                                                              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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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).




                                           -4-
      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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