Gaines v. Pearson

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 12, 2013
Elisabeth A. Shumaker
Clerk of Court
GARY L. GAINES,
Plaintiff-Appellant,
v. No. 12-7027
(D.C. No. 6:09-CV-00190-JHP-SPS)
CHARLES PEARSON; UNITED (E.D. Okla.)
STATES MARSHAL’S SERVICE;
MUSKOGEE COUNTY DETENTION
CENTER, Staff; ATTORNEY
GENERAL OF UNITED STATES;
STATE OF OKLAHOMA; FEDERAL
BUREAU OF PRISONS; U.S.
ATTORNEY, EASTERN DISTRICT OF
OKLAHOMA; MUSKOGEE COUNTY,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Plaintiff, a federal prisoner appearing pro se, appeals from the dismissal of his
42 U.S.C. § 1983 prisoner civil-rights complaint. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
Plaintiff brought his claims against federal and state officials claiming his
rights were violated when, after he was temporarily transferred to a county jail, he
was denied his medications for two days, which allegedly resulted in a heart attack.
In separate orders, the district court: (1) dismissed the claims against Defendant
Muskogee County pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the county
was not properly named and is immune from state law tort claims; (2) dismissed
Defendant State of Oklahoma pursuant to Fed. R. Civ. P. 12(b)(1) based on Eleventh
Amendment immunity; (3) dismissed the Federal Tort Claims Act (“FTCA”) claim
against the federal defendants1 because they are not proper parties; (4) dismissed the
Bivens2 claim against the federal defendants because Plaintiff failed to show personal
participation; (5) dismissed the § 1983 claim against the federal defendants because
Plaintiff failed to allege any federal defendant deprived him of his constitutional
rights; and (6) granted summary judgment in favor of Defendant Charles Pearson, the
sheriff at Muskogee County Detention Center, on Plaintiff’s Eighth Amendment and
1
The federal defendants include the United States Marshals Service, the
Attorney General of the United States, the Federal Bureau of Prisons, and the United
States Attorney’s Office.
2
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
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§ 1983 claims after finding Defendant Pearson did not act with deliberate
indifference to a serious medical need, Plaintiff failed to exhaust his administrative
remedies, and Plaintiff failed to establish any violation of his constitutional rights.
Plaintiff appeals.
We review a district court’s dismissal of a § 1983 complaint for failure to state
a claim de novo. See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996).
We review a district court’s Rule 12(b)(1) dismissal for lack of jurisdiction based on
Eleventh Amendment immunity de novo. See Elephant Butte Irrigation Dist. of N.M.
v. Dep’t of Interior, 160 F.3d 602, 607 (10th Cir. 1998). Further, we review a district
court’s grant of summary judgment de novo, applying the same legal standards as the
district court. Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In applying this standard, we view the evidence and the reasonable
inferences to be drawn from the evidence in the light most favorable to the
nonmoving party. Stover, 382 F.3d at 1070. And finally, “[w]e review de novo the
district court’s finding of failure to exhaust administrative remedies.” Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
We have thoroughly reviewed the record and agree with the district court’s
orders dismissing all Defendants. As for Muskogee County, Plaintiff failed to
properly name Muskogee County according to the statutory requirements of Okla.
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Stat. tit. 19, § 4. Further, the county is immune from any state law tort claims. See
Medina v. State, 871 P.2d 1379, 1383 (Okla. 1993).
The district court properly dismissed the State of Oklahoma. It is well
established that “the Eleventh Amendment precludes a federal court from assessing
damages against state officials sued in their official capacities because such suits are
in essence suits against the state.” Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.
1994).
The court lacked subject matter jurisdiction over Plaintiff’s FTCA claim
against the federal defendants. The United States is the only proper defendant in a
federal tort claims action, see Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4
(10th Cir. 2001), and Plaintiff has not named the United States. Further, Plaintiff
failed to state an actionable Bivens claim. A “Bivens claim[] cannot be asserted
directly against either the United States or federal officials in their official capacities
or against federal agencies,” Smith v. United States, 561 F.3d 1090, 1093 (10th Cir.
2009), and must allege the personal participation of each defendant, Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009). Plaintiff’s claim fails on both accounts. As for Plaintiff’s
§ 1983 claim against the federal defendants, Plaintiff failed to identify any individual
within the federal agencies who allegedly deprived him of his constitutional rights,
and thus his claim fails. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.
1996).
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Finally, Plaintiff’s Eighth Amendment claims against Defendant Pearson fail
because Plaintiff failed to show substantial harm resulting from the alleged lack of
medicine for two days. See Oxendine, 241 F.3d at 1276 (noting that “delay in
medical care only constitutes an Eighth Amendment violation where the plaintiff can
show that the delay resulted in substantial harm”) (internal quotation marks and
brackets omitted). Further, Plaintiff failed to exhaust his administrative remedies by
not filing any grievances, and he failed to state sufficient facts to support his claims
of conspiracy and retaliation.
Accordingly, we AFFIRM the judgment of the district court. We also GRANT
Plaintiff’s request to proceed in forma pauperis and remind Plaintiff to continue
making partial payments until the entire balance of the appellate filing fee is paid.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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