## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT CRAIG A. HRON, Plaintiff - Appellant, vs. O. C. JENKINS, Warden, USP Leavenworth, KS; WILLIAM SCOTT, Warden, USP Leavenworth, KS; M. JACKSON, Correctional Officer of BOP and Captain at USP Leavenworth, KS; J. REARDEN, Associate Warden BOP at USP Leavenworth, KS; L. STOWERS, Physician’s Assistant BOP at USP Leavenworth, KS; K. ACCOSTA, Correctional Officer BOP at USP Leavenworth, KS: F. DEL MURO, Physician’s Assistant for the BOP at USP Leavenworth, KS; WALDO MARTINEZ, Case Manager BOP at USP Leavenworth, KS; WILLIAM DAVIS, Correctional Counselor BOP at USP Leavenworth, KS; D. SATTERFIELD, Asst. Health Services Administrator BOP at USP Leavenworth, KS; CARL STRATMAN, Physician’s Assistant BOP at USP Leavenworth, KS; C. PEKETE, Housing Unit Manager BOP at USP Leavenworth, KS; A. SALAZAR, Physician’s Assistant BOP at USP Leavenworth, KS; M. SPERRY, Asst. Health Services Administrator BOP at USP Leavenworth, KS, Defendants - Appellees. No. 98-3237 (D.C. No. 94-CV-3491) (D. Kan.)* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. - 2 - ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Plaintiff-Appellant Craig A. Hron, an inmate appear ing pro se, appeals from the district court’s grant of summary judgmentto Defendants-Appellees on his civil rights complaint brought pursuant to 42 U .S.C. § 1983. The district court determined that his claim of deliberate indif ference to his medical needs did not rise to the level of an Eighth Amendment violat ion and thus granted qualified immunity to Defendants. Our jurisdiction arises un der 28 U.S.C. § 1291, and we affirm.

Background Mr. Hron suffers from diabetes mellitus and claims that he also suffers from a seizure disorder (which he described as epil epsy in his complaint) that- 3 -

affects him during his sleep. While imprisoned at the U.S. Penitentiary in Leavenworth, Kansas (“Leavenworth”), he received tr eatment for his diabetes and was medically assigned to a lower bunk. However, w hen Mr. Hron was placed in administrative detention in the Special Housing Uni t, he was assigned over his protests to an upper bunk. Two days later, on Marc h 23, 1993, he fell from the bunk and broke his right knee cap. He received med ical treatment for the injury that same day, including reconstructive surgery. A fter his surgery and upon his return to the general prison population, Mr. Hron c laims that a lower bunk assignment continued to be denied, and that he was assigned to a higher tier which required him to climb several flights of stai rs. Mr. Hron further claims that although the pins and wires from his knee surgery w ere to be removed in September of 1993, they were not removed during the remainder of his time at Leavenworth, which ended in October of 1994 when he was transferred to another U.S. Penitentiary. Mr. Hron brought a 42 U.S.C. § 1983 action against Defendants for the above alleged acts and omissions, which he claims c onstitute a denial of adequate medical care in violation of the Eighth Amendment. The district court found that Mr. Hron failed to state a claim for relief under t he Eighth Amendment and granted summary judgment to Defendants. On appeal, Mr. Hron limits his argument to the actions of Defendants Accosta and S towers in denying him a- 4 -

lower bunk, asserting that the district court erredin finding that he did not state a claim under the Eighth Amendment. He does not appe ar to contest the district court’s order as to the remaining defendants.

Discussion We review the grant of summary judgment de novo. See Jenkins v. Wood , 81 F.3d 988, 990 (10th Cir.1996). We apply the sam e standard as the district court to determine whether there is a genuine issue as to any material fact and whether defendant is entitled to judgment as a matt er of law. See id. We view the evidence and the inferences that can be drawn t herefrom in the light most favorable to plaintiff. See id. Mr. Hron argues that the failure of Defendants Acco sta and Stowers to assign him to a lower bunk states a claim under the Eighth Amendment according to the standards articulated in Estelle v. Gamble , 429 U.S. 97 (1976), and Farmer
v. Brennan , 511 U.S. 825 (1994). In Estelle , the Supreme Court held that an inmate’s complaint of inadequate medical care state s a cognizable Eighth Amendment claim only if the inmate alleges “acts oromissions sufficiently harmful to evidence deliberate indifference to seri ous medical needs.” Estelle , 429 U.S. at 106. The Court clarified the meaning o f “deliberate indifference” in
Farmer , holding that the term requires that a prison offi cial subjectively “knows- 5 -

that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer , 511 U.S. at 847. We find Mr. Hron’s argument deficient in that his e vidence does not demonstrate “deliberate indifference” on the part o f Defendants Accosta and Stowers. Although the government concedes that, atthe time of the injury, Mr. Hron should have been assigned to a lower bunk base d upon its medical records,

see R. doc. 46 at 3, Mr. Hron has failed to come forwa rd with sufficient evidence that Defendants had a subjective knowledge of a sub stantial risk. In a sworn declaration in his response to Defendants’ motion f or summary judgment, he claims that he informed Defendant Accosta that he “ was medically assigned to a lower bunk” and informed Defendant Stowers that he “needed to be on a lower bunk due to [his] medical condition.” R. doc. 58 app. A at 1. Without more specific information as to the risk faced by Mr. Hr on, Defendants cannot be imputed with subjective knowledge of a substantial risk of serious harm. The Defendants’ evidence indicates no clear diagnosis o f epilepsy, at least until after the accident occurred. See R. doc. 46 at 7 & exh. 2. Although it is unfortun ate that Mr. Hron fell and injured his knee, we agree w ith the district court that Defendants’ failure to place him in a lower bunk re flects negligence rather than deliberate indifference. See R. doc. 63 at 6.- 6 -

For the foregoing reasons, we hold that Mr. Hron ha s failed to state a claim under the Eighth Amendment, and AFFIRM the judgmentof the district court.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge