                           NOT FOR PUBLICATION                           FILED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.




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