JOHN J. MCCARTHY, PLAINTIFF-APPELLANT,
v.
MR. MADDIGAN, DR. PERRY; DR. WALTER; DR. DELMURO, DEFENDANTS-APPELLEES
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Exhaustion of the Bureau of Prisons' administrative remedy process is not required before a federal prisoner can initiate a Bivens action solely for monetary damages.
A federal prisoner filed a Bivens-type action for monetary damages due to alleged deliberate indifference to his serious medical needs. The district c…
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— type civil action seeking monetary damages for the alleged deliberate indifference to his serious medical needs. The district court, relying upon Brice v. Day, 604 F. 2d 664, 666-68 (10th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1045, 62 L.Ed.2d 772 (1980), dismissed the claim without prejudice as Mr. McCarthy failed to demonstrate he had made use of the administrative review process provided by the Bureau of Prisons. We affirmed, being bound by our precedent in Brice. See McCarthy v. Maddigan, 914 F. 2d 1411 (10th Cir.1990).
The Supreme Court reversed this court’s decision holding that exhaustion of the Bureau of Prison’s administrative procedure is not required before a federal prisoner can initiate a Bivens action solely for monetary damages. See McCarthy v. Maddigan, — U.S. —, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992).
We therefore recall our mandate and reverse the order of the district court and remand this case to the district court for such further proceedings as may be just and proper in accordance with the decision of the United States Supreme Court.
The mandate shall reissue forthwith.
. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
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Cited By
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Jackson v. Commissioner OF Internal Revenue, 966 F.2d 598 (10th Cir. 1992)
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Authorities Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (U.S. 1971)
- McCARTHY v. Madigan, 503 U.S. 140 (U.S. 1992)
- Brice v. Warden I. DAY, 604 F.2d 664 (10th Cir. 1979)
- Jones v. United States, 444 U.S. 1086 (U.S. 1980)
- Ginsburg v. Overlook Hosp., 444 U.S. 1086 (U.S. 1980)
- McCarthy v. Mr. Maddigan, 914 F.2d 1411 (10th Cir. 1990)