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. 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.
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. 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.