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 0f The United States January 10, 1994.
Before: Sloviter, Chief Judge, Mansmann and Scirica, Circuit Judges.
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.
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 "dangerous 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 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 . . . .
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 "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 ...