                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 28 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 KENNETH R. JAMES,

          Plaintiff - Appellant,
                                                 No. 03-1118 and 03-1233
 v.                                               (D.C. No. 02-Z-2437)
                                                        (D. Colo.)
 FEDERAL BUREAU OF PRISONS;
 WARDEN GALLEGOS, in his
 individual and fiduciary/official
 capacity; CHRISTOPHER J. LAMB,
 in his individual and fiduciary/official
 capacity; J. NEGRON, HT/EMT, in
 his individual and fiduciary/official
 capacity; D. THARP, D.O., Clinical
 Director, in his individual and
 fiduciary/official capacity; FRANK
 CORDOVA, N.P., in his individual
 and fiduciary/official capacity;
 UNKNOWN PHARMACIST, in his
 individual and fiduciary/official
 capacity; AZUMAH, P.A., in his
 individual and fiduciary/official
 capacity; MS. BROWN, C.M.T., in her
 individual and fiduciary/official
 capacity,

          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        This order and judgment is not binding precedent, except under the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. This 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, BRISCOE, and LUCERO, Circuit Judges. **


      Plaintiff Kenneth R. James, an inmate appearing pro se, appeals the district

court’s dismissal of his claim for injunctive relief and monetary damages under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), and his motion to reconsider judgment under Fed. R. Civ. P. 60(b).

These claims were consolidated for procedural purposes only; we now decide both

appeals together. Mr. James sued the Warden and the medical staff and at FCI

Florence, Colorado, claiming a failure to provide proper medical care and

deliberate indifference to his medical needs. Doc. 4 (Complaint). Because the

operative facts of this case involve negligence or gross negligence and because no

abuse of discretion occurred in the district court’s denial of the Rule 60(b)

motion, we affirm.

      As Mr. James is proceeding pro se, we construe his complaint liberally.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). According to the complaint, in

the course of a regularly scheduled TB skin test administered to inmates, a prison

medical technician failed to check the contents of a syringe and mistakenly



      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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administered an injection of tetanus. Both Mr. James and the prison staff were on

notice that he suffered from chronic urticaria (hives), which results from an

allergic reaction to various substances including tetanus. Mr. James’s allergy to

tetanus was clearly indicated on the cover of his BOP medical file. Immediately

prior to receiving the injection, Mr. James asked to see the container from which

the pre-loaded syringes had been drawn from and reminded the technician of his

allergic condition. The medical technician responded to the effect that Mr. James

could either take the injection or be sent to a segregation unit. Mr. James

accepted the injection and subsequently experienced an allergic reaction. In his

brief on appeal, Mr. James adds that the source of the problem was the prison

pharmacists giving the nurse the wrong substance instead of what had been

ordered, tetanus toxoid instead of PPD. Aplt. Br. at VI. Although Mr. James’s

amended complaint also contains allegations that prison staff attempted to cover

up this episode, the substance of his complaint is an Eighth Amendment violation

involving the mixup.

      On appeal Mr. James argues that the district court erred in determining that

his action was legally frivolous because he either could not demonstrate

deliberate indifference or personal participation required to prevail on an Eighth

Amendment violation. The district court dismissed Plaintiff’s claims as to all

Defendants except the person administering the injection, on the grounds that a


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Bivens suit will not lie against any Defendant not directly involved in the alleged

violation. The district court further rejected Plaintiff’s claims against the medical

technician, holding that her conduct amounted to no more than gross negligence,

and as such is insufficient to support a claim of deliberate indifference.

      We review the district court’s dismissal of Plaintiff’s Bivens action as

legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), as well as the denial of a

Fed. R. Civ. P. 60(b) motion, for an abuse of discretion. See Switzer v. Coan,

261 F.3d 985, 988 (10th Cir. 2001) (Rule 60(b)); Schlicher v. Thomas, 111 F.3d

777, 779 (10th Cir. 1997) (§ 1915(e)(2)(B)(i)). Even if we reviewed the dismissal

de novo (as one for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii)),

we would come to the same result.

      In order to succeed on his Eighth Amendment claim, Plaintiff must

demonstrate both an objective and subjective component, that his medical

condition (risk of hives from an improper injection) was sufficiently serious and

that a named prison official was aware of the facts suggesting a substantial risk of

harm from the course of action taken. Farmer v. Brennan, 511 U.S. 825, 837

(1994); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Negligence,

or even gross negligence, does not constitute deliberate indifference to serious

medical needs. Estelle v. Gamble, 429 U.S. 97, 106 n.14 (1976) (negligence);

Berry v. City of Muskogee, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (negligence


                                         -4-
or gross negligence); see also Perkins v. Lawson, 312 F.3d 872, 876 (7th Cir.

2002) (same).

      We need not address the first component, although we would note that

hives are rarely serious, because it is clear that the second component cannot be

met on these facts. The complaint cannot satisfy the requirement that “the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and [s]he must also draw that inference.”

Farmer, 511 U.S. at 837. No allegation suggests that the technician (let alone

others named in the complaint) was aware of any likelihood that the pre-loaded

syringes contained the wrong substance.

      That distinguishes this case from Thomas v. Pate, 493 F.2d 151, 158 (7th

Cir. 1974), where the Seventh Circuit found deliberate indifference where a nurse

gave an inmate a shot of penicillin, despite the medical staff being told of the

inmate’s allergy to penicillin and the inmate’s medical record so indicating.

Thomas was cited as an example of deliberate indifference in Estelle, 429 U.S. at

104 n.10, but it involved the knowing use of a drug the inmate was allergic to and

a subsequent failure to treat when a physician was informed of the problem. In

the present case, upon discovering Mr. James’s allergic reaction, prison staff

administered medical treatment. The fact that this treatment was not to Mr.

James’s liking does not constitute deliberate indifference. See also Lair v.


                                         -5-
Oglesby, 859 F.2d 605, 606 (8th Cir. 1988) (summary judgment improper where

complaint alleged continued injections of drug after notifying prison psychiatrist

of adverse reactions); Benson v. Cady, 761 F.2d 335, 341 (7th Cir. 1985) (no

Eighth Amendment claim where there was no allegation that physician

“intentionally prescribed the incorrect medication or that he did so with the

knowledge that it would harm [the inmate]”); Boyce v. Alizaduh, 595 F.2d 948,

952 (4th Cir. 1979) (under former version § 1915, complaint was not frivolous

where inmate warned physician of allergic reaction, yet physician continued

prescribing medication with harmful consequences). The facts in this case are not

as egregious. Given our conclusion, it follows that the district court did not abuse

its discretion in denying the Rule 60(b) motion.

      AFFIRMED. We GRANT Mr. James’s application to proceed without

prepayment of the appellate filing fee and remind him that he is obligated to

continue making payments until the entire appellate filing fee has been paid.




                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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