UNITED STATES COURT OF APPEALS
Filed 2/20/96TENTH CIRCUIT
JOHNNIE LOUIS McALPINE, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-6340
) (D.C. No. CIV-94-1043-L)
UNITED STATES BUREAU OF PRISONS, ) (W. Dist. Okl.)
LEON CRAWFORD, UNITED STATES OF )
AMERICA, DR. GEORGE KLINDERFUSS, )
and WAYNE HURST, )
)
Defendants-Appellees. )
)
ORDER AND JUDGMENT*
Before TACHA, BALDOCK, and BRISCOE, 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.
Plaintiff, Johnnie Louis McAlpine, a federal prisoner, brought this 42 U.S.C. §
1983 action for money damages while confined at the Federal Prison Camp, El Reno,
Oklahoma, alleging his constitutional rights were violated because he was denied proper
medical care and he was assigned to work at a position that exceeded his physical
* This order and judgment is not binding precedent, except under the doctrines of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.
capabilities. He sued the United States, the Bureau of Prisons, Leon Crawford, camp
administrator at the Federal Prison Camp, Dr. George Klinderfuss, head of orthopedics at
U.S. Medical Center for Prisoners in Springfield, Missouri, and Wayne Hurst, dairy
supervisor at the Federal Prison Camp. The district court treated this action as a Bivens
action filed pursuant to 28 U.S.C. § 1331 because McAlpine's complaint does not allege
that state action resulted in the violation of his constitutional rights, a jurisdictional
prerequisite for a 42 U.S.C. § 1983 action.
The district court adopted the magistrate court's findings and recommended
disposition. Two defendants, the United States and the Bureau of Prisons, were
dismissed on sovereign immunity grounds. Dr. Klinderfuss was dismissed for lack of
personal jurisdiction because he did not live or work in the state of Oklahoma, and the
alleged violation giving rise to McAlpine's claims against Dr. Klinderfuss did not occur in
Oklahoma. Summary judgment was granted in favor of Hurst and Crawford on the
merits. The court held an isolated incident of assigning McAlpine to the dairy's utility
crew until his medical status was confirmed, the period of assignment not exceeding one
day, did not rise to the level of a violation of Eighth Amendment rights. When his
medical status was confirmed, he was promptly reassigned.
McAlpine contends the district court erred in denying his right to have
interrogatories answered and to gather information to support his claims, and that the
court erred in granting immunity to federal personnel.
We have reviewed McAlpine's brief, the pleadings, the magistrate's proposed
findings and recommended disposition, and the district court's order, and have carefully
examined the entire record on appeal. Based upon our review of the record, we find no
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reversible error.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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