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

                                                           MAR 29 1999
                  UNITED STATES COURT OF APPEALS
                           TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                Clerk
CRAIG A. HRON,

      Plaintiff - Appellant,
vs.                                         No. 98-3237
                                       (D.C. No. 94-CV-3491)
O. C. JENKINS, Warden, USP                    (D. Kan.)
Leavenworth, KS; WILLIAM SCOTT,
Warden, USP Leavenworth, KS; M.
JACKSON, Correctional Officer of
BOP and Captain at USP
Leavenworth, KS; J. REARDEN,
Associate Warden BOP at USP
Leavenworth, KS; L. STOWERS,
Physician’s Assistant BOP at USP
Leavenworth, KS; K. ACCOSTA,
Correctional Officer BOP at USP
Leavenworth, KS: F. DEL MURO,
Physician’s Assistant for the BOP at
USP Leavenworth, KS; WALDO
MARTINEZ, Case Manager BOP at
USP Leavenworth, KS; WILLIAM
DAVIS, Correctional Counselor BOP
at USP Leavenworth, KS; D.
SATTERFIELD, Asst. Health Services
Administrator BOP at USP
Leavenworth, KS; CARL
STRATMAN, Physician’s Assistant
BOP at USP Leavenworth, KS; C.
PEKETE, Housing Unit Manager BOP
at USP Leavenworth, KS; A.
SALAZAR, Physician’s Assistant BOP
at USP Leavenworth, KS; M.
SPERRY, Asst. Health Services
Administrator BOP at USP
Leavenworth, KS,

      Defendants - Appellees.
                          ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


      Plaintiff-Appellant Craig A. Hron, an inmate appearing pro se, appeals

from the district court’s grant of summary judgment to Defendants-Appellees on

his civil rights complaint brought pursuant to 42 U.S.C. § 1983. The district

court determined that his claim of deliberate indifference to his medical needs did

not rise to the level of an Eighth Amendment violation and thus granted qualified

immunity to Defendants. Our jurisdiction arises under 28 U.S.C. § 1291, and we

affirm.



                                   Background

      Mr. Hron suffers from diabetes mellitus and claims that he also suffers

from a seizure disorder (which he described as epilepsy in his complaint) that


      *
        This order and judgment is not binding precedent, except under the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.
      **
         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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affects him during his sleep. While imprisoned at the U.S. Penitentiary in

Leavenworth, Kansas (“Leavenworth”), he received treatment for his diabetes and

was medically assigned to a lower bunk. However, when Mr. Hron was placed in

administrative detention in the Special Housing Unit, he was assigned over his

protests to an upper bunk. Two days later, on March 23, 1993, he fell from the

bunk and broke his right knee cap. He received medical treatment for the injury

that same day, including reconstructive surgery. After his surgery and upon his

return to the general prison population, Mr. Hron claims that a lower bunk

assignment continued to be denied, and that he was assigned to a higher tier

which required him to climb several flights of stairs. Mr. Hron further claims that

although the pins and wires from his knee surgery were to be removed in

September of 1993, they were not removed during the remainder of his time at

Leavenworth, which ended in October of 1994 when he was transferred to another

U.S. Penitentiary.

      Mr. Hron brought a 42 U.S.C. § 1983 action against Defendants for the

above alleged acts and omissions, which he claims constitute a denial of adequate

medical care in violation of the Eighth Amendment. The district court found that

Mr. Hron failed to state a claim for relief under the Eighth Amendment and

granted summary judgment to Defendants. On appeal, Mr. Hron limits his

argument to the actions of Defendants Accosta and Stowers in denying him a


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lower bunk, asserting that the district court erred in finding that he did not state a

claim under the Eighth Amendment. He does not appear to contest the district

court’s order as to the remaining defendants.



                                      Discussion

       We review the grant of summary judgment de novo. See Jenkins v. Wood,

81 F.3d 988, 990 (10th Cir.1996). We apply the same standard as the district

court to determine whether there is a genuine issue as to any material fact and

whether defendant is entitled to judgment as a matter of law. See id. We view

the evidence and the inferences that can be drawn therefrom in the light most

favorable to plaintiff. See id.

      Mr. Hron argues that the failure of Defendants Accosta and Stowers to

assign him to a lower bunk states a claim under the Eighth Amendment according

to the standards articulated in Estelle v. Gamble, 429 U.S. 97 (1976), and Farmer

v. Brennan, 511 U.S. 825 (1994). In Estelle, the Supreme Court held that an

inmate’s complaint of inadequate medical care states a cognizable Eighth

Amendment claim only if the inmate alleges “acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs.” Estelle,

429 U.S. at 106. The Court clarified the meaning of “deliberate indifference” in

Farmer, holding that the term requires that a prison official subjectively “knows


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that inmates face a substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.

      We find Mr. Hron’s argument deficient in that his evidence does not

demonstrate “deliberate indifference” on the part of Defendants Accosta and

Stowers. Although the government concedes that, at the time of the injury, Mr.

Hron should have been assigned to a lower bunk based upon its medical records,

see R. doc. 46 at 3, Mr. Hron has failed to come forward with sufficient evidence

that Defendants had a subjective knowledge of a substantial risk. In a sworn

declaration in his response to Defendants’ motion for summary judgment, he

claims that he informed Defendant Accosta that he “was medically assigned to a

lower bunk” and informed Defendant Stowers that he “needed to be on a lower

bunk due to [his] medical condition.” R. doc. 58 app. A at 1. Without more

specific information as to the risk faced by Mr. Hron, Defendants cannot be

imputed with subjective knowledge of a substantial risk of serious harm. The

Defendants’ evidence indicates no clear diagnosis of epilepsy, at least until after

the accident occurred. See R. doc. 46 at 7 & exh. 2. Although it is unfortunate

that Mr. Hron fell and injured his knee, we agree with the district court that

Defendants’ failure to place him in a lower bunk reflects negligence rather than

deliberate indifference. See R. doc. 63 at 6.




                                         -5-
      For the foregoing reasons, we hold that Mr. Hron has failed to state a claim

under the Eighth Amendment, and AFFIRM the judgment of the district court.



                                      Entered for the Court

                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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