                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JAN 4 2002
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


DONALD G. HOGAN,

          Plaintiff-Appellant,

v.

OKLAHOMA DEPARTMENT OF                                  No. 01-7091
CORRECTIONS; ANITA                             (Eastern District of Oklahoma)
TRAMMELL; THOMAS SHARP;                           (D.C. No. 00-CV-540-X)
BOBBY BOONE; DONNIE
WORKMAN, in their individual and
official capacities; OKLAHOMA
CORRECTIONS INDUSTRIES,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the



      *
       This order and judgment is not binding precedent, except under the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.
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.

      Plaintiff-Appellant Donald Hogan is an Oklahoma state prisoner who was

transferred from the Davis Correctional Facility to the Mack Alford Correctional

Center (“MACC”) on March 16, 2000.       Upon his arrival at MACC, Hogan was

assigned to the farm tractor crew. Hogan alleges that the assignment involved the

lifting of heavy rocks. On April 21, 2000 Hogan reported to MACC medical

services complaining of a hernia he believed was “trying to rupture.” No hernia

was noted but Hogan was diagnosed with mild oblique muscle strain and

restricted to lifting no more than ten pounds. Hogan was examined by medical

services again on April 26, 2000 and his lifting restriction was raised to twenty-

five pounds. On May 1, 2, 3, 4, and 8, Hogan failed to report to work or inform

his supervisor that he was ill. He was issued five misconduct reports, four of

which were eventually dismissed and expunged from his record. As a result of

the one misconduct report that was not dismissed, Hogan lost 25 earned credits

and was placed in restrictive housing for five days.

      Hogan filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging

that Defendants’ actions constituted the unnecessary and wanton infliction of pain

in violation of the Eighth Amendment. Additionally, Hogan sought the

restoration of the good-time credits he lost when he was disciplined for failing to


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report to his prison job. Finally, Hogan alleged that his due process rights were

violated when he was placed in disciplinary segregation. Defendants filed a

motion to dismiss Hogan’s complaint. On June 22, 2001, the district court

dismissed Hogan’s complaint pursuant to 28 U.S.C. § 1915(e), concluding that it

was frivolous. Proceeding pro se and in forma pauperis, Hogan appeals the

district court’s order dismissing his complaint.

      The district court construed Hogan’s Eighth Amendment claim as an

assertion that Defendants were deliberately indifferent to his medical needs

because they provided either inadequate or untimely medical care. The court

concluded that the record demonstrated that Hogan sought and received sufficient

medical care and, thus, Defendants’ conduct did not amount to deliberate

indifference. To the extent Hogan’s complaint can be read as challenging the

type and quality of the medical treatment he received, the district court correctly

concluded that such claims do not assert violations of federal constitutional

rights. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[A] complaint that a

physician has been negligent in diagnosing or treating a medical condition does

not state a valid claim of medical mistreatment under the Eighth Amendment.”).

      We read Hogan’s complaint, however, as asserting that Defendants were

aware of medical limitations on his ability to lift heavy objects but nonetheless

required him to engage in activities that caused him pain and aggravated his pre-


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existing medical condition.   To support his claim, Hogan attached to his

complaint a document that appears to be an entry in his prison medical records

dated December 1996 and titled “Progress Notes/Doctors Orders.” This document

indicates that Hogan was diagnosed with a “6 cm ventral hernia” on December 3,

1996. Hogan also attached to his complaint a copy of a memorandum dated April

16, 1998 containing a hand-written note stating, “Mr. Donald Hogan has a weight

lift restriction do [sic] to hernia-non-repaired and external hemorrhoids. If any

further questions feel free to contact medical.” Hogan asserts that this

memorandum was prepared by officials at the Davis Correctional Facility and that

he provided the memorandum to his supervisor on the first day he reported to his

farm tractor crew job. Hogan further asserts that when he arrived at MACC he

informed Defendants that he had a hernia and was subject to a lifting restriction.

Hogan contends that Defendants refused to either obtain or review the records

from the Davis Correctional Facility, stating that they “do not honor medical

records.” Finally, Hogan alleges that while on the farm tractor crew he was

required to lift rocks weighing over one hundred pounds, thereby causing his

medical condition to worsen and necessitating his trips to MACC medical services

to treat his pain.

       In an affidavit, Hogan’s supervisor refutes Hogan’s claim that Defendants

were aware of his medical condition and lifting restriction. The supervisor asserts


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that he had no knowledge of Hogan’s medical condition or restrictions because

Hogan did not provide him “with any medical restriction slip until after his

appointment with MACC medical services on April 21, 2000.” Factual disputes

between the parties cannot be resolved in a motion to dismiss. See Hunt v.

Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999) (“In determining whether dismissal

is proper, we must accept the allegations of the complaint as true and we must

construe those allegations, and any reasonable inferences that might be drawn

from them, in the light most favorable to the plaintiff. Further, we must liberally

construe the allegations of a pro se complaint.”). Hogan’s allegations, if proved,

could establish a violation of the Eighth Amendment’s prohibition against cruel

and unusual punishment.    See Estelle v. Gamble , 429 U.S. 97, 104-05 (1976)

(concluding that a prison guard’s deliberate indifference to or intentional

interference with prescribed treatment for a prisoner’s serious medical needs

resulting in pain constitutes the “unnecessary and wanton infliction of pain”

proscribed by the Eighth Amendment).     Thus, dismissal of Hogan’s claim was

improper.

      The district court also dismissed Hogan’s remaining claims, concluding that

his request for damages relating to the deprivation of his good-time credits is not

cognizable in a § 1983 complaint because he has not demonstrated that the




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underlying finding of misconduct is invalid. 1 See Edwards v. Balisok, 520 U.S.

641, 648 (1997) (holding that a prisoner seeking damages for due process

violations in disciplinary proceedings and whose claims “if established,

necessarily imply the invalidity of the deprivation of his good-time credits,” must

demonstrate that the underlying sanction has previously been invalidated). The

court also concluded that Hogan’s placement in disciplinary segregation did not

implicate his federal constitutional rights because it did not of itself inevitably

affect the duration of Hogan’s sentence and “did not present the type of atypical,

significant deprivation in which a State might conceivably create a liberty

interest.” Sandin v. Conner, 515 U.S. 472, 486 (1995). Upon de novo review, we

find no reversible error in the district court’s disposition of Hogan’s claims

relating to the loss of his good-time credits and his confinement in disciplinary

segregation.

      T his court reverses the district court’s dismissal of Hogan’s Eighth

Amendment claim but     affirms the court’s dismissal of Hogan’s remaining claims

for substantially those reasons stated by the district court. Hogan’s




      1
       To the extent Hogan is seeking the restoration of the good-time credits, his
claim cannot be brought in a civil rights suit. See Preiser v. Rodriguez, 411 U.S.
475, 485-87 (1973); Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987)
(holding that a 28 U.S.C. § 2241 habeas petition is the appropriate means by
which to seek the restoration of good-time credits).

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“Motion for Production of Documents” and “Motion to Enter Exhibits” are

denied . The matter is remanded for further proceedings consistent with this

opinion.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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