Garcia-Bermudez v. Brooks ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 21 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE GARCIA-BERMUDEZ,
Petitioner-Appellant,
v. No. 98-1168
(D.C. No. 98-D-249)
JOSEPH BROOKS, Warden, (District of Colorado)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Claiming surgery performed on his left wrist to correct a painful condition was not
the proper surgical procedure for his condition and that, as a consequence, he endures
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
continued severe pain, Mr. Garcia-Bermudez filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241. Petitioner, who is an inmate at FCI Englewood, Colorado,
claims the pain he endures is the responsibility of the respondent, Warden Joseph Brooks;
therefore, he is entitled to a credit of ten days for every day he has served in custody. The
district court determined the claim petitioner raised was not cognizable in habeas corpus
because it effectively attacked the medical care Mr. Garcia-Bermudez received while in
custody. The court therefore dismissed the petition and this appeal ensued.
The theory presented by petitioner is novel indeed. Taken at face value, the theory
is his sentence was for a term of years and undue pain and suffering was not a part of that
sentence. Therefore, the fact that he endures pain violates the terms of his sentence and
he is entitled to release. Additionally, because the surgeon who performed the operation
at the Springfield Federal Medical Prison allegedly with deliberate indifference did not
perform the correct procedure, petitioner continues to experience pain which constitutes a
violation of the Eighth Amendment. Furthermore, the “custodian of Appellant’s custody”
refuses to perform the surgical procedure petitioner claims is necessary and, instead,
“insists” on performing a different operation; therefore, he asserts, he is “subjected to
endure a great amount of pain and suffering, directly inflicted upon him by the custodian
of his custody.”
It is evident petitioner has craftily combined claims of inadequate medical care
with the law of habeas corpus to seek his early release from confinement. Indeed, he has
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managed to contort allegations of medical mistreatment into a claim of unconstitutional
conditions of confinement and to employ all the necessary legal buzz words in his papers
to make a facial claim for his right to relief. Novel as his theories are, however, they do
not constitute grounds for habeas corpus.
First of all, he has cited no authority, and we know of none, that would authorize a
court to grant him ten days’ worth of credit for each day he served even though that
service was burdened by pain. Second, the complaint he has raised over the nature of the
medical service he received does not rise to the level of deliberate indifference that would
constitute a violation of the Eighth Amendment. Taken at face value, the only contention
presented is that the doctor rendered the incorrect service, not that he was deliberately
denied medical attention. This, as the district court observed, is no more than a claim
possibly sounding in tort against the doctor. Third, his continued dispute, as alleged, over
the type of surgery that must be performed on him to relieve his pain is nothing more than
a difference of opinion between him and the government’s physician. Because he
disputes the treatment and apparently will not permit it is not grounds for his release from
prison. Finally, as the district court ruled, the law of habeas corpus in this circuit is that
his claims, as asserted, are not grounds for habeas relief. United States v. Sisneros, 599
F.2d 946, 947 (10th Cir. 1979) (medical mistreatment is not cognizable in federal habeas
corpus).
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The judgment of the district court is AFFIRMED, and the mandate shall issue
forthwith.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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