                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 3 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 GERALD M. KELLY,

               Plaintiff - Appellant,                   No. 99-3132
          v.                                            (D. Kansas)
 (NFN) SCOTT, Warden, Warden at                (D.C. No. CV-95-3101-RDR)
 USP Leavenworth; (NFN) MOORE,
 Correctional Officer at USP
 Leavenworth; (NFN) KEOHANE, Lt.,
 USP Leavenworth; (NFN) SALAZAR,
 P.A. Prison Hospital, USP
 Leavenworth; (NFN) BERHANE,
 P.A., USP Leavenworth; (NFN)
 SMITH, Hospital Supervisor
 Administrator, USP Leavenworth;
 (NFN) JACKSON, Cpt., USP
 Leavenworth, in their individual and
 official capacities; (NFN)
 SCHRODER, C.O.,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
      After examining the briefs and 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(G). The case is

therefore ordered submitted without oral argument.

      Gerald Kelly, a federal prisoner, brought this   Bivens 1 action against various

corrections personnel at USP-Leavenworth, alleging excessive force, failure to

keep him safe, and inadequate medical care, in violation of his rights under the

Eighth Amendment. The parties submitted affidavits, documents and motions,

following which the district court granted summary judgment in favor of the

defendants. Mr. Kelly appeals that judgment and the district court’s denial of his

Fed. R. Civ. P. 59(e) motion for reconsideration, as well as asserting ten

additional grounds for appeal (some overlapping). For completeness, we

reproduce all the issues raised by Mr. Kelly, as follows:

            1. Did the district court error by not Appointing Counsel and
      denying plaintiff Brief IN Support for Counsel?

          2. Did the district court error by denying Plaintiff motion for
      Summary Judgment?

           3. Did the district court error by denying plaintiff Response
      Motion to defendants motion to strike plaintiff motion for Summary
      Judgment?



      1
          Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

                                           -2-
             4. Did the district court error by denying plaintiff extend time
      to respond to order of 4-1-96?

          5. Did the district court error by denying plaintiff motion to
      Amend Complaint?

             6. Did the district court error by denying plaintiff copies of
      proceeding, when plaintiff infromed the court of the lost and stolen
      property and documents to plaintiff case by the governments
      officers?

           7. Did the district court error by denying plaintiff motion for
      Discovery?

             8. Did the district court error by denying plaintiff case and not
      allowing plaintiff to a Jury Trail as requested by plaintiff and a Right
      to by Law?

            9. Did the district court error by denying motion by plaintiff
      for Reconsideration?

           10. Did district court error by judge ruling on own motion to
      remove his self from case of plaintiff Kelly?

             11. Did district court error by ordering plaintiff to pay for
      filing an appeal, when plaintiff was Granted Leve to proceed In
      Forma Pauperis and well befor the amending and passing of the
      (P.L.R.A.) signed into law on 4-26-96. Plaintiff was granted Leve to
      proceed In Forma Pauperis, (3-15-95).

             12. Did district court error by dismissing plaintiff case and
      telling plaintiff that the complaint should be filed under the Federal
      Tort Claim Act?

Appellant Br. at 3.
     For the reasons stated below, we affirm the judgment of the district court.



                                 BACKGROUND

                                         -3-
      Mr. Kelly’s complaint names as defendants eight employees of the Federal

Bureau of Prisons holding various positions at USP-Leavenworth at the time of

the incidents in question. Throughout the record they are referred to by their last

names and titles: Warden Scott, Senior Officer Specialist Schroeder, Correctional

Officer Moore, Lieutenant Keohane, Physician’s Assistants Salazar and Berhane,

Health Services Administrator Smith, and Captain Jackson.

      Kelly is serving a thirteen year and one month sentence for armed bank

robbery. There is no significant dispute regarding the following core facts.

      At about 10:00 p.m. on April 24, 1994, Officers Moore and Schroeder,

during the course of conducting the 10:00 p.m. institution count on Range “A” of

the Special Housing Unit (SHU), approached Kelly’s cell, A-107. For reasons

that are in dispute, Schroeder hit the cell window with his flashlight with enough

force to crack the glass. The window is five inches high, eighteen inches wide

and, according to Kelly, one inch thick.

      During the same night, Kelly complained that a shard of glass was lodged

in his right eye. Accordingly, staff working in the SHU telephoned the Health

Services Unit and, at 3:45 a.m., PA Salazar responded. Kelly, contrary to

regulations, then refused to have his hands handcuffed behind him in order to

allow Salazar to examine his eye. There is no dispute as to the refusal, although

different explanations are offered. In any event, due to Kelly’s refusal to be


                                           -4-
handcuffed, no examination was conducted. A few hours later, still on the

morning of the 25th, Kelly, apparently more cooperative, allowed PA Berhane to

take him to the emergency room where Berhane examined his eye, could not

detect any foreign objects, and prescribed triple antibiotic ointment.

      Three days later, on April 28, PA Berhane saw and examined Kelly for a

complaint of irregular bowel movement, and prescribed Metamucil. Kelly’s

medical records do not list any eye complaint on that visit, and Berhane’s

affidavit states that Kelly raised no concerns regarding his right eye and that he

did not detect any irregularities. Kelly asserts in his complaint that he did raise

concerns about his eye.

      The next day, April 29, when Kelly again complained of glass causing pain

in his right eye, he was taken to the prison hospital where PA Navarro (not a

defendant in this suit) examined him. Navarro found and removed a piece of

glass, irrigated Kelly’s eye with saline solution, and prescribed artificial tears.

Kelly asserts he has suffered a 25 percent loss of vision in his right eye as a result

of the incident—a claim disputed in the record.

      On April 25, 1994, Mr. Kelly wrote to Warden Scott complaining that

officers had targeted him for harassment and, in the latest incident, Officer

Schroeder had abused him by hitting the glass in his cell door, breaking the glass,

causing some glass to lodge in his eye. The letter then states that when Kelly


                                          -5-
asked a staff member to call the physician’s assistant, he refused. Kelly also

alleges in his complaint that he orally advised Warden Scott of the problems and

that Scott failed to act.

       On the same date, the 25th, Kelly sent a letter to Captain Jackson similar to

the one sent to Warden Scott. Kelly alleges that Jackson failed to act. In his

complaint, Kelly also alleges that he repeatedly informed Lt. Keohane of the

situation; and in addition, that Administrator Smith, as the person in charge of the

prison hospital, knew or should have known Kelly was complaining of an eye

injury that was not being adequately treated, and that Smith failed to properly

train and supervise the medical staff.

       More generally, Kelly contends in his complaint that Warden Scott and

Captain Jackson failed their supervisory duty to protect inmates, specifically

Kelly, from abuse by guards. He also alleges a failure to train.



                                    DISCUSSION

                                           A.

       We review a grant of summary judgment de novo, using the same standards

employed by the district court. Specifically, construing disputed facts in favor of

the non-moving party, we must determine if there is a    genuine dispute as to

material facts. See Fed. R. Civ. P. 56;   Anderson v. Liberty Lobby, Inc.   , 477 U.S.


                                           -6-
242, 248 (1986). And, if not, whether the defendants are entitled to judgment

under the applicable law.    See Liberty Lobby , 477 U.S. at 250. Since the

defendants raised the defense of qualified immunity, and the district court

alternatively granted relief on that ground, we also follow a two-step process

which requires us first to determine whether there is any genuine issue as to the

existence of a constitutional claim.     See County of Sacramento v. Lewis , 523

U.S.833, ___ n.4, 118 S. Ct. 1708, 1713 n.4 (1998);     Siegert v. Giley , 500 U.S.

226, 232 (1991).

       Kelly’s Eighth Amendment claims fall under two standards. As to his

intentional use of force claim against Schroeder, which he extends to the

accompanying officer, Moore (for failing to restrain Schroeder), Kelly must make

a colorable showing that these officers applied force “maliciously and sadistically

for the very purpose of causing harm,”     Hudson v. McMillian , 503 U.S. 1, 2

(1992). This is a standard of purposeful and knowing conduct which is

inconsistent with the undisputed facts. No force at all was applied directly to

Kelly. This is a cause and effect allegation. It is unsupported by even a

conclusory claim that based on experience with glass in cell doors, these officers

thought they could and wanted to injure Kelly with flying glass by hitting a

5”x18”x1” thick security window with a flashlight. Such windows, after all, are

obviously constructed to prevent breakage by prisoners, and any history of


                                             -7-
breakage would, for equally obvious reasons, be speedily remedied. Nor is there

anything in the record showing any such conduct by Schroeder or Moore, which,

in any event, would be unlikely given the fact that the officers would have to

answer to their superiors for the expense and problems created by breaking cell

door windows.

       The second and more applicable standard is deliberate indifference. Prison

officials violate an inmate’s Eighth Amendment right to be free of “cruel and

unusual punishments” when they are deliberately indifferent to the inmate’s

serious medical needs,   see Estelle v. Gamble , 429 U.S. 97 (1976), or to a

substantial risk of serious harm.   See Farmer v. Brennan , 511 U.S. 825 (1994);

Helling v. McKinney , 509 U.S. 25 (1993); Wilson v. Seiter , 501 U.S. 294 (1991);

Hudson v. Palmer , 468 U.S. 517 (1984).

       Deliberate indifference has both objective and subjective components. The

latter requires a culpable state of mind. That is “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.

at 837 (emphasis added). Mere negligence (which, by definition, is unreasonable

conduct) does not constitute deliberate indifference.       See id. at 835. Thus,

medical malpractice does not either.     See Estelle v. Gamble , 429 U.S. at 106;

Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980).


                                            -8-
      At most, Mr. Kelly’s medical treatment claims fall within the negligence or

malpractice category. He acknowledges that physician’s assistants attended or

attempted to attend to him four times in five days, beginning with a visit (which

Kelly frustrated) in the middle of the night when Kelly complained following the

incident in question. A second visit and an examination in the emergency room

followed a few hours later. Two days later Kelly was seen again. Although he

disputes the PA’s version as to the absence of eye complaints, he complained

about something—constipation—and he      was seen when he complained. The next

day Kelly complained again, and was seen again by a physician’s assistant who,

on this occasion, discovered the glass and removed it.

      There is no genuine dispute whether Kelly was denied treatment. He was

not. His argument is that he needed more treatment. But the bulk of the claims

go to the effectiveness and competence of the treatment given. However, nothing

establishes a genuine factual issue as to whether Berhane drew the inference that

Kelly had glass in his eye and disregarded that risk. He looked for glass and

could not see any, so he prescribed an ointment for the redness and irritation. PA

Navarro’s more competent examination hardly shows that Berhane had a culpable

state of mind.




                                         -9-
      It follows that no genuine issue exists as to whether or not the other

defendants had a culpable state of mind, i.e., were deliberately indifferent, with

respect to Kelly’s medical needs. He was accorded treatment.

      Likewise, Kelly fails to establish a triable issue as to any defendant with

respect to deliberate indifference to his safety. The reasons set out above,

relating to Schroeder’s hitting the window with his flashlight, apply here as well.

There is no record of guards breaking cell windows hoping flying glass will injure

prisoners, or vice versa. No defendant can be deliberately indifferent to an

unknown risk.

      Finally, Kelly’s allegations against the defendants in their official, as well

as their individual, capacities, are suits against the United States and barred by

sovereign immunity. The only applicable exception is a suit under the Federal

Tort Claims Act, 29 U.S.C. §§ 1346(b), 2671, et seq., which is neither pled nor

satisfied as to its requirements here.

      We review the district court’s denial of Kelly’s motions to amend the

complaint, for the appointment of counsel, for discovery, and for recusal, only for

abuse of discretion. After carefully reviewing the file, we find no abuse for the

reasons—which we adopt—stated in the district court’s orders filed May 18,

1995, and February 20, 1996, its memorandum and order filed February 29, 1998,

and its order dated March 29, 1999. Mr. Kelly has also advanced certain


                                         -10-
arguments which were not raised below and which, accordingly, we do not

consider. See Swanson v. Guthrie Indep. Sch. Dist. No. 1-L       , 135 F.3d 694, 702

(10th Cir. 1998). Additionally, he has attempted to pursue claims raised in the

amended complaint which the district court did not allow to be filed. Since

we have upheld that ruling, we do not consider the amended complaint.



                                             B.

       On April 22, 1999, the district court filed an order granting Mr. Kelly’s

motion for leave to proceed in forma pauperis on appeal on the condition that he

make installment payments of the filing fee as required by 28 U.S.C. § 1915(b).

That requirement was imposed by Congress in the Prison Litigation Reform Act

of 1995 (PLRA), 28 U.S.C. § 1915.

       Mr. Kelly contends that the district court erred by imposing an appellate

filing fee obligation pursuant to this statute because the complaint in this case

was filed and leave to proceed in forma pauperis in the district court was granted

before the PLRA was enacted. We considered and rejected an identical argument

in Shabazz v. Parsons, et al.   , 127 F.3d 1246, 1247 (10th Cir. 1997).   See also ,

Schlicher v. Thomas , 111 F.3d 777, 779 n.1 (10th Cir. 1997) (prisoner proceeding

in forma pauperis on appeal who files his notice of appeal after the PLRA




                                            -11-
enactment date “is required to comply with the filing fee requirements of

§ 1915(b), as amended by the PLRA.”).



                                 CONCLUSION

      After thoroughly reviewing the record and considering Mr. Kelly’s

arguments, we conclude that the district court did not err, and the judgment is

AFFIRMED.

      Mr. Kelly remains obligated to pay installments on the appellate filing fee

as previously ordered.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -12-
