                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 9, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    NORBERTO PEREZ AROCHO,

                Plaintiff-Appellant,

    v.                                                    No. 11-1278
                                             (D.C. No. 1:07-CV-02603-REB-KLM)
    HARLEY LAPPIN, Director, Federal                       (D. Colo.)
    Bureau of Prisons; S. NAFZIGER,
    Clinical Director,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and BALDOCK, Circuit Judges.



         Plaintiff Norberto Perez Arocho brought this prison civil rights action

claiming he was unconstitutionally denied treatment for Hepatitis C while at the

federal prison in Florence, Colorado. The district court initially dismissed the

action on the pleadings, holding that the complaint failed to establish personal



*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction over defendant Harley Lappin, Federal Bureau of Prisons (BOP)

director, and failed to state a claim against defendant Steven Nafziger, clinical

director at Florence responsible for plaintiff’s treatment. We partially reversed

that decision, holding in pertinent part that the allegations of the complaint, if

true, established personal jurisdiction over defendant Lappin and that, while the

complaint did not state a claim against defendant Nafziger, a dismissal without

prejudice was appropriate to give plaintiff an opportunity to cure its deficiencies

by amendment. See Arocho v. Nafziger, 367 F. App’x 942 (10th Cir. 2010).

      On remand, plaintiff amended his complaint and defendants moved for

summary judgment. Adopting the recommendation of the magistrate judge, the

district court granted the motion and (1) dismissed the claim against defendant

Lappin with prejudice after concluding that it lacked personal jurisdiction over

him and that transfer to another forum was unwarranted; (2) dismissed plaintiff’s

primary claim against defendant Nafziger with prejudice on the merits; (3) and

dismissed additional claims asserted against defendant Nafziger for failure to

exhaust administrative remedies. Plaintiff then timely commenced this appeal.

We take up each of these matters in turn below and affirm in all respects save

one: the dismissal of defendant Lappin for lack of personal jurisdiction should

have been without prejudice, and we therefore remand the matter to the district

court to modify its judgment accordingly.




                                         -2-
      A very brief factual summary will suffice to frame the case. As additional

facts are needed to assess particular issues, they will be introduced in the course

of our analysis below. Plaintiff has been diagnosed with chronic Hepatitis C

since approximately 2002. In July 2007, a blood test suggested advancing liver

disease, and defendant Nafziger ordered additional testing. He also recommended

that plaintiff be given the psychological evaluation required before beginning

Interferon/Ribavirin therapy. In October 2007, after the evaluation, defendant

Nafziger submitted a recommendation to the BOP Central Office that plaintiff be

approved for the therapy. Plaintiff was informed of the recommendation, and

then was told in January 2008 and February 2008 that it was still awaiting

approval. Defendant Nafziger left BOP’s employ in late February 2008. In the

meantime, plaintiff filed this suit seeking damages and injunctive relief, claiming

that the denial/delay of the treatment constituted deliberate indifference to a

serious medical need in violation of his Eighth Amendment rights, attributable to

both defendants Lappin and Nafziger.

        I. DISMISSAL OF CLAIM AGAINST DEFENDANT LAPPIN

      In our previous decision, we made it clear that our reversal of the initial

dismissal on the pleadings in favor of defendant Lappin did not foreclose a later

dismissal on an evidentiary record developed for summary judgment:

             Of course, the question of personal jurisdiction can always be
      revisited at a post-pleading stage of the proceedings, where the
      evidence may show that the relevant facts are other than they have

                                         -3-
      been pled (by showing, for example, that Lappin actually had nothing
      to do with the denial of Hepatitis C treatment, or was connected with
      the denial of treatment only through application of a broad policy
      issued at the national level and was unaware of any harm that would
      specifically befall Mr. Arocho in Colorado). And when personal
      jurisdiction is assessed at an evidentiary hearing or at trial, the
      plaintiff generally must substantiate his allegations with proof by a
      preponderance of the evidence. . . .

Id. at 950 (emphasis added) (citation omitted). That is just how events unfolded

on remand.

A. Analysis of Personal Jurisdiction

      Defendant Lappin presented evidence, contrary to plaintiff’s allegations but

uncontroverted by any competent evidence from plaintiff, that he was not directly

responsible for authorizing the recommended treatment. That responsibility was

delegated to the Assistant Director of BOP’s Health Services Division. R. Vol. 1

at 353. Defendant Lappin did not make specific decisions regarding medical

treatment. Id. And he was not aware of plaintiff’s condition or the request made

for its treatment. Id. at 354. Echoing the emphasized statement in the passage

from our earlier decision quoted above, Lappin confirmed that “[a]ny decisions

[he] made which may have affected the provision of medical services within the

[BOP] have been of general applicability to all [BOP] facilities.” Id. at 353.

      The magistrate judge began her analysis of personal jurisdiction by noting

that defendant Lappin did not have the kind of continuous and systematic contacts

with the forum state to support the exercise of “general” personal jurisdiction


                                        -4-
over him. See generally Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.

2011) (explaining and contrasting general and specific personal jurisdiction). We

agree. Defendant does not reside in, work in, or have direct control over the

operation of any prison facility in the State of Colorado.

      The focus of the personal jurisdiction question here has been, rather, on the

court’s “specific” personal jurisdiction over defendant Lappin, particularly

whether he “purposefully directed” activities at the forum state that gave rise to

the plaintiff’s injury. See Arocho, 367 F. App’x at 949-50 (following analysis of

this condition for specific jurisdiction in Dudnikov v. Chalk & Vermilion Fine

Arts, Inc., 514 F.3d 1063, 1071-72 (10th Cir. 2008)). Based on the evidence cited

above, the magistrate judge concluded plaintiff could not satisfy this condition for

specific personal jurisdiction. The magistrate judge also went on to conclude,

alternatively, that defendant Lappin had made a compelling case that the exercise

of personal jurisdiction over him would, in any event, offend traditional notions

of fair play and substantial justice. See Arocho, 367 F. App’x at 950 (discussing

this final limitation on the exercise of personal jurisdiction).

      Plaintiff was properly warned that he had to submit specific objections to

the magistrate judge’s recommendation or risk forfeiture of appellate review, see

R. Vol. 1 at 683, pursuant to this court’s firm waiver rule, see, e.g., Duffield v.

Jackson, 545 F.3d 1234, 1237-38 (10th Cir. 2008); U.S. v. One Parcel of Real

Property, 73 F.3d 1057, 1060 (10th Cir. 1996). He did file a timely objection, see

                                          -5-
R. Vol. 1 at 688-90, but it was very general and did not advance particularized

challenges to the analysis of personal jurisdiction; any challenge in this regard

was limited to a general reference to this court’s earlier reversal of the dismissal

on the pleadings, id. at 690. Defendants insist that we apply our waiver rule and

summarily affirm the dismissal in favor of defendant Lappin. We decline to do

so. Our waiver rule includes an interest-of-justice exception, which takes into

account “a pro se litigant’s effort to comply [and] the force and plausibility of the

explanation for his failure to comply.” Duffield, 545 F.3d at 1238 (internal

quotation marks omitted). Plaintiff’s objection explained that his legal and

personal property was confiscated on March 29, 2011, and had still not been

returned a month later when he had to prepare and file the objection. R. Vol. 1 at

688-89. Defendants do not contest these facts. 1 It is not difficult to see how this

would undermine the pro se plaintiff’s effort to advance particularized challenges

to a lengthy and legally complicated recommendation. Under the circumstances,

we elect not to rest our disposition on waiver. 2

1
       Defendants argue that we should not consider the confiscation of plaintiff’s
legal materials as an excuse for his failure to frame more specific objections,
because his complaints about the confiscation incident seem to refer, rather, to his
inability to file an adequate response to the summary judgment motion. But,
while plaintiff’s pro se argumentation is at times unclear, the facts he states are
not. The confiscation occurred after he responded to the summary judgment
motion but before the time for filing his objection to the magistrate judge’s
recommendation, so only the latter would have been affected.
2
      We also decline defendants’ suggestion that we summarily affirm on the
                                                                   (continued...)

                                          -6-
      Returning to the merits of the personal jurisdiction issue, we fully agree

with the magistrate judge’s conclusion that there is no evidence defendant Lappin

purposefully directed actions at the forum state to cause plaintiff’s alleged injury.

As already alluded to above, his only potential connection with plaintiff’s case

relates to decisions of general applicability he has made affecting the provision of

medical services within BOP facilities countrywide. As indicated in our decision

on the prior appeal, that is not enough to show that he purposefully directed his

relevant actions at the forum state. See Arocho, 367 F. App’x at 949-50 (applying

test for personal jurisdiction distilled from Calder v. Jones, 465 U.S. 783 (1984),

derived in Dudnikov, 514 F.3d at 1072).

B. Dismissal or Transfer

      As required by circuit precedent, the magistrate judge went on to consider

whether the district court should exercise its discretion not to dismiss the claim

against defendant Lappin but to transfer it to a forum with personal jurisdiction

over him. See, e.g., Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir.

2006). In conducting this inquiry, the district court may “tak[e] a ‘peek at the



2
 (...continued)
basis of inadequate appellate briefing by plaintiff on appeal. While not very
effective as advocacy, his briefing is sufficient to place the merits of the district
court’s decision before us. In any event, defendants have not been prejudiced;
they clearly knew the operative legal issues and have addressed them at length in
their own briefing. See Arocho, 367 F. App’x at 950 n.8 (declining similar
suggestion by defendants on prior appeal).

                                          -7-
merits’ to avoid raising false hopes and wasting judicial resources that would

result from transferring a case which is clearly doomed.” Haugh v. Booker,

210 F.3d 1147, 1150 (10th Cir. 2000) (quoting Phillips v. Seiter, 173 F.3d 609,

610 (7th Cir. 1999)). As explained in Phillips, there is no paradox in this peek at

the merits by a court that “lack[s] jurisdiction to adjudicate [the case] fully,” as

the court is merely acting on its authority “to decide [the limited question]

whether to transfer or dismiss” the case. Phillips, 173 F.3d at 611. Here, the

magistrate judge concluded transfer was not warranted because defendant

Lappin’s lack of personal involvement in the denial of treatment would undercut

any claim on the merits against him. See Cameron v. Thornburgh, 983 F.2d 253,

258 (D.C. Cir. 1993) (holding BOP Director could not be held liable in absence of

participation in “any decision or approv[al of] any policy that related to the

case”); see Brown v. Montoya, 662 F.3d 1152, 1164-65 (10th Cir. 2011) (making

same point as to claim against state Secretary of Corrections). The district court

properly exercised its discretion in declining to transfer on this ground. 3


3
       To avoid misunderstanding, we clarify one point. A supervisory federal
official like the BOP director may be held liable for his “personal involvement in
the acts causing the deprivation of a person’s constitutional rights” or “if he
implements a policy so deficient that the policy itself acts as a deprivation of
constitutional rights.” Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998);
see Brown, 662 F.3d at 1164-65 (making same point as to claim against state
Secretary of Corrections). The second basis for liability is significant in that it
points to a divergence between the analysis of personal jurisdiction and liability
on the merits: as we have noted, defendant Lappin may not be haled into court
                                                                        (continued...)

                                          -8-
C. Dismissal with Prejudice

      Finally, the district court adopted the magistrate judge’s recommendation to

dismiss with prejudice, contrary to the established rule that dismissals for lack of

personal jurisdiction are without prejudice, Hollander v. Sandoz Pharm. Corp.,

289 F.3d 1193, 1216 (10th Cir. 2002); see also Trujillo, 465 F.3d 1222-23 (noting

court’s dispositional choices upon finding lack of personal jurisdiction are

transfer or dismissal without prejudice); Arocho, 367 F. App’x at 951 n.10

(same). The magistrate judge did not cite any authority for this deviation, but just

stated that her look at the merits in connection with the question of transfer

indicated that defendant Lappin was entitled to a judgment on the merits. There

is a fundamental problem with this approach tied to the rationale for the precedent

from which it departs.

      Like subject matter jurisdiction, “[p]ersonal jurisdiction, too, is an essential

element of the jurisdiction of a district court, without which the court is powerless

to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,


3
 (...continued)
everywhere on the basis of a general policy (however unconstitutional) not aimed
specifically at the particular forum state; but he could be held liable, in the proper
forum, for his unconstitutional policies. Thus, for example, if a BOP director
were to initiate a policy plainly denying prisoners constitutionally mandated care,
legal relief would be available in a forum that could exercise personal jurisdiction
over the director. But here, while defendant Lappin vaguely alluded to decisions
he has made broadly affecting the provision of medical services in federal
prisons, there is no evidence of an unconstitutional policy relevant to plaintiff’s
claims.

                                         -9-
584 (1999) (internal quotation marks and ellipses omitted). Absent the power to

proceed to an adjudication, a court must dismiss without prejudice because it

cannot enter a judgment on the merits. Guidry v. U. S. Tobacco Co., 188 F.3d

619, 623-24 n.2 (5th Cir. 1999) (noting Ruhrgas dictates dismissal without

prejudice for lack of personal jurisdiction); see Brereton v. Bountiful City Corp.,

434 F.3d 1213, 1217 (10th Cir. 2006) (holding that “once a court determines it

lacks jurisdiction over a claim, it perforce lacks jurisdiction to make any

determination of the merits”). To be sure, a court may consider the merits of a

claim over which it lacks personal (or subject matter) jurisdiction in deciding

whether to transfer it to a court with jurisdiction. But, as noted above, the only

reason this does not create a jurisdictional paradox is that the court’s authority in

this respect is limited to a “peek at the merits” solely to determine whether to

transfer, not to engage in adjudication. 4 Indeed, any other result would

effectively usurp the adjudicative authority of the proper forum.




4
       This point also forecloses one other possible rationale for entering a merits
judgment here on the basis of the analysis of the transfer issue. When a case
involves two claims, one within and one without the court’s jurisdiction, and the
court’s merits disposition of the former necessarily entails the merits disposition
of the latter, the court may effectuate that “foreordained” conclusion instead of
dismissing the latter claim. Rural Water Sewer & Solid Waste Mgmt. v. City of
Guthrie, 654 F.3d 1058, 1069 (10th Cir. 2011). But the basis for adjudicating the
claim against defendant Lappin here was not a merits disposition at all, but only a
preliminary assessment pursuant to the court’s limited authority to decide whether
to transfer the claim.

                                         -10-
D. Conclusion

      In sum, we agree that plaintiff failed to establish personal jurisdiction over

defendant Lappin and that dismissal rather than transfer was a proper exercise of

the district court’s discretion. But the district court’s dismissal with prejudice

was contrary to circuit precedent and the fundamental principles of adjudicative

authority on which that precedent rests. We therefore remand the matter solely

for the district court to modify its judgment to reflect that its dismissal of the

claim is without prejudice.

              II. CLAIMS AGAINST DEFENDANT NAFZIGER

      Defendant Nafziger presented evidence, uncontroverted by competent

evidence from plaintiff, establishing the following material facts. He was clinical

director at Florence from January 2007 through February 2008. R. Vol. 1 at 306.

In July 2007 he noted that plaintiff, who had chronic Hepatitis C, was due for

blood testing. Id. at 308-09. Most persons with chronic Hepatitis C remain

healthy, but a small number develop serious liver disease. Id. at 309. Thus, they

are typically monitored by testing, id. at 309-10, and may be treated with antiviral

medication depending on the physician’s judgment about the appropriateness and

optimal timing for such treatment, which is not always effective, carries adverse

risks, and may be superseded by better treatments in the future, id. at 310.

      When the initial test results were suggestive of advancing liver disease, id.

at 308, defendant Nafziger recommended that plaintiff be seen in the prison’s

                                         -11-
Chronic Care Clinic, id. at 309. Such clinics are used to monitor inmates with

ongoing medical needs like chronic hepatitis, which require periodic evaluation at

clinically appropriate intervals. Id. at 308. Plaintiff had refused to go to the

clinic in 2003, 2004, 2005. Id. This time he went to the clinic and defendant

Nafziger ordered more testing. Id. In addition, he was sent for a psychological

consultation required before starting treatment with Interferon and Ribavirin due

to adverse side effects. Id. at 310. Shortly thereafter, in October 2007, defendant

Nafziger recommended to the Medical Director at the BOP Central Office that

plaintiff be approved for treatment. Id. at 310-11. He did not have authority to

approve the treatment himself, id. at 311, and there was nothing more he could do

to speed up the process, id. The delay awaiting approval was typical for such a

request, id. at 312, and at the time he terminated his employment with BOP a few

months later, “[p]laintiff had not and did not face a substantial risk of harm from

the lack of Interferon/Ribavirin treatment in [his] medical opinion,” id.

A. Failure to Obtain Interferon/Ribavirin Treatment

      The standard for Eighth Amendment claims of deliberate indifference to

prisoner health and safety needs was clarified in Farmer v. Brennan, 511 U.S. 825

(1994). In Farmer, the Court specified a two-pronged inquiry, with an objective

component concerned with the seriousness of the need at issue and a subjective

component concerned with the defendant’s culpable state of mind. Id. at 834.




                                         -12-
The district court’s disposition in the instant case turned on the subjective

component, so that is where we will focus our analysis.

      The Farmer Court made it clear that the subjective component is not

satisfied “unless the [prison] 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. The Court likened the subjective

component to “recklessness in the criminal law,” in that the defendant “must

consciously disregard a substantial risk of serious harm.” Id. at 837, 839 (internal

quotation marks omitted). The Supreme Court had already emphasized in its

initial decision recognizing deliberate indifference claims, Estelle v. Gamble,

429 U.S. 97 (1976), that “a complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment,” since “[m]edical malpractice does

not become a constitutional violation merely because the victim is a prisoner.” Id

at 106. As our cases reflect, when medical judgment is involved “the subjective

component is not satisfied, absent an extraordinary degree of neglect.” Self v.

Crum, 439 F.3d 1227, 1232 (10th Cir. 2006).

      We agree with the district court that plaintiff has not demonstrated the

existence of a triable case under these principles. The facts recited above show a

medically reasonable course of conservative treatment, followed by a prompt

                                         -13-
response by defendant Nafziger when tests he ordered indicated a possible acute

turn in plaintiff’s hitherto chronic condition. Further testing and evaluation led to

his recommendation for the treatment plaintiff seeks. The required authorization

remained pending when he left the employ of BOP four months later, and he

averred without contradiction that this limited delay was neither unusual nor, in

his medical judgment, a matter giving rise to a substantial risk of harm to

plaintiff. Whether or not other medical professionals would have followed the

same course with a similar patient (and there is no basis in the record to conclude

they would not), we see no reasonable basis for a jury to infer that defendant

Nafziger knew of and deliberately disregarded a substantial risk of harm to

plaintiff. If there has been any constitutional violation with regard to plaintiff’s

medical treatment during his ongoing federal confinement, it was not at the hands

of defendant Nafziger during the fairly short period of time at issue here.

B. Exhaustion of New Claims Asserted in Amended Complaint

      Plaintiff interjected three new claims against defendant Nafziger in his

amended complaint, alleging that he failed to (1) vaccinate plaintiff, leading to

plaintiff’s contraction of Hepatitis B; (2) ensure that plaintiff received proper

medical care after defendant Nafziger left the BOP; and (3) provide adequate

medical care generally. The district court dismissed these claims without

prejudice for lack of exhaustion.




                                         -14-
      Congress has directed that no suit over prison conditions may be brought

“until such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). This requirement applies to federal prisoners. Garrett v. Hawk,

127 F.3d 1263, 1265 (10th Cir. 1997), abrogated on other grounds as explained

in Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). As the magistrate

judge discussed, defendants submitted an affidavit from an attorney employed at

Florence who is familiar with its administrative remedy process and who has

access to the database that tracks inmates’ complaints and appeals. See R. Vol. 1

at 314-17; see also id. at 321-33 (attached printout from database). The attorney

notes that plaintiff exhausted his original claim about the Interferon/Ribavirin

treatment, see id. at 317, but not any of the newly asserted claims, id. at 318. As

plaintiff has not presented any competent evidence to controvert this showing, the

dismissal of these claims under § 1997e(a) for failure to exhaust was correct.




                                        -15-
      The district court’s judgment is AFFIRMED in all respects except that the

claim against defendant Lappin is REMANDED to be modified to a dismissal

without prejudice. Appellant’s motion to proceed on appeal without prepayment

of fees is GRANTED. He is reminded of his continued obligation to continue

making partial payments until the filing fee is paid in full.


                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




                                         -16-
