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

Tenth Circuit

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

CourtCourt of Appeals for the Tenth Circuit

DecidedApril 22, 1992

Docket90-3112

StatusPublished

Cited by1 cases

This text of 962 F.2d 973 (John J. McCarthy v. Mr. Maddigan, Dr. Perry Dr. Walter Dr. Delmuro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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 (10th Cir. 1992).

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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).

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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).

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962 F.2d 973, 1992 U.S. App. LEXIS 7612, 1992 WL 80203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-j-mccarthy-v-mr-maddigan-dr-perry-dr-walter-dr-delmuro-ca10-1992.

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