                   UNITED STATES COURT OF APPEALS
                       FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 99-2201
                                   ___________

                                         *
Kenneth Eugene Barron,                   *
                                         *
             Appellant,                  *   On Appeal from the United States
                                         *   District Court for the
      v.                                 *   Western District of Missouri.
                                         *
P. W. Keohane,                           *
                                         *
             Appellee.                   *


                                   ___________

                            Submitted: April 12, 2000
                                Filed: July 5, 2000
                                   ___________

Before RICHARD S. ARNOLD, BEAM, and LOKEN, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

       Kenneth Barron appeals from the District Court’s1 order dismissing without
prejudice his habeas petition claiming deliberate indifference to his serious medical
needs.


      1
       The Hon. Russell Clark, United States District Judge for the Western District
of Missouri.
       Barron asserted that the warden of the Medical Center for Federal Prisoners
(MCFP) at Springfield, Missouri, has denied him proper medical treatment for his
kidney disease because the MCFP medical staff is treating him with kidney dialysis
rather than providing him access to a kidney transplant. He stated that this decision is
adversely affecting his long-term survival. Barron asked the District Court to order the
warden at MCFP to place him on a kidney-transplant waiting list or, in the alternative,
to release him from custody to obtain a transplant.

       In its dismissal order, the District Court relied particularly on the affidavit of Dr.
Frederick Husted, the nephrologist at MCFP, in which Dr. Husted stated that dialysis
is an acceptable treatment for Barron’s kidney condition (membranoproliferative
glomerulonephritis) and that Barron was responding well to that treatment. The Court
also noted Dr. Husted’s reference to a study he conducted which showed that patients
suffering from glomerulonephritis have an “unusually low mortality rate on dialysis or
a high mortality rate after transplantation.” Although Barron cited studies showing that
patients with kidney disease who receive transplants have better survival rates than
those who do not receive transplants, the District Court concluded that nothing in the
record “indicate[d] that continuing dialysis treatment is contraindicated.” The Court
concluded Barron had not established deliberate indifference to his serious kidney
disease and dismissed the case without prejudice.

      We agree that the statistics regarding kidney-transplant survival rates proffered
by Barron are insufficient to support a conclusion that Dr. Husted’s course of treatment
amounts to deliberate indifference to a serious medical need. Accordingly, we affirm
the order dismissing Barron’s petition, without prejudice to his right to file a new case.

      Although we affirm the District Court’s dismissal, we take this opportunity to
make several observations. First, less than six weeks after signing the affidavit relied
on by the District Court in dismissing Barron’s claim, Dr. Husted also signed a

                                             2
consultation note which stated that Barron “appear[ed] to be an acceptable candidate
for a transplant consultation.” While that statement does not compel the conclusion
that continuing dialysis for Barron’s condition is medically inappropriate, it suggests
that a kidney transplant may also be appropriate.

       Second, as Barron’s habeas counsel pointed out, although Dr. Husted stated that
he had conducted a study showing low mortality rates for glomerulonephritis patients
being treated with dialysis, neither the government nor Dr. Husted provided any
supporting documentation for the study. In that regard, we note that discovery is
available in habeas proceedings at the discretion of the District Court. See Rule 6(a)
of the Rules Governing Section 2255 Proceedings for the United States District Courts.

        Finally, although Barron did not directly challenge the constitutionality of the
Bureau of Prisons organ transplant policy, we express our concern regarding that
policy. Simply stated, the Bureau of Prisons does not provide organ transplants, and,
in the event a prisoner can show he needs a transplant, requires him to demonstrate his
ability to pay for the transplant procedure before a furlough for that purpose will be
authorized. Given the Bureau’s obligation to provide medical care to prisoners, see
18 U.S.C. § 4042, denial of a transplant to an inmate who needs – but cannot pay for
– a transplant may raise constitutional concerns.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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