                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-6786



ROGER HICKS, as court appointed guardian on
behalf of Rudy Hicks; RUDY HICKS,

                                           Plaintiffs - Appellants,

          versus


J. R. JAMES, Warden, Federal Bureau of
Prisons, Butner, NC; ROBERT G. LUCKING,
Psychiatrist,   FBP,   Butner,  NC;   MITCHELL
SPRINKLE, Case Manager, Mental Health, FBP,
Butner, NC; EDWARD E. LANDIS, III, Ph.D., FBP,
Butner, NC; JOHN DOE I, Warden, FBP McKean;
SUSAN BATES, ED.D., FBP McKean; WALTER L.
RINEHART, Psychiatrist, FBP McKean,

                                           Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (5:05-ct-00414-FL)


Submitted:   July 31, 2007             Decided:     November 28, 2007


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Richard L. Baumgarten, Buffalo, New York, for Appellants. George
E. B. Holding, United States Attorney, R. A. Renfer, Jr., Anne M.
Hayes, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Rudy Hicks, through his court appointed guardian, Roger

Hicks, appeals the dismissal of his complaint filed pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971). The district court dismissed Hicks’ claim that he

was denied medical and psychiatric treatment while incarcerated due

to his failure to exhaust his administrative remedies.                    As for

Hicks’ allegation that he was placed in solitary confinement

without cause, the district court dismissed the claim on the ground

that   Hicks   did   not    possess     a    liberty   interest     in   avoiding

confinement in segregation.        Finally, the district court, having

interpreted    Hicks’      complaint    as     challenging   his    confinement,

concluded that such an action must be brought through a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (2000).                For

the reasons set forth below, we vacate the dismissal of Hicks’

claim that he was denied medical treatment while incarcerated at

the Federal Correctional Institution in Butner, North Carolina

(FCI-Butner), and remand for further proceedings.                  We affirm the

district court’s dismissal of Hicks’ remaining claims, albeit on

somewhat different grounds.



                                        I

           In August 1995, Hicks pled guilty to solicitation to

commit a crime of violence and was sentenced to eighty months’


                                       - 3 -
incarceration.    In January 1999, Hicks was transferred from the

Federal Correctional Institution in McKean, Pennsylvania, to FCI-

Butner, in North Carolina, after being diagnosed with paranoid

schizophrenia.    Hicks was scheduled for release from prison in

February 1999; however, before the expiration of his sentence,

officials filed a motion pursuant to 18 U.S.C. § 4246(a) (2000),

asking the district court to determine whether Hicks was suffering

from a mental disease that would create a substantial risk of harm

to others if he were to be released.       In April 1999, the district

court concluded that Hicks was suffering from a mental disease

sufficient to prevent his release, and pursuant to § 4246(d),

ordered that Hicks be committed to the custody of the Attorney

General until a state would assume responsibility for his custody

and treatment.    Hicks remained at the Federal Medical Center at

FCI-Butner   until    he   was   transferred   to   the   New   York   State

Psychiatric Center in August 2000.

           In January 2004, Hicks filed the subject Bivens action

against J.R. James, the warden for FCI-Butner, as well as six other

individuals (collectively, “Defendants”) who worked at FCI-Butner

and FCI-McKean.      In his complaint, Hicks claimed that Defendants

subjected him to cruel and unusual punishment, in violation of the

Eighth Amendment, by completely denying him medical care and

treatment for his mental illness while at FCI-McKean from 1997 to

1999.   Hicks contended that he became psychotic in 1997 and that he


                                   - 4 -
was placed in solitary confinement for a two-year period for no

reason other than his mental illness, as Defendants deemed him to

be “non-compliant” in taking his medication.      Hicks asserted that

as a result of Defendants’ actions, he was “wrongly transferred” to

FCI-Butner in January 1999 and unlawfully imprisoned in a mental

institution for two years after the expiration of his original

criminal    sentence.   Additionally,   Hicks   claimed   that   between

January 1999 and April 1999, he was also subjected to solitary

confinement and denial of medical care at FCI-Butner.

            Following the transfer of Hicks’ case to the Eastern

District of North Carolina,1 Defendants filed a motion to dismiss

and for summary judgment.      In March 2006, the district court

granted Defendants’ motion and dismissed the case.        Hicks timely

appealed.



                                 II

            The district court construed Hicks’ complaint as raising

a Bivens claim regarding his incarceration at FCI-McKean and a

challenge to his confinement at FCI-Butner.       The court held that

because Hicks’ confinement at FCI-Butner was not pursuant to a

federal criminal sentence, any action for unlawful confinement had


     1
      Hicks originally filed his Bivens action in the Western
District of New York; however, that court subsequently transferred
Hicks’ action to the Eastern District of North Carolina on grounds
of improper venue and lack of personal jurisdiction over the
Defendants.

                                - 5 -
to be brought pursuant to 28 U.S.C. § 2241.                Hicks’ claim for

“unlawful confinement” as to the FCI-Butner Defendants is somewhat

unclear, as the allegations are mostly a repetition of Hicks’

Eighth Amendment claim against the FCI-McKean Defendants. However,

it is clear that Hicks’ complaint did not raise a habeas corpus

claim,    as    Hicks   was   on   conditional   release   from    his   civil

commitment at the time his complaint was filed, and the only remedy

he sought was monetary damages.           Therefore, we hold that Hicks was

not required to bring his “unlawful confinement” claim by way of a

§ 2241 motion; the claim is properly considered a Bivens action

against the Defendants at FCI-Butner.2



                                         III

               As to the FCI-Butner Defendants, the district court

dismissed Hicks’ claim that he was denied medical and psychiatric

treatment at FCI-Butner on the ground that Hicks had failed to

exhaust his administrative remedies.           The Prison Litigation Reform

Act   (“PLRA”)     requires   that   a    prisoner   exhaust   administrative

remedies before filing any action under federal law with respect to

confinement. 42 U.S.C. § 1997e(a) (2000). Pursuant to § 1997e(a),



      2
      The  North   Carolina   district   court   lacked   personal
jurisdiction over the FCI-McKean Defendants, and we affirm on that
basis the dismissal of the complaint as to those Defendants. See
N.C. Gen. Stat. § 1-75.4 (2005); Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475 (1985); Christian Science Bd. of Dir. v. Nolan,
259 F.3d 209, 215 (4th Cir. 2001).

                                     - 6 -
the exhaustion requirement is applicable to Bivens claims.                    See

Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir.

2003), abrogated on other grounds by Jones v. Bock, 127 S. Ct. 910

(2007); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000).                   The

PLRA defines a prisoner as “any person incarcerated or detained in

any facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law or the terms

and     conditions     of   parole,   probation,     pretrial      release,   or

diversionary program.”        42 U.S.C. § 1997e(h).

               At the time the subject complaint was filed in 2004,

Hicks    was    on   conditional   release    from   his   civil    commitment.

Moreover, during the time of the challenged actions by the FCI-

Butner Defendants, Hicks was no longer incarcerated pursuant to his

original conviction and sentence; rather, Hicks was being detained

pursuant to 18 U.S.C. § 4246, which allows for civil commitment of

individuals who have been found to present a danger to society due

to mental defect or disease. Because Hicks’ detention under § 4246

is not the result of a violation of criminal law and does not

relate to conditions of parole, probation, pretrial release, or a

diversionary program, he does not meet the PLRA’s definition of

prisoner.      See Michau v. Charleston County, 434 F.3d 725, 727-728

(4th Cir. 2006); see also Perkins v. Hedricks, 340 F.3d 582, 583

(8th Cir. 2003); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir.

2002); Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001);


                                      - 7 -
Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000).             Because

Hicks was not a prisoner pursuant to § 1997e(a), he was not

required to exhaust his administrative remedies before bringing his

Bivens claims.



                                  IV

          Following   its   dismissal   of   Hicks’    claim   of   medical

deprivation, the district court found meritless Hicks’ claim that

he had been placed in solitary confinement without cause, as Hicks

did not possess a liberty interest in avoiding confinement in

segregation. In his complaint, Hicks contended that the imposition

of solitary confinement and denial of medical treatment amounted to

cruel and unusual punishment in violation of the Eighth Amendment.

However, Hicks was detained at FCI-Butner for treatment rather than

for the purpose of punishment stemming from a criminal conviction.

Accordingly, the Eighth Amendment, which is not available for

challenges to the conditions of civil commitment, does not apply to

his claim.3   See Hydrick v. Hunter, 466 F.3d 676, 695-96 (9th Cir.

2006); Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (citing

Youngberg v. Romeo, 457 U.S. 307, 324-25 (1982)); see also Brown v.

Harris, 240 F.3d 383, 388 (4th Cir. 2001).            As a federal civil


     3
      The Eighth Amendment is applicable to Hicks’ claims regarding
his incarceration at FCI-McKean, as Hicks was still serving his
criminal sentence at that time. However, as explained supra, the
North Carolina district court did not have personal jurisdiction
over the FCI-McKean Defendants.

                                - 8 -
detainee, Hicks’ claim properly arises under the Due Process Clause

of the Fifth Amendment; nevertheless, the legal standard employed

for civil commitment claims under the Due Process Clause is largely

the same as that used in analyzing prisoners’ Eighth Amendment

claims.   See Hydrick, 466 F.3d at 696; Revels, 382 F.3d at 874-75;

Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842-

43 (6th Cir. 2002); Brown, 240 F.3d at 388.

            To    state   a   claim   that    detention   conditions   violate

constitutional requirements, a petitioner must demonstrate “both

(1) a serious deprivation of a basic human need; and (2) deliberate

indifference to prison conditions on the part of prison officials.”

In re Long Term Administrative Segregation of Inmates Designated as

Five Percenters, 174 F.3d 464, 471 (4th Cir. 1999) (internal

quotation    marks    and     citation   omitted).    To   demonstrate    that

conditions in solitary confinement deprived him of a basic human

need, a plaintiff must allege that officials failed to provide him

with humane conditions of confinement, including “adequate food,

clothing, shelter, and medical care.”           Farmer v. Brennan, 511 U.S.

825, 832 (1994); see also Wilson v. Seiter, 501 U.S. 294, 304

(1991). A plaintiff must demonstrate that he suffered a serious or

significant physical or mental injury as a result of the challenged

condition.       See Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th

Cir. 1993).




                                      - 9 -
             According to his complaint, the FCI-Butner Defendants

subjected Hicks to the same violations of his constitutional rights

that   he    had    faced    at    FCI-McKean,    placing   him     in   solitary

confinement “throughout the entire periods of January, 1999 through

April, 1999 for no other reason but for [his] mental illness,” and

denying proper medical treatment for his psychological condition.

To demonstrate that Defendants were deliberately indifferent to his

medical needs, Hicks must demonstrate that the treatment was so

“grossly incompetent, inadequate, or excessive as to shock the

conscience     or    to     be    intolerable    to   fundamental    fairness.”

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).                       Prison

officials evince deliberate indifference to a serious medical need

by completely failing to consider an inmate’s complaints or by

acting intentionally to delay or deny the prisoner access to

adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

Deliberate indifference may be demonstrated by actual intent or

reckless disregard; however, mere negligence or medical malpractice

does not suffice.         See Miltier, 896 F.2d at 851.

             In this case, viewing the factual allegations in the

light most favorable to Hicks, the FCI-Butner Defendants may have

been deliberately indifferent to Hicks’ mental health, as he

alleges he was placed in solitary confinement without any further

attention to his psychological condition. Cf. Five Percenters, 174

F.3d   at    472    (no     finding    of   deliberate    indifference     where


                                      - 10 -
administrative   segregation   procedures   provided   for   periodical

medical visits and referral of inmates displaying mental health

problems).   Hicks did not allege mere negligence in care, but

rather claimed that the Defendants ignored his deteriorating mental

health and failed to provide necessary medical treatment.           See

Estelle, 429 U.S. at 106; Miltier, 896 F.2d at 851.     Therefore, we

find that the district court erred in dismissing Hicks’ claim, as

Hicks sufficiently alleged a Fifth Amendment violation to proceed

beyond summary judgment.

          Accordingly, we vacate the judgment of the district court

and remand for further proceedings regarding Hicks’ claim of denial

of medical treatment by the FCI-Butner Defendants in violation of

the Fifth Amendment.   We affirm the judgment of the district court

as to Hicks’ remaining claims.      We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                                                   AFFIRMED IN PART;
                                        VACATED AND REMANDED IN PART




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