NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEROY CARR, No. 17-15917
Plaintiff-Appellant, D.C. No. 2:14-cv-2110-JAM-CKD
v.
MEMORANDUM*
LEONARDO GIRON, M.D., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted October 16, 2018**
San Francisco, California
Before: HAWKINS and HURWITZ, Circuit Judges, and ROSENTHAL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lee H. Rosenthal, Chief United States District Judge for the
Southern District of Texas, sitting by designation.
1
Leroy Carr, a federal prisoner, sued the government under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq., alleging medical
malpractice. Carr also sued prison officials under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging Eighth
Amendment violations.
The district court dismissed Carr’s Eighth Amendment claims under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
could be granted. The district court dismissed Carr’s FTCA claim under Rule
12(b)(1) for lack of subject-matter jurisdiction because he failed to exhaust
administrative remedies. Carr timely appealed. We have jurisdiction of Carr’s
appeal under 28 U.S.C. § 1291. Applying de novo review, Sato v. Orange Cnty.
Dep’t of Educ., 861 F.3d 923, 927–28 (9th Cir. 2017), we affirm the dismissal of
the Bivens claims, reverse the dismissal of the FTCA claim, and remand.
Carr argues that two physicians employed by the Bureau of Prisons violated
the Eighth Amendment by classifying his injury as “non-emergent” rather than as
“acute or emergent,” denying him better pain medication, and failing to prescribe
physical therapy. To plead an Eighth Amendment violation, Carr must allege facts
showing that the doctors exposed him to a substantial risk of serious harm and
were deliberately indifferent to his constitutional rights. Mendiola–Martinez v.
2
Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). It is not enough that a prison official
failed “to alleviate a significant risk that he should have perceived but did not”;
rather, “the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). A difference in
opinion between a prisoner and medical personnel on treatment is insufficient.
Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). Carr’s complaint, at
most, shows his disagreement with the physicians’ medical approaches. See id.
The district court did not err in dismissing Carr’s Eighth Amendment claims.
The district court dismissed Carr’s FTCA claim because he failed to exhaust
his administrative remedies before “instituting” his lawsuit.1 Carr gave his
complaint to prison officials for mailing to the federal district court one day before
1
The FTCA provides:
An action shall not be instituted upon a claim against the United States
. . . unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied
by the agency . . . . The failure of an agency to make final disposition
of a claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
purposes of this section.
28 U.S.C. § 2675(a) (emphasis added). “The FTCA’s exhaustion requirement is
jurisdictional and may not be waived.” D.L. by & through Junio v. Vassilev, 858
F.3d 1242, 1244 (9th Cir. 2017).
3
the FTCA’s jurisdictional six-month exhaustion period expired. Carr contends that
he satisfied the jurisdictional requirement because the court received his complaint
two days after the exhaustion period expired.
In Houston v. Lack, 487 U.S. 266, 270 (1988), the Supreme Court
established the prison-mailbox rule as an exception to the general rule that a
document is filed when the Clerk of Court receives it. The Court held that a pro
se prisoner’s notice of appeal, docketed after the deadline, was “filed” when it was
delivered to prison authorities for mailing to the federal court. Id. at 276. The
issue is whether Houston applies when, as here, a prisoner delivers a complaint to
prison officials before the exhaustion period ends, but the court receives it for
filing just after it ends.
The prison-mailbox rule was created to addresses a prisoner’s inability to
control delay between the prisoner’s delivery of complaint to prison officials for
mailing to the court, and the prison’s mailing it to the court. Id. at 270–71. But
when the prisoner gives a complaint to prison officials just before an exhaustion
period ends, and the complaint is received by the district court after the exhaustion
period expires, an application of the prison-mailbox rule would punish, rather than
protect, the prisoner’s attempt to pursue his rights with diligence. Houston did not
intend such a result.
4
The prison-mailbox rule does not apply to the facts of this case, and Carr
therefore “instituted” his FTCA action when the district court received and
docketed his complaint two days after the exhaustion period ended. The district
court erred in dismissing Carr’s FTCA claim for lack of subject-matter jurisdiction.
AFFIRMED in part, REVERSED in part, and REMANDED; each
party to bear its own costs on appeal.
5