the conversion, people incarcerated at OCF began filing complaints that the water turned “dark brown” and “some type of fungus looking slime” was
appearing in it.101 These types of complaints continued for eight months

show that there was a greater than normal incidence of infection at OCF and, hence, some
reason to believe that the water distribution system was fostering its spread.”); Robinson, 2006
WL 1889900, at *9 (“Robinson’s bare assertions of a facility outbreak is ‘plainly insufficient
to show that there was a greater than normal incidence of infection at OCF or to show that
OCF’s water system contributed in any way to transmitting the pathogen.’”).
95 Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
96 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
97 See Cherry, 2005 WL 107095.
98 See Helicobacter Pylori, JOHNS HOPKINS MED. supra note 47 (“H. pylori is a type of
bacteria that infects your stomach. It can damage the tissue in your stomach and the first part
of your small intestine . . . . In some cases it can also cause painful sores called peptic ulcers
in your upper digestive tract.”)
99 Cherry, 2005 WL 107095, at *6.
100 Id. at *2, Bergus Aff. 7, 8.
101 Cherry, 2005 WL 107095 at *2, Cherry Aff. 1.

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and were met with inaction by OCF employees.102 The tipping point came
when people filed complaints about visible organisms in the water, which
were later determined to be “midges” (commonly known as “blood
worms”).103 At that point, OCF Superintendent Edwards brought in water
via tanker trucks and issued a statement that the “presence of larvae in
drinking water is highly unusual,” but according to the New York State
Department of Health, did not present a risk to consumers.104 The water
trucks remained at OCF until the facility converted back to sourcing water
from the reservoir.105
After the conversion, prisoners at OCF again found their tap water
turning “colors” and they expressed concerns about new contamination,
including the fact that OCF was neglecting to post regular testing results
from required monthly water tests.106 This continued for two years, until
March 2001, when Mr. Cherry and Mr. Robinson filed grievances regarding the “unprecedented number” of people who had contracted H. Pylori,
stating it was reasonable to infer the common agent of infection was the
water.107 They requested a return of the water tanks, and increased water
testing, especially of the pipes flowing to the housing units “up by the
blocks.” Both grievances were denied, appealed, and denied again.108 Mr.
Cherry and Mr. Robinson then proceeded to file a civil rights action alleging deliberate indifference amounting to cruel and unusual punishment.109 The plaintiffs argued that the defendants were deliberately indifferent to the health risks posed by the water at OCF, and that the
defendants failed to take corrective action with respect to the water supply.
Cherry v. Edwards illustrates the ways in which incarcerated people
are denied due process through the mandates of the grievance process,

102 Cherry, 2005 WL 107095 at *2 (stating that the first detection of dark brown water and
slime was in or around May 1997, and that Superintendent Edwards did not acknowledge the
water issues until January 1998).
103 Id.
104 Id.
105 Id.
106 Id. at *3 (“On October 13, 2000 inmates complained at an ILC meeting that the quality
of water had been ‘compromised’ . . . that the piping system was to blame. The inmates also
complained about the facility’s failure to post the results of monthly water tests for the prison
population.”) (internal citations omitted).
107 Id. (“[T]he inmates again raised the issue of water quality at an [ILC] meeting. During
that meeting, the inmates alleged that an ‘unprecedented number’ of OCF inmates had contracted H. pylori, and that it was reasonable to infer that the ‘common agent of infection’ was
the water.”) (internal citations omitted).
108 Id. at *3-4.
109 Cherry, 2005 WL 107095 at *6.

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and the exceedingly high bar to bring a successful Eighth Amendment
claim based on exposure to contaminated water.
In Cherry v. Edwards, the court agreed with the prison executive
staff that waiting eight months after initial and persistent complaints to
address contaminated water was an acceptable amount of time before
providing a clean water alternative via tanker trucks, and thus did not
amount to deliberate indifference.110 At the time that Mr. Cherry and Mr.
Robinson were filing their initial grievances about the water, Superintendent Edwards denied their requests for increased testing of the housing
unit water lines and a return of the water tanks.111 His explanation for the
denial was as follows:
Currently, there are no plans to truck tank water into facility. Facility water is tested monthly from random areas throughout [the]
facility. Tests are not tampered with by any staff and [the] facility
water is [the] same water that [the] town uses from [the] same
wells. There is no proof that [the] water at [the] facility is causing
any type of virus and [the] inmate population does not need to be
warned of anything.112
Despite the flat-out denial and inaction by OCF staff, the prevalence
of contaminated water in OCF is further evidenced by the fact that barely
three years later, another pro se lawsuit was filed by incarcerated plaintiffs at the same facility.
Robinson v. Edwards
In 2004, another prisoner at OCF, Lawrence Robinson (“Mr. Robinson”) filed a lawsuit against Superintendent Edwards. Mr. Robinson also
submitted an application to the court for appointment of counsel, which
was subsequently denied in February 2005.113 The facts of this case
largely mirror the facts of Cherry v. Edwards, indicating a pattern of complaints met with a refusal by prison officials to acknowledge any issue
with the water. Mr. Robinson’s complaint alleges that prisoners at Otisville were filing complaints about the water and requesting “continuous
testing” of the water,114 and that medical personnel at the prison failed to
report a H. pylori outbreak to their supervisors. Mr. Robinson was one of
the people who contracted a H. pylori infection during this period. He

110

See id. at *8 (“Nor can the plaintiffs show that any of the Defendants were deliberately
indifferent to problems with the water system . . . “).
111 Id. at *3-4.
112 Id. at *3.
113 Robinson v. Edwards, No. 04 2804, 2006 WL 1889900, at *2 (July 5, 2006).
114 Id. at *4, *6.

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asserted that his symptoms included “constant pain, cramps in the stomach area, periodic vomiting, dark spots of blood inside of stool, and [ . . .
] halitosis.”115 The infection also caused “stress for him and his family,”
and he asserts that he did not receive any treatment for continuing symptoms of the infection.”116
The court’s analysis of Eighth Amendment claims regarding exposure to contaminated water include an assessment of the severity of contaminated water and whether prison officials were deliberately indifferent.117 Here, the court inquired whether the health risks posed by water
contamination were “sufficiently serious” by relying almost exclusively
on testimony from the prison medical personnel, and no outside experts.118 The prison officials’ assessment of OCF’s water quality is taken
by the court as a complete and fair account of the actual risk posed by the
water.119 This raises a question of access to discovery material – if the
plaintiffs had more resources to bring in their own expert or conduct independent tests on the water, they could have contested the defendants’
testimony that there was no serious health risk posed by the water. The
court simultaneously embraced defendant’s testimony as fact but dismissing plaintiffs’ affidavits as insufficient, forming the basis of the court’s
decision to grant summary judgment on finding no genuine issue of material fact.120
In both cases, defendants moved for summary judgment, and the
court granted it, dismissing the case on the grounds that plaintiffs failed
to put forward sufficient evidence of contaminated water.121 In Cherry v.
Edwards, the court held that plaintiff’s evidence was “plainly insufficient
to show that there was a greater than normal incidence of infection at OCF
and, hence, some reason to believe that the water distribution system was

115 Id. at *1; See Halitosis (Bad Breath), JOHNS HOPKINS MED., https://perma.cc/Y74VSQY8 (last visited Apr. 24, 2022) (explaining that Halitosis is an oral health problem where
the main symptom is bad smelling breath).
116 Robinson, 2006 WL 1889900, at *5 (internal quotation marks omitted).
117 Id. at *7-8 (“First, the alleged deprivation must be, in objective terms, sufficiently serious . . . [The] standard contemplates a condition of urgency, one that may produce death,
degeneration, or extreme pain”) (internal quotation marks and citations omitted)) (citing
Farmer v. Brennan, 511 U.S. 825, 829-37 (1994)).
118 Id.
119 Id. at *9 (“[T]he fact that from 2001 to 2004, out of an average of 500 inmates incarcerated at OCF, between two and twelve prisoners tested positive for the bacterium does not
indicate a health problem-let alone an outbreak-existed at OCF, or that the bacterium was
transmitted through water.”).
120 Id. (“Robinson’s bare assertions of a facility outbreak is ‘plainly insufficient to show
that there was a greater than normal incidence of infection at OCF’ or to show that OCF’s
water system contributed in any way to transmitting the pathogen.”).
121 Id. at *11 (“Defendants’ motion for summary judgment is [granted]”).

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fostering its spread.”122 The holding here is indicative of typical Eighth
Amendment prison condition litigation – plaintiffs must show that the risk
is greater than what the rest of society tolerates, and without data-driven
evidence establishing a greater-than-normal rate of infection, the court
was unwilling and uninterested in hearing the case.
The combined effect of the Prison Litigation Reform Act and the
Eighth Amendment cruel and unusual punishment standard gives the carceral system autonomy to decide when and whether a condition of its own
creation is harmful enough to merit redress. The Eighth Amendment cruel
and unusual standard for deliberate indifference allows prison officials to
delay action and ignore plausible, urgent complaints about life-threatening conditions.
Wright v. New York State Department of Corrections
Even where contaminated water is present and documented, prisons
are granted latitude to decide whether such contamination amounts to an
actionable concern. In 2008, Troy Wright (“Mr. Wright”) sued Green Haven Correctional Facility (“Green Haven”) Superintendent, Medical personnel, DOCCS officials, as well as the regional director from the Department of Environmental Conservation, for exposure to H. pylori through
the central water supply at the prison.123 Wright sought injunctive relief
in the form of modification of the water system at Green Haven, as well
as damages.124 Here, the court finds that Plaintiff’s submissions fail to
undermine or sufficiently rebut Defendants’ evidence of compliance with
sanitary standards so as to create an issue of fact about H. pylori in Green
Haven’s water.125
Of the three cases discussed here, Wright presented the strongest evidentiary support by plaintiffs of a history of contamination known by
prison officials. Mr. Wright presented letters between DOCCS, Department of Health, and Department of Environmental Conservation officials
regarding the risk of surface water “influencing” the ground water from
which Green Haven sources its water. A 2003 Annual Water Quality Report acknowledged that Green Haven has an “elevated susceptibility to
microbials, nitrates, industrial solvents and other industrial contaminants.”126 Following this report, the New York State Office of General
Counsel contracted with a private engineering firm, Earth Tech Northeast,

122

Cherry, 2005 WL 107095, at *6.
See generally, Wright v. New York State Dep’t of Corr. Servs., No. 06 Civ. 03400,
2008 WL 5055660 (S.D.N.Y. Oct. 10, 2008).
124 Id. at *2.
125 Id. at *13.
126 Id. at *3.
123

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Inc., to assess the vulnerability of well water to “influence by surface water”.127 Earth Tech Northeast submitted a preliminary report concluding
that the “wells at . . . Green Haven must be considered suspect” and recommended further testing.128 However, no records indicate that further
testing was pursued by the New York State Department of Corrections
for Green Haven. In response to the Earth Tech Northeast report, Frank
Weger, the Green Haven Plant Utilities Engineer, stated that surface water
does not create a risk of contamination with bacteria and parasites.129 Weger further stated that to his knowledge there was no specific legal requirement to test for H. Pylori or Giardia.130
Through a series of correspondence spanning more than a decade, a
pattern emerged at Green Haven closely resembling the patterns of complaints and inaction at Otisville. In July 1993, Jean Ann McGrane, thendirector of Region 3 for the New York Department of Environmental
Conservation, sent a letter to Kelly Green, who was incarcerated at Green
Haven at the time.131 The letter stated that Green Haven was cited for
illegal discharge of sewage from an overflowing sewage line, and that the
New York State Department of Corrections paid a $10,000 penalty for
past violations at the Green Haven Sewage Treatment Plant on the
grounds of Green Haven Correctional Facility.132 The penalty also required Green Haven to rebuild the plant.133
In August 1997, a prisoner at Green Haven sent a letter to McGrane,
reporting, “[T]he water . . . comes out with a stench of rot and so dark,
that we have been at times unable to drink it.”134 From the mid-1990s
through the mid-2000s, complaints have been filed by people incarcerated
at Green Haven reporting “‘brown water[,] ‘stomach cramps[,]’ and ‘skin
discoloration’ from the drinking water”135 However, when these complaints were raised with the Department of Health (“DOH”), DOH Director of the Bureau of Public Water Supply Protection responded that his
“staff regularly reviews the monthly water operations reports,” “the drinking water filtration plant at Green Haven consistently met the filter performance standard,” and Routine bacteriological monitoring (3 samples
127

Id. at *4.
Id.
129 Wright, 2008 WL 5055660 at *4.
130 Id. at *3. But see n.4 (“Although research appears to confirm this is true, neither party
cites authority about sanitary standards for water. New York law does closely regulate the
permissible level of coliform bacteria in drinking water, and mandates testing to assure compliance with that standard.”) (internal citation omitted).
131 Id. at *5.
132 Id.
133 Id.
134 Id.
135 Id. at *6.
128

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per month) by [an unnamed] commercial laboratory has consistently
shown the water to be of satisfactory sanitary quality.”136
On this testimony, the court dismissed Mr. Wright’s claim, again
finding no genuine issue of material fact.137
VI. A PATTERN OF DENIAL
As with any litigation, the process for seeking redress for conditions
of incarceration is made significantly more difficult for people raising
claims without representation. The grievance process delays and avoids
timely institutional action. When a person does exhaust their administrative remedies and is able to file a lawsuit, the summary judgment standard
dismisses plaintiffs first-hand accounts of exposure to contaminated water
and the health effects of such exposure.
A major theme flows through the three example cases: the water at
the user end of prison water systems is frequently contaminated, and water testing practices are inconsistent and incomplete. DOCCS facilities
sidestep the Public Notification Rule of the Safe Drinking Water Act by
denying there is any contaminant issue in the first place. Even where there
is clearly contamination, the notoriously inadequate medical treatment inside of prisons138 serves to downplay and disregard exposure as not being
“sufficiently serious,” per the Eighth Amendment standard established in
Farmer v. Brennan. With no obligation to notify prisoners of water quality or testing updates, people incarcerated in New York state prisons are
left in the dark and with no option but to continue drinking water they
know is causing them to feel ill.
The majority of cases and interviews used for this article have focused on the issue of bacterial infection through water contamination.
However, H. pylori is one of many potential contaminations. If something
as detectable as fecal matter contamination in water is going untested and
unmitigated in New York State prisons, it bears serious consideration that
even more severe contamination is also sliding under the radar. Accounts
like Ramon’s of corroded copper pipes, and Phil’s of extreme metallic
flavored water suggest there could possibly be more than bacterial contamination in New York prison water.
136

Wright, 2008 WL 5055660 at *6.
Id. at *19 (“[F]or the reasons set forth above, the Court respectfully recommends that
the moving Defendants be granted Summary Judgment on each of Plaintiff’s claims . . . ”).
138 See generally Steve Zeidman, Dying Behind Bars: The N.Y. Way, N.Y. DAILY NEWS
(Oct. 27, 2021), https://perma.cc/67N6-8GN5 (stating that reports issued by the Columbia
University Center for Justice and the New York State Commission of Correction Medical
Review Board found that nearly 1,300 people died in New York State prisons from 20102020, and revealed countless medical faults: missed diagnoses; withdrawal of medication; and
failure to test, hospitalize, record vital signs, and keep standard records).
137

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There is currently a wide gap between what incarcerated pro se plaintiffs can produce as evidence and what the summary judgment standard
requires to assert a genuine issue of material fact. Author Shannon Haupt
filed Freedom of Information Law (“FOIL”) Requests with involved New
York State agencies: the Department of Health, the Department of Corrections and Community Supervision, and the Department of Environmental Conservation.139 To date, the Department of Environmental Conservation responded that they possessed no relevant material, and the
Department of Health provided a partial response with Annual Water
Quality Reports for Elmira, Sullivan, Green Haven, and Otisville. The
Department of Corrections and Community Supervision has twice requested extensions on fulfilling the FOIL request.140
The lack of thorough and consistent testing of water quality in prisons, combined with significant obstructions of due process for incarcerated people who raise complaints about the water, allows prisons to minimize and deny any presence of contaminated water. These conditions of
confinement in New York state prisons are themselves an indictment of
the deliberate indifference we, as a society, render towards incarcerated
people. At present, people incarcerated in New York state prisons are continuously denied access to clean water and are unable to seek remedy
when the water they can access is making them sick.
The PLRA and current evidentiary standards for pro se litigation impose severe burdens on incarcerated litigants who already risk further
punishment by speaking out for their rights. The accounts contained in
this article shed light on one of many conditions of incarceration which
are created by prisons themselves. In seeking an answer to the question
of “what should/can/must we do about it” following this piece, the authors
and contributors hope the reader will consider solutions which center on
“measures that reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.” 141 Rather than
moving even more resources into the hands of prisons142 to address a
problem they have systematically denied exists, perhaps those resources

139

See infra app. A.
See infra app. C.
141 See generally Dan Berger, et.al, What Abolitionists Do, JACOBIN (Aug. 24, 2017),
https://perma.cc/B74P-TEFF (describing ways in which prison abolitionists organize for concrete reforms as part of a broader transformative vision).
142 See Comptroller Stringer: Cost of Incarceration per Person in New York City Skyrockets to All-Time High, N.Y.C. COMPTROLLER (Dec. 6, 2021), https://perma.cc/PUD4-66V7
(“[The] annual cost of incarceration [in New York City] grew to $556,539.00 a person per
year–or $1,525.00 each day. The full annual cost per person nearly quadrupled from FY 2011
to FY 2021.”); see generally LAUREN JONES, ET. AL, THE COST OF INCARCERATION IN NEW
YORK STATE, VERA INST. OF JUST. (2021).
140

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could be invested to ensure full and free access to clean water inside of
prisons, adequate medical care, including liberal application of medical
parole and clemency processes, for incarcerated people suffering waterrelated illnesses, shutting down prisons with outdated infrastructure and
reducing incarcerated populations, abolishing the Prison Litigation Reform Act, and supporting pro se litigation by incarcerated plaintiffs in
ways plaintiffs deem appropriate and useful.
APPENDIX A: FOIL LETTER REGARDING PRISON WATER QUALITY
Figure A.1 FOIL Request NYS Prison Water Quality Records
Shannon Haupt
2 Court Square W
Long Island City, NY 11101
7/13/2021
Records Access Office
New York State Department of Health
Corning Tower, Room 2364
Albany, New York 12237-0044
9/15/2021
Records Access Officer
New York State Department of Environmental Conservation
625 Broadway
Albany, New York 12233-1500
9/15/2021
Records Access Officer
Department of Corrections and Community Supervision
Harriman State Campus
1220 Washington Avenue
Albany, New York 12226-2050
To Whom It May Concern:
Under the New York Freedom of Information Law, N.Y. Pub. Off.
Law sec. 84 et seq., I am requesting an opportunity to inspect or obtain
copies of the following:
1. Pursuant to 10 NYCRR § 5-1.72, annual water quality reports
from 1996 to 2020 for the entities which supply water to the following
facilities:

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● Otisville Correctional Facility, 57 Sanitorium Avenue, Otisville
NY 10963
● Greenhaven Correctional Facility, 594 NY-216, Stormville, NY
12582
● Sullivan Correctional Facility, 325 Riverside Drive, Fallsburg NY
12733
● Elmira Correctional Facility, 1879 Davis Street, Elmira, NY
14901
2. Records indicating sampling site locations for water testing of
USER TAPS conducted at Otisville Correctional Facility, Greenhaven
Correctional Facility, Sullivan Correctional Facility, and Elmira Correctional Facility between January 1st 1990 to June 30th 2021, pursuant to 10
NYCRR § 5-1.42(a)(2)(i)-(iii).
3. Records indicating sampling site locations for water testing at
SERVICE LINES conducted at Otisville Correctional Facility, Greenhaven Correctional Facility, Sullivan Correctional Facility, and Elmira
Correctional Facility from January 1st 1990 to June 30th 2021, pursuant to
10 NYCRR § 5-1.42(a)(2)(i)-(iii).
4. All reported incidents of H. Pylori detection in water at Otisville
Correctional Facility, Greenhaven Correctional Facility, Sullivan Correctional Facility, and Elmira Correctional Facility from January 1 st 1990 to
June 30th 2021.
5. All building plans indicating when, if ever, lead pipes were replaced at Otisville Correctional Facility, Greenhaven Correctional Facility, Sullivan Correctional Facility, and Elmira Correctional Facility from
January 1st 1990 to June 30th 2021, pursuant to 10 NYCRR 51.42(a)(1)(ii)(a)-(c).
If there are any fees for searching or copying these records, please
inform me if the cost will exceed $100. However, I would also like to
request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of environmental health in New York State Prisons. I
am a 3L law student at the City University of New York, and all requested
records will be used for public interest research. This information is not
being sought for commercial purposes.
The New York Freedom of Information Law requires a response
time of five business days. If access to the records I am requesting will
take longer than this amount of time, please contact me with information

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about when I might expect copies or the ability to inspect the requested
records.
If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify
me of the appeal procedures available to me under the law.
Thank you for considering my request.
Sincerely,
Shannon Haupt
APPENDIX B: INTERVIEW
Figure B.1 Interview with Ramon Henriquez
On November 2, 2021, Ramon Henriquez gave a phone interview,
discussing his personal accounts of water contamination at Elmira Correctional Facility in Elmira, New York, Green Haven Correctional Facility in Stormville, New York, and Sullivan Correctional Facility in Fallsburg, New York.
The following is an edited transcript of the interview:
HAUPT: Can you tell me about the time you stored water in
plastic bags?
HENRIQUEZ: They got return lines, which is the condensate for
the steam returning back to the powerhouse. One of those lines broke in
the superintendent’s office, or above his office in Elmira. The water was
hot, mine and my neighbors, everyone in our section like only 6 cells it
was really hot, like rusty hot water. That day the pipe broke, and my water
got cool and crystal clear and I filled up every bucket I had, every garbage
bag I could find to fill up with water.
So, I asked my neighbors like hey the waters good Chris! He’s like
yeah, I know, I’m on the toilet, I said so am I! (laughs)
So I think they had a water main break - the return line - the steam
comes in and turns into condensate then it goes back to the power house,
that line rusts most of the time because they don’t treat the chemicals that
are in the boiler to keep it from oxidizing the coils in the boiler. They’re
supposed to have something that neutralizes the chemicals that are in the
water after the thing comes out as steam. So those jets never work, they’ll
work for a few weeks then get plugged up - with calcium and minerals
from the water

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HAUPT: How long had it been hot before it changed?
HENRIQUEZ: Since I’d been there, the whole 18 months that’s what I’d
been drinking. 2016 June to 2018 December.
HAUPT:

What

did

the

water

look

and

smell

like?

HENRIQUEZ: Water is not supposed to do this - go shhhhh -thp thp thp
and then run. The only thing that does that is the return line, when the
steam, okay the traps open, then the trap closes when it senses steam only the volume of the water opens it. When that happens, a little burst of
steam goes through before it shuts. So that’s why it kept having that water
taste like that. I would have it running for ever and it would still do the
hissing and the spurts like gas, . . .
HAUPT: Was the steam what was making it hot?
HENRIQUEZ: Yes the condensate is hot.
This water [at Elmira] messed my stomach up, that’s what it did.
HAUPT: How long were you drinking before the pipe changed?
HENRIQUEZ: Whenever it occurred, I kept my water running all
the time hoping I would see some condensation on the pipe indicating it
was cold. I wasn’t hearing the stuttering so I opened the water faucet up
wider and it was cold, and I got a big bowl started filling up buckets and
garbage bags all of that.
HAUPT: How did it feel to drink the cold water? Did it have a
physical effect?
HENRIQUEZ: Yes a mental effect (sighs in relief) ahhh finally.
When I went to a visit and drank a bottle of water it was like, oh god. I
was in C block when I first got to Elmira it was so cold you couldn’t even
put your hand in it. Then I got to H block and the water is hot, and the
I . . . . I would flush the toilet and the toilet would get hot. Everywhere I
was after my initial entrance was hot water everywhere and rusty. They
tell me oh they’re changing the lines that’s why it’s rusty like that, I said,
“it’s rusty like that? Yeah? It wasn’t rusty like that in C block a couple of
days ago.”
HAUPT: What do you mean they were changing the line?

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HENRIQUEZ: They were redoing all the lines, the main lines in the
jail from outside, but that rust never went away that’s full of crap. We
changed the lines at Green Haven and we never had that issue. A one-time
burst of rusty, dirty water came through but that was it.
HAUPT: Did you file grievances about this?
HENRIQUEZ: Yes I filed grievances and they said I was crazy and
would refer me to mental health.
HAUPT: What’s the process for filing grievances?
HENRIQUEZ: You write a grievance, the grievance supervisor
used to walk the area I was in so I would hand it to her. My grievances
were about more than the water, because I was complaining about the
mail, everything, I had a whole bunch of stuff in there.
And anyway I give it to her and they would say we unanimously
disagree because all the officers made statements that that’s not happening and they would write a referral to cover their butts and refer me to
mental health. I had about 30-40 referrals. But I had a bunch of grievances, some still pending now.
I complain, and then the guards make a statement on their own denying all the facts, and then they say okay we agree with the guards because
they said it’s not happening. The only time I got further with a grievance
with the water to Albany, Albany returned it to me saying that I tried to
circumvent the grievance system. I said what are you talking about? So,
they kept the cover letter that I did and sent me the rest of it. They wanted
me to file it with the grievance committee, but I went straight to Albany
because I already had a grievance filed on a separate issue and wanted to
add this as an addendum and I didn’t give the committee a chance to read
it.
The one I sent you was an addendum to the grievance because that’s
when I figured out the water situation. Like I had that clue, but couldn’t
prove it, but once they admitted, see where I was, my cell was right behind
where the C/Os sat, and one night they were talking like “yeah the superintendent’s line broke, they had to shut the water off, the steam barrel, oh
it was crazy”, and I was like “what? Really? So that’s why the water
cleared up”.
HAUPT: Can you tell me more about the pipes at Green Haven?

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HENRIQUEZ: We put in schedule 80 copper tubing, maybe about
200 feet of it, and about three weeks later you could stick your finger
through the pipe
HAUPT: Do you have any idea what could be causing that?
HENRIQUEZ: Maybe the ph balance? Maybe the water was getting
mixed with condensate - but you know that line went to the bathroom of
the ladies and the officers. And you know they told everybody that
worked at that prison not to drink the water. The civilians would tell us
not to drink the water. Everybody (C/Os) came with their own water but
they don’t talk about why.
Something was eroding them [the pipes], making them paper thin,
you could stick your finger through them. These are thick, expensive lines
of copper, the most expensive ones they have.
The old copper lines would leak and they would be replaced with the
new ones. I did it with old man ponz.
HAUPT: What was the water like when it came out of those
pipes?
HENRIQUEZ: The water smelled like a pond. I was the ice machine
guy, so we had the filters behind the ice machines and I put spigots behind
the ice machines so that everyone could drink it. All the ice machines
require filters, so we bought these big industrial filters at $75 a cartridge,
some of them take 4 and some take 2 and then a coarse filter. So they had
this thing, this port that you can attach a valve to that’s used to, when you
replace the coarse filter you open it and it drains it, and so I would pipe a
spigot to it. And you know in some of the blocks the officers would take
the valve off so that they were the only ones who could use it and they
wouldn’t let the prisoners use it, but as soon as the shift changed or those
officers that took it leave I would come and put another one.
HAUPT: It sounds like a pretty substantial risk to take on, doing
that.
HENRIQUEZ: Yeah well what the hell I’m helping my fellow prisoners.
HAUPT: Can you tell me more about your impression of water
testing in Green Haven?

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HENRIQUEZ: Andy Barranca was the water guy and he would
come and take the tests, or he would take the samples up to somewhere in
Westchester where they would test them. I would see him in different
housing areas, turning on the water and filling up the bottles. I don’t see
him having an ulterior motive, he didn’t like the system, you know what
I mean, he wasn’t for the system but he was with the system.
HAUPT: Would you ever get access to test results?
HENRIQUEZ: Not really. Barranca would go to one faucet in each
block and get a little bit at each place and he would take them. I know the
chlorine was super high because we had these pills that you could drop in
the water to see how much chlorine is in there, and it was an incredible
amount.
HAUPT: How did you get those pills?
HENRIQUEZ: Got the pills from working in maintenance
Majority of the prison has gotten H. pylori - everybody has gotten it
- in here (Sullivan) too, its supposed to be stagnant water where the flies
defecate on it and that’s how you get it. So, it could be the dish machine,
but that’s supposed to go up to 200 degrees so it should get hot enough to
kill the larvae, so it has to be wherever they’re using well water and whatever that well has, with that pump or the tank, maybe there’s a bunch of
flies around it , I don’t know, you know, I can’t figure it out because it
could be different scenarios. They had that E. coli thing last summer and
there were a lot of people throwing up here [At Sullivan]. They didn’t tell
us anything until someone blew the whistle. Some family member saw it
online and called the Department of Health, and DOH emailed the prison.
Fallsburg issued a boil water advisory. My friend used the water fountain
in the yard and came back throwing up and diarrhea, but he never went to
the hospital he stayed in his cell and rode it out for 2 days.
-HAUPT: Can you tell me about the time you tried to show the
cup of water to the mental health nurse?
HENRIQUEZ: There was a nurse walking around the company giving out meds, and she was also asking us if we were okay, going cell by
cell and stops at my cell and asks are you okay and I said one second and
I went to the sink, I showed her the Styrofoam cup before I went to the
sink that it was empty, I said look, you know they keep telling you guys
I’m crazy but you put your finger in this cup and feel this [water] and tell

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me that I’m crazy . The nurse said I can’t do that. So, I’m looking out the
corner of my eye and see the C/O waving his finger at her, he’s like moved
out of distance because he’s not supposed to listen because of the HIPAA
law, but that’s crap. Anyway, he’s waving at her to not get close, and then,
because I whispered to her, and she goes no I can’t touch that sorry they
won’t allow me, and she went past my cell toward the shower area and
the officer was like what did he tell you, what did he tell you. She said he
said his water’s hot, it’s coming out hot. And that’s when the water [temperature] dropped down.
HAUPT: Can you talk to me more about the rust color you mentioned before?
HENRIQUEZ: The water looks like tea, all the time. I try straining
it, through a handkerchief. I have to drink it. I try all kinds of stuff.
HAUPT: What is access to bottled water like?
HENRIQUEZ: You can get 48 bottles of water, 36 cents per bottle.
The Department of Health gave us gallon bottles when the E. coli situation was happening, only lasted for a few days, I only got 3 gallons of
water.
The water is horrible, I was like yeah, bullshit I’m not buying water
and I was drinking it, and then my face looks like mad puss balls all over
my face and then I went back to bottled water and my face is clearing up.
Everybody here has gastro problems. Everybody. Everybody wants
the antacid pills, everybody running around talking about how they have
heartburn. I can’t even eat a cracker I get heartburn.
APPENDIX C: FOIL RESPONSES
Figure C.1 Department of Environmental Conservation Response
Region 3 - New Paltz
P: 845 256-3154 | F:
www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 9/16/2021, Reference #
W089136-091621
Date: 10/15/2021
Dear Shannon Haupt,

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I write in response to your Freedom of Information Law (FOIL) request seeking:
1. Pursuant to 10 NYCRR § 5-1.72, annual water quality reports
from 1996 to 2020 for the entities which supply water to the following
facilities:
● Otisville Correctional Facility, 57 Sanitorium Avenue, Otisville
NY 10963
● Greenhaven Correctional Facility, 594 NY-216, Stormville, NY
12582
● Sullivan Correctional Facility, 325 Riverside Drive, Fallsburg NY
12733
● Elmira Correctional Facility, 1879 Davis Street, Elmira, NY
14901
● Bedford Hills Correctional Facility, 247 Harris Road, Bedford
Hills, NY 10507
● Taconic Correctional Facility, 250 Harris Road, Bedford Hills,
NY 10507
2. Records indicating sampling site locations for water testing of
USER TAPS conducted at Otisville Correctional Facility, Greenhaven
Correctional Facility, Sullivan Correctional Facility, Elmira Correctional Facility, Bedford Hills Correctional Facility, and Taconic Correctional Facility between January 1st 1990 to June 30th 2021, pursuant to
10 NYCRR § 5-1.42(a)(2)(i)-(iii).
3. Records indicating sampling site locations for water testing at
SERVICE LINES conducted at Otisville Correctional Facility, Greenhaven Correctional Facility, Sullivan Correctional Facility,Elmira Correctional Facility, Bedford Hills Correctional Facility, and Taconic Correctional Facility from January 1st 1990 to June 30th 2021, pursuant to
10 NYCRR § 5-1.42(a)(2)(i)-(iii).
4. All reported incidents of H. Pylori detection in water at Otisville
Correctional Facility, Greenhaven Correctional Facility, Sullivan Correctional Facility, Elmira Correctional Facility, Bedford Hills Correctional Facility, and Taconic Correctional Facility from January 1st 1990
to June 30th 2021.
5. All building plans indicating when, if ever, lead pipes were replaced at Otisville Correctional Facility, Greenhaven Correctional Facility, Sullivan Correctional Facility, Elmira Correctional Facility, Bedford Hills Correctional Facility, and Taconic Correctional Facility from

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January 1st 1990 to June 30th 2021, pursuant to 10 NYCRR 51.42(a)(1)(ii)(a)-(c).
Please be advised that a diligent search of the files maintained by
DEC produced no responsive records.
If you believe you have been unlawfully denied access to responsive
records, you have the right to appeal. Any such appeal must be submitted
in writing and within thirty (30) days of the date of this email. Appeals
must be directed to:
FOIL Appeals Officer
Office of General Counsel
New York State Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, NY 12233-1500
Your FOIL request is now closed. If I can be of further assistance,
please contact me at 845 256-3154 and reference FOIL #W089136091621, or simply reply to this email. Thank you.
Sincerely,
Region 3 FOIL Coordinator
Figure C.2 Department of Corrections Extension Requests
Found as PDFs in the FOIL materials subfolder: https://drive.google.
com/drive/folders/1Ngo1-Ojjh9ezjGiUkaI8oiIrwNX0E-q1?usp=sharing
Figure C.3 Annual Water Quality Reports
Found as PDFs in the FOIL materials subfolder: https://drive.google.
com/drive/folders/1Ngo1-Ojjh9ezjGiUkaI8oiIrwNX0E-q1?usp=sharing

 

 

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