1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Fontroy, et al v. Owens, et al" (1994). 1994 Decisions. Paper 7.

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1 

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 
2 

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 
3 

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. 
4 

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 
5 

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," 

 

1We 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. 
6 

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. 

 

2In 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. 
7 

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. 
8 

 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.