Charles Clark v. P.W. Keohane ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 99-2006WM
    _____________
    Charles Lee Clark,                      *
    *
    Appellant,                  *
    *
    v.                                *   On Appeal from the United
    *   States District Court
    *   for the Western District
    Bill Hedrick,* Warden, MCFP;            *   of Missouri.
    United States Bureau of Prisons;        *
    and Tamer Khalil, Doctor, MCFP,         *
    *
    Appellees.                  *
    ___________
    Submitted: October 30, 2000
    Filed: December 5, 2000
    ___________
    Before RICHARD S. ARNOLD, BEAM, and LOKEN, Circuit Judges.
    ___________
    RICHARD S. ARNOLD, Circuit Judge.
    *
    Bill Hedrick has succeeded P.W. Keohane as Warden of the United States
    Medical Center for Federal Prisoners at Springfield, Missouri, and he is therefore
    substituted as party appellee. See Fed. R. App. P. 43(c)(2).
    This is an action under 28 U.S.C. § 2241, brought by Charles Lee Clark, a
    federal prisoner.1 Mr. Clark claims that the prison officials who are defendants are
    violating his rights under the Eighth Amendment through their deliberate indifference
    to his serious medical needs. In particular, he asserts that he suffers from a disease
    known as chronic myelogenous leukemia (CML), that the appropriate treatment is an
    autologous bone marrow transplant (ABMT), and that the defendants are refusing,
    without good reason, to afford him this treatment.
    The District Court dismissed the complaint, and we affirm. The reasons may be
    briefly stated. During the pendency of this appeal, Mr. Clark, who remains in federal
    custody, has in fact been allowed to take a step towards the ABMT. Cells from his
    bone marrow have been harvested and stored in a freezer. These cells will be available
    when and if Mr. Clark's condition takes a turn for the worse, and the need for the
    transplant arises. In the meantime, he appears to be receiving appropriate treatment.
    We recognize that difficulties may arise in the future. Mr. Clark's condition may
    become acute at any time, and, when this happens, we understand that a transplant, if
    then medically indicated, must take place quickly. Mr. Clark is concerned that the
    Bureau of Prisons will not do the transplant for him at public expense, and that, if the
    Bureau releases him for transplant purposes, the expenses to be paid by someone other
    than the Bureau of Prisons, he may not be released at a location close to the site where
    his cells are now stored. Mr. Clark has 23 months left to serve on his sentence. No
    one can say when his condition will become acute, although apparently it is agreed that
    at some point this will take place.
    1
    Section 2241 is the general federal habeas corpus statute. It occurs to us that
    the action might more properly have been brought as a Bivens claim, but we need not
    pursue the point.
    -2-
    We have to decide the case on the basis of the facts before us, and we are not
    permitted to speculate about the future. As matters now stand, Mr. Clark's cells have
    been harvested in an appropriate manner. We cannot say whether his condition will
    become acute while he is still incarcerated, nor do we know what treatment will be
    appropriate when that takes place, or whether the Bureau of Prisons will be willing to
    provide it. It is possible (for example, because of a heart condition) that the ABMT
    will not be the appropriate treatment when the time comes.
    In these circumstances, we hold that there is no present violation of the Eighth
    Amendment. We remind the Bureau of Prisons that its policies in connection with
    transplants, if applied inflexibly, may raise constitutional questions. See Barron v.
    Keohane, 
    216 F.3d 692
    (8th Cir. 2000).
    Affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-
    

Document Info

Docket Number: 99-2006

Filed Date: 12/5/2000

Precedential Status: Precedential

Modified Date: 10/13/2015