FILED

United States Court of Appeals

Tenth Circuit

November 30, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID EARL ANTELOPE,

Plaintiff - Appellant, No. 11-1217

v. (D. Colorado)

UNITED STATES OF AMERICA;

J.M. WILNER, Warden, FCI-Florence;

DR. POLLAND; DR. KELLAR;

SUSAN BONFIGLIO,

Defendants - Appellees.

(D.C. No. 1:08-CV-00649-LTB-MEH)

ORDER AND JUDGMENT*

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Plaintiff David Earl Antelope, a federal prisoner, appeals the dismissal of

his claims against the United States as well as the warden and three employees of

a federal prison in Florence, Colorado, alleging failure to provide medical care in

violation of the Eighth Amendment. He sought damages from the individuals and

*

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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
injunctive relief against the United States. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm. 

Mr. Antelope filed his complaint under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in the United States

District Court for the District of Colorado. The relevant pleading on this appeal

is his Second Amended Complaint against the United States; J. M. Wilner, the

warden of Federal Correctional Institution (FCI)-Florence; and three medical

providers at FCI-Florence: Dr. Polland, Mark Kellar, and Susan Bonfiglio. It

alleged defects in the treatment he had received for his documented mental

illness, and it requested compensatory and punitive damages, transfer to a suitable

medical facility, and an injunction ordering necessary medical treatment.

Warden Wilner, Dr. Polland, and Ms. Bonfiglio moved to dismiss the

complaint for failure to state a claim against them. The district court adopted the

magistrate judge’s recommendation to grant the motion. With respect to Warden

Wilner, the magistrate judge explained that “[t]o the extent [Mr. Antelope]

attempts to hold . . . Wilner personally liable for the actions of his subordinates,

such allegations are precluded by the well-settled law” that in a Bivens suit “[a]

plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” R., Vol. 1 at

195–96 (internal quotation marks omitted). And the magistrate judge explained

that the Second Amended Complaint did not adequately allege that the other two

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movants acted with the requisite deliberate indifference, stating: “[Mr.

Antelope], at best, articulates a disagreement with the course of action [Dr.]

Polland . . . prescribed for [him],” and “Bonfiglio’s questioning of [Mr. Antelope]

regarding his refusal to take prescribed medication” likewise would not suffice. 

Id. at 198. See Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993) (“[A]

difference of opinion with the medical staff . . . does not rise to the level of a

constitutional violation.”). The magistrate judge also pointed out that the

movants’ alleged failures to order diagnostic tests could not support an Eighth

Amendment claim, citing Estelle v. Gamble, 429 U.S. 97, 107 (1976). 

Defendants Kellar and the United States then moved for summary

judgment. They submitted medical records and an affidavit from Mr. Kellar

showing that he had no involvement with Mr. Antelope except to sign a form

when Mr. Antelope was departing FCI-Florence. The magistrate judge

recommended (1) that the claim against Kellar be dismissed because Kellar had

established that he had not been personally involved in Mr. Antelope’s care and

(2) that the claims against the United States be dismissed because Mr. Antelope

had no viable Eighth Amendment claims. The district court adopted the

magistrate judge’s recommendation and dismissed the action with prejudice.

On appeal Mr. Antelope argues that the district court should not have

granted the motion to dismiss because “[t]he Eleventh Amendment does Not bar

suit against the defendant[s] in their individual and official capacities.” Aplt. Br.

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at 3. And he argues that summary judgment was improper because there is a

genuine issue of material fact whether Defendants were deliberately indifferent to

his medical needs.

We review de novo the district court’s grant of the motion to dismiss, see

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011), and

its grant of the motion for summary judgment, see Roberts v. Barreras, 484 F.3d

1236, 1239 (10th Cir. 2007). We substantially agree with the district court’s

reasoning in granting both motions. 

Hence, we AFFIRM the judgment of the district court. We GRANT

Mr. Antelope’s motion to proceed in forma pauperis, but he remains responsible

for fees assessed under the Prison Litigation Reform Act, 28 US.C. § 1915(b)(1). 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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