On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 86-cv-04958)
Before: Scirica, Cowen and Bright,* Circuit Judges
The opinion of the court was delivered by: 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.
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 Pla intiff 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 cons tant, 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 reg ular, 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 . . . .
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 ...