John J. McCarthy v. Mr. Maddigan, Dr. Perry Dr. Walter Dr. Delmuro

962 F.2d 973, 1992 U.S. App. LEXIS 7612, 1992 WL 80203

Opinion

ORDER

Mr. McCarthy, a federal prisoner, filed a Bivens 1 — type civil action seeking monetary damages for the alleged deliberate indifference to his serious medical needs. The district court, relying upon Brice v. Day, 604 F.2d 664, 666-68 (10th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1045, 62 L.Ed.2d 772 (1980), dismissed the claim without prejudice as Mr. McCarthy failed to demonstrate he had made use of the administrative review process provided by the Bureau of Prisons. We affirmed, being bound by our precedent in Brice. See McCarthy v. Maddigan, 914 F.2d 1411 (10th Cir.1990).

The Supreme Court reversed this court’s decision holding that exhaustion of the Bureau of Prison’s administrative procedure is not required before a federal prisoner can initiate a Bivens action solely for monetary damages. See McCarthy v. Maddigan, — U.S. —, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).

We therefore recall our mandate and reverse the order of the district court and remand this case to the district court for such further proceedings as may be just and proper in accordance with the decision of the United States Supreme Court.

The mandate shall reissue forthwith.

1 . Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).