FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      August 18, 2009
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court



    DONALD ALTON HARPER,

                Plaintiff-Appellant,

    v.                                                    No. 08-1342
                                              (D.C. No. 1:07-cv-00750-REB-KMT)
    P. URBANO, P.A.; NORMAN S.                             (D. Colo.)
    ROSENTHAL, M.D.,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.


         Donald Alton Harper appeals the dismissal of his pro se prisoner suit in

which he alleged Eighth Amendment violations stemming from an injury

sustained while working at his prison job. According to the amended complaint,

Mr. Harper fractured his ankle when he slipped and fell in the prison’s kitchen

warehouse. He alleged that prison officials failed to properly treat him in a



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
timely manner and claims to now suffer permanent impairment to his ankle due to

defendants’ deliberate indifference and negligence in treating his injury.

       Construing the allegations as a claim under Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 

(1971), the district court

initially dismissed several defendants who are not parties to this appeal. The

court then referred the matter to a magistrate judge, who recommended that the

claim against the remaining defendants (appellees), be dismissed. Adopting the

magistrate judge’s report and recommendation, the district court held that it

lacked jurisdiction over Mr. Harper’s Bivens claim because the Inmate Accident

Compensation Act (“IACA”), 18 U.S.C. § 4126(c)(4), provides the exclusive

remedy for prisoners injured on the job and thus barred Mr. Harper’s Bivens

claim. 1

       Following the district court’s dismissal, we held in Smith v. United States,

, 1103 (10th Cir. 2009), that the IACA does not bar an inmate’s


1
       18 U.S.C. § 4126(c)(4) provides:

       [Federal Prison Industries], in accordance with the laws generally
       applicable to the expenditures of the several departments, agencies,
       and establishments of the Government, is authorized to employ the
       [Prison Industries Fund], and any earnings that may accrue to the
       corporation . . . in paying . . . compensation to inmates employed in
       any industry, or performing outstanding services in institutional
       operations, and compensation to inmates or their dependents for
       injuries suffered in any industry or in any work activity in connection
       with the maintenance or operation of the institution in which the
       inmates are confined.

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Bivens claim. We explained that the IACA “does not explicitly foreclose the

Bivens remedy, there is very little deterrent effect for constitutional harms within

the [IACA], and there is no alternative forum where the alleged constitutional

violation could be addressed.” 

appellees recognize that Smith

governs our analysis and that the district court’s basis for dismissing Mr. Harper’s

claim cannot be upheld. Nevertheless, they urge us to affirm the district court on

the alternate ground that Mr. Harper failed to establish a valid Eighth Amendment

claim. They assert he has failed to allege facts sufficient to show that they knew

of and disregarded an excessive risk to his health. See Farmer v. Brennan,

, 837 (1994).

      We review the district court’s dismissal for lack of subject matter

jurisdiction de novo and its findings of jurisdictional fact for clear error. 2 Butler

2
      Although the district court dismissed Mr. Harper’s prisoner complaint
under Rule 12(b)(1) for lack of subject matter jurisdiction, this was error. In a
footnote in Smith, we stated:

             Defendants contended that whether a Bivens remedy was
             available to Smith was a matter of subject matter
             jurisdiction, and the district court apparently agreed. As
             we have previously stated, however, whether a court
             should imply a Bivens remedy is not a question of subject
             matter jurisdiction. Peoples v. CCA Det. Ctrs., 

, 1096 (10th Cir. 2005), vacated in part on other
             grounds on reh’g en banc, 

(10th Cir. 2006).
             “In fact, there is no power to imply a Bivens cause of
             action unless a court has first satisfied itself that
             jurisdiction exists.” 

district court had
             jurisdiction pursuant to 28 U.S.C. § 1331 to consider
                                                                      (continued...)

                                          -3-
v. Kempthorne, 

, 1110 (10th Cir. 2008), cert. denied, 

(2009). Although we have discretion to affirm the district court on any ground

adequately supported by the record, so long as the parties had an opportunity to

address that basis, United States v. Sandia, 

, 1217 (10th Cir. 1999),

we think the better approach in this case is to allow the district court to consider

Mr. Harper’s Bivens claim in the first instance. See Hoiles v. Alioto, 

, 1236 (10th Cir. 2006). The court’s purported jurisdictional ruling

prevented it from making any findings pertaining to Mr. Harper’s factual

allegations, and thus remand is appropriate. See R. Eric Peterson Constr. Co. v.

Quintek, Inc. (In re R. Eric Peterson Constr. Co.), 

, 1182 (10th Cir.

1991) (invoking the general rule that “a federal appellate court does not consider

an issue not passed upon below” (quotation omitted)).

         Accordingly, the district court’s judgment is REVERSED, and this case is

REMANDED for further consideration of Mr. Harper’s Bivens claim in light of

our decision in 

. Mr. Harper’s motion to proceed on

appeal in forma pauperis is GRANTED, and he is reminded of his continuing

obligation to make partial payments towards his filing fee until it is paid in full.




2
    (...continued)
                Smith’s Eighth Amendment claims.

, 1100 n.10 (10th Cir. 2009).

                                          -4-
See 28 U.S.C. § 1915(b). Any outstanding requests for relief are DENIED as

moot.

                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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