Smith v. Thorp , 97 F. App'x 815 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 4 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SCOTT TYLER SMITH,
Plaintiff-Appellant,
v. No. 03-1293
(D.C. No. 02-M-1499 (OES))
DR. D. K. THARP; DR. B. (D. Colo.)
SERRANO; DR. ROBERT C.
WILLIAMS; DR. GEORGE
KLINKERFUSS; E.J. GALLEGOS;
CHRIS LAMB; DR. MARK
PEARSON; JOYCE ANDERSON;
DEBBIE DUNN; M. AZUMAH; R.T.
HOLT; JOEL KNOWLES; TERRY
FINNEGAN; DAVID REITER;
VICTOR BOUDET; VALENTINE
HERNANDEZ; CELESTINO
GARCIA; VIRGLILO CAMAGRY;
MARK SMITH; RUSTY LANG; DR.
HARE; R. KOHANE,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The 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.
Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.
Scott Tyler Smith, proceeding pro se, appeals from an order of the district
court dismissing his claims of deliberate indifference to serious medical needs,
which he brought pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics , 403 U.S. 388 (1971) . We AFFIRM the dismissal.
In 1995, Smith suffered a head injury as the result of a fall at his federal
prison industry job. Prison medical personnel treated him immediately following
the injury and continued to see him due to ongoing problems allegedly arising
from the injury. Several months after the injury, Smith began to experience
seizures and apparently suffered several strokes. Because of his continuing health
problems, he was transferred to the Medical Center for Federal Prisoners at
Springfield, Missouri. He was transferred back to his original facility
approximately four years later.
In 2002, Smith commenced this action against twenty-two defendants. His
complaint alleged that defendants had violated his constitutional rights in the
following ways: (1) that defendants did not properly treat Smith’s medical
problems at the time of the injury; (2) that they misdiagnosed him as they initially
concluded that he was suffering from multiple sclerosis; (3) that it took several
years before defendants determined he had sustained several strokes, resulting in
-2-
some paralysis of the right side; and (4) that upon Smith’s return from
Springfield, defendants failed to provide the physical therapy or medications
ordered by the specialists. Smith sought an injunction ordering defendants to
provide him with adequate medical care or, in the alternative, to release him from
prison so he could seek his own medical care.
Having ascertained that Smith failed to allege any personal participation on
the part of eighteen of the twenty-two defendants, the district court dismissed
those eighteen defendants. It later dismissed the action against Drs. Williams and
Klinkerfuss because they had not been served. 1
Finally, it dismissed Drs. Tharp
and Serrano from the suit because Smith had not exhausted his administrative
remedies against them, and because he had not shown that they were personally
responsible for any of the acts of which he complained. The district court also
found that it could not construe the complaint as one brought against the Bureau
of Prisons (BOP) for injunctive relief because Smith had not exhausted his
administrative remedies against the BOP. On appeal, Smith contends that he both
exhausted his administrative remedies and stated a valid Eighth Amendment
claim.
1
Appellees state that Dr. Williams has passed away and Dr. Klinkerfuss is
no longer employed by the Bureau of Prisons. Therefore, service was not
effectuated upon them when the remaining defendants , current employees of the
Bureau of Prisons, were served.
-3-
We review de novo an order dismissing a prisoner’s § 1983 complaint for
failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). 2
See
Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). “[E]xhaustion in
cases covered by § 1997e(a) is now mandatory,” Porter v. Nussle , 534 U.S. 516,
524 (2002), and “applies to all prisoners seeking redress for prison circumstances
or occurrences,” id. at 520.
In order to exhaust his administrative claims, a federal prisoner must “seek
formal review of an issue which relates to any aspect of” his imprisonment.
28 C.F.R. § 542.10. First, the inmate must submit his complaint, using a Form
BP-9, to the prison staff. Id. § 542.14. If he is dissatisfied with the response at
that level, he must appeal to the Regional Director of the Bureau of Prisons, using
Form BP-10. Id. § 542.15(a). Finally, the inmate may file a final administrative
appeal to the General Counsel, using Form BP-11. Id.
Smith attached copies of his three administrative claims to the complaint he
filed in district court. In BP-9, he alleged only that his current physical and
mental condition were the result of deliberate medical indifference and
incompetence by unnamed medical personnel in returning him to the prison in
2
Section 1997e(a) provides that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
-4-
Florence. R. doc. 1, exhibits. In his BP-10, he complained that he had not seen a
neurologist since his return to Florence. Id. In his BP-11, he complained that he
had not received adequate medical care or physical therapy since his return
despite his request to see a neurologist. Id.
The district court found that Smith failed to exhaust his administrative
remedies. We disagree. In fact, the parties responding to Smith’s administrative
complaints specifically addressed the claims he raised in his complaint against
Drs. Tharp and Serrano. See R. doc. 6 exhibits (noting that “telemedicine”
conferences were held at which it was determined that Smith did not need
physical therapy, that he had been evaluated by the staff physician, and that he
was being monitored in the chronic care clinic). In his complaint in district court,
moreover, Smith alleged that Drs. Tharp and Serrano had refused to treat him for
his stroke and had refused to provide him with physical therapy. See id. doc. 12
at 6. Accordingly, we conclude that Smith exhausted his administrative remedies
as to Drs. Tharp and Serrano.
Despite his exhaustion of administrative remedies, Smith’s claims
ultimately fail because he brought them against Drs. Tharp and Serrano only in
their official capacities and seeking only injunctive relief. It has been previously
established that a Bivens claim cannot be brought against individual defendants in
their official capacities. Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001)
-5-
(“There is no such animal as a Bivens suit against a public official tortfeasor in
his or her official capacity.”). Further, Drs. Tharp and Serrano cannot provide the
injunctive relief sought by Smith.
Finally, on the merits, Smith has failed to state an Eighth Amendment
claim. At best, Smith has alleged only a disagreement with medical personnel as
to the care he is receiving. Such allegations are not up to the standards that we
have previously required to make out a claim of deliberate indifference to serious
medical needs. See, e.g. , Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980)
(concluding that a prisoner’s disagreement with medical personnel about the care
administered is insufficient to make out a claim of deliberate indifference to
serious medical needs).
For the foregoing reasons, we AFFIRM the judgment of the district court.
We GRANT Smith’s motion to proceed in forma pauperis on appeal and remind
him of his obligation to make partial payments of the appellate filing fee pursuant
to 28 U.S.C. § 1915(b) until the entire fee is paid. The mandate shall issue
forthwith.
Entered for the Court
Carlos F. Lucero
Circuit Judge
-6-