                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       October 28, 2005
                           FOR THE TENTH CIRCUIT
                                                                         Clerk of Court


    BERNARD GOINES,

               Plaintiff-Appellant,
                                                        No. 04-1394
     v.                                          (D.C. No. 01-F-423-(BNB))
    MICHAEL PUGH; M. COLLINS;                            (D. Colo.)
    LAWRENCE LEYBA; R. BAUER;
    OSAGIE; UNITED STATES OF
    AMERICA; H. HARRIS; T. HARE,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and McCONNELL, Circuit Judges.


        After examining the briefs and 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff/appellant Bernard Goines, a federal prisoner at the United States

Penitentiary, Administrative Maximum in Florence, Colorado (ADX), appeals

from the district court’s judgment in favor of defendants in his medical

malpractice case brought pursuant to the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671-80. Because the evidence at trial was sufficient to support the

district court’s findings and conclusion, we affirm. As a separate matter,

Mr. Goines also requests mandamus relief, which we dismiss for lack of

jurisdiction.

                      I. Procedural and factual background

      Mr. Goines claims that he developed deep vein thrombosis after knee

surgery in May 2000, while in the custody of the federal prisons. He asserts that

defendants’ failure to properly diagnose and treat the condition resulted in

development of both acute and chronic pulmonary emboli. After a bench trial, the

district court found that the record did not establish by a preponderance of the

evidence that any of Mr. Goines’s medical caregivers acted below the standard of

care by failing to timely or promptly diagnose and treat his deep vein thrombosis

and/or pulmonary emboli. The district court also concluded that Mr. Goines

failed to establish by a preponderance of the evidence that his pulmonary emboli

or his condition diagnosed as cholinergic urticaria were proximately caused by

medical negligence.


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      Mr. Goines, who was represented by counsel at trial, raises three

interrelated issues that state a single point of error in his pro se appeal: whether

the district court erred in finding that Mr. Goines did not establish the defendants’

negligence.

                               II. Standard of review

      Our standard of review is well established:

            In an appeal from a bench trial, we review the district court’s
      factual findings for clear error and its legal conclusions de novo. . . .
      Thus, we will reverse the district court’s finding only if it is without
      factual support in the record or if, after reviewing all the evidence,
      we are left with a definite and firm conviction that a mistake has
      been made.

Keys Youth Servs, Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001)

(quotation marks and citation omitted).

      Under the clearly erroneous standard of review, we must . . . affirm
      the court’s choice [if it reasonably could have chosen either of two
      plausible interpretations of the facts]. As the Supreme Court has
      stated:

              If the district court’s account of the evidence is
              plausible in light of the record viewed in its entirety, the
              court of appeals may not reverse it even though
              convinced that had it been sitting as the trier of fact, it
              would have weighed the evidence differently. Where
              there are two permissible views of the evidence, the
              factfinder’s choice between them cannot be clearly
              erroneous.




                                          -3-
Id. at 1275 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74

(1985)).

                                  III. Analysis

      Mr. Goines asserts that he developed deep vein thrombosis sometime in late

May or early June 2000, which then caused pulmonary emboli and a subsequent

hospitalization and surgery in late September 2000. Although Mr. Goines

presented evidence from expert witnesses that certain of Mr. Goines’s physicians

may have breached standards of medical care between July 24 and September 22,

2000, testimony from other experts disputed those opinions and medical evidence

indicated that it was uncertain when Mr. Goines first developed deep vein

thrombosis. It is undisputed that ultra sound studies did not detect the presence

of deep vein thrombosis in May 2000, and Mr. Goines’s surgeons ruled out that

condition before releasing him from a prison hospital in June 2000. The district

court relied on medical records indicating that Mr. Goines complained to the

medical defendants at the prison of shortness of breath, which is a symptom of

pulmonary embolism, only one time in July before the September 2000 episode

immediately preceding his hospitalization and treatment. The court rejected

testimony that Mr. Goines voiced medical complaints about shortness of breath

that were undocumented, and we will not second-guess that credibility

determination. See Anderson, 470 U.S. at 575 (“When findings are based on


                                        -4-
determinations regarding the credibility of witnesses, Rule 52(a) demands even

greater deference to the trial court’s findings; for only the trial judge can be

aware of the variations in demeanor and tone of voice that bear so heavily on the

listener’s understanding of and belief in what is said.”).

      In addition, the district court noted that Mr. Goines presented no expert

testimony regarding the standard of care applicable to a physician’s assistant in

circumstances similar to those faced by defendant Osagie, who is a physician’s

assistant. Mr. Osagie’s expert witness testified, however, that Mr. Osagie met the

applicable standard of care. Because the record, viewed in its entirety, supports

the district court’s findings and conclusions, we must affirm.

                         IV. Request for injunctive relief

      In March 2005 Mr. Goines filed in this court a request for injunctive relief

requiring the United States to transfer him to a facility where the temperature of

his cell can be kept cool. We note that his request should be construed as a

petition for mandamus, since Mr. Goines is asking this court to compel the

warden and the United States, through its agency, the Bureau of Prisons (BOP), to

perform a duty he claims is owed to him. See Simmat v. United States Bureau of

Prisons, 413 F.3d 1225, 1234 (10th Cir. 2005).

      Mr. Goines presented documents and testimony demonstrating that a cool

environment is medically necessary to prevent severe reactions to heat, including


                                          -5-
tachycardia and cholinergic urticaria. He states that, because the central heating

system at the ADX does not allow regulation of his cell temperature to below

seventy degrees, he had to be put outside during cold weather in 2004. He asserts

that refusal to transfer him results in a violation of the Eighth Amendment’s

prohibition against cruel and unusual punishment. He previously appealed from

the warden’s apparently negative response to his administrative request for

transfer, and that appeal was denied by a regional director of the BOP.

      Defendants raise several defenses to the request for injunctive relief. The

United States argues that it is sovereignly immune from suit for claims for

injunctive relief and that Mr. Goines has not identified the waiver of such

immunity that would give the court jurisdiction to determine his claim. But we

recently held in Simmat that sovereign immunity is not a bar to an action for

injunctive relief against prison officials acting in their official capacity, see id. at

1233, even though such an action is one against the United States, id. at 1232

(noting that claim against prison dentists acting in their official capacities “is in

reality against the United States”). We noted that Congress waived sovereign

immunity for such claims. See id. at 1233 (citing 5 U.S.C. § 702). And we held

that jurisdiction over claims for constitutional violations involving prison

conditions against prison officials acting in their official capacities exists under

28 U.S.C. §§ 1331 and/or 1361. See id. at 1228.


                                           -6-
      The individual defendants assert that none of them are a proper party to the

claims for injunctive relief because Mr. Goines cannot claim that they have

authority to effectuate his transfer. But the administrator in charge of inmate

appeals for the BOP informed Mr. Goines that “[t]ransfer is a matter which falls

within the authority of the Warden and Regional Director.” Request for

Injunctive Relief, Ex. 4-B. Defendant Pugh was formerly the warden of the ADX

prison when Mr. Goines filed his malpractice suit. But, as stated in his petition

for mandamus relief, R.A. Hood was the warden in 2005 when the petition for

mandamus relief was filed. Courts will usually substitute a new warden as a

respondent in a particular action if it is appropriate to do so. Cf. Parks v. Saffle,

925 F.2d 366, 366 n.* (10th Cir. 1991) (amending case caption to substitute

successor warden).

      We note, however, that Mr. Goines’s request involves a matter not

presented in the suit for medical negligence that is the subject of this appeal. It

involves separate matters and events occurring long after the alleged acts of

negligence. We conclude, therefore, that Mr. Goines filed his petition for

mandamus in the wrong court, and we have no jurisdiction over that claim in this

appeal. See Simmat, 413 F.3d at 1234 (noting that § 1361 gives original

jurisdiction over mandamus claims to the district courts). We therefore dismiss




                                          -7-
Mr. Goines’s “Request for Injunctive Relief” without prejudice to its filing in

district court.

       The judgment of the district court is AFFIRMED. The request for

injunctive relief is DISMISSED. The mandate shall issue forthwith.

                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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