                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                          JUN 12 2001
                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk


 JONATHAN T. GARRETT,

              Plaintiff - Appellant,
                                                         No. 00-1185
 v.                                                    (No. 97-Z-1217)
                                                          (D. Colo.)
 GEORGE KLINGNER, Chief of
 Medical Services, Springfield,
 Missouri,

              Defendant - Appellee.


                           ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, LUCERO , Circuit Judge, and        BROWN , District
Judge. **


      Appellant Jonathan T. Garrett is a federal inmate serving a life sentence at

the United States Penitentiary Administrative Maximum Facility (“ADX”) in




      *
        This order and judgment is not binding precedent, except under the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.
      **
         The Honorable Wesley E. Brown, Sr., Senior District Judge of the
United States District Court for the District of Kansas, sitting by designation.
Florence, Colorado. He brought this   Bivens 1 case in the United States District

Court for the District of Colorado against a number of parties, including appellee

George Klingner, alleging denial of medical care in violation of the Eighth

Amendment. Claiming that he did not have sufficient contacts with the forum

state, Colorado, appellee filed a motion to dismiss for lack of personal

jurisdiction. Fed. R. Civ. P. 12(b)(2). The district court adopted a magistrate’s

report and recommendation and dismissed appellee as a party on that basis.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

      Appellant’s shoulder was injured during a prison yard fight on June 14,

1995. According to the complaint, his condition was ignored until August 25,

1995, when the shoulder injury was diagnosed by Dr. Jere Sutton. Although Dr.

Sutton recommended reconstructive surgery, appellant was not transferred to the

United States Medical Center for Federal Prisoners (“USMCFP”) in Springfield,

Missouri, for consultation with an orthopedic surgeon until May 1996. Appellant

alleges that “by that time, the delay in obtaining proper medical treatment . . . had

been so delayed that the stabilization and reconstructive surgery was not able to

be performed with any degree of success that allowed [him] to obtain maximum



      1
        Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics         , 403
U.S. 388 (1971).

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medical benefit for his severe shoulder injury.” (Appellant’s App. Doc. 1 at 2.)

         Appellee is the Director of Medical Services at USMCFP in Springfield,

Missouri. He is alleged to have been “partly responsible for the transfer of

[appellant] to Springfield Medical Services for treatment” and to have “failed in

his duty to transfer [appellant] for treatment of his shoulder injury.” (   Id. at 3, 5.)

In an affidavit submitted with his motion to dismiss, he stated that he did “not

own any real estate, conduct any business, or perform any official duties in the

State of Colorado and none of the events described in the complaint concerning

me occurred in Colorado.” (Appellant’s App. Doc. 10 at 2.) Appellee attested:

                5. I had no responsibility for transferring plaintiff from ADX
         Florence to the USMCFP. Medical transfers are handled by the
         Medical Designations Department in the BOP’s Central Office in
         Washington, D.C.
                ...
                7. I had no responsibility for providing medical care for the
         plaintiff during his incarceration at ADX Florence.

(Id. )

                                             II

         We review the district court’s dismissal for lack of personal jurisdiction de

novo. Soma Med. Int’l v. Standard Chartered Bank           , 196 F.3d 1292, 1295 (10th

Cir. 1999).    The magistrate judge treated appellee’s motion to dismiss as a

motion for summary judgment, Fed. R. Civ. P. 56, which is to say that the motion

was decided on the basis of affidavits or other written materials. (Appellant’s Br.


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Doc. 5 at 3.) As a result,

       [t]he allegations in the complaint must be taken as true to the extent
       they are uncontroverted by the defendant’s affidavits. If the parties
       present conflicting affidavits, all factual disputes are resolved in the
       plaintiff’s favor, and the plaintiff’s prima facie showing is sufficient
       notwithstanding the contrary presentation by the moving party.

Kennedy v. Freeman , 919 F.2d 126, 128 (10th Cir. 1990) (quoting         Behagen v.

Amateur Basketball Ass’n of the United States        , 744 F.2d 731, 733 (10th Cir.

1984)).

                                            A

       Colorado’s long-arm statute, Colo. Rev. Stat. § 13-1-124, extends

jurisdiction of courts in Colorado “to the fullest extent permitted by the due

process clause of the United States Constitution.”        Mr. Steak, Inc. v. District

Court , 574 P.2d 95, 96 (Colo. 1978) (en banc). “The Due Process Clause

protects an individual’s liberty interest in not being subject to the binding

judgments of a forum with which he has established no meaningful ‘contacts,

ties, or relations.’”   Burger King Corp. v. Rudzewicz      , 471 U.S. 462, 471–72

(1985) (quoting Int’l Shoe Co. v. Washington         , 326 U.S. 310, 319 (1945)).

       [D]ue process requires only that in order to subject a defendant to a
       judgment in personam, if he be not present within the territory of the
       forum, he have certain minimum contacts with it such that the
       maintenance of the suit does not offend ‘traditional notions of fair
       play and substantial justice.’

Int’l Shoe , 326 U.S. at 316 (quoting   Milliken v. Meyer , 311 U.S. 457, 463


                                           -4-
(1940)). A court may “assert specific jurisdiction over an out-of-state defendant

. . . if the defendant has purposefully directed his activities at residents of the

forum and the litigation results from alleged injuries that arise out of or relate to

those activities.”   Burger King , 471 U.S. at 472 (quotations omitted). “[I]t is

essential in each case that there be some act by which the defendant purposefully

avails [himself] of the privilege of conducting activities within the forum State,

thus invoking the benefits and protections of its laws.”    Hanson v. Denckla , 357

U.S. 235, 253 (1958) (citations omitted).

       If the out-of-state defendant purposefully established minimum contacts in

the forum state, we then consider whether assertion of personal jurisdiction

comports with “fair play and substantial justice.”     Burger King , 471 U.S. at 476

(quotation omitted). In doing so, we

       may evaluate the burden on the defendant, the forum State’s interest
       in adjudicating the dispute, the plaintiff’s interest in obtaining
       convenient and effective relief, the interstate judicial system’s
       interest in obtaining the most efficient resolution of controversies,
       and the shared interest of the several States in furthering
       fundamental substantive social policies.

Id. at 477 (internal quotations omitted).

                                             B

       Appellant argues that the district court should have asserted personal

jurisdiction over appellee because he “purposefully availed himself of the

benefits of Colorado law.” (Appellant’s Br. at 8.) He points to the facts that as

                                            -5-
part of his employment, appellee treated inmates from the forum state—as well as

inmates “from all over the country”—and supervised the medical care delivery

process at USMCFP. (Appellant’s Reply Br. at 11.) These facts fall short of the

contacts required to satisfy due process.

       In Kennedy , we held that an Oklahoma district court could assert specific

personal jurisdiction over a Texas doctor, Freeman, who had accepted a sample

of an Oklahoma patient’s removed lesion from an Oklahoma physician for special

measurement. 919 F.2d at 129. The patient sued, alleging that Freeman’s

measurement was negligent and that as a result malignant melanoma had spread

over her body. Although Freeman did not solicit the patient’s business in

Oklahoma, he directed his actions to the forum state patient by accepting the

sample, signing a report of the sample’s measurement, and sending his bill to

Oklahoma. Id. (“Freeman rendered his diagnosis to Kennedy in Oklahoma,

through the mail, knowing its extreme significance and that it would be the basis

of Kennedy’s further treatment there.”).

       Unlike Kennedy , appellant’s alleged injuries did not “arise out of or relate

to” appellee’s activities.   Burger King , 471 U.S. at 472 (quotation omitted);    see

Kennedy , 919 F.2d at 129 (“Whether a ‘party solicited the business interface is

irrelevant, so long as defendant then directed [his] activities to    the forum

resident .’” (quoting Lanier v. Am. Bd. of Endodontics        , 843 F.2d 901, 910 (6th


                                             -6-
Cir. 1988)) (emphasis added)). In his unrefuted affidavit, appellee attested he

“had no responsibility for providing medical care for the plaintiff during his

incarceration.” (Appellant’s App. Doc. 10 at 2.) That he has supervised an out-

of-state medical facility that has treated patients from Colorado and that he has

treated such patients himself in the past do not suffice to establish the requisite

minimum contacts. We need not consider whether assertion of personal

jurisdiction would comport with fair play and substantial justice.

                                          III

      The district court’s dismissal of appellee as a party for lack of personal

jurisdiction is AFFIRMED .



                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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