                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAR 29 2001
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 ALLEN DWAYNE BATES,

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

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Plaintiff-appellant Allen Bates, a federal prisoner appearing 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 needs in violation of the Eighth

Amendment. The district court dismissed the action for failure to exhaust

administrative remedies. Bates challenges that decision, arguing that no



      *
         The case is unanimously ordered submitted without oral 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judgment is not binding precedent, except under the doctrines of law of the case,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 generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
exhaustion requirement applies to his suit. Exercising 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 inmate, and he was brought

to defendant Gregory Day, a dentist, for treatment that included surgery and two

follow-up appointments. Bates still suffers from pain and numbness in his jaw,

which he claims are due to inadequacies in Day’s treatment. 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 and Herrera failed to provide

him with adequate medical treatment, Bates filed this action seeking

compensatory damages, punitive damages, and a court order requiring prison

officials to provide him with appropriate dental treatment. In his complaint,

Bates acknowledged that he had not exhausted the available administrative

remedies. Upon receiving the complaint, the district 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 that 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.




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       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 noted, federal prison regulations

establish an administrative scheme through which “inmates may seek formal

review of an issue which relates to any aspect of their confinement.” 28 C.F.R.

§ 542.10. We have previously determined that the administrative 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 government

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 applicable administrative review

scheme, “no exhaustion of administrative remedies is 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 dismissed Bates’s suit because he

also sought injunctive relief—for which administrative 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 prisoner brought a civil


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rights complaint seeking both monetary and injunctive relief. In   Miller , we held

that under those circumstances a district court should 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 relief.

      The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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