United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2626

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Eugene H. Mathison; Judy R. Mathison, *

*

Appellants, *

*

v. *

*

Lyle Swenson, U.S. Marshal; *

Douglas Weber, Warden, South Dakota *

State Penitentiary; *

*

Appellees, *

*

Hoyt Brill, Warden, Prairie * Appeal from the United States

Correctional Facility; * District Court for the

* District of South Dakota

Defendant, *

* [UNPUBLISHED]

Steve Reecy, Commandant, Minnehaha *

County Jail; *

*

Appellee, *

*

Jeffrey Bloomberg, Secretary, *

Department of Corrections, State of *

South Dakota; Ms. Stone, Case *

Manager, Prairie Correctional Facility; *

*

Defendants, *

*

Deb Walters, Nurse, South Dakota *

State Penitentiary; *
1

The Honorable Lawrence L. Piersol, Chief Judge, United States District Court

for the District of South Dakota. 

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*

Appellee, *

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Corrections Corporation of America, *

owner of the Prairie Correctional *

Facility; Valerie L. Van Eaton, an *

Officer with Corrections Corporation *

of America; Carol Twedt, Minnehaha *

County Commissioner; *

*

Defendants, *

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Donald J. Fisher, D.D.S., a dentist at *

the South Dakota State Penitentiary; *

Five John/Jane Does, *

*

Appellees. *

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Submitted: June 30, 2005

Filed: August 15, 2005

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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.

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PER CURIAM.

Federal prisoner Eugene H. Mathison and his wife, Judy R. Mathison, appeal

from the final judgment entered in the District Court1

 for the District of South Dakota

dismissing their suit for damages against federal and state prison employees under 42

U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). The Mathisons have appealed the dismissal of or
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grant of summary judgment on (1) Eugene’s access-to-courts claim against Steve

Reecy (Minnehaha County Jail (“Jail”) Commandant), Douglas Weber (South Dakota

State Penitentiary (“SDSP”) Warden), and certain John/Jane Does; (2) Eugene’s

medical-needs claims against Donald Fischer (SDSP dentist), Deb Walters (SDSP

nurse), and Warden Weber; (3) Judy’s loss-of-consortium claim; and (4) Eugene’s

medical-needs claim against Lyle Swenson (United States Marshall). For the reasons

discussed below, we affirm the judgment of the district court. 

As for access to the courts, Eugene claimed that he filed his 28 U.S.C. § 2255

motion late because he had had inadequate access to a law library. We conclude that

this claim was properly dismissed, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.

1999) (per curiam) (de novo review of 28 U.S.C. § 1915A dismissal), because Eugene

was not denied a “reasonably adequate opportunity” to prepare his § 2255 motion.

See Lewis v. Casey, 518 U.S. 343, 351 (1996) (while inmate does not have abstract,

freestanding right to law library or legal assistance, he must have reasonably adequate

opportunity to present claimed violations of fundamental constitutional rights to

courts). Eugene was at SDSP--where there was no law library in the annex where he

was housed--for only twenty-two days during the one-year period in which he had to

file his § 2255 motion; after being transferred from SDSP, which was twelve days

before his § 2255 motion was due, he had access to a law library, both at the Jail and

at the Prairie Correctional Facility in Appleton, Minnesota; and he admits on appeal

that he delayed writing his § 2255 motion until the federal Sentencing Guidelines

were amended. 

As for medical needs, Eugene claimed that Dr. Fischer failed to fill a cavity,

causing him to later suffer an abscess. Upon de novo review of the grant of summary

judgment to Dr. Fischer, see Cooper v. Olin Corp., 246 F.3d 1083, 1087 (8th Cir.

2001), we agree with the district court that Dr. Fischer showed no deliberate

indifference by not filling Eugene’s cavity: Eugene never complained of any dental

problems at SDSP, and when Dr. Fischer examined Eugene, he noted no swelling or
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signs of an abscess and thus categorized Eugene’s dental needs as non-urgent. See

Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (to prevail on deliberateindifference claim, prisoner must have suffered from objectively serious medical need

which defendants knew of but deliberately disregarded).

Eugene also claimed that, while he was housed at SDSP, certain defendants

showed deliberate indifference to his medical needs by administering his various

prescription medications all at one time in a crushed form. Again, after de novo

review, we agree with the district court that defendants were not deliberately

indifferent, given the lack of evidence that defendants knew taking all of the

medications together would be dangerous to Eugene. Also, the evidence showed that

Eugene took the crushed combination of medications only once, and although he

experienced a rash after taking the crushed medications, the rash lasted for only two

hours and he never showed it to any defendant. See Moore v. Duffy, 255 F.3d 543,

545 (8th Cir. 2001) (deliberate indifference means doctor recklessly disregarded

known risk). Eugene argues that he repeatedly complained about suffering headaches

from not taking his medications, but he made the decision to stop taking his

medications because he disagreed with how they were administered. Cf. Long v. Nix,

86 F.3d 761, 765 (8th Cir. 1996) (prisoners do not have right to any particular type

of requested treatment). 

After de novo review, see Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697-98

(8th Cir. 2003) (Fed. R. Civ. P. 12(b)(1) and (b)(6) dismissals), we affirm the

dismissal of Judy’s loss-of-consortium claim and the claim against United States

Marshall Swenson for the reasons stated by the district court. See 8th Cir. R. 47B.

Accordingly, we affirm. We deny appellants’ motions to recuse.

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