2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-4-2011

Darin Hauman v. Secretary PA Dept Corr

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4038

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NOT PRECEDENTIAL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

___________
2

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.
3

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. 
4

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 
5

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 asbestoscontaining 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 
6

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.
7

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 
8

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.