UNITED STATES CO URT 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 appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - Plaintiff, a federal pris oner appearing pro se, appeal s from the dismissal of his 42 U.S.C. § 1983 prisoner ci vil-rights complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Plaintiff brought his claims against fe deral and state officials claiming his rights were violated when, after he was te mporarily transferred to a county jail, he was denied his medications fo r two days, which allegedly re sulted in a heart attack. In separate orders, the dist rict court: (1) dismissed th e claims against Defendant Muskogee County pursuant to Fed. R. Civ. P. 12(b)(6) on the gr ound that the county was not properly named and is immune from state law tort cl aims; (2) dismissed Defendant State of Oklahoma pursuant to Fed. R. Civ. P. 12(b)(1) based on Eleventh Amendment immunity; (3) dismissed the Fe deral Tort Claims Act (“FTCA”) claim against the federal defendants 1 because they are not proper parties; (4) dismissed the
Bivens 2 claim against the federal defendants because Plaintiff failed to show personal participation; (5) dismisse d the § 1983 claim against th e federal defendants because Plaintiff failed to allege any federal defe ndant 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 Pl aintiff’s Eighth Amendment and

1 The federal defendants include the United States Marshals Service, the Attorney General of the Unite d States, the Federal Bureau of Prisons, and the United States Attorney’s Office.
2 See Bivens v. Six Unknown Named Agen ts of Fed. Bureau of Narcotics , 403 U.S. 388 (1971).- 3 - § 1983 claims after finding Defendant Pearson did not act with deliberate indifference to a serious medical need, Plai ntiff failed to exha ust 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 comp laint 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 judg ment 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 th e 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 fro m the evidence in the light most favorable to the nonmoving party. Stover , 382 F.3d at 1070. And fina lly, “[w]e review de novo the district court’s finding of failure to exhaust admi nistrative remedies.” Jernigan v. Stuchell , 304 F.3d 1030, 1032 ( 10th Cir. 2002). We have thoroughly review ed the record and agree w ith the district court’s orders dismissing all Defenda nts. As for Muskogee Coun ty, Plaintiff failed to properly name Muskogee County according to the statutory requirements of Okla.- 4 - Stat. tit. 19, § 4. Further, the county is immune from any stat e law tort claims. See Medina v. State , 871 P.2d 1379, 1383 (Okla. 1993). The district court properly dismissed th e State of Oklahoma. It is well established that “the Elev enth Amendment precludes a fe deral court from assessing damages against state officials sued in their official capaci ties because such suits are in essence suits ag ainst 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 th e only proper defendant in a federal tort claims action, see Oxendine v. Kaplan , 241 F.3d 1272, 1275 n.4 (10th Cir. 2001), and Plainti ff has not named the United St ates. Further, Plaintiff failed to stat e an actionable Bivens claim. A “ Bivens claim[] cannot be asserted directly against either the United States or federal offici als in their offi cial capacities or against federal agencies,” Smith v. United States , 561 F.3d 1090, 1093 (10th Cir. 2009), and must allege the persona l participation of each defendant, Ashcroft v. Iqbal , 556 U.S. 662, 677 (2009). Plaintiff’s clai m fails on both accounts. As for Plaintiff’s § 1983 claim against the federa l 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).- 5 - Finally, Plaintiff’s Eighth Amendment cl aims against Defendant Pearson fail because Plaintiff failed to show substantial harm resulti ng from the alleged lack of medicine for two days. See Oxendine , 241 F.3d at 1276 (noting that “delay in medical care only constitute s an Eighth Amendment viola tion where the plaintiff can show that the delay resulted in substan tial harm”) (interna l quotation marks and brackets omitted). Further, Plaintiff failed to exhaust his admi nistrative 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 bala nce of the appellate filing fee is paid.

Entered for the Court
Wade Brorby Senior Circuit Judge