UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES TEMPLETON; DAVID 

COWDEN, 

 Plaintiffs - Appellants, 

and 

ROBERT GALLOB; DAVID ALLEN, 

 Plaintiffs, 

v. 

PETER ANDERSON; JEFF SMITH; 

JAMES CHANEY; TIMOTHY CREANY; 

JAN SYLVIA; STEVEN GALLEGOS; 

CHERI DRENNON; STEPHEN ENGLE; 

THOMAS MARTIN, 

 Defendants - Appellees. 

No. 14-1334 

(D.C. No. 1:12-CV-01276-RBJ-BNB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

_________________________________ 

 *

 After examining the briefs and appellate record, this panel determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. 

App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 15, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 1 
-2- 

 James Templeton and David Cowden appeal the district court’s dismissal of their 

42 U.S.C. § 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I

 Templeton and Cowden are inmates at the Fremont Correctional Facility.1

 In June 

2011, both plaintiffs were assigned to a work detail removing tile from an administration 

building hallway. Prior to initiating this project, General Maintenance Captain Stephen 

Engle, Sergeant Tom Martin, and Life Safety Coordinator Peter Anderson collected 

samples of the tile and mastic in the area and understood that the samples did not contain 

asbestos. Anderson instructed Officer James Chaney on the proper manner of removing 

the tile, and told him that work should be halted immediately if the crew encountered 

mastic of any color other than brown. 

 On June 28, 2011, the second day of work, Templeton noticed black mastic. He 

alerted Cowden and Chaney at approximately 1:35 p.m. According to Templeton, 

Chaney told the crew to continue working. Approximately an hour later, Engle and 

Anderson arrived on the scene and halted work. Anderson had the inmates remove their 

footwear and contacted a shift commander with instructions to have them shower. 

Subsequent testing revealed that the black mastic and tile contained up to 8% asbestos. 

Anderson also ordered air quality tests, which showed asbestos concentrations below 

trigger levels. 

 1

 Because the district court granted defendants’ motion for summary judgment, 

we recite the facts in the light most favorable to the plaintiffs. See Howard v. Waide, 

534 F.3d 1227, 1235 (10th Cir. 2008). 

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 2 
-3- 

 Templeton, Cowden, and the other inmates exposed to the black mastic underwent 

chest X-rays on July 15, 2011. Templeton’s X-ray was normal. A few months later, 

Templeton requested medical attention for breathing problems. He was found to have 

irritated eyes, nasal drainage, and a slightly reddened post-nasal pharynx as a result of 

seasonal allergies. Templeton also repeatedly requested mental health treatment for his 

fear of developing an asbestos-related ailment, but did not receive such treatment. 

Cowden’s X-ray was mildly abnormal, but the abnormality was not clearly related to 

asbestos. Prison officials conducted a follow-up X-ray on September 7, 2011, which 

showed no substantial change, and did not detect any “discre[te] acute infiltrates,” 

meaning that there was no clear asbestos effect. 

 In addition to the mastic exposure, Templeton and Cowden claim that on 

November 29, 2011, they were exposed to asbestos in the glazing of a window that they 

were ordered to change. They claim that they were ordered to change hundreds of similar 

windows before that date, and that “Government Officials” knew the glazing contained 

asbestos. 

 Templeton, Cowden, and several other inmates filed suit in federal court alleging 

that numerous prison officials violated their rights under the Eighth Amendment. The 

district court granted the defendants’ motion for summary judgment. Templeton and 

Cowden timely appealed. 

II

 “We review orders granting summary judgment de novo, viewing the evidence in 

the light most favorable to the nonmoving party.” Howard, 534 F.3d at 1235. Summary 

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 3 
-4- 

judgment is appropriate “if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). Because plaintiffs are proceeding pro se, we construe their filings liberally. Hall 

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

 To prevail on a claim under § 1983, plaintiffs must show that each defendant 

personally participated in the deprivation of a constitutional right. See Trujillo v. 

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). The Eighth Amendment bars prison 

officials from acting with “deliberate indifference to serious medical needs of prisoners.” 

Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a deliberate indifference 

claim, a plaintiff must establish both an objective and a subjective component. See AlTurki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014). 

“The objective prong of the deliberate indifference test examines whether 

the prisoner’s medical condition was sufficiently serious to be cognizable 

under the Cruel and Unusual Punishment Clause. The subjective prong 

examines the state of mind of the defendant, asking whether the official 

knew of and disregarded an excessive risk to inmate health or safety.” 

Id. (quotations, citations, and alterations omitted). “A medical need is sufficiently serious 

if it is one that has been diagnosed by a physician as mandating treatment or one that is so 

obvious that even a lay person would easily recognize the necessity for a doctor’s 

attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quotation 

omitted). 

 For claims based on exposure to hazardous materials that may cause future harm 

to an inmate’s health, we ask whether the exposure is “so grave that it violates 

contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling 

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 4 
-5- 

v. McKinney, 509 U.S. 25, 36 (1994) (emphasis omitted). “The health risk posed by 

friable asbestos has been acknowledged by various courts, which have held that inmates’ 

unwilling exposure to an unreasonably high concentration of air-borne asbestos particles 

constitutes a cognizable claim under the Eighth Amendment.” See Pack v. Artuz, 348 F. 

Supp. 2d 63, 79 (S.D.N.Y. 2004) (collecting cases). “For exposure to airborne asbestos 

fibers to create a substantial risk of serious harm, however, the intensity and duration of 

the exposure must both be significant.” Id. at 79-80. 

 The only defendants alleged to have personally participated in the asbestos 

exposure are Engle, Anderson, and Chaney. Accordingly, the tile and mastic asbestos 

exposure claims against all other defendants fail as a matter of law. See Trujillo, 465 

F.3d at 1227 (explaining that to be liable under § 1983, a defendant must have personally 

participated in the violation of a prisoner’s rights). The same is true as to all defendants 

with respect to plaintiffs’ claim that they were exposed to asbestos in window glazing 

because plaintiffs do not allege personal participation by any individual. See id. 

 Plaintiffs have not created a genuine dispute of fact as to whether Engle and 

Anderson “knew of and disregarded an excessive risk to inmate health or safety,” AlTurki, 762 F.3d at 1192 (quotation and alteration omitted), by exposing them to asbestos. 

These defendants believed that the tile and brown mastic plaintiffs were ordered to 

remove did not contain asbestos. Anderson ordered that the project should be halted if 

mastic of any color other than brown was discovered, and stopped work when he learned 

black mastic was found. 

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 5 
-6- 

 In contrast, plaintiffs have created a factual dispute on the subjective prong as to 

defendant Chaney. Drawing all inferences in favor of plaintiffs, a jury might conclude 

that Chaney ordered plaintiffs to continue removing tile in an area known to be 

hazardous. But we agree with the district court that the exposure claim against Chaney 

fails on the objective prong. According to plaintiffs, they were exposed to the black 

mastic and asbestos-containing tile for approximately one hour. This was not a 

significant duration given the type of exposure at issue. See Pack, 348 F. Supp. 2d at 79-

80. Accordingly, we cannot say that it “violate[d] contemporary standards of decency to 

expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36 (emphasis omitted); 

see also McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993) (noting that exposure to 

moderate levels of asbestos is unfortunately common). 

 We further agree with the district court that plaintiffs’ claims based on insufficient 

medical care fail under the objective prong. Prison medical staff performed chest X-rays 

on both Templeton and Cowden shortly after their asbestos exposure. Cowden received a 

follow-up X-ray because his first X-ray revealed minor abnormalities that were not 

clearly related to asbestos. After informing prison medical staff that he had trouble 

breathing, Templeton was examined and diagnosed with mild symptoms related to 

seasonal allergies. Plaintiffs argue that additional diagnostic and treatment options 

should have been ordered. However, the question of whether “additional diagnostic 

techniques or forms of treatment . . . [are] indicated is a classic example of a matter for 

medical judgment,” and a medical decision not to pursue such options generally “does 

not represent cruel and unusual punishment.” Estelle, 429 U.S. at 107. 

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 6 
-7- 

 Templeton also argues that defendants are liable for failing to provide mental 

health treatment for his fear of developing asbestos-related illnesses. The denial of 

mental health care can constitute deliberate indifference. See Ramos v. Lamm, 639 F.2d 

559, 574 (10th Cir. 1980). But as with other medical needs, mental health issues must be 

sufficiently serious. Id. at 575. That is, the need must be “one that has been diagnosed 

by a physician as mandating treatment or one that is so obvious that even a lay person 

would easily recognize the necessity for a doctor’s attention.” Id. (quotation omitted). 

We agree with the district court that Templeton’s complaints fall short of this standard.2 

III

 For the foregoing reasons, the judgment of the district court is AFFIRMED. The 

motions to proceed in forma pauperis filed by Templeton and Cowden are GRANTED. 

We remind both appellants that they remain obligated to continue making partial 

payments until the entire filing fee has been paid. 

 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 2

 Plaintiffs also argue that the district court improperly granted a motion for 

extension of time for a group of defendants to respond to a motion for default 

judgment. We review a district court ruling on a motion for extension of time for 

abuse of discretion. See Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 

1238, 1242 (10th Cir. 2010). We discern no abuse in the district court’s ruling on 

this motion. 

Appellate Case: 14-1334 Document: 01019415652 Date Filed: 04/15/2015 Page: 7