UNITED STATES COURT OF APPEALS

Filed 12/23/96 FOR THE TENTH CIRCUIT

DAVID CERULLO,

Plaintiff-Appellant,

v. T. ALLEN, Unit Manager, FDC; C. STRICKLAND, Administrator, FDC; C. LAMB, Acting HSA; W.E. PERRILL, Warden, FCI Englewood; FEDERAL BUREAU OF PRISONS; UNITED STATES OF AMERICA, Defendants-Appellees.

DAVID CERULLO,

Plaintiff-Appellant,

v. T. D. ALLPORT, BOP Counselor; J. TANNER, BOP F/S Foreman; T. FAHRENKAMP, BOP F/S Foreman; W. E. PERRILL, Warden, FCI Englewood; FEDERAL BUREAU OF PRISONS; UNITED STATES OF AMERICA; KAREN HENDRIKSON, Case Manager, FDC; PAUL SCHUCH, Case Manager, FPC,

Defendants-Appellees. No. 95-1547 (D.C. No. 95-B-932) (D. Colo.)

No. 96-1010 (D.C. No. 94-M-1937) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation. -2- ORDER AND JUDGMENT *

Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.
96-1010 Plaintiff, a pro se prisoner at the time of this ap peal, appeals two orders of summary judgment entered by the district court. Byorder dated April 3, 1995, the district court granted summary judgment in favor of the individual defendants, finding that they “have no liability for negligence and nothing in the plaintiff’s1 Defendants’ brief on appeal addresses two issues no t mentioned in

plaintiff’s brief in chief: possible due process r ights violation resulting from a (continued...) -3- submissions shows that there was such deliberate in difference or malicious conduct on behalf of these defendants that would make them individually liable for violations of rights protected by the United St ates Constitution.” R. Vol. I, tab 26 at 1-2. On December 6, 1995, the district c ourt granted summary judgment in favor of the United States on plaintiff’s claim under the Federal Tort Claims Act (FTCA). Judgment was entered on those two orde rs on December 7, 1995. Our review of the district court’s orders granting summary judgment is de novo, and we apply the same legal standards as did the district court. See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Within these parameters, we must determine whether there is a genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. See id. Plaintiff alleges in this appeal that the individua l defendants violated his Eighth Amendment right to be free from cruel and un usual punishment, in that they were deliberately indifferent to his serious m edical needs. Plaintiff suffers from hip pain, and he claims that defendants consis tently put or kept him in jobs that exacerbated his pain and worsened his conditio n, contrary to the directions of various Medical Duty Status (MDS) reports. He also complains of negligence under the FTCA relating to the same facts. 11 (...continued)

hearing before the UDC on an incident report; and c onstitutional violation resulting from plaintiff’s transfer to a different unit. Plaintiff did raise these issues before the district court but, because they were not raised in plaintiff’s appellate brief in chief, we do not consider them. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -4- To violate plaintiff’s Eighth Amendment right, defe ndants must be shown to have been deliberately indifferent to a substant ial risk of serious harm to plaintiff. See Farmer v. Brennan , 114 S. Ct. 1970, 1974 (1994). The two-fold inquiry requires us to determine “if the officials act[ed] with a sufficiently culpable state of mind and if the alleged wrongdoin g was objectively harmful enough to establish a constitutional violation.” M itchell v. Maynard , 80 F.3d 1433, 1442 (10th Cir. 1996). Further, no liabilityattaches if prison officials respond reasonably to the risk, even if the harm ul timately is not avoided.
Farmer , 114 S. Ct. at 1982-83. The record in this case s hows that defendants made several job changes and adjustments in respons e to plaintiff’s changing MDS reports. Further, nothing presented to the dis trict court indicates that any delay in responding to the reports was anything mor e than mere negligence. We agree with the district court that nothing presente d by plaintiff establishes an Eighth Amendment violation. Plaintiff also claims government liability under th e FTCA for negligence by prison officials in worsening his hip condition by failing to assign him to-5-

different jobs. The district court found that the conduct of the prison officials was within the discretionary function exception andgranted summary judgment in favor of the United States. We agree with the district court that the decision as to which prison jobs plaintiff would be assigned invol ved an element of judgment or choice and were based on considerations of public p olicy. See Domme v. United
States , 61 F.3d 787, 789-90 (10th Cir. 1995). We AFFIRM the summary judgment orders of the district court.

95-1547 In this action under the FTCA, plaintiff sought dam ages against defendants for losses associated with guitar strings and vendi ng machine use. The magistrate judge recommended that defendants’ motion for summary judgment be granted. The district court reviewed de novo the recommendat ion and the response and objections thereto and granted summary judgment in favor of defendants. Plaintiff sought authorization from the institutionphysician to receive replacement strings for his guitar from home. Auth orization was granted, and plaintiff’s brother sent three sets of guitar strin gs. When the package arrived at the prison, however, it was initially refused becau se the authorization had not been signed by the proper party. Plaintiff was eve ntually allowed the strings, which were to be held by his unit team and issued o n a one-for-one replacement-6-

basis. Used replacement strings that had been conf iscated from plaintiff’s cell were also held. When plaintiff requested a used re placement string, defendant Allen informed him that the used strings had been thrown away. Plaintiff seeks damages for time, trouble and mailing costs of the initial package, as well as for the guitar strings that were thrown away. Plaintif f also seeks damages for losses incurred by his wife and others as a result of moni es lost in the prison vending machines. The district court granted defendants’ motion for s ummary judgment on these claims. We review the grant of summary judgm ent de novo, and we apply the same legal standards as did the district court. See Wolf , 50 F.3d at 796. After reviewing the record, we agree with the district co urt that there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law.
See id. We agree with the magistrate judge that this acti on sounds in negligence and is properly brought against the United States u nder the FTCA. We also agree with the finding that plaintiff has not demonstrate d the elements of negligence.
See Hall v. McBryde ex rel. McBryde , 919 P.2d 910, 912 (Colo. Ct. App. 1996).-7-

The judgments of the United States District Court f or the District of Colorado are AFFIRMED. The mandates shall issue fo rthwith.

Entered for the Court

John W. Lungstrum District Judge