                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 11 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DARRYL J. SMITH,

             Plaintiff - Appellant,

 v.

 UNITED STATES OF AMERICA;
 JANET RENO, Attorney General;
 KATHLEEN HAWK, Director of the
 B. O. P.; JOEL KNOWLES, Warden                        No. 02-1172
 of USP-Florence; TERRY                             D.C. No. 99-N-2107
 FINNEGAN, Hospital Administrator,                    (D. Colorado)
 USP-Florence; DAVID REITER,
 Assistant Hospital Administrator;
 ROBERT WILLIAMS, Director of
 Medical Services; T. GARCIA,
 Physician Assistant; V.
 HERNANDEZ, Physician Assistant;
 DISTRICT OF COLUMBIA; D.C.
 DEPARTMENT OF CORRECTIONS;
 MARGARRETT MOORE, Director;
 and VINCENT GIBBONS, Warden of
 Central Facility,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *




      *
       This order and judgment is not binding precedent, except under the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.
Before KELLY, McKAY, and MURPHY, Circuit Judges.

      After examining the briefs and the 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 is a pro se federal prisoner civil rights appeal of claims brought

against fourteen federal employees under the Federal Tort Claims Act, 28 U.S.C.

§ 1346; Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971); 42 U.S.C. § 1983; and unspecified Colorado state law. Appellant

Smith was injured while incarcerated at the Lorton Correctional Institution which

is under the jurisdiction of the Department of Corrections for the District of

Columbia. The injury resulted in paraplegia with paralysis from the T-7 vertebrae

down. While at Lorton, Mr. Smith received therapy which he alleged helped him

to regain feeling to the extent that he could stand and walk with the assistance of

a walker and long leg braces. When Mr. Smith was transferred to the Bureau of

Prisons on November 18, 1995, the therapy stopped. Mr. Smith’s condition

deteriorated resulting in his need for a wheelchair. Mr. Smith further alleged that

on July 23, 1997, agents of the United States confiscated his wheelchair and

destroyed his long leg braces.

      The magistrate judge’s report recommended that Defendants’ motion to



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dismiss be granted because Appellant failed to exhaust his administrative

remedies for his Bivens claim and because his FTCA claim is time-barred. After

considering Appellant’s objections, the district court accepted the

recommendation and dismissed the case with prejudice. This appeal followed.

      After a thorough review of the briefs and the record, we agree with the

final disposition of the district court. Appellant failed to properly exhaust his

administrative remedies for his Bivens claim. Appellant submitted requests to the

Warden, and then he submitted new requests to the Regional Director instead of

submitting appeals to the Regional Director. Appellant never appealed these

requests to the Director, National Inmate Appeals.

      Appellant’s FTCA claim is similarly deficient. Appellant did not file his

FTCA claim within six months of receiving notice of the denial of his claim by

the agency (North Central Region, Kansas City, Kansas) as required by 28 U.S.C.

§ 2401(b).

      Even though we must affirm the district court’s dismissal of Appellant’s

complaint, we take this opportunity to note that the deprivations alleged in the

complaint, if true, appear to constitute cruel and unusual punishment in violation

of the Eighth Amendment. Appellant alleges that he was deprived of appropriate

medical treatment and equipment and was caused to suffer wanton, prolonged,

unnecessary pain. The continued deprivation of Appellant’s wheelchair and leg


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braces seems, to this court, to cause Appellant additional undue pain and

hardship. Additionally, Appellant details many other alleged hardships on pages

nine through eleven of his brief. On receipt of this Order and Judgment, were

Appellant to address a new complaint to the Warden, appeal to the Regional

Director, and then appeal to the Director, National Inmate Appeals, following the

procedures detailed on page eight of the magistrate judge’s report, he could

possibly exhaust his administrative remedies and eventually bring a new Bivens

action in the district court. Additionally, Appellant is free to file a new FTCA

application with the appropriate agency and then, if denied, file his FTCA claim

with the district court within six months as required by the statute.

      We take no position on the merits of Appellant’s complaint as further

factual development would be necessary. We need not decide at this time the

applicability of the continuing wrong doctrine to Appellant’s FTCA claim until

the issue is properly before us.

      The decision of the trial court is AFFIRMED. Appellant’s “Official

Complaint” is DENIED. Appellant’s motion to proceed without prepayment of

the appellate filing fee is GRANTED. He must continue making partial payments

on court fees and costs previously assessed until such have been paid in full.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge

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