                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         April 15, 2015
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
JAMES TEMPLETON; DAVID
COWDEN,

      Plaintiffs - Appellants,

and

ROBERT GALLOB; DAVID ALLEN,

      Plaintiffs,

v.                                                        No. 14-1334
                                              (D.C. No. 1:12-CV-01276-RBJ-BNB)
PETER ANDERSON; JEFF SMITH;                                (D. Colo.)
JAMES CHANEY; TIMOTHY CREANY;
JAN SYLVIA; STEVEN GALLEGOS;
CHERI DRENNON; STEPHEN ENGLE;
THOMAS MARTIN,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
                  _________________________________




      *
        After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
       James Templeton and David Cowden appeal the district court’s dismissal of their

42 U.S.C. § 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I

       Templeton and Cowden are inmates at the Fremont Correctional Facility.1 In June

2011, both plaintiffs were assigned to a work detail removing tile from an administration

building hallway. Prior to initiating this project, General Maintenance Captain Stephen

Engle, Sergeant Tom Martin, and Life Safety Coordinator Peter Anderson collected

samples of the tile and mastic in the area and understood that the samples did not contain

asbestos. Anderson instructed Officer James Chaney on the proper manner of removing

the tile, and told him that work should be halted immediately if the crew encountered

mastic of any color other than brown.

       On June 28, 2011, the second day of work, Templeton noticed black mastic. He

alerted Cowden and Chaney at approximately 1:35 p.m. According to Templeton,

Chaney told the crew to continue working. Approximately an hour later, Engle and

Anderson arrived on the scene and halted work. Anderson had the inmates remove their

footwear and contacted a shift commander with instructions to have them shower.

Subsequent testing revealed that the black mastic and tile contained up to 8% asbestos.

Anderson also ordered air quality tests, which showed asbestos concentrations below

trigger levels.



       1
        Because the district court granted defendants’ motion for summary judgment,
we recite the facts in the light most favorable to the plaintiffs. See Howard v. Waide,
534 F.3d 1227, 1235 (10th Cir. 2008).
                                           -2-
       Templeton, Cowden, and the other inmates exposed to the black mastic underwent

chest X-rays on July 15, 2011. Templeton’s X-ray was normal. A few months later,

Templeton requested medical attention for breathing problems. He was found to have

irritated eyes, nasal drainage, and a slightly reddened post-nasal pharynx as a result of

seasonal allergies. Templeton also repeatedly requested mental health treatment for his

fear of developing an asbestos-related ailment, but did not receive such treatment.

Cowden’s X-ray was mildly abnormal, but the abnormality was not clearly related to

asbestos. Prison officials conducted a follow-up X-ray on September 7, 2011, which

showed no substantial change, and did not detect any “discre[te] acute infiltrates,”

meaning that there was no clear asbestos effect.

       In addition to the mastic exposure, Templeton and Cowden claim that on

November 29, 2011, they were exposed to asbestos in the glazing of a window that they

were ordered to change. They claim that they were ordered to change hundreds of similar

windows before that date, and that “Government Officials” knew the glazing contained

asbestos.

       Templeton, Cowden, and several other inmates filed suit in federal court alleging

that numerous prison officials violated their rights under the Eighth Amendment. The

district court granted the defendants’ motion for summary judgment. Templeton and

Cowden timely appealed.

                                             II

       “We review orders granting summary judgment de novo, viewing the evidence in

the light most favorable to the nonmoving party.” Howard, 534 F.3d at 1235. Summary

                                            -3-
judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Because plaintiffs are proceeding pro se, we construe their filings liberally. Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

       To prevail on a claim under § 1983, plaintiffs must show that each defendant

personally participated in the deprivation of a constitutional right. See Trujillo v.

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). The Eighth Amendment bars prison

officials from acting with “deliberate indifference to serious medical needs of prisoners.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a deliberate indifference

claim, a plaintiff must establish both an objective and a subjective component. See Al-

Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014).

       “The objective prong of the deliberate indifference test examines whether
       the prisoner’s medical condition was sufficiently serious to be cognizable
       under the Cruel and Unusual Punishment Clause. The subjective prong
       examines the state of mind of the defendant, asking whether the official
       knew of and disregarded an excessive risk to inmate health or safety.”

Id. (quotations, citations, and alterations omitted). “A medical need is sufficiently serious

if it is one that has been diagnosed by a physician as mandating treatment or one that is so

obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quotation

omitted).

       For claims based on exposure to hazardous materials that may cause future harm

to an inmate’s health, we ask whether the exposure is “so grave that it violates

contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling

                                             -4-
v. McKinney, 509 U.S. 25, 36 (1994) (emphasis omitted). “The health risk posed by

friable asbestos has been acknowledged by various courts, which have held that inmates’

unwilling exposure to an unreasonably high concentration of air-borne asbestos particles

constitutes a cognizable claim under the Eighth Amendment.” See Pack v. Artuz, 348 F.

Supp. 2d 63, 79 (S.D.N.Y. 2004) (collecting cases). “For exposure to airborne asbestos

fibers to create a substantial risk of serious harm, however, the intensity and duration of

the exposure must both be significant.” Id. at 79-80.

       The only defendants alleged to have personally participated in the asbestos

exposure are Engle, Anderson, and Chaney. Accordingly, the tile and mastic asbestos

exposure claims against all other defendants fail as a matter of law. See Trujillo, 465

F.3d at 1227 (explaining that to be liable under § 1983, a defendant must have personally

participated in the violation of a prisoner’s rights). The same is true as to all defendants

with respect to plaintiffs’ claim that they were exposed to asbestos in window glazing

because plaintiffs do not allege personal participation by any individual. See id.

       Plaintiffs have not created a genuine dispute of fact as to whether Engle and

Anderson “knew of and disregarded an excessive risk to inmate health or safety,” Al-

Turki, 762 F.3d at 1192 (quotation and alteration omitted), by exposing them to asbestos.

These defendants believed that the tile and brown mastic plaintiffs were ordered to

remove did not contain asbestos. Anderson ordered that the project should be halted if

mastic of any color other than brown was discovered, and stopped work when he learned

black mastic was found.



                                             -5-
       In contrast, plaintiffs have created a factual dispute on the subjective prong as to

defendant Chaney. Drawing all inferences in favor of plaintiffs, a jury might conclude

that Chaney ordered plaintiffs to continue removing tile in an area known to be

hazardous. But we agree with the district court that the exposure claim against Chaney

fails on the objective prong. According to plaintiffs, they were exposed to the black

mastic and asbestos-containing tile for approximately one hour. This was not a

significant duration given the type of exposure at issue. See Pack, 348 F. Supp. 2d at 79-

80. Accordingly, we cannot say that it “violate[d] contemporary standards of decency to

expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36 (emphasis omitted);

see also McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993) (noting that exposure to

moderate levels of asbestos is unfortunately common).

       We further agree with the district court that plaintiffs’ claims based on insufficient

medical care fail under the objective prong. Prison medical staff performed chest X-rays

on both Templeton and Cowden shortly after their asbestos exposure. Cowden received a

follow-up X-ray because his first X-ray revealed minor abnormalities that were not

clearly related to asbestos. After informing prison medical staff that he had trouble

breathing, Templeton was examined and diagnosed with mild symptoms related to

seasonal allergies. Plaintiffs argue that additional diagnostic and treatment options

should have been ordered. However, the question of whether “additional diagnostic

techniques or forms of treatment . . . [are] indicated is a classic example of a matter for

medical judgment,” and a medical decision not to pursue such options generally “does

not represent cruel and unusual punishment.” Estelle, 429 U.S. at 107.

                                             -6-
       Templeton also argues that defendants are liable for failing to provide mental

health treatment for his fear of developing asbestos-related illnesses. The denial of

mental health care can constitute deliberate indifference. See Ramos v. Lamm, 639 F.2d

559, 574 (10th Cir. 1980). But as with other medical needs, mental health issues must be

sufficiently serious. Id. at 575. That is, the need must be “one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Id. (quotation omitted).

We agree with the district court that Templeton’s complaints fall short of this standard.2

                                            III

       For the foregoing reasons, the judgment of the district court is AFFIRMED. The

motions to proceed in forma pauperis filed by Templeton and Cowden are GRANTED.

We remind both appellants that they remain obligated to continue making partial

payments until the entire filing fee has been paid.




                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge



       2
        Plaintiffs also argue that the district court improperly granted a motion for
extension of time for a group of defendants to respond to a motion for default
judgment. We review a district court ruling on a motion for extension of time for
abuse of discretion. See Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d
1238, 1242 (10th Cir. 2010). We discern no abuse in the district court’s ruling on
this motion.
                                            -7-
