                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                         No. 09-4038
                         ___________

                    DARIN LEE HAUMAN,
                                           Appellant

                                v.

           *SECRETARY PENNSYLVANIA DEPARTMENT
        OF CORRECTIONS; FREDERICK ROSEMEYER,
         Superintendent; FRED A. BEERS, Fire and Safety
          Manager of SCI-LH; GAIL BEERS, Mail Room
          Supervisor of SCI-LH; DAN BUCK, Boiler Plant
     Manager of SCI-LH; JOE HILLEGAS, Heating, Ventilation
      and Air Conditioning Instructor of SCI-LH; MARDIANN
         HUNSBERGER, Superintendent, SCI-LH; JAMES
    KREUTZBERGER, Facility Maintenance Manager of SCI-LH;
     JAMES PHILLIPPI, Education Department Head of SCI-LH

             (*Pursuant to Rule 43©, Fed. R. App. P.)
          ____________________________________

        On Appeal from the United States District Court
           for the Western District of Pennsylvania
             (D.C. Civil Action No. 05-cv-00439)
          District Judge: Honorable Kim R. Gibson
         ____________________________________

        Submitted Pursuant to Third Circuit LAR 34.1(a)
                       March 25, 2011

Before: FUENTES, GREENAWAY, JR. and ROTH, Circuit Judges

                 (Opinion filed: April 4, 2011)

                         ___________

                          OPINION
                         ___________
PER CURIAM

       Darin Lee Hauman appeals from the final order of the United States District Court

for the Western District of Pennsylvania concerning his civil rights complaint. The

proceedings in this matter have been lengthy. Because the parties are familiar with the

background, we will present only a summary. In 2005, Hauman commenced a pro se

civil rights action against several prison officials and employees at SCI-Laurel Highlands

(“the prison”) at Somerset, Pennsylvania, where Hauman is an inmate. He alleged that

the defendants violated his Eighth Amendment rights by exposing him to various

environmental dangers, including toxic coal smoke emitted from the prison’s coal-fired

boiler plant that infiltrates the prison’s indoor air, environmental or second hand tobacco

smoke (“ETS”) from prisoners who smoke on prison grounds, and friable asbestos

stemming from exposure on a work assignment where asbestos was present and disturbed

in his presence.1 Hauman contended that on numerous dates, especially in 2005, he

suffered shortness of breath and dizziness, and that his health has been negatively

affected by the prison environment. Hauman sought compensatory and punitive

damages, as well as declaratory and injunctive relief.

       Hauman filed a motion for appointment of counsel, which was denied without

discussion. The case proceeded to discovery. Hauman filed several unsuccessful

discovery-related motions, including a motion to compel. The Magistrate Judge denied

the motion without discussion. Hauman appealed the order to the District Court, and the


1
 Hauman also listed other environmental dangers in his complaint. He also raised First
Amendment violations.
                                             2
District Court reversed the ruling as it pertained to Hauman’s requested discovery of his

medical records. The parties filed cross-motions for summary judgment and responses.

In February 2008, the Magistrate Judge issued a report and recommendation that

summary judgment be granted in the defendants’ favor on all claims except for the claim

for injunctive relief based on the allegations of deliberate indifference to exposure to

friable asbestos. Hauman filed objections. By order entered March 26, 2008, the District

Court adopted the report and recommendation and granted summary judgment to the

defendants except for the single claim for injunctive relief; that claim was set to proceed

to a non-jury trial.

       Hauman then sought leave to file an amended complaint to commence a class

action and again sought the appointment of counsel. The Magistrate Judge denied these

motions. In April 2008, Hauman filed a motion to appoint an expert for his remaining

claim for injunctive relief on the friable asbestos claim, which the Magistrate Judge

denied. On appeal of that denial, the District Court remanded the issue for consideration

under Rule 706 of the Federal Rules of Evidence. The Magistrate Judge again denied the

motion, and the District Court affirmed, finding no abuse of discretion by the Magistrate

Judge. In the interim, Hauman also filed objections to the denial of his counsel motion,

and the District Court ruled that the Magistrate Judge’s order was not clearly erroneous.

Hauman filed a third counsel motion, which again was denied without discussion but

with direction to the Clerk of the District Court to mark any subsequent counsel motions

as denied upon receipt.

       The Magistrate Judge then conducted a site visit to the prison with the parties.


                                              3
After that visit, on September 3, 2009, the Magistrate Judge issued a report and

recommendation that judgment be entered in Hauman’s favor on his remaining claim for

injunctive relief. The Magistrate Judge noted that the only remaining issue for trial

would be whether Hauman could prove exposure to asbestos and whether the defendants

were deliberately indifferent to any need for medical monitoring, and that the defendants

had advised during the site visit that they were willing to place Hauman in the same

medical monitoring program used for the individuals who were potentially affected by a

documented release of friable asbestos at the prison in April 2006. But the Magistrate

Judge reasoned that the proposed relief remedied any possible claim for injunctive relief.

Hauman filed objections. The District Court adopted the report and recommendation and

entered judgment in Hauman’s favor on the remaining claim for injunctive relief,

directing that Hauman be included in the same medical monitoring program used by the

Department of Corrections for monitoring individuals exposed to friable asbestos. In its

order, the District Court noted that its order of injunctive relief was enforceable against

the defendants. The District Court later denied Hauman’s motion to alter or amend the

order.

         This appeal followed. We have jurisdiction over the appeal under 28 U.S.C.

§ 1291 and exercise plenary review over the District Court=s decision to grant summary

judgment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment

is appropriate when the movant shows that there is no genuine dispute as to any material

fact and that the movant is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a) (amended Dec. 1, 2010). A court reviewing a summary judgment


                                              4
motion must evaluate the evidence in the light most favorable to the nonmoving party and

draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Ref.

Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing summary judgment

“must present more than just bare assertions, conclusory allegations or suspicions to

show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594

(3d Cir. 2005) (internal citations and quotations omitted).

         Hauman’s appeal focuses on his Eighth Amendment claims with respect to

exposure to coal smoke, ETS, and asbestos. At issue is whether the defendants knew of

and disregarded a substantial risk of serious harm to Hauman. See Farmer v. Brennan,

511 U.S. 825, 837 (1994). We first turn to the District Court’s entry of judgment on

Hauman’s claims for damages. The record includes the documentation of Hauman’s

respiratory condition during the relevant period. Not noted in the Magistrate Judge’s

report, but conceded by the defendants in their motion for summary judgment, was that

the United States Environmental Protection Agency (EPA) issued a notice of violation

based on particulate matter emissions from the prison’s coal-fired boiler plant, and that

the Commonwealth of Pennsylvania paid a civil penalty in settlement of this violation of

the Clean Air Act. The defendants also acknowledged that asbestos or asbestos-

containing materials are present at the prison, and that there was an incident in April 2006

involving a release of friable asbestos, though Hauman does not allege that he was

directly exposed during that particular event.2 Hauman responded to the defendants’

motion for summary judgment with affidavits and additional supporting evidence of his


2
    Hauman claims that he was potentially harmed when the inmates directly involved in
                                             5
respiratory ailments and diagnoses.

       The Magistrate Judge considered the evidence and stated that, accepting the

evidence in the light most favorable to Hauman, a reasonable fact finder would have

insufficient evidence to determine whether Hauman was or was not directly exposed to

friable asbestos during the May 2005 work assignment or by second-hand contact after

the April 2006 release of friable asbestos. However, the Magistrate Judge recommended

that summary judgment be granted in the defendants’ favor based on the lack of expert

evidence to show that Hauman’s respiratory conditions were caused by or were

aggravated by any of the environmental conditions of the prison, and that Hauman’s lack

of expert proof is fatal to his ability to prevail at trial. We are troubled by this result,

given that the Magistrate Judge had earlier denied Hauman’s motion for appointment of

counsel without comment and without acknowledging any need for expert evidence. See

Montgomery v. Pinchak, 294 F.3d 492, 504-05 (3d Cir. 2002). As we stated in

Montgomery, although appointed counsel might still have difficulty in obtaining and

affording an expert, counsel would have much better opportunity to do so than would an

indigent prisoner. See id. at 505. The Magistrate Judge anticipated an objection

regarding the lack of expert evidence (and Hauman did indeed object on this basis), and

so the Magistrate Judge noted that the court had no authority to appoint an expert on

Hauman’s behalf. (Feb. 22, 2008 Report and Recommendation at 8 n.3, citing Boring v.

Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987).) In addition, the Magistrate Judge noted

that Federal Rule of Evidence 706 allows a court to appoint its own impartial expert, but


the April 2006 event returned to the housing unit, bringing the asbestos fibers with them.
                                                6
not to appoint an expert on Hauman’s behalf. One could infer from the Magistrate

Judge’s report, and from his later orders in the case, that he would never entertain a

party’s motion for appointment of a court-appointed expert under Rule 706 because such

an appointment, in his view, always would be viewed as an abdication from his role as a

neutral tribunal. (See id., Sept. 16, 2008 order, Oct. 3, 2008 order.) However, the rule

itself contemplates that a court may appoint an expert on its own motion or on the motion

of any party. Viewing the Magistrate Judge’s analysis in the context of the proceedings

in this case, 3 it would seem that no indigent pro se prisoner with a similar claim could

ever defeat a summary judgment motion.

       The Magistrate Judge also determined that the defendants were entitled to

summary judgment on the basis of qualified immunity. Specifically, the Magistrate

Judge concluded that Hauman failed to overcome a qualified immunity defense because

he produced no evidence that the defendants knowingly or recklessly exposed him to

dangerous levels of asbestos.4 As Hauman argues in his brief, it is the defendants’

burden to establish their entitlement to qualified immunity. See Oatess v. Sobolevitch,

914 F.2d 428, 431 n.8 (3d Cir. 1990) (discussing qualified immunity as an affirmative

defense that a defendant must plead and prove, not for a plaintiff to disprove, in the


3
  As we noted earlier, the Magistrate Judge denied Hauman’s counsel motion at the
outset, without consideration of the factors under Tabron v. Grace, 6 F.3d 147, 155-58
(3d Cir. 1993). The record reflects that Hauman may have encountered difficulty in
obtaining the discovery necessary to his case. For example, he succeeded in obtaining
access to his own medical records only after intervention by the District Court. Even
after Hauman’s claim for injunctive relief survived summary judgment, the Magistrate
Judge entered an order preemptively denying any further counsel motions by Hauman.
4
  The Magistrate Judge discussed qualified immunity concerning Hauman’s asbestos
claim, but also appears to have applied the same reasoning to the other environmental
                                             7
context of a dismissal prior to service). The defendants here did not seek summary

judgment on that basis. To the extent that the Magistrate Judge placed the burden on

Hauman to disprove the availability of qualified immunity, the burden was unfairly

placed.

      We add that Hauman raises several arguments that pertain to the District Court’s

order entering judgment in his favor on his claim for injunctive relief. We do not address

this order because Hauman received a favorable disposition and therefore is not

“aggrieved” in such a way that the order is appealable by him. See, e.g., Solar Turbines

Inc. v. Seif, 879 F.2d 1073, 1078 n.3 (3d Cir. 1989); Watson v. City of Newark, 746 F.2d

1008, 1010-11 (3d Cir. 1984).

      For the foregoing reasons, we will vacate the District Court’s March 26, 2008

order to the extent that it granted the defendants’ motion for summary judgment and will

remand the matter for further proceedings.




claims.
                                             8
