                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-1998

Fontroy v. Owens
Precedential or Non-Precedential:

Docket 96-2090




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Recommended Citation
"Fontroy v. Owens" (1998). 1998 Decisions. Paper 127.
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Filed June 1, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-2090

DERRICK FONTROY, et al.

v.

DAVID S. OWENS; AND
IRENE J. PERNSLEY; AND
GAETANO CURIONE; AND
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-cv-04958)

Argued May 7, 1998

BEFORE: SCIRICA, COWEN and BRIGHT,*
Circuit Judges

(Filed June 1, 1998)

       Marc Durant, Esq., (Argued)
       Durant & Durant
       400 Market Street
       12th Floor
       Philadelphia, PA 19106

        Counsel for Appellant
       Derrick Dale Fontroy, I
_________________________________________________________________

*Honorable Myron H. Bright, United States Circuit Judge for the Eighth
Circuit Court of Appeals, sitting by designation.
       Alan C. Ostrow, Esq.
       Marcia Berman, Esq., (Argued)
       City of Philadelphia
       Law Department
       1515 Arch Street
       One Parkway Building, 17th Floor
       Philadelphia, Pa 19103

        Counsel for Appellees
        David Owens
        Irene Pernsley
        Gaetano Curione
        Harry Moore

OPINION OF THE COURT

COWEN, Circuit Judge.

In this appeal we must decide whether plaintiff-appellant
Derrick D. Fontroy can recover damages under 42 U.S.C.
S 1983 for emotional distress allegedly caused by his
exposure to asbestos, even though he presently manifests
no physical injury. The district court determined that,
pursuant to 42 U.S.C. S 1988, Pennsylvania law controls
the issue and Fontroy has no claim as a matter of law. We
agree with the district court and will affirm.

I.

This case began in 1986 when Fontroy filed a pro se
claim under 42 U.S.C. S 1983 against David Owens, the
Superintendent of the Philadelphia Prison System. At the
time, Fontroy was an inmate in the protective custody unit
known as "D Rear" at Holmesburg Prison in Philadelphia.
He alleged a variety of unconstitutional conditions of
confinement in his complaint, including his allegations
concerning asbestos.

After the district court appointed counsel in November of
1988, Fontroy filed a second amended complaint 1 in which
_________________________________________________________________

1. The district court dismissed several of the claims Fontroy asserted in
his original complaint in April of 1987 but permitted his action to

                                2
he named three additional prison officials as defendants.
He stated his asbestos-related allegations as follows:

        14. During the entire period of time which Pla intiff
       spent in D Rear, he was surrounded by the known
       carcinogenic, asbestos, which was loosely wrapped
       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 cons tant,
       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 reg ular,
       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 34-37.

In December of 1991, the defendants moved for summary
judgment. In his Memorandum of Law in Opposition to
Summary Judgment, Fontroy responded, in part,
"Assuming 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
_________________________________________________________________

proceed, inter alia, on the asbestos-related claim. Defendant Owens
subsequently filed a motion to dismiss in June of 1987, after which
Fontroy filed his first amended complaint. The district court again
dismissed some of Fontroy's remaining claims but allowed his asbestos-
related claim to proceed.

                               3
disproved." App. at 845. Fontroy then attempted to
distinguish cases cited by the defendants in a footnote
where he stated:

       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.
       Contraty [sic] 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.

Id.

The district court granted summary judgment in favor of
the defendants in May of 1991 because, inter alia, an X-ray
showed Fontroy had not suffered any physical injury from
his alleged exposure to asbestos. The district court
determined 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." App. at 59
(citations 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). Subsequently, the Supreme Court issued its
decision in Helling v. McKinney, 509 U.S. 25, 113 S. Ct.
2475 (1993), which held that a prisoner "states a cause of
action under the Eighth Amendment by alleging that
[prison officials] have, with deliberate indifference, exposed
him to levels of [environmental tobacco smoke] that pose an
unreasonable risk of serious damage to his future health."
Id. at 35, 113 S. Ct. at 2481.

In August of 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 questions presented to the Supreme
Court was whether our decision, described by Fontroy as
holding "that [an] inmate's involuntary exposure to asbestos

                               4
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." 510
U.S. 1033, 114 S. Ct. 671, 671-72 (1994). In accord with
the Court's mandate, we remanded to the district court,
offering the following guidance:

       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.

Fontroy v. Owens, 23 F.3d 63, 66 (3d Cir. 1994).

On remand, the district court granted summary
judgment in favor of the defendants in October of 1996. The
court determined that (1) there was no genuine issue of
material fact concerning Fontroy's lack of physical injury
and (2) Fontroy had no cause of action for damages under
42 U.S.C. S 1983 for emotional distress allegedly caused by
exposure to asbestos in the absence of present physical
injury. Fontroy subsequently filed a motion for
reconsideration, which the district court denied. He appeals
only the district court's determination that in the absence
of physical injury from his exposure he has no cause of
action at this time.

                                5
II.

The district court had jurisdiction pursuant to 28 U.S.C.
SS 1331 and 1343. We have jurisdiction pursuant to 28
U.S.C. S 1291. We exercise plenary review of the district
court's grant of defendants' motion for summary judgment.
See Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997).
Summary judgment is appropriate "only if there are no
genuine issues of material fact and the relevant law entitles
the moving party to judgment." Kost v. Kozakiewicz, 1 F.3d
176, 183 (3d Cir. 1993).2

III.

We must determine whether 42 U.S.C. S 1983 affords
Fontroy a cause of action for damages for emotional
distress allegedly caused by exposure to asbestos without
proof of physical injury.3 The text of section 1983 itself does
_________________________________________________________________

2. Although the parties submitted argument at our invitation concerning
the retroactivity of section 803(d)(e) of the Prison Litigation Reform
Act,
42 U.S.C. S 1997e(e), the parties did not raise the issue before the
district court. Section 803(d)(e) provides that prisoners may not bring a
federal civil action for mental or emotional injury absent a prior
demonstration of physical injury. See id. It became effective on April 26,
1996, approximately five months before the district court entered an
order disposing of all claims on October 3, 1996. The parties' failure to
raise the issue before the district court prevents our review of the
issue.
Cf. Zehner v. Trigg, 133 F.3d 459, 460-61 (7th Cir. 1997) (inmates who
failed to respond to the district court's request for argument concerning
the retroactive application of section 803(d)(e) waived appellate review
of
the issue).

3. As a preliminary matter, the defendants contend that Fontroy waived
his claim for damages for emotional distress in the absence of physical
injury. Specifically, they argue that Fontroy's statements, quoted above,
in his Memorandum of Law in Opposition to Summary Judgment
conceded that such damages are not available. The district court did not
agree. Prior to its grant of summary judgment in October of 1996, the
district court determined that Fontroy had not waived his claim and
entered an appropriate order in November of 1994. The district court
stated therein, "Plaintiff did not waive any such claim in his answer to
defendant's motion for summary judgment -- plaintiff stated only that
assuming the cases cited by defendant would preclude a claim for mere
exposure to asbestos, his claim was distinguishable because he did
suffer a present injury." App. at 76. We have reviewed Fontroy's
statements and agree with the district court that Fontroy did not waive
this claim.
6
not resolve the issue, nor does it prescribe the applicable
rules of decision.4 Consequently, we must discern the
applicable rules of decision by applying the analysis
mandated by Congress in 42 U.S.C. S 1988,5 which the
Supreme Court has described as follows.

       First, courts are to look to the laws of the United
       States "so far as such laws are suitable to carry [the
       civil and criminal civil rights statutes] into effect." If no
_________________________________________________________________

4. Section 1983 states:

         Every person who, under color of any statute, ordinance,
       regulation, custom, or usage, of any State or Territory or the
District
       of Columbia, subjects, or causes to be subjected, any citizen of
the
       United States or other person within the jurisdiction thereof to
the
       deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for
redress,
       except that in any action brought against a judicial officer for an
act
       or omission taken in such officer's judicial capacity, injunctive
relief
       shall not be granted unless a declaratory decree was violated or
       declaratory relief was unavailable. For the purposes of this
section,
       any Act of Congress applicable exclusively to the District of
       Columbia shall be considered to be a statute of the District of
       Columbia.

42 U.S.C. S 1983.

5. The relevant portion of section 1988 provides:

        The jurisdiction in civil and criminal matters conferred on the
       district courts by the provisions of titles 13, 24, and 70 of the
       Revised Statutes for the protection of all persons in the United
       States in their civil rights, and for their vindication, shall be
       exercised and enforced in conformity with the laws of the United
       States, so far as such laws are suitable to carry the same into
effect;
       but in all cases where they are not adapted to the object, or are
       deficient in the provisions necessary to furnish suitable remedies
       and punish offenses against law, the common law, as modified and
       changed by the constitution and statutes of the State wherein the
       court having jurisdiction of such civil or criminal cause is held,
so
         far as the same is not inconsistent with the Constitution and laws
         of the United States, shall be extended to and govern the said
courts
       in the trial and disposition of the cause, and, if it is of a
criminal
       nature, in the infliction of punishment on the party found guilty.

42 U.S.C. S 1988(a).

                                 7
       suitable federal rule exists, courts undertake the
       second step by considering application of state
       "common law, as modified and changed by the
       constitution and statutes" of the forum State. A third
       step asserts the predominance of the federal interest:
       courts are to apply state law only if it is not
       "inconsistent with the Constitution and laws of the
       United States."

Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S. Ct. 2924,
2928 (1984) (quoting 42 U.S.C. S 1988(a)).

The district court made three determinations in applying
this analysis: (1) the Supreme Court's decision in Helling v.
McKinney, 510 U.S. 1033, 114 S. Ct. 671, 672 (1994), did
not create a federal rule that an inmate may sustain a
section 1983 action for damages for emotional distress in
the absence of physical injury; (2) the law of Pennsylvania,
which does not allow an inmate to assert such a claim,
controls pursuant to 42 U.S.C. S 1988; and (3)
Pennsylvania's law is not "inconsistent with the
Constitution and laws of the United States," 42 U.S.C.
S 1988.

There is no dispute that Pennsylvania is the appropriate
forum state for section 1988 purposes or that Pennsylvania
law does not provide a cause of action for damages for
emotional distress for exposure to asbestos without proof of
physical injury. See Simmons v. Pacor, Inc., 674 A.2d 232,
238 (Pa. 1996). We will review the remaining
determinations in seriatim.

A.

Fontroy contends that Helling provides a federal rule that
would allow his claim for monetary relief. In Helling, the
Supreme Court held that an inmate may recover injunctive
relief in a section 1983 action based on exposure to
environmental, i.e., second-hand, cigarette smoke in the
absence of present physical injury. See 509 U.S. at 33-35,
113 S. Ct. at 2480-81. The Court reasoned that "[i]t would
be odd to deny an injunction to inmates who plainly proved
an unsafe, life-threatening condition in their prison on the
ground that nothing yet had happened to them." Id. at 33,

                               8
113 S. Ct. at 2481. The Court did not address the
availability of damages in such cases--a point which we
specifically recognized in remanding Fontroy's case to the
district court following the Supreme Court's grant of his
petition for certiorari. See Fontroy v. Owens, 23 F.3d at 66
("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."). More importantly, the
Helling Court's reasoning concerning injunctive relief does
not translate to a claim for monetary relief.6 The Court's
statement that it would be odd to deny an inmate an
injunction against future harm until that harm actually
occurred sheds no light on the availability of monetary
damages to redress past wrong. We therefore conclude that
Helling does not create a federal rule that would provide
Fontroy a cause of action under 42 U.S.C. S 1983.

B.

Fontroy also contends that the district court erred in
applying Pennsylvania law because, in contravention of
section 1988, it is purportedly inconsistent with federal
law. As support, Fontroy cites cases involving the alleged
use of excessive force, see, e.g., Hudson v. McMillan, 503
U.S. 1, 112 S. Ct. 995 (1992) (an inmate may recover
damages for excessive use of force even if the inmate does
not suffer serious injuries), and cases involving prison
officials' alleged failures to protect inmates from other
inmates, see, e.g., Hamilton v. Leavy, 117 F.3d 742 (3d Cir.
1997) (an inmate who had a long history of being assaulted
could sustain a section 1983 action alleging that prison
officials ignored an excessive risk to his safety).

In contrast to Fontroy, however, the inmates in both of
these cases actually suffered some degree of physical
injury. Cf. Babcock v. White, 102 F.3d 267, 270 (7th Cir.
1996) (an inmate "who was not assaulted by, and who is no
longer at risk from, fellow inmates" had no cause of action
for damages "based solely on prison officials' past failure to
take measures to protect the prisoner from inmates known
_________________________________________________________________

6. An injunction would be useless to Fontroy because he is no longer
incarcerated at Holmesburg Prison.

                               9
to pose a danger"). Fontroy's case, moreover, is a so-called
conditions of confinement case. The Hudson Court
differentiated excessive force cases from cases alleging
unconstitutional conditions of confinement based upon the
degree of deprivation required to state a colorable claim. In
a conditions of confinement case, "extreme deprivations are
required to make out a . . . claim[,]" whereas "[i]n the
excessive force context, society's expectations are different"
because "[w]hen prison officials maliciously and sadistically
use force to cause harm, contemporary standards of
decency always are violated." 503 U.S. at 9, 112 S. Ct. at
1000.

Fontroy also argues that Carey v. Piphus, 435 U.S. 247,
98 S. Ct. 1042 (1978), provides a federal rule that plaintiffs
may recover damages for emotional distress in a section
1983 action absent physical injury. The Carey Court held
that emotional distress caused by the deprivation of due
process is compensable under section 1983 without proof
of physical injury. See id. at 264, 98 S. Ct. at 1052. In
reaching this holding, the Court cautioned that"[i]n order
to further the purpose of S 1983, the rules governing
compensation for injuries caused by the deprivation of
constitutional rights should be tailored to the interests
protected by the particular right in question[.]" Id. at 259,
98 S. Ct. at 1050. Moreover, the Court stated that "the
elements and prerequisites for recovery of damages
appropriate to compensate injuries caused by the
deprivation of one constitutional right are not necessarily
appropriate to compensate injuries caused by the
deprivation of another." Id. at 264-65, 98 S. Ct. at 1052.

Fontroy's argument would require us to ignore these
precepts by applying Carey, a deprivation of due process
case, to a case alleging a violation of the Eighth
Amendment. The Carey court determined that the "denial of
procedural due process should be actionable for nominal
damages without proof of actual injury" because "the right
to procedural due process is `absolute' in the sense that it
does not depend upon the merits of a claimant's
substantive assertions[.]" Id. at 266, 98 S. Ct. at 1054. In
contrast, the Hudson court instructed that"extreme

                               10
deprivations are required to make out a conditions-of-
confinement claim[,]" such as Fontroy's. 503 U.S. at 9, 112
S. Ct. at 1000.7

Based on the foregoing, we decline to reverse the district
court on the basis that Pennsylvania law is "inconsistent
with the Constitution and laws of the United States[.]" 42
U.S.C. S 1988(a). Federal law does not provide inmates, who
suffer no present physical injury, a cause of action for
damages for emotional distress allegedly caused by
exposure to asbestos. Cf. Metro-North Commuter R.R. Co. v.
Buckley, ___ U.S. ___, 117 S. Ct. 2113 (1997) (a federal
employee may not recover damages under the Federal
Employer's Liability Act for emotional distress caused by
exposure to asbestos absent manifestations of injury).

IV.

In conclusion, we hold that the district court did not err
by applying Pennsylvania law to Fontroy's section 1983
claim and, consequently, that Fontroy has no cause of
action under 42 U.S.C. S 1983 for damages for emotion
distress allegedly caused by exposure to asbestos without
proof of physical injury.8 We will affirm the October 31,
1996, order of the district court granting summary
judgment against plaintiff-appellant Fontroy.
_________________________________________________________________

7. Fontroy's citation of our decision in Bolden v. Southeastern
Pennsylvania Transp. Auth., 21 F.3d 29 (3d Cir. 1994) (section 1983
action for emotional distress damages arising out of an allegedly
unconstitutional drug test of employee), is also unavailing for the same
reasons.

8. Since our holding fully disposes of Fontroy's appeal, we need not
address the defendants' argument that Fontroy's claim "effectively
constitutes a municipal liability claim against the City of
Philadelphia[,]"
Appellees' Br. at 36, and that Fontroy failed to demonstrate a municipal
policy or practice of deliberate indifference to the rights of inmates,
which is a requisite element for municipal liability in a section 1983
action. See Monell v. Department of Soc. Services of the City of New York,
436 U.S. 658, 690-94, 98 S. Ct. 2018, 2035-38 (1978).

                               11
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
