* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The Court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 29 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLEN DWAYNE BATES, Plaintiff - Appellant, v. GREGORY DAY; AL HERRERA, Defendants - Appellees. No. 00-1517 (D.C. No. 00-Z-1486) (District of Colorado)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.
Plaintiff-appellant Allen Bates, a federal prisonerappearing pro se, filed a civil rights action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), alleging deliberate indifference to his serious medical need s in violation of the Eighth Amendment. The district court dismissed the action for failure to exhaust administrative remedies. Bates challenges that dec ision, arguing that no- 2 -

exhaustion requirement applies to his suit. Exerci sing jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part and reverse in part. Bates’s jaw was injured in a fight with another inm ate, and he was brought to defendant Gregory Day, a dentist, for treatment that included surgery and two follow-up appointments. Bates still suffers from p ain and numbness in his jaw, which he claims are due to inadequacies in Day’s tr eatment. Bates also claims he informed Al Herrera, the warden of F.C.I. Florence (where Bates is incarcerated), of the problems with his jaw. Alleging that Day an d Herrera failed to provide him with adequate medical treatment, Bates filed th is action seeking compensatory damages, punitive damages, and a court order requiring prison officials to provide him with appropriate dental tr eatment. In his complaint, Bates acknowledged that he had not exhausted the av ailable administrative remedies. Upon receiving the complaint, the distri ct court issued an order for Bates to show cause why his lawsuit “should not be dismissed for failure to exhaust administrative remedies.” (R. Doc. 10 at 1 .) After Bates filed a response to the show cause order, the district court noted t hat he sought both money damages and injunctive relief and, citing 42 U.S.C. § 1997e(a), dismissed his action without prejudice for failure to exhaust his remedies relating to his claim for injunctive relief.- 3 -

Section 1997e(a) states that “[n]o action shall be brought with respect to prison conditions under . . . any . . . Federal law , by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” As the district court no ted, federal prison regulations establish an administrative scheme through which “i nmates may seek formal review of an issue which relates to any aspect of t heir confinement.” 28 C.F.R. § 542.10. We have previously determined that the a dministrative remedies available in 28 C.F.R. §§ 542.10–542.19 do not include monetary relief. See Garrett v. Hawk , 127 F.3d 1263, 1266 (10th Cir. 1997) (“The govern ment concedes that if an inmate seeks purely monetary damages under the procedures provided for in 28 C.F.R. § 542.10, the institution staff will reject the claim as constituting improper subject matter for administrative review . . . .”). Because monetary relief is not available under the applicab le administrative review scheme, “no exhaustion of administrative remedies i s required” for Bates’s claims for compensatory and punitive damages. Id. at 1267. Although recognizing Garrett ’s holding excused exhaustion as to Bates’s claims for monetary damages, the district court dis missed Bates’s suit because he also sought injunctive relief—for which administrat ive exhaustion pursuant to § 1997e(a) is required. In so holding, the district court failed to consider Miller v. Menghini , 213 F.3d 1244 (10th Cir. 2000), in which a prison er brought a civil- 4 -

rights complaint seeking both monetary and injunctive relief. In Miller , we held that under those circumstances a district court sho uld not dismiss the entire action, but rather should dismiss only the portion of the suit seeking injunctive relief. See id. at 1246. In light of Miller , we REVERSE the district court’s dismissal of Bates’s claims for monetary relief and REMAND those claims for further proceedings. We AFFIRM the dismissal of Bates’s claim for injunctive reli ef. The mandate shall issue forthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge