Yu Kikumura v. Osagie

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 8, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

Y U K IK U MU R A ,

Plaintiff-Appellant,
v. No. 04-1249
A. OSAGIE; VAIL; K. SAND ERS; R.
B AU ER ; B . G REEN WO O D ;
M ICH AEL V . PUGH, G.L.
HERSHBERGER; KATHLEEN M .
HAWK,

Defendants-Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 03-B-236 (OES))

Yu Kikumura filed a brief, pro se.

Richard L. Gabriel (Brittany J. Nelson with him on the briefs) of Holme Roberts
& Owen LLP, Denver, CO, for Plaintiff-Appellant in Supplemental Briefing.

Kathleen L. Torres, Assistant United States Attorney, (John W . Suthers, United
States Attorney, with her on the Answer Brief, W illiam R . Leone, United States
Attorney, with her on the Supplemental Answer Brief) Denver, CO, for
Defendants-Appellees.

Before KELLY, HE N RY, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.
 Yu Kikumura, a federal prisoner, became severely ill one afternoon in his

cell. Almost eight hours passed between the time when he first reported feeling

sick and when he w as finally taken to a doctor; a delay that M r. Kikumura

believes caused him severe injury and almost cost him his life. He filed suit in

federal court alleging various Eighth Amendment and state tort claims against a

number of different prison officials and the U nited States. The district court

dismissed the entire action, citing, among other reasons, M r. Kikumura’s failure

to exhaust administrative remedies or state a claim under the Eighth Amendment,

and his failure to file a certificate of review for his medical malpractice Federal

Tort Claims Act claims. On appeal, we address several matters relating to the

Prison Litigation Reform Act’s exhaustion requirement, the pleading standards for

an Eighth Amendment claim of deliberate indifference, Colorado’s requirement

that litigants file a certificate of review demonstrating substantial justification for

negligence claims arising out of professional malfeasance, and whether Colorado

law recognizes a cause of action against prison guards for failing to summon

medical personnel on behalf of a sick inmate.

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I. BAC K GR OU N D

A. The Events Surrounding M r. K ikum ura’s Illness on July 5, 2002

Yu Kikumura, the plaintiff-appellant, is a federal prisoner housed at the

United States Penitentiary, Administrative M aximum (“ADX”), in Florence,

Colorado. M r. Kikumura, a former member of the now-defunct terrorist group

called the Japanese Red Army, was convicted on November 28, 1988, on

numerous counts of interstate transportation of explosive devices and passport

offenses, and is currently serving a 262-month sentence. See United States v.

Kikum ura, 947 F.2d 72, 73–74, 75 (3d Cir. 1991); Kikumura v. United States, 978

F. Supp. 563, 569 (D .N.J. 1997).

O n July 5, 2002, M r. K ikumura became violently ill in his prison cell. A t

approximately 2:30 p.m. he hit the panic button in his cell to call for help. The

officers on duty that afternoon, identified as Vail and K. Sanders (together, the

“Correctional Officers”), arrived at M r. Kikumura’s cell at 2:50 p.m. and

observed that he “was on his floor complaining of severe cramps, pain and

vomiting.” O riginal Compl. Ex. B-1. The Correctional Officers placed a call to

the prison infirmary to notify its staff of M r. K ikumura’s condition.

M r. Anthony Osagie, a physician’s assistant at the prison infirmary, arrived

at M r. Kikumura’s cell at 3:15 p.m. M r. Osagie’s notes indicate that he observed

M r. Kikumura “lying on the floor on his left side [making an] extreme [and]

dramatic display of pain distress.” O riginal Compl. Ex. C-3. M r. Osagie

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instructed M r. Kikumura to stand up and walk with him and the Correctional

Officers to the infirmary, but M r. Kikumura “claim[ed] that he [could not] get up

because of cramps in [his] back and legs.” Id. The Correctional Officers dragged

M r. Kikumura to the infirmary by his arms.

Once they reached the infirmary, M r. Osagie told M r. Kikumura to get up

on the examination table. W hen M r. Kikumura said he w as unable to stand, M r.

Osagie accused him of being “dramatic, exaggerating.” Am. Compl. 5. After

what M r. Kikumura describes as a “perfunctory exam,” M r. Osagie concluded that

M r. Kikumura was suffering from symptoms of lactose intolerance, but otherwise

exhibited “no pathology.” A m. Compl. 5–6; Original Compl. Ex. C-4. He

prescribed M r. Kikumura “[r]eassurance and observation,” gave him

acetam inophen, and encouraged him to drink plenty of fluids. Original Compl.

Ex. C-4.

The medical records indicate that M r. Kikumura actually was suffering

from hyponatraemic encephalopathy, a serious medical condition caused by low

sodium levels in the blood. 1 M r. Kikumura had been on a “no salt” diet for the

1
See Part 10.1: Life-Threatening Electrolyte Abnormalities, 112 Circulation
IV-121, IV-123 (2005). The symptoms of hyponatraemic encephalopathy include
headaches, nausea, vomiting, confusion, seizures, respiratory arrest, and non-
cardiogenic pulmonary oedema. M ichael L. M oritz & J. Carlos Ayus, The
Pathophysiology and Treatment of Hyponatraemic Encephalopathy: An Update,
18 Nephrology Dialysis Transplantation 2486, 2486 (2003). These symptoms
“are largely caused by brain oedema from movement of water into the brain.” Id.
(continued...)

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previous three months. M em. in Support of Original Compl. 2. And, on July 2,

2002, three days before he fell ill, M r. Kikumura went for a ten-mile run in the

prison yard during “extreme hot weather, probably 100° F.,” and “drank [large

amounts of] water and sweated a lot during and after the run[].” Id. M r.

Kikumura claims that his low sodium intake and excessive consumption of fluids

were likely related to his development of hyponatremia. 2 Id. at 3.

“Symptomatic hyponatremia . . . is a medical emergency,” and “[o]nce

signs of encephalopathy are identified, prompt treatment is required in a

monitored setting.” M ichael L. M oritz & J. Carlos Ayus, The Pathophysiology

and Treatment of Hyponatraemic Encephalopathy: An Update, 18 Nephrology

Dialysis Transplantation 2486, 2489 (2003). M r. Osagie apparently failed to

recognize that M r. Kikumura was suffering from hyponatremia, and at 3:30 p.m.

he instructed the C orrectional Officers to return M r. Kikumura to his cell. M r.

Osagie’s instructions to M r. Kikumura to drink plenty of fluids was precisely the

1
(...continued)
at 2487. “Acute or symptomatic hyponatremia can lead to significant rates of
morbidity and mortality.” Kian Peng Goh, M anagement of Hyponatremia, 69 Am .
Family Physician 2387, 2387 (2004).
2
See Christopher S.D. Almond et al., Hyponatremia Among Runners in the
Boston M arathon, 352 New England J. M ed. 1550, 1556 (2005) (“Excessive
consumption of fluids, as evidenced by substantial w eight gain while running, is
the single most important factor associated with hyponatremia[,] . . . which, in
rare cases, can be fatal.”).

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wrong advice for a patient suffering from hyponatremia, and exacerbated his

condition.

After they dragged him back to his cell, the Correctional Officers had to lay

M r. Kikumura on his bed “because the severe pains and cramps had [left him]

unable to stand up or walk.” Am. Compl. 6. M r. Kikumura claims that soon after

he was returned to his cell his condition “rapidly deteriorated,” and he began

vomiting severely. Id. at 6. He crawled out of his bed and, “[c]ollapsing by the

toilet,” he continually attempted to drink water but would “throw it up violently

around the floor.” Id. He claims that his “untreated extreme cramps and pains

spread throughout the whole of [his] body as if imposing . . . a torture.” Id. The

pain gave “rise to psychological anguish and horror of death, as [he] was writhing

and thrashing in the waste [for] hour[s], ceaselessly screaming ‘help me,’ falling

into a confusion which was caused by the illness that was also damaging [his]

brain.” Id.

Due to the sw elling in his brain caused by the hyponatremia, M r. Kikumura

lost all memory of the remaining events of July 5, 2002 beginning sometime

between 4:00 p.m. and 4:30 p.m. Based on the administrative record provided to

M r. Kikumura after the incident, however, it appears that M r. Osagie did not take

M r. Kikumura to the infirmary again until sometime between 7:35 p.m. and 8:15

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p.m. 3 By that time M r. Kikumura’s condition had deteriorated even further. His

medical records indicate that he “appeared to be seizing and had some blood

coming from [his] mouth.” Original Compl. Ex. C-5. He was also “combative

and would not offer [an] explanation as to what and where he hurts.” Id. M r.

Osagie started providing basic treatment to M r. Kikumura around 8:15 p.m., but

his condition only worsened. At 9:25 p.m. M r. Osagie telephoned the physician

on-call, D r. Leyba, and informed him of M r. K ikumura’s condition.

Dr. Leyba arrived at the prison infirmary at 10:20 p.m. According to D r.

Leyba’s notes, when he arrived M r. Kikumura was “in extremis,” meaning at the

point of death. Original Compl. Ex. C-26. He was thrashing around, seizing, and

gasping for air. Dr. Leyba diagnosed him with hyponatraemic encephalopathy

and acute pulmonary edema. After determining that M r. Kikumura “could

possibly demise if placed on a flat [a]mbulance gurney” and taken to “Pueblo,”

the nearby hospital, Dr. Leyba began treating M r. Kikumura at the infirmary, and

stayed with him until 4:30 a.m. Original Compl. Ex. C-8, C-27. According to

M r. Kikumura, by the time he finally received treatment from Dr. Leyba, he was

suffering from “hyponatremic encephalopathy, acute pulmonary edema and

congestive heart failure, [w hich were] severely damaging [his] internal organs,

3
The Correctional Officer’s time log for July 5, 2002 indicates that M r.
Kikumura was taken to the infirmary at 7:35 p.m. The BP-9 Administrative
Response to M r. Kikumura’s formal grievance states that M r. Osagie was called
to his cell again at 8:15 p.m.

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such as [his] brain, heart, lungs, liver, kidneys, stomach, tongue and mouth.” Am.

Compl. 7. 4

M r. Kikumura’s condition stabilized by morning, although he did not regain

consciousness for another 24 hours, and was even then “confused” and

“distress[ed].” O riginal Compl. Ex. C-14. The medical staff returned him to his

cell on July 9, 2002, four days after the onset of his illness. M r. Kikumura claims

that his “[p]hysical weakness, feeling sick, nausea, pains in [his] stomach, legs

and back, limbs bruising and their pains, emotional anxiety and distress, partial

memory elapsing, and difficulty in intelligent works continued till around [the]

end of July.” Id. M oreover, he asserts that “m ild physical problem[s] as tangible

aftereffects of the disease and mental anxiety, depression, and some difficulty for

intelligent works further lasted until around [the] end of September in 2002.” Id.

B. M r. K ikum ura’s Pursuit of Adm inistrative Remedies

During his recovery, M r. Kikumura came to believe that the medical

treatment he received on July 5, 2002 was inadequate. Since M r. Kikumura lost

all memory of the events on July 5, 2002 sometime between 4:00 p.m. and 4:30

p.m., however, he has no direct knowledge of what caused the alleged delay in his

care after that time. Nonetheless, he was able to speak with Officer Sanders, one

4
M r. Kikumura’s medical records from July 5, 2002 are largely consistent
with his description of his injuries.

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of the correctional officers guarding his cell when he fell ill, and to ask him what

happened after he lost consciousness. According to M r. Kikumura, Officer

Sanders told him that both he and Officer Vail, the other correctional officer

guarding his cell, realized that M r. Kikumura required additional medical care

soon after they first returned him to his cell at 3:30 p.m. They allegedly called

the infirmary again at 4:00 p.m. to inform M r. Osagie of M r. Kikumura’s

worsening condition. M r. Osagie did not arrive at the cell until sometime

between 5:00 p.m. and 5:30 p.m. Once he arrived, M r. Osagie supposedly

observed M r. Kikumura’s deteriorating state of health, and told the Correctional

Officers that he would take M r. Kikumura to the infirmary. He then left the unit

to retrieve a wheel chair for M r. Kikumura. Although M r. Osagie said he would

be back shortly, he allegedly did not return to the cell to take M r. Kikumura to the

infirmary until 7:35 p.m.

On August 14, 2002, M r. Kikumura filed an informal resolution form with

ADX prison. He asserted that “the prison official handled [his] case wrongfully”

and asked the prison authorities “to investigate the case” and discipline the

“person who violated [his] constitutional rights so that the same w rong-doing

[will not] happen again in this prison.” Am. Compl. Ex. A-1. The prison

responded to M r. Kikumura’s informal grievance on August 19, 2002. The

response stated that a Correctional Counselor had reviewed the case, and

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determined that he was “treated by medical staff and will continue to be treated

according to [his] medical needs.” Id.

M r. Kikumura filed a formal administrative remedy request (a BP-9) with

the W arden of ADX on August 20, 2002. In his BP-9, M r. Kikumura complained

that although he first hit the panic button in his cell at 2:30 p.m., he did not

receive treatment from a doctor until 10:30 p.m., and claimed that he “suffered

with a deadly consequence” as a result of this delay. Id., Ex. A-2. He said that

he believed “the prison officials’ delayed response . . . violat[ed] [his]

constitutional rights,” but explained that he has “been unable to get records which

show a full view on what happened [to him].” Id., Ex. A-3. Nonetheless, he

recounted what Officer Sanders allegedly told him regarding the delay in his

treatment, which was that the Correctional Officers called the infirmary again at

4:00 p.m. to summon medical assistance, but M r. Osagie did not arrive at the cell

until 5:30 p.m., and did not take M r. Kikumura back to the infirmary again until

7:35 p.m.

In his BP-9, M r. Kikumura asked the W arden “to investigate the case and

let [him] know . . . whether or not the [Correctional] Officers’ allegation stated

above is correct.” Id. He also asked for “the content of the Unit Log in regard to

the response of the prison officials [to his] sickness between 2:30 p.m. [and] 9:00

p.m. [on] July 05.” Id. The relief sought by M r. Kikumura was for the W arden

“to take necessary action[,] including to decipline [sic] involved person[s] who

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violated [his] constitutional rights according to the BOP policy or introduce new

policy so that the same w rong-doing won’t happen again (let me know if you

found their conduct did not violate the existing policy).” Id. He also requested

“legal relief which is appropriate under the US law and Constitution as well as

necessary medical care.” Id.

The W arden issued a response to M r. Kikumura’s BP-9 on September 11,

2002. He stated that a “review of [the BP-9] was performed,” and it found the

following:

[a] M id-Level Provider came to your cell and had you taken to the
examination room on the unit. He provided you with an examination
at that time[,] . . . advised you to continue taking your medication
and to drink fluids[, and] . . . had you returned to your cell. Around
8:15 p.m. that evening, the M id-Level Provider was again called to
your unit. After a brief assessment, he directed staff to transport you
to the Health Services Unit where he began aggressively treating
your symptoms.

Id., Ex. A-4. The W arden continued: “[t]he Clinical Director advises that the

medical treatment you received was timely and appropriate. Staff were not

deliberately indifferent to your medical needs. . . . [T]he medical care provided,

and currently being provided to you is commensurate with community standards.”

Id.

M r. Kikumura filed an appeal of the W arden’s decision with the Regional

Director (a BP-10) on September 19, 2002. He claimed that the W arden

wrongfully concluded that the “unconstitutional conduct by the officials [was]

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‘timely and appropriate’ and ‘is commensurate with community standard[s]’

under the policy, custom and practice of this prison.” Id., Ex. A-5. M r.

Kikumura then reasserted his claim that the prison officials had violated his

constitutional rights. He also stated that if the W arden’s response to his BP-9 was

correct, then “the policy, custom or action by those who represent official policy

in this prison are of inaction which amount[s] to failure to protect [my]

constitutional rights under the 8th A mendment, constituting systematic and gross

deficiencies in training and disiplin [sic] of medical staff.” Id. M r. Kikumura

therefore requested that the R egional Director “change the policy on medical care

. . . , apply[] discipline [to] those who violated my constitutional rights, [and]

provid[e] . . . legal relief as well as necessary medical care.” Id. He also asked

for further “investigation [into] the case,” a copy of the Unit Log, and for

information from the prison about “what happened [to him on] 7/5/02.” Id.

The Regional Director denied M r. Kikumura’s BP-10 appeal on October 15,

2002. He noted that M r. Kikumura claimed that he “did not receive prompt and

effective medical treatment for five hours when [he] was ill,” and that he

“request[s] that policy concerning medical care be changed, and that those who

violated [his] constitutional rights be disciplined.” Id., Ex. A-6. The letter of

denial stated that the Regional Director’s Office had “reviewed [M r. Kikumura’s]

institution level complaint,” and found that “[t]he W arden’s response adequately

addresses [his] claim.” Id. “You received adequate medical treatment,” the

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Regional Director wrote, “and there is no evidence that staff violated your

constitutional rights by denying you such treatment.” Id. Consequently, the

Regional Director determined that M r. Kikumura’s “request to have staff

disciplined [was] not warranted.” Id.

M r. Kikumura filed an appeal of the Regional Director’s decision (a BP-11)

on October 31, 2002. He explained in his BP-11 that he “was without a prompt

and effective treatment from 2:30 p.m. when [he hit] a panic button to 10:20 p.m.

when the doctor came,” and alleged that his “deadly disease was caused not only

by [M r. Osagie’s] delaying response but [also by] his fatal prescription.” Id., Ex.

A-7. He also reasserted the requests for relief from his BP-9, including a “change

[to] the policy on medical care,” “discipline [for] those who violated [his]

constitutional rights,” “legal relief,” “continuing necessary medical care,” an

investigation into the case, and copies of the documents he had requested. Id. O n

November 29, 2002, the A dministrator of N ational Inmate A ppeals denied M r.

Kikumura’s BP-11. The Administrator found “no indication that medical care and

treatment was delayed” and that M r. Kikumura “received treatment in accordance

with the symptoms [he] presented to medical staff.” Id., Ex. A-8.

In addition to pursuing his Eighth Amendment claim through the inmate-

grievance process, M r. Kikumura also filed an administrative claim under the

Federal Tort C laims A ct (FTC A) with the Federal Bureau of Prisons (BOP). H e

filed his first FTCA administrative claim on September 17, 2002, alleging that

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M r. Osagie’s negligence in treating him caused severe injuries. On December 20,

2002, he filed a supplemental administrative claim asserting that Officers V ail

and Sanders were also negligent. The BOP denied his claim on M arch 7, 2003,

concluding that M r. Kikumura did not “suffer[] any personal injury as a result of

the negligent acts or omissions of Bureau of Prisons employees acting within the

scope of their employment.” Am. Compl. Ex. A-9.

C. Proceedings in D istrict Court

M r. Kikumura, acting pro se, filed a complaint in the United States District

Court for the District of Colorado on February 7, 2003, asserting various causes

of action under the Eighth Amendment. The district court referred the law suit to

a magistrate judge. M r. K ikumura amended his complaint on M ay 28, 2003.

In his amended complaint, M r. Kikumura asserted fourteen claims against

eight defendants. The named defendants were Anthony Osagie, the physician’s

assistant who treated M r. K ikumura; Officers Vail and Sanders, the two

correctional officers guarding his cell unit when he fell ill; R. Bauer, a C aptain in

the United States Public Health Service and the Health Services Administrator at

ADX; B. Greenwood, also a Captain in the United States Public Health Service

and the Assistant Health Services Administrator at ADX; M . V. Pugh, the

W arden of ADX; J. Burrell, the Associate W arden of ADX; and the United States

of America.

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 The first six claims assert a right of recovery against the individual

defendants pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), for violations of the Eighth Amendment

guarantee against cruel and unusual punishment. These six claims for deliberate

indifference are, respectively: (1) M r. Osagie provided inadequate medical care to

M r. Kikumura when he first arrived at the infirmary; (2) M r. Osagie failed to

alleviate M r. Kikumura’s pain and suffering before sending him back to his cell;

(3) M r. Osagie failed to fulfill his gatekeeper role by waiting almost six hours

before calling the prison doctor; (4) M r. Osagie deliberately left M r. Kikumura in

his cell for at least two hours after learning of his acute medical condition; (5)

Officers Vail and Sanders knew that M r. Kikumura required serious medical

attention soon after they returned him to his cell, but delayed calling the infirmary

for up to four hours; and (6) Captain Bauer, Captain Greenwood, W arden Pugh,

and Assistant W arden Burrell (together the “Supervisory Defendants”) failed to

provide adequate training and discipline to their staff, which “were closely

related” to and ultimately caused M r. K ikumura’s injuries. Am. Compl. 6–14.

M r. Kikumura’s remaining eight claims assert a right of recovery against

the United States under the FTCA for various state-law torts allegedly committed

by the individual defendants. The seventh through the fourteenth claims are,

respectively: (7) M r. Osagie negligently failed to take reasonable care in

providing M r. Kikumura medical care; (8) M r. Osagie negligently failed to detect

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or diagnose M r. Kikumura’s emergency medical condition; (9) M r. Osagie

negligently failed to refer M r. Kikumura’s case to the prison doctor until 9:25

p.m.; (10) M r. Osagie negligently misrepresented M r. Kikumura’s state of health

to the Correctional Officers w hen he accused him of malingering; (11) M r. Osagie

engaged in extreme and outrageous conduct; (12) Officers Vail and Sanders

negligently delayed calling the infirmary a second time after M r. Kikumura’s

condition deteriorated; (13) Officers Vail and Sanders engaged in extreme and

outrageous conduct; and (14) the Supervisory Defendants negligently failed to

adequately train and discipline the ADX staff, and are liable under respondeat

superior.

On A ugust 18, 2003, the defendants filed a consolidated motion to dismiss

the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6),

asserting various reasons for the dismissal of all fourteen of M r. Kikumura’s

claims. W ith respect to the Bivens claims, the Defendants argued, among other

things, that M r. Kikumura had failed to state a claim under the Eighth

Amendment, and that because he “did not identify Defendants Vail, Sanders,

Pugh, Burrell, Bauer or Greenwood in any of the grievances he filed,” he “failed

to exhaust his administrative remedies against these Defendants.” M ot. to

Dismiss 4. They also argued that M r. Kikumura’s FTCA claims based on M r.

Osagie’s alleged malfeasance should be dismissed because he failed to file a

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certificate of review demonstrating “substantial justification” for the claims, as

required by Colo. Rev. Stat. § 13-20-602.

In response to the Defendants’ allegation that he failed to exhaust his

administrative remedies on his Bivens claims, M r. Kikumura submitted a renewed

BP-9 grievance form to the W arden. This new BP-9, filed on August 27, 2003,

listed the individual defendants by name and specifically mentioned his Eighth

Amendment claims. The W arden rejected his renewed BP-9 filing as untimely,

noting that BP-9s must be received within 20 days of the event complained about.

M r. Kikumura appealed the denial by means of a BP-10 to the Regional Director,

which was rejected, and then filed a BP-11 addressed to the General Counsel,

which w as also rejected. After receiving the final rejection, M r. Kikumura

submitted copies of all of these documents to the magistrate judge.

M r. Kikumura filed his response to the Defendants’ motion to dismiss on

September 24, 2003. Although he responded to most of the Defendants’

arguments, M r. Kikumura asked the Court for an extension on the deadline to file

a certificate of review, explaining that he did not know of the requirement until he

read the motion to dismiss. He also asked the magistrate judge to appoint him

counsel, arguing that he needed an attorney to make “contact with a licensed

physician who could provide [him] a Certificate of Review,” and that the legal

issues involved in the Defendants’ administrative-exhaustion argument were too

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“novel and complex” for a pro se litigant to properly address. Resp. to M ot. to

Dismiss 8, 24.

A week later, M r. Kikumura filed a motion for a temporary restraining

order (“TRO”) to enjoin BOP officials from destroying evidence. In particular,

he asked the magistrate judge to enjoin the destruction of administrative

grievances filed by other inmates that might help show that the ADX employees

received inadequate training. Additionally, on October 17, 2003, M r. Kikumura

filed another motion for an extension of time to file a certificate of review and for

appointment of counsel.

On M arch 24, 2004, the magistrate judge entered an order recommending

that the district court grant the Defendants’ motion to dismiss, and deny all other

pending motions as moot. The magistrate judge’s decision was based on the

following findings: (1) M r. Kikumura failed to exhaust his administrative

remedies for his Bivens claim against the Supervisory Defendants; (2) the FTCA

provides Captain Bauer and Captain Greenwood absolute immunity from the

Bivens claim because they are United States Public Health Service officers; (3)

the facts alleged in the complaint are insufficient to state a claim under the Eighth

Amendment against any of the individual defendants; (4) the Defendants are all

entitled to qualified immunity; (5) M r. Kikumura failed to submit a certificate of

review, as required under Colorado law, for his FTCA claims based upon M r.

Osagie’s allegedly negligent and outrageous conduct; (6) the “negligent

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misrepresentation” claim is frivolous and unexhausted; (7) the United States has

not waived sovereign immunity over M r. Kikumura’s claims based on the

Correctional Officers’ “failure to refer or consult” and “outrageous conduct,” or

over his claim based on respondeat superior.

M r. Kikumura filed his objections to the magistrate judge’s

recommendation on April 26, 2004, disputing all of the grounds given by the

magistrate judge for dismissing his fourteen claims. He also renewed his motions

for a TRO, appointment of counsel, and an extension of time for filing a

certificate of review. Objections to M ag. Rec. 25. Additionally, M r. Kikumura

argued that unless his request for counsel and an extension of time were granted,

the Certificate of Review requirement imposed under Colo. Rev. Stat. § 13-20-

602 would be unconstitutional as applied to him.

On June 16, 2004, the district court issued an order adopting all of the

magistrate judge’s recommendations with respect to the fourteen claims asserted

in M r. Kikumura’s complaint, and therefore dismissed the entire action with

prejudice. The district court also denied all of M r. Kikumura’s pending motions,

but did so on their merits rather than for mootness.

M r. K ikumura filed a notice of appeal on June 23, 2004.

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D. The Appeal

M r. Kikumura argues that the district court’s order dismissing his amended

complaint was erroneous with respect to all fourteen of his claims. He also asks

this Court to reverse the district court’s order denying his motions for

appointment of counsel, an extension of time to file a Certificate of Review, and a

TRO prohibiting the BOP from destroying evidence. He also submitted a motion

requesting the appointment of counsel for this appeal.

In their Answ er Brief, the Defendants raise two arguments on appeal in

addition to responding to M r. Kikumura’s various contentions. First, they argue

that the district court erred in finding that M r. Kikumura exhausted his

administrative remedies for his Bivens claim against the Correctional O fficers.

Second, they contend that M r. Kikumura’s entire action should be dismissed

pursuant to the total exhaustion rule announced in Ross v. County of Bernalillo,

365 F.3d 1181 (10th Cir. 2004), which was decided after the magistrate judge

issued his Order recommending that all fourteen of M r. Kikumura’s claims be

dismissed on their merits.

On September 1, 2005, we granted M r. Kikumura’s motion for appointment

of counsel for the appeal. W e also directed the parties to submit supplemental

briefing on two issues:

1. Did M r. Kikumura adequately exhaust his administrative remedies
in this case with respect to the claims he raised in his Bivens
complaint, as required by 42 U.S.C. § 1997e(a)?

-20-
 2. If he failed to exhaust any of his claims, should the district court
have dismissed his entire complaint without prejudice, pursuant to
this circuit’s total exhaustion rule? See Ross v. County of Bernalillo,
365 F.3d 1181, 1190 (10th Cir. 2004).

Order, Sept. 1, 2005, at 3.

II. D ISC USSIO N

A. Exhaustion of Adm inistrative Remedies for the Bivens Claim s

In 1996, as part of the Prison Litigation Reform Act (PLRA), Congress

established a mandatory exhaustion requirement for inmates challenging prison

conditions in federal court. Pub. L. No. 104-134, 110 Stat. 1321 (1996). Section

1997e(a) states 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.” 42 U.S.C. § 1997e(a). This exhaustion

requirement “applies to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

As a federal prisoner, M r. Kikumura had to pursue his claims through the

BOP’s administrative remedy program before initiating his lawsuit. See Patel v.

Fleming, 415 F.3d 1105, 1109 (10th Cir. 2005). The BOP requires inmates to

“first present an issue of concern informally to staff.” 28 C.F.R. § 542.13(a).

-21-
Inmates who wish to pursue their grievance further may file “a formal written

Administrative Remedy Request, on the appropriate form (BP-9)” with the

W arden of the prison, so long as they act within “20 calendar days following the

date on which the basis for the request occurred.” 28 C.F.R. § 542.14(a). If “not

satisfied with the W arden’s response,” they “may submit an Appeal on the

appropriate form (BP-10) to the appropriate Regional Director within 20 calendar

days of the date the W arden signed the response.” 28 C.F.R. § 542.15(a).

Finally, “[a]n inmate who is not satisfied with the Regional Director’s response

may submit an Appeal on the appropriate form (BP-11) to the General Counsel

within 30 calendar days of the date the Regional Director signed the response.”

Id.

After recovering from his injuries, M r. Kikumura pursued his grievance

through all four steps of the administrative process. He filed an informal

grievance with the prison regarding the medical treatment he received on July 5,

2002, followed by a formal BP-9 grievance, and then successive BP-10 and BP-11

appeals. The BOP accepted each filing as timely, addressed most of M r.

Kikumura’s claims on their merits, and denied his requests for relief.

The Defendants argue that even though M r. Kikumura proceeded through

all four stages of the grievance process, he did not properly exhaust his claims

against each of the individual defendants. They contend that because M r.

Kikumura’s BP-9 focused on the alleged malfeasance of M r. Osagie, and did not

-22-
mention any of the other defendants, he failed to exhaust his Bivens claims

against the Correctional Officers and Supervisory Defendants.

The magistrate judge accepted part, but not all, of the Defendants’

argument. Contrary to the Defendants’ position, the magistrate judge concluded

that M r. Kikumura satisfied the exhaustion requirements for his claim against the

Correctional Officers, explaining that “although plaintiff does not provide names

for them [in his grievance filings], plaintiff does provide sufficient information to

put prison administrators on notice in regard to the identities of the parties about

whom plaintiff was making complaint, and the nature of the claim he was

making.” M ag. Rec. 14–15. At the same time, however, the magistrate judge

determined that M r. Kikumura failed to exhaust his Bivens claim against the

Supervisory Defendants because the “broad conclusory statement” regarding

prison policy in the BP-9 “does not provide notice to prison administrators about

any specific complaint that plaintiff might have had.” Id. at 15–16. The district

court adopted both of these findings in the order dismissing M r. Kikumura’s

complaint. W e review the district court’s decision de novo. Patel, 415 F.3d at

1108.

W hen an inmate completes all of the administrative steps required by

prison regulations, “[a] showing of exhaustion . . . [is] dependent upon insight

into the administrative claim and its relationship with the federal suit.” Steele v.

Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003). There is no doubt

-23-
that “[a] litigant’s failure to raise issues during an administrative appeal can

constitute a failure to exhaust administrative remedies.” Kikumura v. Hurley, 242

F.3d 950, 956 (10th Cir. 2001). This Court has not, however, determined how

much information prisoners must provide in their administrative grievances to

satisfy the PLRA’s exhaustion requirement.

As an initial matter, we note our agreement with the Seventh Circuit that

the question of “what things an administrative grievance must contain” is first a

“choice-of-law issue.” Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002). Since

§ 1997e(a) does not specify the procedural requirements necessary for exhaustion,

“the rules come from the prison grievance systems themselves — state law for

state prisons, federal administrative law for federal prisons.” Id. (holding that

“grievances must contain the sort of information that the administrative system

requires”). 5 In this case, however, the regulations governing the B OP’s

administrative remedy program do not specify the kind of information needed in a

grievance. See 28 C.F.R. §§ 540.10 & 542.15. Consequently, this case requires

us to craft a rule for w hen the prison regulations are silent.

5
According to Strong, “[t]he only constraint” on administrative remedy
programs “is that no prison system may establish a requirement inconsistent with
the federal policy underlying § 1983 and § 1997e(a).” Strong, 297 F.3d at 649.
Since the BOP has not set forth any regulations concerning the factual
particularity required in a grievance, there is no need for us to evaluate the
agency’s regulations in light of § 1983 and § 1997e(a).

-24-
 The Defendants argue that this Court should adopt “a rule that requires the

inmate to include in his grievance the identity, either by name or description, of

the alleged wrongdoer and the nature of the w rongdoing.” A ppellees’ Supp. Br.

23–24. They rely on cases such as Curry v. Scott, 249 F.3d 493 (6th Cir. 2001),

where the Sixth Circuit held that a prisoner must “file a grievance against the

person he ultimately seeks to sue” to satisfy the exhaustion requirement of §

1997e(a). Id. at 505; see also Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003)

(“[F]or a court to find that a prisoner has administratively exhausted a claim

against a particular defendant, a prisoner must have alleged mistreatment or

misconduct on the part of the defendant.”); Abdul-M uhammad v. Kempker, 450

F.3d 350, 351–52 (8th Cir. 2006) (adopting the Sixth Circuit’s approach).

Because M r. Kikumura’s administrative grievance did not identify the

Correctional Officers or Supervisory Defendants as w rongdoers, the Defendants

contend that he failed to exhaust his administrative remedies as to those

individuals.

M r. Kikumura contends that a grievance satisfies the exhaustion

requirements of § 1997e(a) so long as it “alert[s] the BOP officials to the nature

of the wrongs by the prison staff.” Appellant’s Reply Br. 5. In Strong, the

Seventh Circuit adopted this rule. Judge Easterbrook, writing for the panel,

concluded that:

-25-
 W hen the administrative rulebook is silent, a grievance suffices if it
alerts the prison to the nature of the wrong for which redress is
sought. As in the notice-pleading system, the grievant need not lay
out the facts, articulate legal theories, or demand particular relief.
All the grievance need do is object intelligibly to some asserted
shortcoming.

297 F.3d at 650. The Second Circuit adopted a similar standard in Johnson v.

Testman, 380 F.3d 691 (2d Cir. 2004) (Calabresi, J.). Johnson holds that

“[u]ncounselled inmates navigating prison administrative procedures without

assistance cannot be expected to satisfy a standard more stringent than that of

notice pleading.” Id. at 697. Since “the PLRA’s exhaustion requirement does

require that prison officials be ‘afford[ed] . . . time and opportunity to address

complaints internally,’” however, the court found that “inmates must provide

enough information about the conduct of which they complain to allow prison

officials to take appropriate responsive measures.” Id. (quoting Porter v. Nussle,

534 U.S. 516, 524–25 (2002)).

W ithout a controlling statutory provision or regulation to guide our analysis

in choosing between these two rules, we must look to the purposes of § 1997e(a)

to determine w hat information an inmate must provide in a grievance. In

Woodford v. Ngo, the Supreme Court stated that “[t]he PLRA attempts to

eliminate unwarranted federal-court interference with the administration of

prisons, and thus seeks to ‘afford corrections officials time and opportunity to

address complaints internally before allowing the initiation of a federal case.’”

-26-
__ U.S. __, 126 S. Ct. 2378, 2387 (2006) (quoting Nussle, 534 U.S. at 525

(alteration omitted)). The Court found that “[r]equiring proper exhaustion serves

all of these goals,” but “only if the prison grievance system is given a fair

opportunity to consider the grievance.” Woodford, __ U.S. at __, __, 126 S. Ct. at

2387, 2388. The reasoning of Woodford thus lends support to the approach

followed by the Second and Seventh Circuits: that a grievance will satisfy the

exhaustion requirement so long as it is not “so vague as to preclude prison

officials from taking appropriate measures to resolve the complaint internally.”

Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006).

The Defendants contend that this approach asks too little of prisoners, and

assert that the “reasonableness” of a rule requiring inmates to identify alleged

wrongdoers in their grievance is “apparent.” A ppellees’ Supp. Br. 23. W e are

unconvinced. The Supreme Court has cautioned that “the creation of an

additional procedural technicality . . . [is] particularly inappropriate in a statutory

scheme in which laymen, unassisted by trained lawyers, initiate the process.”

Love v. Pullman Co., 404 U.S. 522, 526–27 (1972). Not only do inmates

typically file their grievances pro se, but BOP procedures allow prisoners just

twenty days from the date of their injury to file a grievance; they are allow ed less

than a page and a half to w rite out a complaint; and, because they are

incarcerated, the inmates often cannot investigate their own claims to identify the

alleged wrongdoers. 28 C.F.R. §§ 542.14(a) & (c)(3); Am. Compl. Ex. A-2;

-27-
Brown v. Sikes, 212 F.3d 1205, 1209 n.4 (11th Cir. 2000) (noting that “[a]ppellate

courts have acknowledged the difficulties faced by a prisoner in identifying

alleged w rongdoers before filing a complaint.”). Additionally, the BOP

administrative remedy program does not provide inmates a procedural mechanism

for amending their grievances to identify additional defendants or provide new

information about their claims, and federal regulations prohibit inmates from

raising new issues in their administrative appeals. 28 C.F.R. § 542.15(b)(2).

Given this procedural context, we do not find it so “apparent” that inmates must

be required to specifically identify the wrongdoers in their initial grievance.

M r. Kikumura’s diligent, but ultimately unsuccessful, attem pt to identify all

of the alleged wrongdoers in his grievance illustrates the problem. Because of his

memory loss caused by the hyponatremia, M r. Kikumura was unaware of the

Correctional Officers’ alleged malfeasance at the time he filed his initial

grievance. W ith respect to his claim against the Supervisory Defendants, M r.

Kikumura explains that “[i]t is not [an] easy task for a prisoner” such as himself

to learn the “chain of command in the prison and its administrative system so as

to claim the issue[s] in detail[]” in a grievance. Appellant’s Br. P18-3. M r.

Kikumura’s best opportunity to identify any possible malfeasance was through the

grievance process itself, and in his BP-9 he asked for the W arden “to investigate

the case and let [him] know the result[s]” of the investigation. Am. Compl. Ex.

-28-
A-3. Yet, under the Defendants’ proposed rule, M r. Kikumura would be limited

to his specific allegations of wrongdoing in the initial grievance.

W e also reject the Defendants’ contention that the standard for exhaustion

applied in the Second and Seventh Circuits — which requires inmates to provide

enough information in their grievances for prison officials to address the

complaint internally — turns the grievance process into “an empty formality.”

Appellees’ Supp. Br. 23. The BOP administrative remedy program is an

inquisitorial system designed “to solve problems and be responsive to issues

inmates raise.” U.S. Dep’t of Justice, Bureau of Prisons Program Statement No.

1330.13, at 10 (Aug. 13, 2002) (“Program Statement”). Properly submitted

grievances must be “investigated thoroughly” by independent prison officials, and

records of “all relevant information developed in the investigation,” including

written statements from other staff members regarding matters raised in the

grievance, “shall be retained with the case file.” Id. at 12. The inquisitorial

model adopted by the BOP is consistent with a rule allow ing inmates to exhaust

their administrative remedies with a grievance that provides prison officials a fair

opportunity to investigate and resolve the complaint internally even without

specifically identifying wrongdoers. Cf. Sims v. Apfel, 530 U.S. 103, 109 (2000)

(“[T]he desirability of a court imposing a requirement of issue exhaustion

depends on the degree to which the analogy to normal adversarial litigation

applies in a particular administrative proceeding.”).

-29-
 The Defendants also assert that inmates should be required to identify

wrongdoers in their grievances because the federal prison system receives

“thousands of inmate grievances” each year, and “the prison administration

process should not be required to cast a wide investigative net in order to identify

and resolve all possible claims.” Appellees’ Supp. Br. 22. The policy

considerations are not quite so straightforward, however. The grievance forms

now supplied to federal inmates are designed to “encourage a simple and

straightforward statement of the inmate’s grievance,” and inmates may place no

more than “a single complaint or a reasonable number of closely related issues on

the form.” 28 C.F.R. §§ 40.7(a), 542.14(c)(2). These restrictions are intended to

“facilitate[] indexing, and promote[] efficient, timely and comprehensive attention

to the issues raised” in the grievance. Program Statement 7. A rule that penalizes

inmates for failing to identify defendants as wrongdoers might undermine these

goals by encouraging inmates to list in their grievances anyone who might

possibly be involved in the alleged wrongdoing, rather than focusing on the most

likely perpetrator or cause of their injury. W e do not know whether the BOP

would prefer longer and more detailed grievances from its inmates, as the

Defendants’ proposed rule would seem to foster. Fortunately, it is not our place

to make that decision. If the BOP wants inmates to provide more information, it

can make that determination itself through the rulemaking process.

-30-
 Finally, and perhaps most importantly, we note the absence of any evidence

that M r. Kikumura w as ever informed he w as required to identify the w rongdoers

in his grievances. If the BOP w ants inmates to provide specific types of

information in their grievances, it should notify them of those requirements in

advance rather than waiting until they have already completed the grievance

process and filed a lawsuit. See Sims, 530 U.S. at 113 (O’Connor, J., concurring);

Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004). W ithout such notice, we

hold that a grievance satisfies § 1997e(a)’s exhaustion requirement so long as it

provides prison officials with enough information to investigate and address the

inmate’s complaint internally.

W e agree with the district court that M r. Kikumura exhausted his

administrative remedies against M r. Osagie and the two Correctional Officers

under this standard. In his BP-9, M r. Kikumura described the events surrounding

his injury as best he could: he claimed that he was negligently denied medical

treatment; he identified the various people he knew to be involved in the incident;

he recounted O fficer Sanders’s alleged version of events, which blamed M r.

Osagie for the delay in medical treatment; he asked for an investigation into his

case; and he requested any legal relief to which he might be entitled. This

information was sufficient to enable prison officials to investigate M r.

Kikumura’s complaint against M r. Osagie and the Correctional Officers, even

-31-
though he did not accuse the latter two defendants of wrongdoing until he filed

his complaint in federal court.

W e also affirm the district court’s finding that M r. Kikumura failed to

exhaust his administrative remedies against the four Supervisory Defendants,

Captain Bauer, Captain Greenwood, W arden Pugh, and Assistant W arden Burrell.

Claim six of the amended complaint accuses these four defendants of violating

M r. Kikumura’s Eighth Amendment rights by failing to provide adequate training

and discipline to the prison staff. In his BP-9, however, M r. Kikumura’s only

reference to prison “policy” is where he asks the W arden “to take necessary

action[,] including to decipline [sic] involved person[s] who violated my

constitutional rights according to the BOP policy or introduce new policy so that

the same wrong-doing won’t happen again.” A m. Compl. Ex. A-3. Although this

statement implies that M r. Kikumura’s injuries may have been caused by the old

prison policies, the vague reference to “policy” was insufficient to notify prison

officials that the injuries might have been caused by inadequate training and

disciplinary programs at the prison. Since prison officials w ere unlikely to

recognize the need to investigate these claims, the BP-9 did not provide the prison

with a fair opportunity to resolve M r. Kikumura’s complaint against the

Supervisory Defendants. The sixth claim is therefore unexhausted. 6

6
M r. Kikumura argues that even if he failed to exhaust his claim against the
(continued...)

-32-
B. The Total Exhaustion Rule

Since M r. Kikumura failed to exhaust one of his claims, we must decide

whether his entire complaint should be dismissed under the total exhaustion rule.

In Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), we held that the

PLRA requires total exhaustion of claims asserted in a prisoner lawsuit, and

therefore “mixed” actions containing both exhausted and unexhausted claims must

be dismissed in their entirety without prejudice. Id. at 1190. 7 The Defendants

contend that Ross requires us to dismiss this action. In one respect, however, this

case differs from Ross. At the time the court ordered dismissal in Ross, it was

6
(...continued)
Supervisory Defendants in his BP-9, the Regional Director cured that failure by
addressing the merits of the claim in the response to his BP-10 appeal. M r.
Kikumura misreads the BP-10 response. Although the opening paragraph of the
BP-10 response acknowledges his claim regarding the prison’s “policy concerning
medical care,” it does not address the claim on its merits, Am. Compl. Ex. A-6,
and therefore does not cure his failure to exhaust the claim. See Patel v. Fleming,
415 F.3d 1105, 1111 (10th Cir. 2005).
7
There are differing views among the Courts of Appeals as to whether the
PLRA should be read to contain a total exhaustion requirement. Com pare Jones
Bey v. Johnson, 407 F.3d 801, 806 (6th Cir. 2005) (adopting the total exhaustion
rule), and Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (same), with Ortiz
v. M cBride, 380 F.3d 649, 656 (2d Cir. 2004) (rejecting the total exhaustion rule),
Spencer v. Bouchard, 449 F.3d 721, 726 (6th Cir. 2006) (same), and Lira v.
Herrara, 427 F.3d 1164, 1176–77 (9th Cir. 2005) (applying the total exhaustion
rule only when the “exhausted and unexhausted claims . . . are closely related and
difficult to untangle”). The Supreme Court recently granted certiorari in two
cases to resolve the issue. See Jones v. Bock, 135 Fed. Appx. 837 (6th Cir. 2005),
cert. granted, 126 S. Ct. 1462 (U.S. M ar. 6, 2006) (N o. 05-7058); Williams v.
Overton, 136 Fed. Appx. 859 (6th Cir. 2005), cert. granted, 126 S. Ct. 1463 (U.S.
M ar. 6, 2006) (No. 05-7142).

-33-
still possible, at least in theory, for the plaintiff to pursue his unexhausted claim

within the administrative grievance system. That gave rise to concerns over

piecemeal litigation. Ross, 365 F.3d at 1190. In this case, however, M r.

Kikumura already submitted his unexhausted claim to the grievance system, and

the BOP issued a final administrative decision denying the claim as

untimely— albeit all after M r. Kikumura filed his federal lawsuit. W e must

therefore decide whether the total exhaustion rule applies when, after the prisoner

files a “mixed” complaint, the prison issues a final order rejecting the prisoner’s

unexhausted claims on procedural grounds.

The answer turns on the rationale for the total exhaustion rule. The PLRA

states that “[n]o action shall be brought with respect to prison conditions . . . until

such administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a). The language of this provision does not require (or foreclose) a total

exhaustion rule. In Ross, we noted that this language “suggests” a total

exhaustion requirement “because it prohibits an ‘action’ (as opposed to merely

preventing a ‘claim’) from proceeding until administrative remedies are

exhausted.” Ross, 365 F.3d at 1190. But other statutes contain similarly worded

exhaustion requirements that we have not interpreted to require total exhaustion.

See, e.g., M acKenzie v. City and County of Denver, 414 F.3d 1266, 1274 & n.13

(10th Cir. 2005) (applying the exhaustion provision of the Americans w ith

Disabilities Act, which states that “[n]o action . . . shall be brought . . . if

-34-
administrative remedies have not been exhausted,” 42 U.S.C. § 6104(e)(2),

without a total exhaustion rule.). 8 Legislatures frequently employ the phrase “no

action shall be brought” in statutes of limitations, see Beach v. Ocwen Fed. Bank,

523 U.S. 410, 416 (1998), obviously without intending that courts dismiss an

entire action just because one of the claims asserted in the complaint is time-

barred. Accordingly, the Ross Court adopted the total exhaustion rule not because

it was dictated by the statutory language, but because “[t]he policies of the PLRA

. . . strongly support a reading of that statute that requires inmates to exhaust fully

all of their claims.” Ross, 365 F.3d at 1190; see also Ortiz v. M cBride, 380 F.3d

649, 656 n.3 (2d Cir. 2004) (noting that the Ross Court “concluded that the

dismissal of a ‘mixed’ action was required, but relied on the language of the

statute only in passing.”). 9

The Ross Court relied primarily on an analogy to the total exhaustion rule

applicable in habeas proceedings, which it found to serve similar purposes. In

Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that when a prisoner

8
Indeed, another provision of the PLRA uses almost identical language:
“[n]o Federal civil action may be brought . . . for mental or emotional injury . . .
without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). This has been
interpreted not to require dismissal of the entire case if one claim does not
qualify. See Robinson v. Page, 170 F.3d 747, 748–49 (7th Cir. 1999).
9
By contrast, in Jones Bey v. Johnson, 407 F.3d 801, 807 (6th Cir. 2005),
the Sixth Circuit “adopt[ed] the total exhaustion rule, in large part, because the
plain language of the statute dictates such a result.” See also Graves v. Norris,
218 F.3d 884, 885 (8th Cir. 2000) (same).

-35-
had exhausted some but not all claims brought in a habeas petition, the district

court must dismiss the entire habeas petition without prejudice. Id. at 510.

Although the text of the habeas exhaustion provision was “too ambiguous to

sustain the conclusion that Congress intended to either permit or prohibit review

of mixed petitions,” the Supreme Court concluded that “a rule requiring

exhaustion of all claims furthers the purposes underlying the habeas statute.” Id.

at 510, 516. In particular, the Supreme Court noted that the total exhaustion rule

“giv[es] the prisoner the choice of returning to state court to litigate his

unexhausted claims, or of proceeding with only his exhausted claims in federal

court.” Id. at 514. Since a prisoner who proceeded with only the exhausted

claims “would risk forfeiting consideration of his unexhausted claims,” the

Supreme Court concluded that “strict enforcement of the exhaustion requirement

will encourage habeas petitioners to exhaust all of their claims in state court and

to present the federal court with a single habeas petition.” Id. at 520; see also

Ross, 365 F.3d at 1189–90. Applying “a similar analysis,” we concluded in Ross

that “the policies underlying the PLRA point toward a requirement of total

exhaustion,” and thus held that if a prisoner “submit[s] a complaint containing

one or more unexhausted claims, the district court ordinarily must dismiss the

entire action without prejudice.” 365 F.3d at 1190. 10

10

Since our decision in Ross, the Supreme Court has hinted that the PLRA’s
(continued...)

-36-
 None of the policy considerations that led us to adopt the total exhaustion

rule in Ross apply to the circumstances presented in this case. The Ross Court

reasoned that the total exhaustion rule would “encourage prisoners to . . . give

prison officials the first opportunity to resolve prisoner complaints,” “facilitate

the creation of an administrative record that would ultimately assist federal courts

in addressing the prisoner’s claims,” “relieve district courts of the duty to

determine whether certain exhausted claims are severable from other unexhausted

claims,” and “avoid at least some piecemeal litigation.” Id. at 1190. W here the

plaintiff submits the unexhausted claim to the prison grievance system after filing

suit, and the prison issues a final rejection of that claim for untimeliness, these

concerns are inapposite. The prison officials have already been given the first

opportunity to resolve the complaint, the administrative record is complete, there

is no need to determine whether exhausted claims are severable from unexhausted

claims, and (because the unexhausted claims have been finally rejected on

timeliness grounds) there is no possibility of piecemeal litigation.

10
(...continued)
exhaustion provision should be interpreted in light of the administrative-
exhaustion doctrine rather than habeas law. See Woodford v. Ngo, __ U.S. __,
126 S. Ct. 2378, 2392 (2006) (“It is . . . unrealistic to infer from the wording of
the PLRA provision that Congress framed and adopted that provision with habeas
law and not administrative law in mind. Indeed, the wording of the PLRA
provision . . . is strikingly similar to our description of the doctrine of
administrative exhaustion.”). The Court’s administrative-exhaustion doctrine does
not appear to contain a total exhaustion requirement. See, e.g., M cKart v. United
States, 395 U.S. 185 (1969).

-37-
 Applying the total exhaustion rule under such circumstances w ould simply

waste judicial resources and create an unnecessary burden on litigants. The total

exhaustion rule is not meant to force courts to play “a game of judicial

ping-pong” with inmate lawsuits. Harris v. Reed, 489 U.S. 255, 270 (1989)

(O’Connor, J., concurring). If w e dismissed this action without prejudice, M r.

Kikumura would undoubtedly just drop the unexhausted claim from his complaint

and file the action again, creating unnecessary docketing and assignment work for

the district court and forcing M r. K ikumura to pay a gratuitous filing fee.

M oreover, if M r. Kikumura were required to refile his action in the district court,

his properly exhausted claims might now be barred by the applicable statutes of

limitations 11 — a problematic outcome considering M r. Kikumura’s diligent

efforts toward exhaustion.

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court crafted an

exception to the habeas total exhaustion rule that was designed to prevent such an

outcome. See id. at 277–78. The court held that “if a petitioner presents a district

court with a mixed petition and the court determines that a stay and abeyance [to

allow time for exhaustion in state court] is inappropriate, the court should allow

the petitioner to delete the unexhausted claims and to proceed with the exhausted

claims if dismissal of the entire petition would unreasonably impair the

11
See 28 U.S.C. § 2401(b); Colo. Rev. Stat. §§ 13-80-102 & 102.5; Van Tu
v. Koster, 364 F.3d 1196, 1198 (10th Cir. 2004).

-38-
petitioner’s right to obtain relief.” Id. at 278. Our interpretation of the total

exhaustion rule accomplishes a similar end in the PLRA context.

Dismissing an entire action under these circumstances, where the only

“unexhausted” claim in the complaint was already rejected by the prison on

procedural grounds, would also be contrary to the analysis and holding of Ross,

which was based on an analogy between the exhaustion requirement in habeas and

the PLRA. In the habeas context, when a petitioner defaults his federal claims in

state court by failing to comply with the state’s procedural requirements, he still

“meets the technical requirements for exhaustion” since “there are no state

remedies any longer ‘available’ to him.” Coleman v. Thom pson, 501 U.S. 722,

732 (1991). W hile the procedural default rule generally bars prisoners from

asserting federal claims that were denied by the state courts on procedural

grounds, those claims do not trigger the total exhaustion rule because they are, in

fact, exhausted. O’Sullivan v. Boerckel, 526 U.S. 838, 852 (1999) (Stevens, J.,

dissenting). 12 Just as “a [habeas] petitioner w ho has failed to satisfy state

procedural rules meets the ‘technical requirements for exhaustion’” and therefore

does not trigger the total exhaustion rule, the Ross Court expected the same to be

12
In O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999), the Supreme Court
appeared to jettison its old distinction between the exhaustion rules and the
procedural default doctrine in habeas law. See id. at 850–56 (Stevens, J.,
dissenting); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). But in
Woodford the C ourt returned to its traditional distinction between the two
doctrines. Woodford, __ U.S. at __, 126 S. Ct. at 2387.

-39-
true for a prisoner w ho has failed to satisfy the prison grievance system’s

procedural rules. Ross, 365 F.3d at 1185 (quoting Coleman, 501 U.S. at 732); see

also id. at 1186 (holding “that the PLRA, like 28 U .S.C. § 2254, contains a

procedural default concept within its exhaustion requirement.”).

In keeping with the Ross Court’s policy-based analysis and the analogy it

drew between habeas and the PLRA, we decline Defendants’ invitation to extend

the PLRA’s total exhaustion rule to the circumstances presented in this case. Our

holding on this point has three components. First, an action containing both

exhausted claims and procedurally barred claims does not fall within the scope of

the total exhaustion rule. Second, this is true even if the prison grievance system

did not issue a final rejection of the procedurally barred claims until after the

prisoner filed suit. Third, claims that have been properly denied by the prison as

untimely are, practically speaking, procedurally defaulted, and thus may be

dismissed from the complaint individually and with prejudice. W e discuss each

of these points in turn.

The first component of our holding is that a claim rejected by the prison

grievance system on procedural grounds is considered exhausted for purposes of

the total exhaustion rule. This rule follows directly from the analysis and holding

of Ross, which imported the narrow definition of exhaustion and procedural

default concept of habeas into the PLRA along with the total exhaustion rule.

Ross, 365 F.3d at 1185–86, 1189–90. W e recognize that the Supreme Court

-40-
recently rejected the contention that “the wording of the PLRA exhaustion

provision . . . shows that [§ 1997e(a)] was meant to incorporate the narrow

technical definition of exhaustion that applies in habeas.” Woodford, __ U.S. at

__, 126 S. Ct. at 2392. Instead, the Court read the language of § 1997e(a) to

impose a single requirement of “proper exhaustion of administrative remedies,

which ‘means using all steps that the agency holds out’” in “compliance with an

agency’s deadlines and other critical procedural rules.” Woodford, __ U.S. at __,

__, 126 S. Ct. at 2385–86 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th

Cir. 2002)). Under Woodford, therefore, claims rejected by the prison grievance

system on procedural grounds are still considered unexhausted. But Woodford

relates only to the exhaustion requirements imposed by § 1997e(a) itself, which

govern whether a prisoner may obtain judicial review of a PLRA claim when he

failed to meet the procedural requirements for obtaining administrative review of

that claim. Woodford does not address the total exhaustion rule, which is a

separate procedural requirement grounded in “the policies underlying the PLRA”

rather than in the text of § 1997e(a). Ross, 365 F.3d at 1190. Woodford does not

require us to disturb the symmetry between the total exhaustion rules in habeas

and the PLRA. Although procedurally-barred claims are generally considered to

be unexhausted under the PLRA for purposes of determining whether they may be

pursued in court, we hold that such claims should be treated as exhausted for

purposes of the total exhaustion rule, just as they are for habeas.

-41-
 The second component of our holding is that the total exhaustion rule does

not require dismissal of the entire action where, subsequent to the filing of the

lawsuit, the prison grievance system has issued a final denial of any unexhausted

claims on procedural grounds. This eliminates the danger of “piecemeal

litigation” and thus satisfies the relevant policies of the total exhaustion rule.

Ross, 365 F.3d at 1190. W here the previously unexhausted claims in a complaint

have been denied by the prison grievance system on procedural grounds, whether

before or after the prisoner files suit, the only effect of dismissing the entire

complaint would be to unnecessarily burden the litigants and the district court.

This preserves the symmetry between the PLRA and habeas, which

underlies the holding in Ross. After filing a “mixed” habeas petition, prisoners

can avoid dismissal under the total exhaustion rule by submitting their

unexhausted claims to the state courts. See Rhines v. Weber, 544 U.S. 269, 278

(2005). It follows that the total exhaustion rule under the PLRA must not apply

to procedurally barred claims, even if the prison grievance system issued its

denial of those claims after the prisoner filed his lawsuit. 13

The third component of our holding is that a claim that has been properly

rejected by the prison grievance system on procedural grounds should be

13
Of course, since the PLRA requires exhaustion as a prerequisite to filing
suit, see Fitzgerald v. C orr. C orp. of Am., 403 F.3d 1134, 1140–41 (10th Cir.
2005), courts may not grant relief to a prisoner based on a claim that was rejected
by the prison on its merits subsequent to the filing of the lawsuit.

-42-
dismissed from the plaintiff’s complaint with prejudice. Although “[a] dismissal

based on lack of exhaustion . . . should ordinarily be without prejudice,” this is

because “[f]ailure to exhaust administrative remedies is often a temporary,

curable, procedural flaw.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204,

1212–13 (10th Cir. 2003). Once a prison formally denies an inmate’s grievance

for untimeliness, and either the inmate does not challenge the basis for that

decision or the court upholds the decision, the inmate’s failure to exhaust is no

longer “a temporary, curable, procedural flaw.” Such a claim should be dismissed

with prejudice.

After filing suit, M r. Kikumura submitted his unexhausted claim against the

Supervisory Defendants to the prison grievance system. The prison system

rejected that claim as untimely, and M r. Kikumura does not challenge that

disposition. W e therefore affirm the district court’s order dismissing with

prejudice M r. Kikumura’s Bivens claim against Captain Bauer, Captain

Greenwood, W arden Pugh, and Assistant W arden Burrell. But contrary to the

Defendants’ argument, the total exhaustion rule does not require dismissal of the

remaining claims in M r. K ikumura’s complaint.

-43-
C. Failure to State a Claim under the Eighth A mendm ent & Q ualified

Immunity

It is w ell established that prison officials violate the Eighth Amendment if

their “deliberate indifference to serious medical needs of prisoners constitutes the

unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104

(1976) (internal quotation marks omitted). “This is true whether the indifference

is manifested by prison doctors in their response to the prisoner’s needs or by

prison guards in intentionally denying or delaying access to medical care.” Id. at

104–05 (footnotes omitted). At the same time, however, “[m]edical malpractice

does not become a constitutional violation merely because the victim is a

prisoner.” Id. at 106. A complaint about “an inadvertent failure to provide

adequate medical care” or “that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical mistreatment

under the Eighth Amendment.” Id. at 105–06. “Rather, ‘a prisoner must allege

acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.’” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)

(quoting Estelle, 429 U.S. at 106).

The test for a “deliberate indifference” claim under the Eighth Amendment

has “both an objective and a subjective component.” Sealock v. Colorado, 218

F.3d 1205, 1209 (10th Cir. 2000). The objective component of the test is met if

the harm suffered is “sufficiently serious” to implicate the Cruel and Unusual

-44-
Punishment Clause. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal

quotation marks omitted). The subjective component “is met if a prison official

‘knows of and disregards an excessive risk to inmate health or safety.’” Sealock,

218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). M oreover, to overcome the

qualified immunity defense, the prisoner “must demonstrate that the defendant’s

actions violated a specific constitutional right,” and “then show that the

constitutional right was ‘clearly established’ prior to the challenged official

action.” M ata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005).

W e stress the procedural context of this case. Prior to discovery, the

magistrate judge ruled that M r. Kikumura’s Eighth Amendment claims failed to

satisfy the objective and subjective components of deliberate indifference. The

magistrate judge concluded that because M r. Kikumura “failed to allege facts that

demonstrate the actions of the defendants violated a federal or statutory right,”

the Defendants “are entitled to qualified immunity.” M ag. Rec. 34. The district

court adopted each of these holdings in its order dismissing M r. Kikumura’s

action. The question before us is therefore not whether M r. Kikumura has

presented evidence in support of his complaint, but whether his allegations, if

true, state a claim under the Eighth A mendment. “Dismissal of a pro se

complaint for failure to state a claim is proper only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him an opportunity to amend.” Hunt v. U phoff, 199 F.3d 1220, 1223 (10th Cir.

-45-
1999) (quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir.

1999)). “In addition to construing a pro se complaint liberally, this court ‘must

accept the allegations of the complaint as true and construe those allegations, and

any reasonable inferences that might be drawn from them, in the light most

favorable to the plaintiff.’” M artinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.

2005) (quoting Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002)).

1. O bjective Component

To satisfy the objective component of a deliberate indifference claim

arising under the Eighth Amendment, “the alleged deprivation must be

‘sufficiently serious’ to constitute a deprivation of constitutional dimension.”

Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). “[T]he purpose for this

requirement is to limit claims to significant, as opposed to trivial, suffering.”

M ata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005). Consequently, we look to the

alleged injury claimed by the prisoner, and ask “whether that harm is sufficiently

serious.” Id.

W hen the prisoner’s Eighth Amendment claim is premised on an alleged

delay in medical care, the prisoner must “show that the delay resulted in

substantial harm.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)

(internal quotation marks omitted). That “substantial harm” can be the ultimate

physical injury caused by the prisoner’s illness, so long as the prisoner can show

that the more timely receipt of medical treatment would have minimized or

-46-
prevented the harm. See M ata, 427 F.3d at 753. The “substantial harm” can also

be an intermediate injury, such as the pain experienced while waiting for

treatment and analgesics. Id. Although “not every twinge of pain suffered as a

result of delay in medical care is actionable,” when the pain experienced during

the delay is substantial, the prisoner “sufficiently establishes the objective

element of the deliberate indifference test.” Sealock, 218 F.3d at 1210.

M r. Kikumura claims that he experienced severe pain after being sent back

to his cell from the infirmary by M r. Osagie. His complaint provides the

following description of events:

[After they] returned me to the cell[,] . . . I was laid on the bed by
the [Correctional Officers] because the severe pains and cramps had
me unable to stand up or walk. There, my condition was rapidly
deteriorated. Following severe vomiting up to the bedside after
approximately 1530, I crept toward the toilet for water. Collapsing
by the toilet, endlessly letting me drink many water and throw it up
violently around the floor, untreated extreme cramps and pains
spread throughout the whole of my body as if imposing me a torture.
It gave me rise to psychological anguish and horror of death, as I was
writhing and thrashing in the waste all hour, ceaselessly screaming
“help me,” falling into a confusion which was caused by the illness
that was also damaging my brain. And then finally my memory
ceased around 1600–1630. Even thereafter, I continued tormented
with those torturous physical injury, pains and distress, and extreme
psychological anguish (for next 12 hours until I returned to stable
condition).

Am. Compl. 6 (grammatical errors in original).

Additionally, if we read M r. Kikumura’s complaint liberally, he also claims

that the delay in treatment “caused” his “physical injury”; presumably because

-47-
earlier treatment would have stopped the hyponatremia from reaching a critical

stage. Am. Compl. 8. M r. Kikumura describes his ultimate injury from the delay

as follow s:

W hen prison doctor Dr. Leyba arrived at me around 2220, I was ‘an
acute status thrashing following a seizure like reaction’ and ‘in
extremus,’ and he took aggressive care of my medical condition
throughout the night. I suffered with medical injury with
hyponatremic encephalopathy, acute pulmonary adema and
congestive heart failure, severely damaging internal organs, such as
brain, heart, lungs, liver, kidneys, stomach, tongue and mouth. . . . I
was placed on emergency response status between 7/5 at 2228 to 7/8
at 0600. . . . Physical weakness, feeling sick, nausea, pains in
stomach, legs and back, limbs bruising and their pains, emotional
anxiety and distress, partial memory elapsing, and difficulty in
intelligent works continued till around end of July, and mild physical
problem as tangible aftereffects of the disease and mental anxiety,
depression, and some difficulty for intelligent works further lasted
until around end of September in 2002.

Am. Compl. 7 (grammatical and spelling errors in original).

The “torturous” pain M r. Kikumura allegedly experienced as a result of the

delay in medical care, along with his significant physical injuries, is enough to

satisfy the “substantial harm” requirement of the objective component of a

deliberate indifference claim.

2. Subjective Component

The more difficult issue raised by the district court’s findings is whether

M r. Kikumura can prove a set of facts sufficient to satisfy the subjective

component of his deliberate indifference claims against M r. Osagie, O fficer Vail,

and Officer Sanders. The subjective component of a deliberate indifference claim

-48-
requires an “inquiry into a prison official’s state of mind when it is claimed that

the official has inflicted cruel and unusual punishment.” Farmer v. Brennan, 511

U.S. 825, 838 (1994). It is not enough to allege that prison officials failed “to

alleviate a significant risk that [they] should have perceived but did not.” Id. To

show “the requisite deliberate indifference,” M r. Kikumura “must establish that

defendant(s) knew he faced a substantial risk of harm and disregarded that risk,

‘by failing to take reasonable measures to abate it.’” Hunt v. U phoff, 199 F.3d

1220, 1224 (10th Cir. 1999) (quoting Farmer, 511 U .S. at 847). W e first address

M r. Kikumura’s four Eighth Amendment claims against M r. Osagie, followed by

his Eighth A mendment claim against the Correctional Officers.

a. M r. Osagie

M r. Kikumura asserts four claims against M r. Osagie for deliberate

indifference, each centering on a separate accusation. Those accusations are,

respectively: (1) M r. Osagie failed to provide adequate medical treatment to M r.

Kikumura when he first arrived at the infirmary; (2) M r. Osagie failed to alleviate

M r. Kikumura’s pain and suffering; (3) M r. Osagie failed to fulfill his gatekeeper

role by waiting approximately six hours before calling the prison doctor; and (4)

after M r. Osagie was summoned to M r. Kikumura’s cell a second time, he knew

that M r. Kikumura’s medical condition was “extremely acute” and yet failed to

take him to the infirmary for at least another two hours.

-49-
 Based on the magistrate judge’s recommendation, the district court

dismissed all four of M r. Kikumura’s Eighth A mendment claims against M r.

Osagie on the ground that M r. Kikumura “alleged no facts that demonstrate” that

M r. Osagie possessed “a sufficiently culpable state of mind.” M ag. Rec. 24

(internal quotation marks omitted). This w as an error. M r. Kikumura is merely

required to provide “a short and plain statement” of his Eighth Amendment

claims, Fed. R. Civ. P. 8(a), and “[m]alice, intent, knowledge, and other condition

of mind of a person may be averred generally” in the complaint, Fed. R. Civ. P.

9(b). See Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001); M cBride v. Deer,

240 F.3d 1287, 1290 (10th Cir. 2001). According to M r. Kikumura’s amended

complaint, M r. Osagie “knew” that M r. Kikumura “require[d] prompt medical

attention and . . . that delay would exacerbate [his] health problem,” but

deliberately “disregarded that risk.” Am. Compl. 9. These allegations satisfy the

pleading requirement of Rule 8(a) for the subjective component of a deliberate

indifference claim.

Of course, even when Eighth Amendment claims meet the pleading

requirements of Rule 8(a), those claims should still be dismissed when “it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957).

Since the subjective component of deliberate indifference is based on the prison

officials’ state of mind, it is “a question of fact subject to demonstration in the

-50-
usual ways, including inference from circumstantial evidence.” Farmer, 511 U.S.

at 842. Although plaintiffs are not required to plead specific facts demonstrating

defendants’ culpable state of mind, they can still undermine their own case by

asserting facts incompatible with a deliberate indifference claim. The district

court dismissed M r. Kikumura’s Eighth Amendment claims against M r. Osagie on

this ground.

M r. Kikumura identifies specific facts in his complaint from which a jury

could infer that M r. Osagie knew about the substantial risk of serious harm posed

by his illness. M r. Kikumura alleges that when he first arrived at the infirmary,

the severity of his symptoms w as “so obvious and substantial” — including his

extreme pain, nausea, and inability to stand or walk — that M r. Osagie “must

have known” he “require[d] prompt medical attention and . . . that delay would

exacerbate [his] health problem [and] . . . was likely to inflict or prolong

unnecessary pain and suffering.” Am. Compl. 8, 10, 12. It is well established

that “a factfinder may conclude that a prison official knew of a substantial risk

from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842; see Self

v. Crum, 439 F.3d 1227, 1232-33 (10th Cir. 2006) (a “jury may infer conscious

disregard” when a prison doctor “responds to an obvious risk with treatment that

is patently unreasonable.”). A jury could therefore infer from the alleged

“obviousness” of M r. Kikumura’s condition that M r. Osagie knew of the

significant risk of harm.

-51-
 Nonetheless, the magistrate judge determined that M r. Kikumura’s Eighth

Amendment claims against M r. Osagie were, in reality, just claims for negligent

misdiagnosis and malpractice, and thus failed to satisfy the subjective component

of the deliberate indifference test. This conclusion finds support in some of the

factual allegations in the complaint. M r. Kikumura admits that M r. Osagie

examined him at the infirmary, reported that he found “no pathology” other than

lactose intolerance, and gave him acetaminophen before sending him back to his

cell. Am. Compl. 5–6; id., Ex. A-8. These allegations, without more, suggest

that M r. Osagie made a good faith attempt to treat M r. Kikumura and did not act

with deliberate indifference.

In other portions of the complaint, however, M r. Kikumura presents

allegations that the medical treatment he received was merely a façade that hid

M r. O sagie’s intentional and reckless disregard for M r. K ikumura’s well-being.

M r. Kikumura claims that M r. Osagie “knew” he “require[d] prompt medical

attention” when he first arrived at the infirmary, but was “already prejudiced”

against him, and therefore chose not “to verify underlying facts of [his]

excruciating sufferings” because he knew it “would bring him [to the] conclusion

that something was not right.” Am. Compl. 5, 8. Instead, M r. Osagie conducted

a “perfunctory exam,” announced that there was “no pathology elicited,” provided

medical treatment “so cursory as to amount to no treatment at all,” and sent M r.

Kikumura back to his cell. Id. at 5–6, 8 (internal quotation marks omitted).

-52-
M oreover, even if M r. Osagie’s initial misdiagnosis was merely negligent, the

allegation that M r. Osagie delayed treatment for approximately two hours even

after he had realized the seriousness of M r. Kikumura’s condition later that

afternoon could support a claim of deliberate indifference. At this stage in the

proceeding, we do not know whether these allegations can be substantiated, but it

is not “beyond doubt” that M r. Kikumura “can prove no set of facts in support of

his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.

W e therefore find that the allegations in M r. Kikumura’s amended

complaint are sufficient to satisfy the subjective component of his deliberate

indifference claims against M r. Osagie. As previously noted, M r. Kikumura’s

claims against M r. Osagie also satisfy the objective component. Consequently,

we find that all four of M r. Kikumura’s deliberate indifference claims against M r.

Osagie state a claim upon which relief could be granted. Of course, we express

no opinion on whether these claims will withstand summary judgment or be

proved on the merits.

b. The Correctional O fficers

M r. Kikumura alleges that Officers V ail and Sanders violated the Eighth

Amendment by leaving him in his cell for several hours while his condition

worsened, before calling the infirmary again. According to the complaint, M r.

Kikumura’s condition “rapidly deteriorated” soon after he was returned from the

infirmary to his cell at 3:30 p.m. Am. Compl. 6. The complaint states that the

-53-
Correctional Officers had at least four separate opportunities between 4:00 p.m.

and 5:30 p.m. to view M r. Kikumura in his cell, and they therefore “knew” that

M r. Kikumura’s “health problem w as exacerbated” and that he “require[d]

immediate medical attention.” Id. at 12. M r. Kikumura also alleges that Officer

Sanders told him that both he and Officer Vail knew M r. Kikumura needed

serious medical attention sometime around 4:00 p.m. Nonetheless, the

Correctional Officers “disregarded that risk” and “recklessly, knowingly, or

intentionally” delayed calling the infirmary again until 7:35 p.m. Id.

The magistrate judge identified three reasons w hy M r. Kikumura’s claim

against the Correctional Officers could not satisfy the subjective component of

the deliberate indifference test. The district court accepted all three findings in

its order dismissing M r. K ikumura’s action. W e consider each in turn.

First, the magistrate judge determined that the Correctional Officers could

not have had the requisite “culpable state of mind” because “they are not medical

personnel,” and therefore were not “in a position to challenge or second-guess the

conclusion that had been reached by Osagie.” M ag. Rec. 25. This finding

disregards O fficer Sanders’s alleged self-incriminatory statement — which we

assume he truly made for purposes of this appeal — that by 4:00 p.m. he and

Officer V ail both knew M r. K ikumura required immediate medical attention.

M oreover, given that M r. Kikumura’s health had “rapidly deteriorated,” it is

possible that even a lay person could have recognized a change in circumstances

-54-
necessitating emergency medical treatment. In light of these allegations, we do

not believe that the Correctional Officers’ lack of medical training necessarily

defeats the inference that they disregarded a known risk of serious harm to M r.

Kikumura.

Second, the magistrate judge concluded that M r. Kikumura’s deliberate

indifference claim against the Correctional Officers is inconsistent with other

factual allegations in his complaint. In support of his fourth deliberate

indifference claim against M r. Osagie, M r. Kikumura states that the Correctional

Officers called the infirmary on his behalf a second time at approximately 4:00

p.m., but M r. Osagie ignored their call and left M r. Kikumura in his cell. This

allegation obviously contradicts M r. Kikumura’s deliberate indifference claim

against the Correctional Officers, which states that they did not call the infirmary

again until 7:35 p.m. M r. Kikumura acknowledges this contradiction, but

explains that he received inconsistent reports from prison officials about the

timing of the second call to the infirmary, and therefore pled these two sets of

facts in the alternative. Since the Federal Rules allow litigants to plead in the

alternative, see Fed. R. Civ. P. 8(e)(2), M r. Kikumura’s inconsistent allegations

regarding the second call to the infirmary do not undermine his Eighth

Amendment claim against the Correctional Officers.

Third, the magistrate judge found that M r. Kikumura’s alleged “period of

suffering due to conduct or inaction by Vail and Sanders lasted only two hours,”

-55-
and this short delay in treatment “cannot possibly constitute evidence of

deliberate indifference.” M ag. Rec. 26. Initially, we note that M r. Kikumura

asserts that the Correctional Officers knew he needed emergency medical

treatment at approximately 4:00 p.m., but they waited until 7:35 p.m. before

calling the infirmary: a delay of three and a half hours. In any event, we have

held that “[e]ven a brief delay may be unconstitutional.” M ata v. Saiz, 427 F.3d

745, 755 (10th Cir. 2005). The alleged several-hour delay in M r. Kikumura’s

emergency medical treatment was more than sufficient to meet this standard, at

least for purposes of a motion to dismiss.

W e therefore find that M r. Kikumura has met the pleading requirements for

his Eighth Amendment claim against Officers Vail and Sanders.

3. Q ualified Immunity

W hen a defendant invokes qualified immunity, the plaintiff must

demonstrate not only that the defendant’s actions violated a specific constitutional

right, but also that the constitutional right was “clearly established” at the time

the actions took place. M ata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005). In this

case, however, no party argues that the “deliberate indifference” standard for

claims of inadequate medical care under the Eighth Amendment was not clearly

established. Those standards have been clearly established at least since Estelle

v. Gamble, 429 U.S. 97 at 104, decided in 1976. The dispute in this case is not

over the applicable constitutional standard, but over how it applies to these facts.

-56-
Since we conclude that the allegations in M r. Kikumura’s complaint are sufficient

to state an Eighth Amendment claim against M r. Osagie, Officer Vail, and Officer

Sanders, we reverse the district court’s finding that these defendants are entitled

to qualified immunity.

D. Failure to File a Certificate of Review

Under Colorado law, litigants who bring a claim “based upon the alleged

professional negligence of . . . a licensed processional” m ust “file w ith the court a

certificate of review . . . within sixty days after the service of the complaint . . .

unless the court determines that a longer period is necessary for good cause

show n.” Colo. Rev. Stat. § 13-20-602(1)(a). This certificate of review must

declare that the plaintiff’s attorney, or the plaintiff himself in a pro se action, see

Yadon v. Southward, 64 P.3d 909, 912 (Colo. Ct. App. 2002), “has consulted a

person who has expertise in the area of the alleged negligent conduct,” and that

“the professional who has been consulted . . . has concluded that the filing of the

claim . . . does not lack substantial justification.” § 13-20-602(3)(a). W e have

previously held that “Colorado’s certificate of review requirement is a substantive

rule of law,” and is therefore “applicable to professional negligence claims

brought against the United States under the FTCA.” Hill v. Smithkline Beecham

Corp., 393 F.3d 1111, 1117 (10th Cir. 2004). Since M r. Osagie is a physician’s

assistant, and therefore a licensed professional, M r. Kikumura is required to file a

-57-
certificate of review in support of his FTCA claims based on M r. Osagie’s alleged

negligence.

M r. Kikumura twice asked the magistrate judge to extend the deadline for

filing a certificate of review and to appoint counsel to help him contact an expert,

explaining that as an “incarcerated prisoner, [he has] no means to contact by

himself . . . a doctor who could provide him with such a certification.” M ot. for

Extension of Time & Appointment of Counsel 2. He told the magistrate judge

that he was trying “to obtain an attorney who could execute a ‘certificate of

review,’” but he had written to numerous law offices, which he listed, and each of

them had either declined or not responded to his request for representation. Id. at

3.

Five months later, the magistrate judge issued an order recommending that

M r. Kikumura’s entire action be dismissed and his outstanding motions be denied

as moot. Noting that seven months had passed since the deadline for filing a

certificate of review, the magistrate judge found that M r. Kikumura had a “de

facto ‘extended period of time’” to meet the requirements of Colo. Rev. Stat. §

13-20-602, and that there was no point in granting a further extension. M ag. Rec.

36. The magistrate judge therefore recommended dismissing M r. Kikumura’s

three FTCA claims based on M r. Osagie’s alleged malpractice (i.e., claims seven

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through nine), along with his FTCA claim based on M r. Osagie’s outrageous

conduct (i.e., claim eleven). 14

In his objections to the magistrate judge’s recommendation, M r. Kikumura

challenged the denial of his motion requesting appointment of counsel and an

extension of time to file a certificate of review. He also filed a separate motion

with the district court requesting appointment of counsel and an extension of time

to file a certificate of review. In both filings, M r. Kikumura argued that unless he

was appointed counsel and allowed more time to file a certificate of review, Colo.

Rev. Stat. § 13-20-602 would unconstitutionally hinder his access to the courts as

a pro se litigant and prisoner. Obj. to M ag. Rec. 25; M ot. for Reconsideration 1.

The district court affirmed the m agistrate judge’s order denying M r.

Kikumura an extension of time and appointment of counsel, explaining that the

magistrate judge’s decision “is neither clearly erroneous nor contrary to law.”

Order 3. The court then addressed M r. Kikumura’s separate motion requesting

appointm ent of counsel and an extension of time to file a certificate of review,

which it treated “as a newly-filed motion before [it]” rather than as an objection

to the magistrate judge’s ruling. Id. The court “independently agree[d] with the

magistrate judge that [M r. Kikumura] ha[d] had ample time to submit such a

Certificate.” Order 4. Additionally, because “more than a dozen legal offices and

14
M r. K ikumura does not challenge the decision to apply Colo. Rev. Stat. §
13-20-602 to his FTCA claim based on M r. Osagie’s “outrageous conduct.”

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law professors . . . declined his request” for legal assistance, the district court

found that M r. Kikumura’s “claims have been reviewed on their merits by a

number of attorneys and found to be without merit.” Id. at 4. Finally, the court

held that there was “no constitutional infirmity in the statute’s application in this

case” because it “applies to all litigants pro se or otherwise, whether a prisoner or

not.” Id. at 5.

On appeal, M r. Kikumura argues that the district court abused its discretion

by denying his requests for appointment of counsel and for an extension of time

to file a certificate of review. M r. Kikumura again states that he “has no choice

but to ask the Court for an appointment of counsel who could execute the

certificate of review” because “his diligent searching for a lawyer was in vain and

he is indigent, having no fund[s] to hire an expert for a certification.”

Appellant’s Br. P19-18, P19-20. Additionally, M r. Kikumura complains that

other than the “short list” of attorneys in the prison’s legal office directory, “the

prison provide[s] the prisoners no information” that would allow them to locate

an independent medical expert, and thus he “is deprived of any meaningful means

to access . . . the experts outside.” Id. at P19-18–P19-19, P19-20. He also

disputes the inference drawn by the district court that his failure to find an

attorney implies that his claims lack merit. M r. Kikumura attributes his inability

to find a lawyer to the fact that he is “a prisoner,” and this is a “pro bono case,

and not a class action.” Id. at P19-19. Finally, M r. Kikumura argues that unless

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he is appointed an attorney and allowed more time to file a certificate of review,

applying Colo. Rev. Stat. § 13-20-602 to his case “would result in fundamental

unfairness impinging on plaintiff’s due process rights.” Id. at P19-20 (citing

M cCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)). 15

W e believe that M r. Kikumura has raised a non-trivial constitutional

challenge to the application of Colorado’s certificate of review requirement as

applied in this case. At the same time, however, the record below is insufficient

for us to evaluate M r. Kikumura’s due process argument on appeal. There is no

evidence regarding how a maximum security prisoner at ADX would go about

obtaining the opinion of a medical expert on his case, how long this would take,

or even whether it is feasible. The district court’s observation that Colo. Rev.

Stat. § 13-20-602 “applies to all litigants pro se or otherwise, whether a prisoner

or not,” Order 5, does not address the core of M r. Kikumura’s claim, which is that

the certificate of review requirement “unconstitutionally hinder[s]” his “access to

15
The D efendants argue that M r. Kikumura waived his due process
argument by failing to raise it before the magistrate judge. The district court
recognized that M r. Kikumura’s constitutional challenge to the certificate of
review requirement appeared “[f]or the first time” in his objections to the
magistrate judge’s recommendations, and therefore did not address the due
process issue in its de novo review of the magistrate judge’s decision. Order 2, 3.
Nonetheless, the district court considered (and denied) the due process objection
on its merits in connection with what it called a “newly-filed motion before [the
district court]” for appointment of counsel and an extension of time to file a
certificate of review . Order 4–5. Consequently, the due process argument is
properly presented to us on appeal.

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the court[s]” and therefore violates his “due process rights.” Appellant’s Br. P19-

18. As the Supreme Court explained in Boddie v. Connecticut, 401 U.S. 371

(1971), “a statute or a rule may be held constitutionally invalid as applied when it

operates to deprive an individual of a protected right although its general validity

as a measure enacted in the legitimate exercise of state power is beyond

question.” Id. at 379. On remand, the district court should conduct a more

thorough inquiry into the factual and legal bases of M r. Kikumura’s due process

challenge to Colo. Rev. Stat. § 13-20-602. It may also reconsider its denial of

M r. Kikumura’s motion for an extension of time to file a certificate of review in

light of the due process concerns implicated by such a denial.

E . T he R emaining FT CA C laims

1. Negligent M isrepresentation

W hen the Correctional Officers first took M r. Kikumura to the infirmary,

they were told by M r. Osagie that he was malingering and there was “nothing

wrong with [him].” Am. Compl. 19. M r. Kikumura alleges that this was

“negligent misrepresentation” actionable under the FTCA. Id. at 18–19. But the

United States has not waived its sovereign immunity from “[a]ny claim arising

out of . . . misrepresentation.” 28 U.S.C. § 2680(h). Consequently, the district

court lacked subject matter jurisdiction over M r. Kikumura’s negligent

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misrepresentation claim against the United States, and we affirm the district

court’s order dismissing the claim.

2. Negligent Failure to Refer or Consult & O utrageous Conduct

M r. Kikumura claims that soon after Officers V ail and Sanders took him

from the infirmary back to his cell, they saw that he had “collapsed on the floor

around [the] toilet, severely vomiting . . . [and] screaming ‘help me’ all hour.”

Am. Compl. 21. M r. Kikumura alleges that, despite the “foreseeable . . . great

risk of harm to [him],” Officers Vail and Sanders “negligently failed to refer or

consult [his] emergency medical condition to . . . medical personnel who could

treat [him] promptly until around [7:35 p.m.].” Id. His complaint asserts a right

of recovery against the United States under the FTCA for the Correctional

Officers’ alleged “negligent failure to refer and consult,” and their “outrageous

conduct.” Id. at 20–21.

Following the magistrate judge’s recommendation, the district court

dismissed both claims for lack of subject matter jurisdiction and failure to exhaust

administrative remedies. It also dismissed the “negligent failure to refer and

consult” claim on the ground this was not a cognizable cause of action under

Colorado law, and therefore not subject to suit under the FTCA. W e consider

each point in turn.

The district court’s jurisdictional ruling is slightly mysterious. It appears

that the court based its ruling on our holding in United States v. Agronics Inc.,

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164 F.3d 1343 (10th Cir. 1999), where we found that the Federal M ine Safety and

Health A dministration “cannot be held liable under the FTCA for adverse

financial repercussions resulting from the determination of its own regulatory

jurisdiction.” Id. at 1347. The rationale for our holding in Agronics was that “the

FTCA’s w aiver of sovereign immunity is limited to conduct for which a private

person could be held liable under state tort law, and federal statutory duties

regarding peculiarly administrative acts generally involve ‘a type of conduct that

private persons could not engage in, and hence could not be liable for under local

law.’” Id. at 1346 (citations omitted) (quoting Sea Air Shuttle, 112 F.3d 532, 537

(1st Cir. 1997)). Applying Agronics to this case, the magistrate judge concluded

that any “duty that the [Correctional] Officers might have toward plaintiff arises

solely because of the relationship between correctional officers and plaintiff as a

prisoner,” and thus is “‘a type of conduct that private persons could not engage

in.’” M ag. Rec. 42, 43 (quoting Agronics, 164 F.3d at 1346). “In such

circumstances,” the magistrate judge found, “the United States may not be sued in

tort under the FTCA.” Id. at 43. The district court adopted this finding.

W e agree with M r. Kikumura that this ruling “is in error” because Agronics

“is not applicable to [his] case.” A ppellant’s Br. P19-21. W here prison officials

ignore an inmate’s cries for help, as M r. Kikumura alleges, those prison officials

are not engaging in the sort of “federal statutory duties regarding peculiarly

administrative acts” that we were referring to in Agronics. Our holding in

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Agronics is limited to government actors engaged in “‘quasi-legislative’ or ‘quasi-

judicial’ action,” Agronics, 164 F.3d at 1345 (internal quotation marks omitted),

and thus has no bearing on M r. Kikumura’s FTCA claims based on the conduct of

Officers Vail and Sanders. In fact, the district court’s holding appears to be

foreclosed by United States v. M uniz, 374 U.S. 150 (1963), where the Supreme

Court held that actions filed “under the Federal Tort Claims Act to recover

damages from the United States Government for personal injuries sustained

during confinement in a federal prison, by reason of the negligence of a

government employee . . . are within the purview of the Act.” Id. at 150.

The district court’s second reason for dismissing the two claims – that M r.

Kikumura failed to exhaust his administrative remedies – is also incorrect. The

court apparently based its decision on M r. Kikumura’s original administrative tort

claim from September 2002, which failed to mention the possible wrongdoing of

Officers Vail and Sanders. As the Defendants concede, however, M r. Kikumura

corrected this mistake three months later, when he filed a second administrative

tort claim identifying Officer Vail and Officer Sanders as tortfeasors. The

Defendants therefore do not defend this holding on appeal. Appellees’ Br. 56 n.5.

W e commend the Defendants’ candor, and agree that M r. Kikumura’s two FTCA

claims based on the conduct of Officers Vail and Sanders cannot be dismissed for

failure to exhaust administrative remedies.

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 The district court’s final reason for dismissing M r. Kikumura’s “negligent

failure to refer or consult” FTCA claim, which is not applicable to the

“outrageous conduct” claim, is that Colorado does not recognize a tort of “failure

to refer or consult.” The government’s consent to be sued under the FTCA

extends only to claims arising out of “circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the law of the

place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The district

court found that because Colorado does not recognize a general duty to “refer or

consult” medical personnel whenever someone around you becomes ill, M r.

Kikumura’s “negligent failure to refer or consult” claim is not cognizable under

the FTCA.

As a general matter, the district court is correct that Colorado law imposes

no duty “upon a person to take action for the protection of another even if it is

reasonably apparent that such action is necessary to protect the other person from

injury or peril.” Solano v. Goff, 985 P.2d 53, 54 (Colo. Ct. App. 1999). But

Colorado also recognizes exceptions to this rule. In determining whether the

defendant owed a legal duty to help the plaintiff, Colorado courts look to the

following five factors: “(1) the existence of a special relationship between the

parties; (2) the foreseeability of harm to others; (3) the social utility of the

defendant’s conduct; (4) the magnitude of the burden of guarding against injury

or harm; and (5) the practical consequences of placing a duty upon the

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defendant.” Id. “Other considerations may also be relevant,” and “[n]o one

factor is controlling” under this test. Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46

(Colo. 1987). Ultimately, Colorado courts frame “the question of whether a duty

should be imposed in a particular case [as] essentially one of fairness under

contem porary standards — whether reasonable persons w ould recognize a duty

and agree that it exists.” Id.

Although Colorado courts have not yet addressed whether prison officials

owe a duty of care to inmates regarding their medical needs, based on Lannon, w e

find that they would recognize a duty of care here. Applying the “fairness under

contemporary standards” test to the facts as alleged by M r. Kikumura —

including his “obvious” need for assistance, cries for help, and complete

dependency on the prison staff — we have no doubt that “reasonable persons”

would have recognized a duty for Officers Vail and Sanders to call the prison

infirmary on M r. Kikumura’s behalf. The five-factor test outlined in Solano

reaches the same result. There is clearly a “special relationship” between M r.

Kikumura and the C orrectional Officers, since, as a federal inmate, M r. Kikumura

is dependent upon and under the control of ADX prison and its staff. M oreover,

based on the allegations in the complaint, the Correctional Officers’ inaction

posed an obvious risk of harm to M r. Kikumura. W e see very little “social

utility” in allowing correctional officers to ignore an inmate’s calls for help, and

the burden of requiring them to call the prison infirmary is light. Finally, we note

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that there appear to be few, if any, negative “practical consequences” from

requiring prison guards to call the infirmary when inmates are in obvious need of

emergency medical treatment. Federal Regulations already require the Bureau of

Prisons to “provide for the safekeeping, care, and subsistence of all persons” in

their custody. 18 U.S.C. § 4042(a)(2). Likewise, the Restatement (Second) of

Torts § 314A (1965) imposes a duty on “[o]ne who is required by law to take . . .

the custody of another under circumstances such as to deprive the other of his

normal opportunities for protection,” including the requirement “to give them first

aid after it knows or has reason to know that they are ill or injured, and to care for

them until they can be cared for by others.” M oreover, most states that have

considered the issue have held that “a jailer incurs a duty to exercise reasonable

care in protecting inmates’ health and safety.” Wallin v. Hill, No. Civ. A.03 CV

280 W DM M JW , 2005 W L 1924663, at *10 (D. Colo. Aug. 10, 2005) (collecting

the cases). Consequently, we find that M r. Kikumura’s “negligent failure to refer

or consult” claim would be actionable under Colorado law, and is therefore

cognizable under the FTCA.

Since M r. Kikumura’s FTCA claims based on the Correctional Officers’

“negligent failure to refer or consult” and “outrageous conduct” are both properly

exhausted and actionable under the FTCA, we reverse the district court’s order

dismissing these claims.

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 3. Respondeat Superior & Failure to Train and Supervise

The final cause of action asserted in M r. Kikumura’s complaint is an FTCA

claim based on the Supervisory Defendants’ “negligent . . . failure to provide

adequate training and supervision to their staff.” A m. Compl. 22. According to

M r. Kikumura, the Supervisory Defendants’ negligence was the “actual and

proximate cause” of his injuries. Id. Similar to the PLRA’s exhaustion

requirement, the FTCA “requires that claims for damages against the government

be presented to the appropriate federal agency by filing . . . a written statement

sufficiently describing the injury to enable the agency to begin its own

investigation.” Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268,

270 (10th Cir. 1991) (internal quotation marks omitted). M uch like the

administrative grievances submitted by M r. Kikumura in connection with his

Bivens claims, the administrative tort claims he filed with the BOP fail to mention

the possibility that his injuries were caused by the inadequate training and

supervision of A DX staff. For the same reasons that we found M r. Kikumura

failed to exhaust his Bivens claim against the Supervisory Defendants, we also

find that he failed to exhaust his “respondeat superior and/or supervisory

liability” FTCA claim.

Because w e find that the district court properly dismissed both of M r.

Kikumura’s claims based upon allegations of inadequate training and supervision

of A DX staff, we also affirm the district court’s order denying M r. Kikumura’s

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motion for a temporary restraining order to enjoin BOP officials from destroying

records relevant to those two claims.

III. C ON CLU SIO N

For the reasons stated above, we

(1) reverse the dismissal of the Eighth A mendment claims against M r.

Osagie;

(2) reverse the dismissal of the Eighth A mendment claim against Officers

Vail and Sanders;

(3) affirm the dismissal of the Eighth Amendment claim against Captain

Bauer, Captain Greenwood, W arden Pugh, and Assistant W arden Burrell;

(4) reverse the dismissal of the FTCA claims based upon M r. Osagie’s

alleged professional negligence and outrageous conduct;

(5) affirm the dismissal of the FTCA claim based upon M r. Osagie’s

alleged negligent misrepresentation;

(6) reverse the dismissal of the FTCA claims based upon Officers Vail and

Sanders’s alleged negligent failure to refer or consult and outrageous conduct;

(7) affirm the dismissal of the FTCA claim based upon Captain Bauer,

Captain Greenwood, W arden Pugh, and Assistant W arden Burrell’s alleged

respondeat superior liability and negligent training and supervision; and

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 (8) affirm the denial of a temporary restraining order requiring retention of

BOP records relating to training and supervision.

W e remand the case to the district court for proceedings consistent with

this opinion, including the reconsideration of M r. Kikumura’s motion for

appointment of counsel and an extension of time to file a certificate of review.

Appellant’s motion to proceed in forma pauperis is granted. Appellant is

reminded oh his obligation to continue to make partial payments until the entire

fee is paid.

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