F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 29 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
PAUL E. FREE,
Plaintiff-Appellant, No. 03-1405
v. (D.C. No. 01-Z-2449 (MJW))
UNKNOWN OFFICERS OF THE (D. Colo.)
BUREAU OF PRISONS and UNITED
STATES OF AMERICA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
After examining the briefs and the 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 is a pro se federal prisoner civil rights appeal pursuant to Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
*
This order and judgment is not binding precedent, except under the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.
(1971). In his first claim for relief, Appellant alleged that unknown Bureau of
Prisons’ employees violated his rights under the Fourth, Fifth, and Eighth
Amendments to the United States Constitution when they caused him to contract
hepatitis C by putting feces and urine in his food or otherwise exposing him to the
disease. In his second claim for relief, Appellant alleged that Appellees subjected
him to cruel and unusual punishment in violation of the Eighth Amendment of the
United States Constitution by declining to treat his hepatitis C with a combination
drug therapy of peg interferon alfa-2b and Ribavirin. Appellant’s amended
complaint also referenced the Federal Tort Claims Act (“FTCA”).
The magistrate judge recommended that the amended complaint be
dismissed. After consideration of Appellant’s objections, the district court
dismissed the complaint holding: (1) Appellant failed to exhaust administrative
remedies with respect to his first claim; (2) Appellant’s allegations that the
Bureau of Prisons failed to provide him combination drug therapy for hepatitis C
failed to state a claim for relief pursuant to the Eighth Amendment as Appellant
alleged nothing more than a difference of opinion as to the proper course of
treatment; (3) to the extent that Appellant was asserting a claim pursuant to the
FTCA, the claim would be dismissed for failure to exhaust administrative
remedies by filing an administrative tort claim prior to suit; (4) the United States
has not waived immunity for Bivens suits; and (5) to the extent that a suit for
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injunctive relief could be proper against federal officials under the Larson/Dugan 2
doctrine, Appellant failed to exhaust administrative remedies with respect to his
first claim, and his second claim fails to state a claim for relief. This appeal
followed.
In his complaint, Appellant alleged that he contracted hepatitis C in a
prison where correctional officers have allegedly admitted in other cases to
putting feces and urine in prisoners’ food. He did not become aware of the
diagnosis until sometime in 2001 when he sought a renewal of his Motrin
prescription. Through his own research, Appellant learned that a combination
drug therapy is available outside prison which he alleges could cure the disease.
Under current Bureau of Prisons’ policy, Appellant is ineligible for the
combination treatment until his enzyme levels reach critical levels. Rec., Doc. 8,
at 11. This policy is based on recommendations from the National Institute of
Health.
On appeal, Appellant argues that the district court erred “[f]irst, when
stating Plaintiff ‘had not exhausted administrative remedies regarding Claim I’
and secondly, when asserting that Plaintiff’s Second Claim ‘fails to state an
Eighth Amendment claim upon which relief can be granted.’” Aplt. Br. at 9-10
2
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689
(1949); Dugan v. Rank, 372 U.S. 609, 621-23 (1963).
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(quoting District Court Order, Rec., Doc. 37, at 6).
Appellant’s first claim on appeal is that the district court erred in
determining that he had not exhausted his administrative remedies because
exhaustion would have been futile. The district court correctly rejected
Appellant’s futility argument, relying on Booth v. Churner, 532 U.S. 731, 741 n.6
(2001) (refusing to recognize any exception, including futility, to the exhaustion
requirement). Additionally, Bureau of Prisons’ regulations provide for an
extension of time in situations where an inmate demonstrates that he was
prevented from submitting a grievance within the time frame. See 28 C.F.R. §
542.14(b). Appellant did not attempt to avail himself of that exception.
With respect to Appellant’s second claim, Appellees’ refusal to treat
Appellant with a combination drug therapy of peg interferon alfa-2b and
Ribavirin does not amount to cruel and unusual punishment under the Eighth
Amendment.
Prison officials violate the Eighth Amendment when they are
deliberately indifferent to the serious medical needs of prisoners in
their custody. A negligent failure to provide adequate medical care,
even one constituting medical malpractice, does not give rise to a
constitutional violation. Moreover, a prisoner who merely disagrees
with a diagnosis or a prescribed course of treatment does not state a
constitutional violation.
Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 811 (10th Cir. 1999)
(internal citations omitted).
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Appellees’ guidelines for treatment of hepatitis C, followed in this case, are
based on recommendations from the National Institute of Health. Under current
Bureau of Prisons’ policy, Appellant is ineligible for the combination treatment.
Appellant merely disagrees with medical staff about the course of his treatment.
This disagreement does not give rise to a claim for deliberate indifference to
serious medical needs. Therefore, the district court properly dismissed the Eighth
Amendment claim. 3
After a thorough review of the briefs and the record, for substantially the
same reasons set forth in the district court’s well-reasoned July 24, 2003, Order,
we hold that no relief is available to Mr. Free.
AFFIRMED. Appellant’s motion to proceed without prepayment of the
filing fee is GRANTED. We remind Appellant that he must continue making
partial payments on court fees and costs previously assessed until such have been
paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
To the extent that Appellant makes additional claims of error on appeal,
3
these claims are denied.
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