UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

GARY L. GAINES, 

 Plaintiff-Appellant, 

v. 

CHARLES PEARSON; UNITED 

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. 

No. 12-7027 

(D.C. No. 6:09-CV-00190-JHP-SPS) 

(E.D. Okla.)

 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 12, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 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