                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-1994

Fontroy, et al v. Owens, et al
Precedential or Non-Precedential:

Docket 91-2070




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"Fontroy, et al v. Owens, et al" (1994). 1994 Decisions. Paper 7.
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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 91-2070


                      DERRICK FONTROY, et al.

                                  v.

               DAVID S. OWENS; IRENE J. PERNSLEY;
                  GAETANO CURIONE; HARRY MOORE

                      Derrick Dale Fontroy, I,
                                         Appellant



         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                        (D.C. No. 86-04958)


                     Submitted February 22, 1993

                      Decided February 25, 1993

               Certiorari Granted January 10, 1994

     On Remand from the Supreme Court of the United States
                       January 10, 1994

                      Submitted March 14, 1994

          BEFORE:    SLOVITER, Chief Judge, MANSMANN and
                      SCIRICA, Circuit Judges

                   (Opinion filed       May 4, l994 )

David Ferleger
Philadelphia, PA    19103

          Counsel for Appellant

Marie C. Lasota
Office of City Solicitor
Philadelphia, PA 19102

          Counsel for Appellees


                                    1
                         OPINION OF THE COURT

SLOVITER, Chief Judge.

            This case is before us on remand from the Supreme Court

which vacated our order affirming the district court's grant of

summary judgment to the defendant-appellees David Owens, Irene

Pernsley, Gaetano Curione and Harry Moore in the suit filed by

Derrick Dale Fontroy.

                                  I.

            The case began in August 1986 when Fontroy, a prisoner

at the Holmesburg Prison in Philadelphia, filed a pro se claim

against David Owens, Superintendent of the Philadelphia Prison

System, alleging a variety of unconstitutional conditions of

confinement, including the claim that he was surrounded by

asbestos.   Defendant Owens filed a motion to dismiss the first

amended complaint, which the district court denied insofar as it

pertained to the plaintiff's allegation of asbestos problems in

his cell.   The district court ruled that this allegation stated

an Eighth Amendment claim because "[d]angerous exposure to

asbestos caused by defendant's deliberate indifference could

deprive inmates of the minimal civilized measure of life's

necessities, i.e. habitable shelter."    App. at 63.

            Counsel was appointed for plaintiff in November 1988. A

Second Amended Complaint, filed in June 1989, added the three

other defendant officials and refined the asbestos allegations to

read:
            14. During the entire period of time which Plaintiff
            spent in D Rear, he was surrounded by the known
            carcinogenic, asbestos, which was loosely wrapped


                                  2
          around pipes and visibly present in the walls and
          ceilings of both the D Rear cells and common area, and
          to which Plaintiff was constantly exposed.
          . . .
          16. As a direct result of Plaintiff's constant,
          unreasonable and unnecessary exposure to asbestos in
          his place of confinement, Plaintiff was caused to
          suffer various injuries to his mind and body, all of
          which injuries will probably be permanent in nature and
          have in the past, and will in the future cause
          Plaintiff to suffer great pain and suffering, physical
          pain, mental anguish, extreme fright, embarrassment and
          humiliation, anxiety, depression and loss of life's
          pleasures.
          . . .
          24. At all times material, there existed a regular,
          frequent, and continuous pattern of incidents which
          exposed Plaintiff to a pervasive risk of harm . . .
          from exposure to asbestos in deprivation of his civil
          rights . . . .

App. at 69, 71.

          Defendants denied the allegations and moved for summary

judgment, arguing that "mere exposure to asbestos is not a

condition that can be said to be cruel and unusual" and that

there were no facts "that support the allegation that asbestos is

present in Holmesburg."   App. at 89, 90.

          In his Memorandum of Law in Opposition to Summary

Judgment, Fontroy argued that "[a]ssuming that [the cases cited

by the defendants] hold that a civil rights plaintiff cannot

prevail on a claim of mere exposure to asbestos, this case is

distinguishable.   Plaintiff here claims an injury; a claim which

Defendants have not disproved."       App. at 117.   Fontroy then

attempted in a footnote to distinguish cases cited by the

defendants:
          Defendants maintain these decisions collectively hold
          that an inmate's exposure to asbestos does not
          constitute a violation of the Eighth Amendment
          guarantee against cruel and unusual punishment.


                                  3
            Contrary to Defendants' broad interpretation, Plaintiff
            asserts the cases stand for the narrow proposition that
            prisoner lawsuits based on the 8th Amendment will not
            be permitted when there is mere exposure to asbestos.
            Thus, there can be no judicial remedy for the enhanced
            risk of future harm from mere exposure, but a litigant
            could recover if the exposure results in the
            manifestation of physical injury.

App. at 117 n.3.


            Fontroy also argued that "[b]ecause Defendants have

failed to disprove the presence of asbestos at the prison, there

remains a material fact in issue."       App. at 118.

            The district court granted summary judgment, finding

that an x-ray showed plaintiff was not suffering from any

diseases linked to the exposure to asbestos.       The court concluded

that "[w]ithout evidence of injury related to exposure to

asbestos, there is no genuine issue of material fact pertaining

to plaintiff's asbestos claims.       Plaintiff's assertions that

genuine issues remain because defendants had not deposed or

examined the plaintiff, and have not disproved the presence of

asbestos at the prison are moot in light of the absence of

evidence that plaintiff suffers from any harmful effects of

asbestos exposure."    App. at 135 (citations and footnote

omitted).

            We affirmed the district court's order by a judgment

order on February 25, 1993.    See Fontroy v. Owens, 989 F.2d 486

(3d Cir. 1993).    On June 18, 1993, the Supreme Court issued its

opinion in Helling v. McKinney, 113 S. Ct. 2475, 2481 (1993),

which held that a prisoner "states a cause of action under the

Eighth Amendment by alleging that petitioners have, with


                                  4
deliberate indifference, exposed him to levels of [environmental

tobacco smoke] that pose an unreasonable risk of serious damage

to his future health."

            In August 1993, Fontroy filed a petition for a writ of

certiorari.     See 62 U.S.L.W. 3165 (U.S. Aug. 23, 1993) (No. 93-

281).    One of the three questions presented was whether our

decision, described by the plaintiff as holding "that [an]

inmate's involuntary exposure to asbestos does not raise an

Eighth Amendment claim absent present injury," was contrary to

Helling.    62 U.S.L.W. 3201 (1993).   On January 10, 1994, the

Supreme Court granted a writ of certiorari, vacated our judgment,

and remanded "for further consideration in light of Helling v.

McKinney."     114 S. Ct. 671, 672 (1994).

                                 II.

             After receiving the Court's mandate, we requested both

parties to submit legal memoranda stating what actions they

believed to be appropriate.1    Fontroy suggests that we reverse

the summary judgment order and remand for further discovery and

trial.     He argues that the district court's summary judgment

ruling was premised on the theory that since there was "no

current damage to the lungs, . . . no cause of action exists,"




1
 We also received Fontroy's unsolicited response to the
defendants' memorandum and defendants' motion to strike the
response, which we deny herewith although we do not take
cognizance of documents submitted that were not in the record.


                                  5
Memorandum on Remand at 6 n.7, and that Helling overruled this

legal theory by holding that an unreasonable risk of injury is

sufficient to state a claim.

          We do not understand the defendants to dispute that

Helling permits a plaintiff to proceed on a cause of action

alleging an unreasonable risk of future injury from present

exposure to asbestos.   Nor can they reasonably dispute that

portions of Fontroy's complaint can be fairly construed to state

such a claim.   See App. at 69, 71 (¶¶ 14, 16, 24).

          They argue, instead, that in the procedural posture of

this case, Fontroy cannot pursue such a challenge because he

specifically abandoned such a claim in his Memorandum of Law in

Opposition to Summary Judgment.       See App. at 117 & n.3.   In

addition, they claim that Fontroy's failure to point to anything

in the record (besides his complaint) which suggests that he was

exposed to asbestos at all is a sufficient and independent ground

for granting summary judgment.2

          Fontroy responds that the Supreme Court decided the

waiver argument by vacating and remanding the case.       We do not

construe the Supreme Court's instruction to give the case

"further consideration in light of Helling," as deciding the
waiver issue.   There is no basis to assume that the Supreme Court

made any determination relevant to the merits of Fontroy's case.


2
 In his response, Fontroy submitted various documents which he
claims show that there was asbestos in many areas of the prison.
Even if we could consider these documents, they do not reach the
question of whether there was evidence in the record before the
district court that demonstrated Fontroy was exposed to asbestos.

                                  6
We have previously stated that "[w]e know of no authority for the

proposition that a direction that we give 'further consideration'

to a case is in effect a direction as to the outcome.    If the

Supreme Court wished to direct an outcome, we are confident that

it would have so stated."   Stoneking v. Bradford Area Sch. Dist.,

882 F.2d 720, 721 n.1 (3d Cir. 1989), cert. denied, 493 U.S. 1044

(1990).

          Whether that issue was indeed waived by the plaintiff

is a fact-based inquiry in these circumstances most appropriate

for consideration by the district court which can, if necessary,

hold any necessary hearings relating thereto.   Thus we will

remand to the district court to determine whether summary

judgment would still be appropriate, either because Fontroy

waived the legal theory on which his remaining claim rests, the

record is barren of any evidence of the presence of asbestos, or

otherwise.   If not, the district court should proceed with the

case on the merits.   In that connection we note from the record

that Fontroy was transferred from the prison in question while

this case was still pending in the district court.    The Helling

opinion notes that the petitioner sought both injunctive relief,

i.e. a non-smoking cellmate, and damages, but it appears the

primary focus was on the injunction.   Thus the Supreme Court did

not have occasion to comment on the request for damages by a

plaintiff who alleged only risk of future injury.    That issue may

arise in this case, and if so we leave it for the district

court's consideration in the first instance.

                               III.

                                7
          For the foregoing reasons, we will vacate the order of

the district court granting summary judgment and remand for

proceedings consistent with this opinion.   Appeal costs to be

assessed against appellees.




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