Mullen v. Smith

Citation738 F.2d 317
Decision Date05 July 1984
Docket NumberNo. 83-2347,83-2347
PartiesDewey M. MULLEN, Jr., Appellant, v. William French SMITH, Attorney General; Norman Carlson, Director of Prisons; T.C. Martin, Warden; J.S. Petrovsky, Warden; S. Hicks, M.D.; Karl L. Albacek, M.D.; ______ Jaworski; M. Maize; ______ Wallace; A. Robles; ______ Boykin; Roy Robinson and Supervisor Safety & Sanitation, et al, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Eugene F. De Shazo, Denton & De Shazo, Kansas City, Mo., for appellant.

Robert G. Ulrich, U.S. Atty., David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellees.

Before HEANEY and JOHN R. GIBSON, Circuit Judges, and HANSON, * Senior District Judge.

PER CURIAM.

Dewey Mullen, Jr., filed a pro se complaint alleging cruel and unusual punishment by federal prison officials and personnel in their response to his complaints of back pain following an accident in the Federal Correctional Institution in El Reno, Oklahoma, in violation of the eighth amendment to the United States Constitution. On the recommendation of a magistrate, the district court dismissed the action for failure to state a claim. The court held that Mullen's allegations regarding neglect and abusive treatment did not state a claim of "deliberate indifference to serious medical needs" cognizable under the Supreme Court's interpretation of the eighth amendment in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). We affirm as to several defendants, but reverse and remand for further proceedings as to the Oklahoma defendants listed in Mullen's complaint.

On September 14, 1982, while in the custody of prison officials in the federal institution at El Reno, Mullen tripped on a "reinforcement stud" on a concrete floor in the prison, injuring his back and head. He alleges that he could not walk; that he received no substantive medical attention for approximately four hours; that the prison physicians at El Reno could not properly diagnose his condition at the facility and that their suggestions for testing and treatment were disregarded; that he was only prescribed valium for pain by prison officials during the following month; and that he was continually criticized and derided for his complaints of severe pain. He was transferred to the Medical Center for Federal Prisoners at Springfield, Missouri, on October 28, 1982. Since that time, he has received extensive treatment for the results of his Oklahoma accident, although he continues to complain that the treatment is inadequate and ineffective.

On July 28, 1983, Mullen filed the present action alleging cruel and unusual punishment against William French Smith, the Attorney General of the United States; Norman Carlson, the Director of the United States Bureau of Prisons; and various prison officials and personnel at the El Reno and Springfield facilities. The United States District Court for the Western District of Missouri found that Mullen merely disagreed with the course of medical treatment afforded him by the prison authorities, a complaint which on the facts alleged did not rise to the level of a constitutional violation. The court suggested that Mullen's allegations of negligence should be brought under the Federal Tort Claims Act after properly exhausting his administrative remedies, and dismissed his constitutional action as to all defendants. Mullen appeals.

Initially, counsel for Mullen conceded at oral argument that this action could not be maintained against defendants Smith and Carlson, insofar as Mullen alleges at most that they should be liable under a theory of respondeat superior which is improper to this type of action. See Glick v. Sargent, 696 F.2d 413, 414-415 (8th Cir.1983) (per curiam) (action...

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12 cases
  • Brewer v. Blackwell, 4-90-CV-30745.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • 26 d2 Outubro d2 1993
    ...component of an Eighth Amendment claims. See e.g., Fields v. Gander, 734 F.2d 1313 (8th Cir.1984) (infected teeth); Mullen v. Smith, 738 F.2d 317 (8th Cir.1984) (back and head injuries which prohibited prisoner from walking); Miltier, 896 F.2d at 852 (repeated complaints of chest pains, hea......
  • Starbeck v. Linn County Jail, C91-0091.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 12 d1 Dezembro d1 1994
    ...component of an Eighth Amendment claims. See e.g., Fields v. Gander, 734 F.2d 1313 (8th Cir.1984) (infected teeth); Mullen v. Smith, 738 F.2d 317 (8th Cir.1984) (back and head injuries which prohibited prisoner from walking); Miltier, 896 F.2d at 852 (repeated complaints of chest pains, hea......
  • Clemmons v. Bohannon, 88-2730
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 14 d5 Fevereiro d5 1992
    ...753 F.2d 970, 972 (11th Cir.1985) (deep, heavily bleeding eye injury requiring stitches sufficiently serious); Mullen v. Smith, 738 F.2d 317, 318 (8th Cir.1984) (injuries to back and head from fall causing continuous and severe pain for months and preventing inmate from walking may be suffi......
  • Medcalf v. State of Kan., 81-1290-K.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 27 d1 Janeiro d1 1986
    ...the Eighth Amendment. See Miranda v. Munoz, 770 F.2d 255 (1st Cir.1985); Rock v. McCoy, 763 F.2d 394 (10th Cir.1985); and Mullen v. Smith, 738 F.2d 317 (8th Cir.1984); see also Annot., 28 A.L.R.Fed. 279 The Eleventh Amendment Where a § 1983 action alleging a constitutional claim is brought ......
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