                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              NOV 25 1997
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 STEVE THORNTON,

          Plaintiff-Appellant,

               v.                                           No. 97-1222
                                                        (D.C. No. 97-D-106)
 AL JALIL, NURSE ROSE, and LT.                               (D. Colo.)
 MISCHIARA, individually and in their
 official capacities,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

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          This order and judgment is not binding precedent, except under the doctrines of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. 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.
      Plaintiff Steve Thornton, a pro se inmate, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 civil rights action for failure to exhaust

administrative remedies. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

      Thornton alleged defendant Al Jalil, a physician at the Fremont

Correctional Facility, and defendant “Nurse Rose,” also an employee at the

Fremont Correctional Facility, violated his Eighth Amendment rights during the

course of a surgical procedure. More specifically, he alleged that on June 14,

1995, they surgically removed a lump on his neck and, during the course of the

operation, caused damage to his “trapeze” muscle, nerves, discs, and vertebrae.

Thornton’s amended complaint also included a separate unrelated charge of verbal

abuse and excessive force against defendant Lt. Mischiara, an employee at the

Limon Correctional Facility.

      The district court issued a show cause order directing Thornton to

demonstrate he had exhausted administrative remedies. Thornton filed a response

and the court determined he had not exhausted administrative remedies and

dismissed the entire action without prejudice.

      We have reviewed the record on appeal and conclude the district court

properly dismissed Thornton’s claims against Mischiara without prejudice for

failure to exhaust administrative remedies. As for the claims against Jalil and

Rose, however, we conclude they should have been dismissed pursuant to 28


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U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be

granted under § 1983. Assuming the truth of Thornton’s allegations, he has

demonstrated only that Jalil and Rose were negligent in performing the June 14,

1995, surgical procedure, not that they were deliberately indifferent to his medical

needs as required to demonstrate a violation of the Eighth Amendment. See Green

v. Branson, 108 F.3d 1296, 1303 (10th Cir. 1997).

      We AFFIRM the dismissal without prejudice of Thornton’s claims against

Mischiara, but REVERSE and REMAND his claims against Jalil and Rose with

instructions to the district court to dismiss those claims with prejudice. The

mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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