United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-1593

___________

John Dasta, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

W. I. LeBlanc, Jr.; Dr. R. Ilvedson; *

Howard Nelson; Bernie Richards; Julie * [UNPUBLISHED]

Hayes; Jorge Castaneda; Alicia R. *

Souvignier; Bobby Shearin; Dr. *

Moubarek; Isam Elayan; Dr. Leonardo *

F. Giron; Lori Sines; Mr. Poisinaire; *

Todd Genzer; Harley G. Lappin; Kathy *

Jones; Gary Richards; Thomas B. *

Heffelfinger; John Ashcroft; Unknown *

U.S. Marshals, *

*

Appellees. *

___________

Submitted: May 18, 2005

Filed: May 24, 2005

___________

Before BYE, RILEY, and COLLOTON, Circuit Judges.

___________

PER CURIAM.

Federal inmate John Dasta appeals the district court’s 28 U.S.C. § 1915A(b)(2)

dismissal of his lawsuit. Dasta, then an inmate at the Federal Medical Center in
1

Dasta’s claims against federal defendants should have been brought under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). 

-2-

Rochester, Minnesota (FMC-Rochester), filed his original complaint in the District

Court for the District of Columbia. After the case was transferred to the District of

Minnesota, Dasta filed an amended complaint, wherein he sought damages and

declaratory and injunctive relief from various defendants, including multiple

employees and officials at FMC-Rochester and a federal correctional facility in

Cumberland, Maryland (FCI-Cumberland). Citing 42 U.S.C. § 1983,1

 he claimed

deliberate indifference to his serious medical needs, retaliation, and denial of due

process and equal protection; he also asserted state-law claims of negligence and

medical malpractice. He did not explain the basis for his claims, or particular

defendants’ involvement, but generally alleged he needed an operation to correct and

relieve severe back, hip, and leg pain. 

A magistrate judge recommended dismissing Dasta’s complaint with prejudice

under section 1915A(b), concluding Dasta had failed to state an actionable claim

against any defendant, given the absence of factual allegations detailing or describing

the events from which the claims arose. In objecting to the magistrate judge’s report,

Dasta offered exhibits--primarily grievances and responses thereto, along with

medical records--which he asserted had been part of his original complaint but, it

appeared, the magistrate judge had not considered. Aside from offering the exhibits,

he made more general allegations about inadequate medical care and delays in

treatment. The district court adopted the magistrate judge’s report over Dasta’s

objections. Having conducted de novo review, see Cooper v. Schriro, 189 F.3d 781,

783 (8th Cir. 1999) (per curiam), we affirm in part and reverse in part. 

We are troubled by the district court’s apparent failure to consider the exhibits

Dasta offered with his objections. Whether the exhibits were in fact a part of the
-3-

original complaint, or instead constituted a motion for leave to amend, they explained

the basis for Dasta’s claims against certain defendants. See Meehan v. United

Consumers Club Franchising Corp., 312 F.3d 909, 913 (8th Cir. 2002) (materials

attached as complaint exhibits may be considered when construing sufficiency of

complaint on motion to dismiss); Thornton v. Phillips County, Ark., 240 F.3d 728,

729 (8th Cir. 2001) (per curiam) (remanding for consideration of objections to

magistrate judge’s report as motion for leave to amend, where objections provided

basis for § 1983 claims); Cooper, 189 F.3d at 783 (pleadings must at minimum give

defendant sufficient notice of claim); Atkinson v. Bohn, 91 F.3d 1127, 1128-29 (8th

Cir. 1996) (per curiam) (pro se complaints should be liberally construed). 

Taking the exhibits into consideration, we conclude Dasta stated the following

claims against named defendants: that his physician at FCI-Cumberland, Dr. Giron,

committed medical malpractice, and was deliberately indifferent to Dasta’s unstable,

worsening, and painful back condition, see Roberson v. Bradshaw, 198 F.3d 645, 647

(8th Cir. 1999); that FCI-Cumberland Warden Bobby Shearin turned a blind eye to

Dr. Giron’s deliberate indifference, see Ottman v. City of Independence, Mo., 341

F.3d 751, 761 (8th Cir. 2003); that FMC-Rochester Officer Hayes retaliated against

Dasta for filing grievances by conducting a search, see Orebaugh v. Caspari, 910 F.2d

526, 528 (8th Cir. 1990) (per curiam) (otherwise proper acts are actionable under

§ 1983 if done in retaliation for grievances filed under established prison grievance

procedure); and that FMC-Rochester Officers Howard Nelson and Bernie Richards

were deliberately indifferent when they ignored the postoperative orders of Dasta’s

surgeon, and disregarded his injured shoulder, while transporting Dasta to the Mayo

Clinic for an appointment, see Robinson v. Hager, 292 F.3d 560, 563-64 (8th Cir.

2002) (deliberate indifference may be manifested by prison guards who intentionally

interfere with prescribed treatment). 

Accordingly, we reverse and remand for further proceedings as to the listed

claims. We otherwise affirm the section 1915A(b) dismissal.

______________________________