Filed: May 03, 1994
Latest Update: Mar. 02, 2020
Summary: 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1994 Decisions States Court of Appeals for the Third Circuit 5-3-1994 Fontroy, et al v. Owens, et al Precedential or Non-Precedential: Docket 91-2070 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Fontroy, et al v. Owens, et al" (1994). 1994 Decisions. Paper 7. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/7 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: 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1994 Decisions States Court of Appeals for the Third Circuit 5-3-1994 Fontroy, et al v. Owens, et al Precedential or Non-Precedential: Docket 91-2070 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Fontroy, et al v. Owens, et al" (1994). 1994 Decisions. Paper 7. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/7 This decision is brought to you for free and open access by the Opinions of the United..
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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Precedential or Non-Precedential: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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Fontroy, et al v. Owens, et al" (1994). 1994 Decisions. Paper 7.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/7
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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 (ΒΆΒΆ 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.
8
