Lopez Tijerina v. Ciccone, Civ. A. No. 18589-3.

• Decision Date: 21 January 1971
• Docket Number: Civ. A. No. 18589-3.
• Citation: 324 F. Supp. 1265
• Parties: Reies LOPEZ TIJERINA, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

324 F. Supp. 1265

Reies LOPEZ TIJERINA, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

Civ. A. No. 18589-3.

United States District Court, W. D. Missouri, W. D.

January 21, 1971.

Reies Lopez Tijerina, pro se.

Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondent.

JUDGMENT DENYING PETITION FOR HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

Petitioner, a federal convict confined in the United States Medical Center for Federal Prisoners, petitions this Court for a writ of federal habeas corpus contending that he is receiving inadequate medical treatment in the Medical Center. Leave to proceed in forma pauperis has been previously granted.

Petitioner states that he was convicted by a jury in the United States District Court for the District of New Mexico of an offense which he does not name shown to be destruction of government property and aiding and abetting, in violation of 18 U.S.C. § 1361 and 18 U.S.C. § 2, and assaulting, resisting, opposing, impeding, intimidating or interfering with a Federal Officer in violation of 18 U.S.C. § 111 by the judgment of that Court; that he was sentenced on the "first count" to a term of two years' imprisonment and on the "second count" to a term of five years' probation; that he appealed from the judgment of conviction and imposition of sentence to the United States Court of Appeals for the Tenth Circuit; that the appellate court "upheld" his conviction; that certiorari was denied in the Supreme Court of the United States; and that he has filed no prior postconviction petitions, motions or applications in any court, although the records of this Court show that on August 25, 1970, after the issuance of the show cause order in the case at bar, petitioner filed a petition for habeas corpus in this Court attacking the validity of his conviction in the sentencing court, which was denied in favor of his remedies in the sentencing court under § 2255, Title 28, U.S.C. Tijerina v. Ciccone (W.D.Mo.) Civil Action No. 18652-3.

In his petition herein for federal habeas corpus, petitioner stated the following as grounds for his contention that the conditions of his confinement in the Medical Center violate his federally protected rights:

(1) that he had been denied medical attention for a malignant tumor of his throat;

(2) that he was placed at work in May 1970 immediately after an operation, with the result that he suffered a "blackout";

(3) that he was sent certain legal papers by his son but they were not delivered to him; and

(4) that he lives under the "shadow of terror, panic and torture" because of "his race and his position of leadership for the rights of the Indo-Hispano (Chicano) people."

In addition, in his traverses of the respondent's response and supplemental response to the show cause order herein, petitioner made the following additional complaints:

(1) "While under the Custody of the United States Attorney General, the life of the petitioner was put in danger of death, when top leaders of the Minutemen, an extreme right wing organization (Robert DePugh and Walter Patrick Peyson) were put in the same cell with petitioner, knowing beforehand that the abovementioned individuals, had through their organization vowed to kill petitioner."

(2) that petitioner's health was continuing, after the filing of the petition herein, to deteriorate rapidly, to include (a) the contracting of tuberculosis and (b) significant weight loss.

(3) that petitioner was being treated discriminatorily because of his race by respondent in that (a) petitioner was being harassed by being subjected to psychiatric treatments, (b) petitioner was not allowed to eat in the cafeteria, (c) petitioner was forced to work in the kitchen and (d) petitioner was denied any and all medical treatment for a period of four months.

(4) that, since his commitment to the attorney general, petitioner has suffered physical threats, solitary confinement, "denial of Parole application, as order (sic) by U. S. Judge Bratton of Albuquerque, N. Mex.", denial of "ordinary privileges, such as commissary, population status, normal Wife visits and last but not least persuading petitioner to drop appeals to the Supreme Court, with undue pressure."

From the petition herein, the response and supplemental response to the show cause order herein, petitioner's traverses thereof and the affidavits of the physicians who examined petitioner (at the Court's request) and those who treated him, it has been determined for the following reasons that all of petitioner's cognizable factual contentions are without merit. Therefore, the petition herein for habeas corpus should be denied for failure of petitioner to state any denial of his federal rights by respondent or other exceptional circumstances. The petitioner herein, by filing a petition for habeas corpus has chosen the proper method by which to challenge the legality of constitutionality, or both, of the conditions of his otherwise lawful confinement. In re Bonner, 151 U.S. 242, 14 S. Ct. 323, 38 L.Ed. 149; Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854, n. 3, and cases therein cited; Miller v. Overholser, 92 U.S.App.D.C. 110, 206 F. 2d 415, 419-420; In re Baptista (W.D. Mo.) 206 F.Supp. 288; Ramsey v. Ciccone (W.D.Mo.) 310 F.Supp. 600. But, under the provisions of § 4042, Title 18, United States Code, care, custody, control, treatment and discipline of federal prisoners is vested solely in the Attorney General of the United States or his authorized delegate and the exercise of that discretion will not be reviewed by the Courts in the absence of the denial of a federal right or other exceptional circumstances. Harris v. Settle (C.A. 8) 322 F.2d 908, cert. denied 377 U.S. 910, 84 S.Ct. 1171, 12 L.Ed.2d 179; Austin v. Harris (W.D.Mo.) 226 F.Supp. 304. In this case, for the following reasons, petitioner has neither stated nor shown the denial of a federal right or other exceptional circumstances.

First, petitioner alleges that he has a malignant tumor of the throat for which he has been denied treatment. On this issue, the respondent initially responded with the affidavit of Robert E. Cohen, M.D., Deputy Chief of Surgery in the Medical Center, who stated that his initial examination of respondent revealed that he suffered from "choking and throat constriction" which had been present for some 20 years; that this was apparently due to "pressure from cervical arthritis" as was revealed by an esophagoscopy performed on petitioner on June 2, 1970, by a consultant thoracic surgeon, during which the "esophagus was completely freed up, and the pressure was released"; and that a "post-operative followup barium swallow showed that the esophagus was not dilated, and the pressure that was previously seen on the esophagus was much less prominent." This was supplemented by the affidavit of Jonathan Rhoads, M.D., Director of Surgery, who averred that there was "no evidence whatever" of a maligant tumor; that while some 20 x-rays had been taken of petitioner's throat, there was "no evidence of radiation injury" nor any possibility that the x-rays increased the likelihood of malignancy; and that there was "no depression of his white count, no anemia, and no redness of the skin of his neck which is an early sign of tissue injury from x-ray." Finally, at the request of the Court, petitioner was examined by an independent, qualified consultant, Ramon A. Shane, M.D., on December 16, 1970. His affidavit was filed herein on December 23, 1970. Therein, Dr. Shane denied the presence of a malignant tumor and stated that petitioner's only throat affliction is "a growth of Staphylococcus aureus, which is common flora of the throat." All of the foregoing averments have been made without any general or specific denial by petitioner. In his supplemental traverse, petitioner admitted that he did not suffer from any malignancy, but asserted that "without proper medication (and it was, and still is, being denied) petitioner felt that this `tumor' would develop into a malignant `tumor.'" But the law is well settled that it is the intentional denial (or denial with reckless and callous disregard of petitioner's health) of needed medical treatment which constitutes cruel and unusual punishment, not inadequate, improper or negligent medical treatment. Ramsey v. Ciccone (W.D.Mo.) 310 F. Supp. 600; Veals v. Ciccone (W.D.Mo.) 281 F.Supp. 1017; Wilkinson v. Swenson (W.D.Mo.) Civil Action No. 16449-3. It is evident from the uncontradicted affidavits of the physicians who examined and treated petitioner that he is not being recklessly, callously or intentionally denied medical treatment in respect of the alleged throat tumor. The diagnosis unanimously reached by all the physicians is that no malignant throat tumor exists. It cannot therefore be said that petitioner's medical treatment is so improper that it is not sanctioned by any recognized school of medical thought. See Veals v. Ciccone, supra; Wilkinson v. Ciccone, supra. Petitioner's contention that he should be given medication to prevent the development of a malignant tumor, when no circumstances indicate that such a development is likely, does not state any claim in habeas corpus. As the Eighth Circuit Court of Appeals has recently stated in Cates v. Ciccone (C.A. 8) 422 F.2d 926, 928:

"In the absence of factual allegations of obvious neglect or intentional mistreatment, the courts should place their confidence in the reports of reputable prison physicians that reasonable medical care is being rendered. The district courts cannot become a forum to enjoin prison authorities for alleged negligence in rendering medical care to prisoners under the guise of habeas corpus or in any other action seeking injunctive relief."

Petitioner's first contention is...