*Bill Hedrick has succeeded P.W. Keohane as Warden of the United States

Medical Center for Federal Prisoners at Springfield, Missouri, and he is therefore

substituted as party appellee. See Fed. R. App. P. 43(c)(2).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 99-2006WM

_____________

Charles Lee Clark, *

*

Appellant, *

*

v. * On Appeal from the United

* States District Court

* for the Western District

Bill Hedrick,* Warden, MCFP; * of Missouri.

United States Bureau of Prisons; *

and Tamer Khalil, Doctor, MCFP, *

*

Appellees. *

___________

Submitted: October 30, 2000

 Filed: December 5, 2000

___________

Before RICHARD S. ARNOLD, BEAM, and LOKEN, Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.
1Section 2241 is the general federal habeas corpus statute. It occurs to us that

the action might more properly have been brought as a Bivens claim, but we need not

pursue the point.

-2-

This is an action under 28 U.S.C. § 2241, brought by Charles Lee Clark, a

federal prisoner.1 Mr. Clark claims that the prison officials who are defendants are

violating his rights under the Eighth Amendment through their deliberate indifference

to his serious medical needs. In particular, he asserts that he suffers from a disease

known as chronic myelogenous leukemia (CML), that the appropriate treatment is an

autologous bone marrow transplant (ABMT), and that the defendants are refusing,

without good reason, to afford him this treatment. 

The District Court dismissed the complaint, and we affirm. The reasons may be

briefly stated. During the pendency of this appeal, Mr. Clark, who remains in federal

custody, has in fact been allowed to take a step towards the ABMT. Cells from his

bone marrow have been harvested and stored in a freezer. These cells will be available

when and if Mr. Clark's condition takes a turn for the worse, and the need for the

transplant arises. In the meantime, he appears to be receiving appropriate treatment.

We recognize that difficulties may arise in the future. Mr. Clark's condition may

become acute at any time, and, when this happens, we understand that a transplant, if

then medically indicated, must take place quickly. Mr. Clark is concerned that the

Bureau of Prisons will not do the transplant for him at public expense, and that, if the

Bureau releases him for transplant purposes, the expenses to be paid by someone other

than the Bureau of Prisons, he may not be released at a location close to the site where

his cells are now stored. Mr. Clark has 23 months left to serve on his sentence. No

one can say when his condition will become acute, although apparently it is agreed that

at some point this will take place. 
-3-

We have to decide the case on the basis of the facts before us, and we are not

permitted to speculate about the future. As matters now stand, Mr. Clark's cells have

been harvested in an appropriate manner. We cannot say whether his condition will

become acute while he is still incarcerated, nor do we know what treatment will be

appropriate when that takes place, or whether the Bureau of Prisons will be willing to

provide it. It is possible (for example, because of a heart condition) that the ABMT

will not be the appropriate treatment when the time comes. 

In these circumstances, we hold that there is no present violation of the Eighth

Amendment. We remind the Bureau of Prisons that its policies in connection with

transplants, if applied inflexibly, may raise constitutional questions. See Barron v.

Keohane, 216 F.3d 692 (8th Cir. 2000). 

Affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.