Barnes v. Hawk

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 18 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
HORACE BARNES,
Plaintiff -Appellant, No. 98-3188
v. (D.C. No. 98-CV-3165-GTV)
KATHLEEN M. HAWK, Director of (D. Kan.)
the Federal Bureau of Prisons;
PATRICK R. KANE and G. L.
HERSHBERGER, Directors of Federal
Bureau of Prisons, North Central
Regional Office; J. W. BOOKER, JR.,
Warden, U.S. Penitentiary
Leavenworth; F. W. APPLE, Warden
Operation, U.S. Penitentiary,
Leavenworth; PHILLIP K. HILL, Dr.,
MD, Clinic Director, U.S.
Penitentiary, Leavenworth; D.
SHEPARD, Hospital Health Service
Administrator, U.S. Penitentiary,
Leavenworth; and KAREN TODD,
Hospital Health Service Assistant
Medical PA Administrator, U.S.
Penitentiary, Leavenworth,
Defendants -Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining Plaintiff-Appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1.9. The case is therefore ordered submitted without oral argument.
Proceeding pro se and in forma pauperis, Plaintiff filed a complaint
pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his rights under
the Eighth and First Amendments to the United States Constitution. Plaintiff
alleged that Defendants, all of whom are prison officials or medical personnel,
were deliberately indifferent to his medical needs to such an extent that they
violated the Eighth Amendment prohibition against cruel and unusual punishment.
He also argued that Defendants’ failure to properly investigate and respond to his
administrative grievances amounted to a violation of his First Amendment rights.
The district court granted Plaintiff leave to proceed in forma pauperis but
dismissed his complaint for failure to state a claim upon which relief can be
granted pursuant to 42 U.S.C. § 1997e(c). Plaintiff timely filed a notice of appeal
and a motion for leave to proceed in forma pauperis on appeal. The district court
subsequently granted Plaintiff leave to proceed in forma pauperis on appeal.
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On appeal, Plaintiff asserts that the district court erred in concluding that
he did not make out a violation of the Eighth Amendment. He also argues that the
district court erroneously failed to conduct a sufficient investigation of the
allegations set forth in his complaint, failed to construe his complaint liberally in
accordance with his pro se status, and failed to allow him to amend his complaint
to correct any shortcomings. We exercise jurisdiction pursuant to 28 U.S.C. §
1291.
This court has not previously set forth the appropriate standard of review
for dismissals under 42 U.S.C. § 1997e(c). Generally, we review de novo a
Federal Rule of Civil Procedure 12(b)(6) dismissal of a complaint for failure to
state a claim. See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996).
We also have reviewed de novo a dismissal for failure to state a claim pursuant to
both 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 12(b)(6). See Brown v. New Mexico
Dist. Court Clerks, 141 F.3d 1184 (10th Cir. 1998) (Table); cf. McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) (determining that dismissals
under 28 U.S.C. §§ 1915(e)(2) and 1915A should be reviewed de novo). Because
we agree with the analysis of our sister circuit in Bazrowx v. Scott, 136 F.3d
1053, 1054 (5th Cir.), cert. denied sub nom. Bazrowx v. Johnson, __ U.S. __, 119
S. Ct. 156 (1998), we conclude that the appropriate standard of review for
dismissals pursuant to 42 U.S.C. § 1997e(c) for failure to state a claim is de novo.
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After carefully considering Plaintiff’s brief and reviewing the record, we
agree with the district court’s well-reasoned and thorough opinion that Plaintiff
has not stated a claim upon which relief can be granted. Plaintiff’s allegations
that the district court did not give proper credence to his arguments in light of his
pro se status do not alter our conclusion. Because Plaintiff is proceeding pro se,
we have construed his pleadings liberally. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Riddle, 83 F.3d at 1202. Although Plaintiff appears to be capable
of presenting his arguments clearly, he has not alleged “sufficient facts on which
a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Therefore, we AFFIRM for substantially the reasons stated in
the district court’s Order filed June 18, 1998.
Entered for the Court
Monroe G. McKay
Circuit Judge
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