Fontroy v. Owens, 96-2090

• Citation: 150 F.3d 239
• Decision Date: 28 July 1998
• Docket Number: No. 96-2090,96-2090
• Parties: Derrick FONTROY, et al., v. David S. OWENS; and Irene J. Pernsley; and Gaetano Curione; and Harry Moore, Derrick Dale Fontroy, I, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 239

150 F.3d 239

Derrick FONTROY, et al., v. David S. OWENS; and Irene J. Pernsley; and Gaetano

Curione; and Harry Moore,

Derrick Dale Fontroy, I, Appellant.

No. 96-2090.

United States Court of Appeals, Third Circuit.

Argued May 7, 1998.

Decided June 1, 1998.

Opinion Order Published July 28, 1998.

Marc Durant (Argued), Durant & Durant, Philadelphia, PA, for Appellant Derrick Dale Fontroy, I.

Alan C. Ostrow, Marcia Berman (Argued), City of Philadelphia Law Department, Philadelphia, PA, for Appellees David Owens, Irene Pernsley, Gaetano Curione and Harry Moore.

Before: SCIRICA, COWEN and BRIGHT, ^* Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

In this appeal we must decide whether plaintiff-appellant Derrick D. Fontroy can recover damages under 42 U.S.C. § 1983 for emotional distress allegedly caused by his exposure to asbestos, even though he presently manifests no physical injury. The district court determined that, pursuant to 42 U.S.C. § 1988, Pennsylvania law controls the issue and Fontroy has no claim as a matter of law. We agree with the district court and will affirm.

I.

This case began in 1986 when Fontroy filed a pro se claim under 42 U.S.C. § 1983 against David Owens, the Superintendent of the Philadelphia Prison System. At the time, Fontroy was an inmate in the protective custody unit known as "D Rear" at Holmesburg Prison in Philadelphia. He alleged a variety of unconstitutional conditions of confinement in his complaint, including his allegations concerning asbestos.

After the district court appointed counsel in November of 1988, Fontroy filed a second amended complaint ¹ in which he named three additional prison officials as defendants. He stated his asbestos-related allegations as follows:

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 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 34-37.

In December of 1991, the defendants moved for summary judgment. In his Memorandum of Law in Opposition to Summary Judgment, Fontroy responded, in part, "Assuming 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 845. Fontroy then attempted to distinguish cases cited by the defendants in a footnote where he stated:

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. Contraty [sic] 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.

Id.

The district court granted summary judgment in favor of the defendants in May of 1991 because, inter alia, an X-ray showed Fontroy had not suffered any physical injury from his alleged exposure to asbestos. The district court determined 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." App. at 59 (citations 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). Subsequently, the Supreme Court issued its decision in Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), which held that a prisoner "states a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health." Id. at 35, 113 S.Ct. at 2481.

In August of 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 questions presented to the Supreme Court was whether our decision, described by Fontroy 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." 510 U.S. 1033, 114 S.Ct. 671, 671-72, 126 L.Ed.2d 640 (1994). In accord with the Court's mandate, we remanded to the district court, offering the following guidance:

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 nonsmoking 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.

Fontroy v. Owens, 23 F.3d 63, 66 (3d Cir.1994).

On remand, the district court granted summary judgment in favor of the defendants in October of 1996. The court determined that (1) there was no genuine issue of material fact concerning Fontroy's lack of physical injury and (2) Fontroy had no cause of action for damages under 42 U.S.C. § 1983 for emotional distress allegedly caused by exposure to asbestos in the absence of present physical injury. Fontroy subsequently filed a motion for reconsideration, which the district court denied. He appeals only the district court's determination that in the absence of physical injury from his exposure he has no cause of action at this time.

II.

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the district court's grant of defendants' motion for summary judgment. See Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir.1997). Summary judgment is appropriate "only if there are no genuine issues of material fact and the relevant law entitles the moving party to judgment." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). ²

III.

We must determine whether 42 U.S.C. § 1983 affords Fontroy a cause of action for damages for emotional distress allegedly caused by exposure to asbestos without proof of physical injury. ³ The text of section 1983 itself does not resolve the issue, nor does it prescribe the applicable rules of decision. ⁴ Consequently, we must discern the applicable rules of decision by applying the analysis mandated by Congress in 42 U.S.C. § 1988, ⁵ which the Supreme Court has described as follows.

First, courts are to look to the laws of the United States "so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect." If no suitable federal rule exists, courts undertake the second step by considering application of state "common law, as modified and changed by the constitution and statutes" of the forum State. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not "inconsistent with the Constitution and laws of the United States."

Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984) (quoting 42 U.S.C. § 1988(a)).

The district court made three determinations in applying this analysis: (1) the Supreme Court's decision in Fontroy v. Owens, 510 U.S. 1033, 114 S.Ct. 671, 672, 126 L.Ed.2d 640 (1994), did not create a federal rule that an inmate may sustain a section 1983 action for damages for emotional distress in the absence of physical injury; (2) the law of Pennsylvania, which does not allow an inmate to assert such a claim, controls pursuant to 42 U.S.C. § 1988; and (3) Pennsylvania's law is not "inconsistent with the Constitution and laws of the United States," 42 U.S.C. § 1988.

There is no dispute that Pennsylvania is the appropriate forum state for section 1988 purposes or that Pennsylvania law does not provide a cause of action for damages for emotional distress for exposure to asbestos without proof of physical injury. See Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232, 238 (1996). We will review the remaining determinations in seriatim.

A.

Fontroy contends that Helling provides a federal rule that would allow his claim for monetary relief. In Helling, the...