                  UNITED STATES COURT OF APPEALS
Filed 12/23/96
                         FOR THE TENTH CIRCUIT



DAVID CERULLO,

            Plaintiff-Appellant,

v.                                            No. 95-1547
                                           (D.C. No. 95-B-932)
T. ALLEN, Unit Manager, FDC;                    (D. Colo.)
C. STRICKLAND, Administrator,
FDC; C. LAMB, Acting HSA;
W.E. PERRILL, Warden,
FCI Englewood; FEDERAL BUREAU
OF PRISONS; UNITED STATES OF
AMERICA,

            Defendants-Appellees.



DAVID CERULLO,

            Plaintiff-Appellant,
                                              No. 96-1010
v.                                        (D.C. No. 94-M-1937)
                                                (D. Colo.)
T. D. ALLPORT, BOP Counselor;
J. TANNER, BOP F/S Foreman;
T. FAHRENKAMP, BOP F/S
Foreman; W. E. PERRILL, Warden,
FCI Englewood; FEDERAL BUREAU
OF PRISONS; UNITED STATES OF
AMERICA; KAREN HENDRIKSON,
Case Manager, FDC; PAUL SCHUCH,
Case Manager, FPC,

            Defendants-Appellees.
                            ORDER AND JUDGMENT *



Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

                                      96-1010

      Plaintiff, a pro se prisoner at the time of this appeal, appeals two orders of

summary judgment entered by the district court. By order dated April 3, 1995, the

district court granted summary judgment in favor of the individual defendants,

finding that they “have no liability for negligence and nothing in the plaintiff’s




*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.

                                         -2-
submissions shows that there was such deliberate indifference or malicious

conduct on behalf of these defendants that would make them individually liable

for violations of rights protected by the United States Constitution.” R. Vol. I,

tab 26 at 1-2. On December 6, 1995, the district court granted summary judgment

in favor of the United States on plaintiff’s claim under the Federal Tort Claims

Act (FTCA). Judgment was entered on those two orders on December 7, 1995.

      Our review of the district court’s orders granting summary judgment is de

novo, and we apply the same legal standards as did the district court. See Wolf v.

Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). Within these parameters,

we must determine whether there is a genuine issue of material fact and if the

moving party is entitled to judgment as a matter of law. See id.

      Plaintiff alleges in this appeal that the individual defendants violated his

Eighth Amendment right to be free from cruel and unusual punishment, in that

they were deliberately indifferent to his serious medical needs. Plaintiff suffers

from hip pain, and he claims that defendants consistently put or kept him in jobs

that exacerbated his pain and worsened his condition, contrary to the directions of

various Medical Duty Status (MDS) reports. He also complains of negligence

under the FTCA relating to the same facts. 1


1
       Defendants’ brief on appeal addresses two issues not mentioned in
plaintiff’s brief in chief: possible due process rights violation resulting from a
                                                                         (continued...)

                                          -3-
      To violate plaintiff’s Eighth Amendment right, defendants must be shown

to have been deliberately indifferent to a substantial risk of serious harm to

plaintiff. See Farmer v. Brennan, 114 S. Ct. 1970, 1974 (1994). The two-fold

inquiry requires us to determine “if the officials act[ed] with a sufficiently

culpable state of mind and if the alleged wrongdoing was objectively harmful

enough to establish a constitutional violation.” Mitchell v. Maynard, 80 F.3d

1433, 1442 (10th Cir. 1996). Further, no liability attaches if prison officials

respond reasonably to the risk, even if the harm ultimately is not avoided.

Farmer, 114 S. Ct. at 1982-83. The record in this case shows that defendants

made several job changes and adjustments in response to plaintiff’s changing

MDS reports. Further, nothing presented to the district court indicates that any

delay in responding to the reports was anything more than mere negligence. We

agree with the district court that nothing presented by plaintiff establishes an

Eighth Amendment violation.

      Plaintiff also claims government liability under the FTCA for negligence by

prison officials in worsening his hip condition by failing to assign him to



1
 (...continued)
hearing before the UDC on an incident report; and constitutional violation
resulting from plaintiff’s transfer to a different unit. Plaintiff did raise these
issues before the district court but, because they were not raised in plaintiff’s
appellate brief in chief, we do not consider them. See State Farm Fire & Cas. Co.
v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                          -4-
different jobs. The district court found that the conduct of the prison officials

was within the discretionary function exception and granted summary judgment in

favor of the United States. We agree with the district court that the decision as to

which prison jobs plaintiff would be assigned involved an element of judgment or

choice and were based on considerations of public policy. See Domme v. United

States, 61 F.3d 787, 789-90 (10th Cir. 1995). We AFFIRM the summary

judgment orders of the district court.



                                         95-1547

      In this action under the FTCA, plaintiff sought damages against defendants

for losses associated with guitar strings and vending machine use. The magistrate

judge recommended that defendants’ motion for summary judgment be granted.

The district court reviewed de novo the recommendation and the response and

objections thereto and granted summary judgment in favor of defendants.

      Plaintiff sought authorization from the institution physician to receive

replacement strings for his guitar from home. Authorization was granted, and

plaintiff’s brother sent three sets of guitar strings. When the package arrived at

the prison, however, it was initially refused because the authorization had not

been signed by the proper party. Plaintiff was eventually allowed the strings,

which were to be held by his unit team and issued on a one-for-one replacement


                                           -5-
basis. Used replacement strings that had been confiscated from plaintiff’s cell

were also held. When plaintiff requested a used replacement string, defendant

Allen informed him that the used strings had been thrown away. Plaintiff seeks

damages for time, trouble and mailing costs of the initial package, as well as for

the guitar strings that were thrown away. Plaintiff also seeks damages for losses

incurred by his wife and others as a result of monies lost in the prison vending

machines.

      The district court granted defendants’ motion for summary judgment on

these claims. We review the grant of summary judgment de novo, and we apply

the same legal standards as did the district court. See Wolf, 50 F.3d at 796. After

reviewing the record, we agree with the district court that there is no genuine

issue of material fact and defendants are entitled to judgment as a matter of law.

See id. We agree with the magistrate judge that this action sounds in negligence

and is properly brought against the United States under the FTCA. We also agree

with the finding that plaintiff has not demonstrated the elements of negligence.

See Hall v. McBryde ex rel. McBryde, 919 P.2d 910, 912 (Colo. Ct. App. 1996).




                                         -6-
     The judgments of the United States District Court for the District of

Colorado are AFFIRMED. The mandates shall issue forthwith.



                                                  Entered for the Court



                                                  John W. Lungstrum
                                                  District Judge




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