                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             APR 4 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


DAVID R. WINTERS-EL,

          Plaintiff - Appellant,

v.                                                      No. 01-1537
                                                    (D.C. No. 99-S-1356)
KATHLEEN HAWK SAWYER,                               (District of Colorado)
Director of Bureau of Prisons;
MICHAEL PUGH, Warden, ADX,
Florence, CO,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Accordingly, appellant’s motion requesting oral argument is denied and 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       This order and judgment is not binding precedent, except under the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.
      Proceeding pro se, David Winters-El appeals the district court’s dismissal

of the civil rights complaint he brought pursuant to Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Winters-El

complains that Defendants have violated his Eighth Amendment rights by refusing

to replace certain light fixtures in the prison thereby deliberately exposing him to

risk of serious harm, deliberately exposing him to the Hepatitis C virus, and

denying him appropriate medical treatment. Winters-El also alleges that

Defendants retaliated against him by destroying his personal property, placing

him in the Special Housing Unit, and contaminating his food. Winters-El seeks

both injunctive relief and monetary damages.

      After defendant Pugh filed a motion to dismiss the claims asserted against

him, Winters-El filed an amended complaint. Thereafter, both Defendants filed a

motion to dismiss all of Winters-El’s claims against them. Winters-El filed a

motion for summary judgment. The matter was referred to a federal magistrate

judge who prepared a written recommendation concluding that all of Winters-El’s

claims should be dismissed. After considering Winters-El’s written objections,

the district court adopted the magistrate’s recommendation and dismissed

Winters-El’s complaint. Winters-El’s motion for summary judgment was denied

and all other outstanding motions were denied as moot. Winters-El brought this

appeal.


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       The district court dismissed the claims asserted against Defendants in their

official capacities because such claims are barred by the doctrine of sovereign

immunity. See Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001) (“There is

no such animal as a Bivens suit against a public official tortfeaser in his or her

official capacity.”). The claims against defendant Hawk-Sawyer were dismissed

for lack of personal jurisdiction. The district court then reviewed the claims

asserted against defendant Pugh in his individual capacity. The court concluded

that the facts alleged by Winters-El to support his light-fixture claim did not

show that he is incarcerated under conditions posing a serious risk of harm to his

health or safety.   See Farmer v. Brennan , 511 U.S. 825, 834 (1994) (“[T]he

inmate must show that he is incarcerated under conditions posing a substantial

risk of serious harm.”). With respect to the claims arising from his contraction of

and treatment for Hepatitis C, the court concluded that Winters-El had failed to

allege specific facts demonstrating that Defendants had personally participated in

the alleged unconstitutional acts.   See Jenkins v. Wood , 81 F.3d 988, 994 (10th

Cir. 1996) (“The plaintiff must show the defendant personally participated in the

alleged violation.”). Finally, the court concluded that Winters-El’s retaliation

claim was based on speculation and conjecture and was not supported by

“specific facts showing retaliation because of the exercise of [his] constitutional

rights.” Frazier v. Dubois , 922 F.2d 560, 562 n.1 (10th Cir. 1991).


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       We have reviewed the record, the appellate briefs, and the applicable law

and conclude that the district court lacked jurisdiction to consider Winters-El’s

Eighth Amendment claim that Defendants deliberately exposed him to the

Hepatitis C virus. That claim should have been dismissed without prejudice

based on the district court’s finding that Winters-El failed to exhaust his

administrative remedies.     See Booth v. Churner , 531 U.S. 731, 741 (2001).

Accordingly, we remand that claim with instructions to the district court to

vacate that portion of its order dismissing the claim and to enter an order

dismissing the claim without prejudice. The district court’s dismissal of all other

claims raised in Winters-El’s complaint and its denial of all other outstanding

matters is affirmed for substantially the reasons stated by the district court.

Winters-El is reminded that he remains obligated to continue making partial

payments until his appellate filing fee is paid in full.   See 28 U.S.C. § 1915(b).

                                            ENTERED FOR THE COURT



                                            Michael R. Murphy
                                            Circuit Judge




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