Foreman v. Federal Correctional Institution

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6919



MICHAEL TROY FOREMAN,

                                              Plaintiff - Appellant,

          versus


FEDERAL CORRECTIONAL INSTITUTION, Beckley;
JOYCE K. CONLEY, Warden; ASHOK BHALODI, M.D.;
DOCTOR MCLAIN; S. ROSE, Clinical Director; J.
KOBY; S. A. TAYLOR, PA-C; M. OWENS, Clinical
Nurse; N. RETTBERG, D. O. Staff Physician; J.
W. THOMPSON; A. BLANKENSHIP; K. KAISER;
JESSICA GRIFFITH, Contract Medical Assistant;
CAPTAIN HARE; J. KIFKLAND, RN/AHSA,

                                           Defendants - Appellees.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  Joseph Robert Goodwin,
District Judge. (5:04-cv-01260)


Submitted:   October 31, 2006          Decided:     November 20, 2006


Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael Troy Foreman, Appellant Pro Se. Michael Lee Keller, Sandra
Henson Kinney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia; Scott E. Johnson, STEPTOE & JOHNSON, Charleston,
West Virginia; Monica Lynn Dillon, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia; Richard Allen Hayhurst,
Parkersburg, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Michael Troy Foreman appeals the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on his complaint filed pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680

(2000). Foreman also argues that his claims should be construed as

claims pursuant to 42 U.S.C. § 1983 (2000).              However, Foreman’s

claims were not filed under § 1983, and there are no exceptional

circumstances to merit the consideration of this new argument on

appeal.    See Muth v. United States, 1 F.3d 246, 250 (4th Cir.

1993).    With respect to Foreman’s Bivens and FTCA claims, we have

reviewed the record and find no reversible error.           Accordingly, we

affirm for the reasons stated by the district court.              Foreman v.

Fed. Corr. Inst., No. 5:04-cv-01260 (S.D. W. Va. Mar. 30, 2006).

We   dispense   with   oral   argument   because   the    facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                    AFFIRMED




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