                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 19, 2010
                                                                Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                     Clerk of Court



    KAMAL K. PATEL,

              Plaintiff ! Appellant,

    v.                                                  No. 09-6299
                                                (D.C. No. 5:08-CV-01168-D)
    UNITED STATES OF AMERICA;                          (W.D. Okla.)
    UNITED STATES BUREAU OF
    PRISONS; UNITED STATES
    DEPARTMENT OF JUSTICE;
    FEDERAL CORRECTIONAL
    INSTITUTION OKLAHOMA CITY,
    OK; FEDERAL CORRECTIONAL
    INSTITUTION BASTROP, TX;
    FEDERAL CORRECTIONAL
    INSTITUTION BEAUMONT, TX;
    FEDERAL CORRECTIONAL
    INSTITUTION BIG SPRING, TX,

              Defendants ! Appellees.


                           ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, PORFILIO and BRORBY, Senior Circuit
Judges.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
       Kamal K. Patel, a federal prisoner proceeding pro se and in forma pauperis,

appeals the district court’s entry of summary judgment in favor of the Federal

Bureau of Prisons (BOP) and the United States on his claims under the Federal

Torts Claim Act (FTCA), 28 U.S.C. § 1346(b)(1), and the Privacy Act,

5 U.S.C. § 552a. We affirm.

                                I. BACKGROUND

       In 2001, while assigned to the work cadre at the Federal Transfer Center in

Oklahoma City, Oklahoma, Mr. Patel injured his right bicep tendon. He was

given conservative medical care and temporarily excused from performing his

prison job. Supported by a memorandum asserting work-cadre program needs and

Mr. Patel’s law-library requirements, Federal Transit Center personnel effected

Mr. Patel’s transfer to a Federal Correction Institution (FCI) in Texas. There, he

received nonsurgical medical care for his injury and access to a traditional law

library. 1




1
      As a prisoner, Mr. Patel has been a prolific litigator. See Patel v. Baluyot,
2010 WL 2724858 (5th Cir. June 30, 2010); Patel v. Santana, 348 F. App’x 974
(5th Cir. 2009); ; Patel v. Prince, 276 F. App’x 531, 532 (8th Cir. 2008); Patel v.
Wooten, 264 F. App’x 755 (10th Cir. 2008); Patel v. U.S. Bureau of Prisons,
515 F.3d 807 (8th Cir. 2008); Patel v. Sanders, 180 F. App’x 607 (8th Cir. 2006);
Patel v. Fleming, 415 F.3d 1105 (10th Cir. 2005); Patel v. Morris, 37 F. App’x
428 (10th Cir. 2002); Patel v. Wooten, 15 F. App’x 647 (10th Cir. 2001).

                                        -2-
      Mr. Patel filed a complaint in 2004 in the United States District Court for

the District of Columbia. He alleged that BOP officials and employees denied

him prompt and adequate medical care for his bicep injury and fabricated

information to justify his transfer. He also asserted that Texas FCI personnel

improperly intercepted his letter to a newspaper describing discrimination in

inmate discipline. His causes of action included medical-malpractice and

negligent-transfer claims under the FTCA, violations of the Privacy Act, and

common-law tort claims.

      As time passed, Mr. Patel was transferred within the BOP system from

Texas to Arkansas, North Carolina, and Pennsylvania. His case was similarly

transferred within the federal-court system. Upon Mr. Patel’s motion to transfer

the case to Pennsylvania, the district court for the Middle District of Pennsylvania

accepted the government’s argument that the Western District of Oklahoma was

the forum with the most meaningful connection to the case and transferred the

matter to that court in October 2008.

      By the time the Oklahoma district court received the voluminous case files,

the Arkansas district court had dismissed all the claims relevant to this appeal

except the FTCA medical-malpractice claim, the FTCA negligent-transfer claim,

and the Privacy Act claim regarding allegedly false information in the transfer

memorandum. Moreover, appointed counsel in North Carolina had filed an

amended complaint and a motion to withdraw.

                                         -3-
      The district court granted the North Carolina attorney’s motion to withdraw

and denied Mr. Patel’s motion for appointment of new counsel. It also denied his

motion for appointment of a medical expert or, alternatively, an order requiring

BOP officials to allow a privately retained physician to examine him. Upon

recommendation of the assigned magistrate judge, the district court entered

summary judgment on Mr. Patel’s medical-malpractice FTCA claim. The court

refused to revisit the Arkansas district court’s failure-to-exhaust determination.

Later, the district court entered summary judgment on the Privacy Act transfer

claim, after Mr. Patel failed to file timely objections to the magistrate judge’s

report and recommendation.

                     II. DISTRICT COURT JURISDICTION

      In his appeal, Mr. Patel first argues that jurisdiction was proper only in

Arkansas and therefore the Oklahoma district court lacked subject-matter

jurisdiction. Mr. Patel has “confused” the issue of venue with jurisdiction.

1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1052 n.13

(10th Cir. 2006). “The jurisdiction of the federal courts—their power to

adjudicate—is a grant of authority to them by Congress . . . . But the locality of a

law suit—the place where judicial authority may be exercised—though defined by

legislation relates to the convenience of litigants and as such is subject to their

disposition.” Id. (quotation omitted). The federal courts have subject-matter




                                          -4-
jurisdiction over “all civil actions arising under the . . . laws . . . of the United

States, 28 U.S.C. § 1331, and civil claims against the United States, id., § 1346.

       Because Mr. Patel’s FTCA and Privacy Act claims arise under federal

statutes and assert liability of the United States and the BOP, jurisdiction was

proper in the Western District of Oklahoma. Moreover, we conclude that the

district court did not abuse its discretion in denying Mr. Patel’s motion to transfer

the case back to Arkansas. Employers Mut. Cas. Co. v. Bartile Roofs, Inc., ___

F.3d ____, Nos. 08-8064, 08-8068, 2010 WL 3473382, *8-*9 (10th Cir. Sept. 7,

2010) (setting forth abuse-of-discretion standard and listing relevant factors for

the court’s consideration).

                           III. SUMMARY JUDGMENT

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

standard as the district court. Brammer-Hoelter v. Twin Peaks Charter Acad.,

602 F.3d 1175, 1184 (10th Cir. 2010). “That is, summary judgment is appropriate

where no genuine issue of material fact exists, and the moving party is entitled to

judgment as a matter of law.” Id. (quotation omitted). “In applying this standard,

we examine the factual record and draw reasonable inferences therefrom in the

light most favorable to [Mr. Patel,] the nonmoving party.” Id. (quotation

omitted). We liberally construe Mr. Patel’s pro-se filings. See De Silva v. Pitts,

481 F.3d 1279, 1284 n.4 (10th Cir. 2007).




                                            -5-
A. FTCA Claims

                             1. Medical-Malpractice

      The district court entered summary judgment on Mr. Patel’s claim that BOP

employees in Oklahoma were negligent in failing to schedule him for surgery

within sixty days after his injury and in transferring him when he was in need of

surgery. Mr. Patel argues that the district court erred in refusing to appoint a

medical expert or require the BOP to allow an examination by a privately paid

physician. Alternatively, he asserts that no expert was needed because the

medical record demonstrates all elements of his medical malpractice claim.

      The FTCA provides that the United States may be liable for an employee’s

negligence “under circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of the place where the

act or omission occurred.” 28 U.S.C. § 1346(b)(1). “To establish negligence

liability for an injury under Oklahoma law, plaintiffs must prove that

(1) defendants owed them a duty to protect them from injury, (2) defendants

breached that duty, and (3) defendants’ breach was a proximate cause of

plaintiffs’ injuries.” Beugler v. Burlington N. & Santa Fe Ry. Co., 490 F.3d 1224,

1227 (10th Cir. 2007) (quotation omitted).

      The elements of an Oklahoma medical malpractice claim are the same as

any other negligence claim. See Roberson v. Jeffrey M. Waltner, M.D., Inc.,

108 P.3d 567, 569 (Okla. Civ. App. 2005). Additionally, “in all but the

                                         -6-
extraordinary medical malpractice case, the plaintiff has the burden of producing

expert testimony to support a prima facie case of negligence.” Id. As a general

rule, the “testimony of a qualified physician is essential to establish a reasonable

probability the physician’s negligence caused the injury.” Id.

      Rule 706(a) of the Federal Rules of Evidence authorizes the district court to

appoint an expert witness. Because this authority is discretionary, however, we

may overturn the denial of a motion for appointment of an expert only for abuse

of discretion. Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002). Under this

standard, the district court’s “decision will not be disturbed unless the appellate

court has a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

Okla. ex rel. Edmondson v. Tyson Foods, Inc., ___ F.3d ___, 2010 WL 3637041,

at *7 (10th Cir. Sept. 21, 2010) (quotation omitted).

      In light of the district court’s independent examination of Mr. Patel’s

medical records, we cannot say that its refusal to appoint an expert, whether or

not paid by Mr. Patel, constituted an abuse of discretion. And to the extent

Mr. Patel was seeking court payment of expert fees, we note that the in forma

pauperis statute makes no provision for litigation expenses other than the

reproduction of the record and transcripts. See 28 U.S.C. § 1915(c). We agree

with the Third Circuit that:




                                          -7-
      The plaintiffs’ dilemma in being unable to proceed in this damage
      suit because of the inability to pay for expert witnesses does not
      differ from that of nonprisoner claimants who face similar problems.
      Nonprisoners often resolve that difficulty through contingent fee
      retainers with provisions for arranging expert testimony. By seeking
      government funding in this case, plaintiffs are in effect asking for
      better treatment than their fellow-citizens who have not been
      incarcerated but who have at least equal claims for damages.

Boring v. Kozakiewicz, 833 F.2d 468, 474 (3rd Cir. 1987).

      Furthermore, Mr. Patel’s case is not an “extraordinary medical malpractice

case,” with injury “readily apparent to a layman.” Roberson, 108 P.3d at 569.

Thus, expert testimony was “essential” to allow it to survive a motion for

summary judgment. Id. Because he failed to present expert evidence, his FTCA

malpractice claim was properly subject to summary judgment.

                                Negligent Transfer

      The theory underlying Mr. Patel’s FTCA negligent-transfer claim is similar

to his medical claim: the BOP caused injury by transferring him before providing

surgical treatment. This claim was not directly addressed by the district court, on

the ground that it was omitted from the counseled Amended Complaint and

therefore withdrawn. We conclude, however, that the Amended Complaint

sufficiently alleged a negligent-transfer claim.

      Accordingly, we address this claim in the first instance on appeal. The

general rule against “consider[ing] an issue not passed upon below” gives way

“where the proper resolution is beyond any doubt, or where injustice might


                                         -8-
otherwise result.” Johnson v. Champion, 288 F.3d 1215, 1229 (10th Cir. 2002)

(quotations omitted). Here, the appropriate outcome is evident and a prolongation

of this protracted matter would be an injustice.

      Mr. Patel’s negligent transfer claim requires a showing of duty, breach of

duty, and proximate cause. See Beugler, 490 F.3d at 1227. Because Mr. Patel

failed to demonstrate either a breach of duty or damages proximately caused by

the government’s action, his claim is subject to summary judgment.

Privacy Act Transfer Claim

      Mr. Patel argues that the government relied on falsehoods to justify his

transfer from the Federal Transit Center. Under the Privacy Act, an individual

may sue a federal agency for damages if the agency willfully or intentionally fails

to maintain his records in an appropriate manner. 5 U.S.C. § 552a(g)(1)(C),

(g)(4). 2 In order to establish a claim for damages under these provisions, a

plaintiff must show:

      (1) he has been aggrieved by an adverse determination; (2) the
      agency failed to maintain his records with the degree of accuracy
      necessary to assure fairness in the determination; (3) the agency’s
      reliance on the inaccurate records was the proximate cause of the
      adverse determination; and (4) the agency acted intentionally or
      willfully in failing to maintain accurate records.




2
       In 2002, BOP records became exempt from liability under the Privacy Act,
but the exemption post-dated Mr. Patel’s claim. See 28 C.F.R. § 16.97(j)).

                                         -9-
Gowan v. United States Dep’t of Air Force, 148 F.3d 1182, 1192 (10th Cir. 1998)

(alterations and quotation omitted). The magistrate judge’s report and

recommendation, adopted by the district court, concluded that the undisputed

facts showed the BOP’s entitlement to summary judgment. It determined that the

verifiable factual statements in the memorandum were sufficiently accurate and

that statements of opinion do not provide a basis for liability under the Privacy

Act. See Kleiman v. Dep’t of Energy, 956 F.2d 335, 337-38 (D.C. Cir. 1992)

(stating that “[t]he Privacy Act allows for amendment of factual or historical

errors” but is not “a vehicle for amending the judgments of federal officials”)

(quotation omitted). The district court correctly entered summary judgment on

the Privacy Act claim.

                                 IV. DISMISSAL

      Mr. Patel also raises appellate issues on his other Privacy Act claims. The

Arkansas district court dismissed these claims for failure to exhaust

administrative remedies. Specifically, it determined that Mr. Patel did not

complete the fourth and final step of the BOP grievance process and entered a

dismissal for failure to exhaust administrative procedures. We see no error in the

analysis of the grievance record.

      Also, in Oklahoma district court, Mr. Patel sought reconsideration of the

dismissal, arguing that the Supreme Court case of Jones v. Bock, 549 U.S. 199

(2007), required a different result. He renews that argument on appeal. In Bock,

                                        -10-
the Court held that the exhaustion requirement of the Prison Litigation Reform

Act of 1995, 42 U.S.C. § 1997e(a), is an affirmative defense not a pleading

requirement. 549 U.S. at 216. In Mr. Patel’s case, the grievance record was

sufficient to make a definitive ruling on exhaustion. Moreover, the only effect of

a re-analysis in light of Bock would be to enter summary judgment on the claim,

rather than dismissal without prejudice. We decline to reverse the dismissal of

his additional Privacy Act claims.

           V. ADDITIONAL ARGUMENTS RAISED ON APPEAL

      To the extent they can be discerned in Mr. Patel’s discursive briefs, his

additional arguments involve: (1) a free-standing claim for injunctive relief with

regard to appointment of a medical expert; (2) a new claim that by refusing to

forward his mail, BOP officials violated his constitutional rights; (3) a lack of

impartiality on the part of the district judge and magistrate judge; and (4) a failure

to apply the law of the case. None of these contentions merit discussion and we

reject them.

                                VI. CONCLUSION

      The district court’s disposition of the case is AFFIRMED. Mr. Patel’s

motion for judicial notice is DENIED.

                                                Entered for the Court


                                                Wade Brorby
                                                Senior Circuit Judge



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