     Case: 08-60994     Document: 00511020908          Page: 1    Date Filed: 02/04/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 4, 2010

                                       No. 08-60994                    Charles R. Fulbruge III
                                                                               Clerk

STEPHEN C WALKER

                                                   Plaintiff - Appellant
v.

CONSTANCE REESE, Warden, Individual and Official Capacity; SCOTT
FISHER, Associate Warden, Individual Capacity; ANTHONY CHAMBERS,
Clinical Director, Individual Capacity; MARY THOMAS, Health Service
Administrator, Individual Capacity; JOHN DOE; JANE DOE; UNITED
STATES OF AMERICA; CRAIG COIL, Food Service Administrator; RAY E
HOLT, Regional Director Southeastern Region; BOBBY G RAINES,
Operations Lieutenant

                                                   Defendants - Appellees




                Appeal from the United States District Court of the
                          Southern District of Mississippi
                           CA No. 5:06cv154-DCB-MTP


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff, Stephen Walker, a former inmate at the Federal Correctional
Complex in Yazoo City, Mississippi (“FCC Yazoo City”), challenges the dismissal



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
  Case: 08-60994    Document: 00511020908     Page: 2   Date Filed: 02/04/2010

                                 No. 08-60994

of his claims on summary judgment relating to the medical care he received
while incarcerated. For the following reasons, we AFFIRM.


                                  I. FACTS
      On January 8, 2006, Walker received chemical burns while working in the
Food Service Department at FCC Yazoo City. Walker was instructed by his
supervisor to rinse his arms with cold water and soap until medical staff could
respond. Walker claims he then showed his burns several times to Defendant
Craig Coil, a former Food Service Administrator at FCC Yazoo City. Walker
alleges that Coil knew Walker had a serious medical condition but failed to take
any steps to assist him in receiving immediate emergency care. Coil avers that
he did not believe Walker needed emergency medical attention. About two hours
later, a nurse arrived and tended to Walker. It was noted that Walker had first,
second, and third degree burns, and Walker was transported to a hospital in
Yazoo City, where he received further medical attention.
      On January 31 and February 14, Walker received further care for his
burns by Defendant Dr. Anthony Chambers, the Clinical Director at FCC Yazoo
City. During the evenings of February 16 and February 21, Walker went to have
his bandages changed by the medical staff at FCC Yazoo City, but both times he
was unable to receive immediate care due to a lack of medical staff present. In
both instances, Walker had his bandages changed the following day. When
examining Walker on February 22, Dr. Chambers recommended that Walker be
transported to an outside medical facility for further evaluation. Walker was
scheduled to be taken to a hospital on February 24, but no custody staff member
was available to transport him, so instead, Walker was taken to the hospital on
February 28.
      On March 14 at 11:20 pm, Walker informed a Unit Officer that his
bandages were soaked with blood and fluid. The Unit Officer noted that there

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                                  No. 08-60994

was some blood seeping through the bandages, but that they were not soaked.
The Unit Officer consulted with Defendant Lieutenant Bobby Raines by
telephone. Lt. Raines told the Unit Officer that no medical care was available
and that Walker should have his bandages changed the following morning.
      On June 12, a doctor at FCC Yazoo City certified that Walker’s wounds
had healed. On June 14, Walker was released from the Bureau of Prisons
(“BOP”) custody.
      On November 17, 2006, Walker, acting pro se, filed suit against the
captioned defendants. In his complaint, Walker asserted that the defendants
violated his Eighth Amendment rights by denying and delaying medical
treatment.   Walker also complained that the defendants adopted policies,
customs, and practices concerning medical care that violated BOP regulations,
federal law, and the Eighth Amendment. Walker brought a Federal Tort Claims
Action (“FTCA”) against the United States and sought judicial review under the
Administrative Procedure Act (“APA”). The defendants moved for summary
judgment on all of Walker’s claims.         Walker moved for partial summary
judgment on his Bivens claim against Dr. Chambers.
      A Magistrate Judge recommended that the defendants’ motion for
summary judgment be granted and that Walker’s motion for partial summary
judgment be denied. In making these recommendations, the Magistrate Judge
stated that Dr. Chambers had statutory immunity under 42 U.S.C. § 233(a).
The Magistrate Judge recommended dismissing the Bivens actions against the
defendants because Walker did not demonstrate that the defendants’ actions and
policies were “deliberately indifferent” to his serious medical needs in violation
of the Eighth Amendment. The Magistrate Judge recommended dismissing
Walker’s FTCA claim because his injury occurred during his incarceration in
federal prison, thus his exclusive remedy was provided by the BOP’s Inmate
Accident Compensation (“IAC”). Finally, the Magistrate Judge recommended

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dismissing Walker’s APA claim as moot because Walker was no longer in BOP
custody.1
       After a de novo review of the portions of the Magistrate Judge’s
recommendations to which Walker objected, the district court found no error and
adopted the Magistrate Judge’s recommendations. Walker timely appealed the
district court’s order granting the defendants’ motion for summary judgment.2


                              II. STANDARD OF REVIEW
       We review the district court’s grant of summary judgment de novo.
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). Summary judgment
is appropriate if the submissions show that “there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
F ED. R. C IV. P. 56(c). When deciding whether a fact issue exists, we review the
evidence and the inferences drawn from it in the light most favorable to the
nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336
F.3d 410, 412 (5th Cir. 2003).


                                      III. ANALYSIS
       We examine Walker’s Bivens actions and FTCA claim separately below.
A. Bivens actions
       Walker argues that the district court erred in finding that the defendants
actions were not deliberately indifferent to his serious medical needs.
Specifically, Walker argues that Defendants Coil and Raines were deliberately



       1
          The Magistrate Judge also recommended that the court find it lacked personal
jurisdiction over Defendant Ray Holt, the BOP’s Regional Director for the Southeast Region.
and dismiss the claim against him without prejudice. The district court adopted his
recommendation. Walker does not appeal Holt’s dismissal.
       2
           Walker did not appeal the dismissal of his APA claim.

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indifferent to his medical needs because they did not obtain immediate
emergency medical care; instead Walker on occasion had to wait a few hours and
sometimes until the following morning to receive medical attention. Walker also
claims that Defendants Warden Constance Reese, Associate Warden Scott
Fisher, Dr. Chambers, and Health Service Administrator Mary Thomas acted
with deliberate indifference to his medical needs because the policies they
adopted impeded his ability to access adequate and timely medical care.
      Prison officials violate the Eighth Amendment’s proscription against cruel
and unusual punishment when they act with a “deliberate indifference” to the
serious medical needs of prisoners. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Estelle v. Gamble, 429 U.S. 97, 105 (1976). The Farmer Court defined the
test for “deliberate indifference” as follows:
      [A] prison official cannot be found liable under the Eighth
      Amendment for denying an inmate humane conditions of
      confinement unless the official knows of and disregards an excessive
      risk to inmate health or safety; 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.


Id. at 837. See also Wilson v. Seiter, 501 U.S. 294, 299–303 (1991); Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). This standard “is an extremely high
standard to meet.”     Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(citation omitted).
      The defendants did not act with deliberate indifference. Though Walker
may have not received attention as promptly as he desired, or perhaps even as
promptly as would be ideal, any substandard care as alleged does not amount to
deliberate indifference as defined by the above cases. To the contrary, the record
is replete with details of the defendants providing medical care to Walker. Every
time Walker sought medical care, it was provided to him either immediately or
within a matter of hours. When the staff at FCC Yazoo City thought Walker

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needed outside evaluation of his burns, Walker was taken to a hospital.
Accepting the evidence in the light most favorable to Walker, it is clear that the
defendants did not act with deliberate indifference or adopt policies that
precluded Walker from receiving adequate care.3
B. FTCA claim
       Walker argues that the district court erred in finding his exclusive remedy
against the Government was provided by the BOP’s Inmate Accident
Compensation (“IAC”) procedures set forth in 28 C.F.R. § 301.101, et seq., and
thus dismissing his FTCA claim. But as Walker points out in his brief, the U.S.
Supreme Court and Fifth Circuit have repeatedly provided that the BOP’s IAC
system is the exclusive means of recovery for prison-employee’s work-related
injuries. United States v. Demko, 385 U.S. 149 (1966); Thompson v. United
States, 495 F.2d 192 (5th Cir. 1974); Wooten v. United States, 437 F.2d 79 (5th
Cir. 1971). Because the IAC system is Walker’s exclusive remedy against the
Government, the court lacks jurisdiction to adjudicate his FTCA claim.


                                   IV. CONCLUSION
       For the above reasons we AFFIRM the district court’s dismissal of
Walker’s suit.
       AFFIRMED.


       3
         There are additional reasons why Walker’s claims against Dr. Chambers must fall.
Dr. Chambers has statutory immunity pursuant to 42 U.S.C. § 233(a). As even Walker
acknowledges in his brief, § 233(a) preempts a Bivens claim and provides that a plaintiff’s sole
remedy is a claim brought under the FTCA. See Carlson v. Green, 446 U.S. 14, 20 (1980)
(noting § 233(a) as an example of Congress explicitly stating that the FTCA is a plaintiff’s
exclusive remedy); Schrader v. Sandoval, 1999 WL 1235234, at *2 (5th Cir. 1999)
(unpublished); Montoya-Ortiz v. Brown, 154 F. App’x. 437, 439 (5th Cir. 2005) (unpublished).
Therefore, Walker cannot maintain a Bivens action against Dr. Chambers.
       Walker also argues, in the alternative, that the statutory immunity provided by §
233(a) should not apply to Dr. Chambers because he was acting outside of the scope of his
employment. None of Walker’s factual allegations and nothing in the record supports a
finding that Dr. Chambers was acting outside of the scope of his employment.

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