A Kansas inmate sued the warden and the state Secretary of Corrections, claiming that he had been exposed to lead paint and asbestos while incarcerated. An intermediate state appeals court upheld the dismissal of all state law claims for failure to exhaust available administrative remedies, while reversing the dismissal of federal civil rights claims. The Kansas Supreme Court held that both the trial court and appeals court applied the wrong legal standard on the failure to exhaust available administrative remedies, requiring further proceedings. When matters outside the pleadings are presented to the court, a motion to dismiss is converted to a motion for summary judgment to which all parties must be given a reasonable opportunity to respond. There was a factual issue as to whether a letter written by the warden concerning the prisoner's grievance was sufficient to waive the exhaustion doctrine on behalf of all—or any—of the defendats.Sperry v. McKune, #112455 th3, 2016 Kan. Lexis 601.
     A federal prisoner sought damages for injuries allegedly stemming from exposure to asbestos while working as an electrician for the prison's custodial maintenance services during his incarceration at Leavenworth. He claimed that proper protective measures were not taken. Claims against individual defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., (FTCA), were properly dismissed, as only the U.S. government can be a defendant under that statute. The defendant government argued, however, that the plaintiff's exclusive remedy for work related injuries were under the Inmate Accident Compensation Act. 18 U.S.C. Sec. 4126. Under that statute, federal prisoners who suffer a work-related injury and who still suffer a residual physical impairment as a result, can submit a claim for compensation within 45 days of his release date. If he has fully recovered at that time, however, he can make no such claim. The statute also allows for claims for wages actually lost by the prisoner while prevented from doing his work assignment due to his injury. Because of this statute, the appeals court concluded, FTCA claims against the federal government were also properly dismissed. The fact that the inmate had a lengthy sentence, and might die before he is within 45 days of his release date did not alter the result. The Inmate Accident Compensation Act, however, does not preclude the prisoner from bringing individual capacity federal civil rights claims against federal prison employees for alleged deliberate indifference to a serious risk of harm from exposure to asbestos or other work-relat6ed injuries, so those claims were reinstated. Smith v. U.S., #07-3242, 561 F.3d 1090 (10th Cir. 2009).
     Prisoner failed to show that his exposure to friable asbestos constituted deliberate indifference to his medical needs. An expert witness report stated that the prisoner could only show a likelihood of future suffering of an asbestos-related illness if he suffered prolonged exposure to the asbestos. There was no evidence of a present asbestos-related injury, and nothing in the prisoner's medical records to show exposure to either moderate or severe levels of asbestos for a prolonged time. Harris v. Donald, No. 07-12774, 2008 U.S. App. Lexis 1600 (11th Cir.).
     Prison officials were not entitled to summary judgment on the basis of qualified immunity in prisoner's lawsuit claiming that they acted with deliberate indifference to medical problems caused by his exposure to friable asbestos, which allegedly caused damage to his lungs. Further proceedings were ordered, however, on the question of whether the prisoner had actually suffered medical damages as a result of the exposure. Purser v. Donald, No. 05CV033, 2006 U.S. Dist. 73386 (S.D. Ga.). [N/R]
     New York prisoner failed to show that his alleged involuntary exposure to friable asbestos in a state prison violated his Eighth Amendment rights when there was no evidence that the level of exposure created an unreasonable risk of serious damage to either his immediate or future health. Further, the evidence presented did not indicate either the intensity or duration of the alleged exposure in most areas of the cellblock in which the prisoner was confined, and there was no indication that the prisoner had any asbestos-related disease. Pack v. Artuz, No. 99 CIV. 4604, 348 F. Supp. 2d 63 (S.D.N.Y. 2004). [N/R]
     267:42 Prisoner stated Eighth Amendment claim for deliberate indifference to his exposure to airborne asbestos particles in prison. LaBounty v. Coughlin, #97- 2015, 137 F.3d 68 (2nd Cir. 1998).
     267:43 Prisoner could not recover damages for emotional distress stemming from alleged exposure to asbestos, absent any present manifestation of physical injury. Fontroy v. Owens, #96-2090, 150 F.3d 239 (3rd Cir. 1998).
     222:90 Federal appeals court rules that "moderate" exposure to asbestos in prison setting is not cruel and unusual punishment; second federal appeals court finds that prisoner could state claim for unreasonable exposure which might lead to future health problems, but orders further hearings on whether plaintiff waived claim. McNeil v. Lane, 16 F.3d 123 (7th Cir. 1994); Fontroy v. Owens, 23 F.3d 63 (3rd Cir. 1994).