                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          MAY 4 2004
                          FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


    SCOTT TYLER SMITH,

              Plaintiff-Appellant,

    v.                                                 No. 03-1293
                                                (D.C. No. 02-M-1499 (OES))
    DR. D. K. THARP; DR. B.                              (D. Colo.)
    SERRANO; DR. ROBERT C.
    WILLIAMS; DR. GEORGE
    KLINKERFUSS; E.J. GALLEGOS;
    CHRIS LAMB; DR. MARK
    PEARSON; JOYCE ANDERSON;
    DEBBIE DUNN; M. AZUMAH; R.T.
    HOLT; JOEL KNOWLES; TERRY
    FINNEGAN; DAVID REITER;
    VICTOR BOUDET; VALENTINE
    HERNANDEZ; CELESTINO
    GARCIA; VIRGLILO CAMAGRY;
    MARK SMITH; RUSTY LANG; DR.
    HARE; R. KOHANE,

              Defendants-Appellees.


                          ORDER AND JUDGMENT            *




*
       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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.


      Scott Tyler Smith, proceeding pro se, appeals from an order of the district

court dismissing his claims of deliberate indifference to serious medical needs,

which he brought pursuant to   Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics , 403 U.S. 388 (1971) . We AFFIRM the dismissal.

      In 1995, Smith suffered a head injury as the result of a fall at his federal

prison industry job. Prison medical personnel treated him immediately following

the injury and continued to see him due to ongoing problems allegedly arising

from the injury. Several months after the injury, Smith began to experience

seizures and apparently suffered several strokes. Because of his continuing health

problems, he was transferred to the Medical Center for Federal Prisoners at

Springfield, Missouri. He was transferred back to his original facility

approximately four years later.

      In 2002, Smith commenced this action against twenty-two defendants. His

complaint alleged that defendants had violated his constitutional rights in the

following ways: (1) that defendants did not properly treat Smith’s medical

problems at the time of the injury; (2) that they misdiagnosed him as they initially

concluded that he was suffering from multiple sclerosis; (3) that it took several

years before defendants determined he had sustained several strokes, resulting in


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some paralysis of the right side; and (4) that upon Smith’s return from

Springfield, defendants failed to provide the physical therapy or medications

ordered by the specialists. Smith sought an injunction ordering defendants to

provide him with adequate medical care or, in the alternative, to release him from

prison so he could seek his own medical care.

         Having ascertained that Smith failed to allege any personal participation on

the part of eighteen of the twenty-two defendants, the district court dismissed

those eighteen defendants. It later dismissed the action against Drs. Williams and

Klinkerfuss because they had not been served.    1
                                                     Finally, it dismissed Drs. Tharp

and Serrano from the suit because Smith had not exhausted his administrative

remedies against them, and because he had not shown that they were personally

responsible for any of the acts of which he complained. The district court also

found that it could not construe the complaint as one brought against the Bureau

of Prisons (BOP) for injunctive relief because Smith had not exhausted his

administrative remedies against the BOP. On appeal, Smith contends that he both

exhausted his administrative remedies and stated a valid Eighth Amendment

claim.



1
       Appellees state that Dr. Williams has passed away and Dr. Klinkerfuss is
no longer employed by the Bureau of Prisons. Therefore, service was not
effectuated upon them when the remaining    defendants , current employees of the
Bureau of Prisons, were served.

                                           -3-
       We review de novo an order dismissing a prisoner’s § 1983 complaint for

failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a).    2
                                                                              See

Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). “[E]xhaustion in

cases covered by § 1997e(a) is now mandatory,”       Porter v. Nussle , 534 U.S. 516,

524 (2002), and “applies to all prisoners seeking redress for prison circumstances

or occurrences,” id. at 520.

       In order to exhaust his administrative claims, a federal prisoner must “seek

formal review of an issue which relates to any aspect of” his imprisonment.

28 C.F.R. § 542.10. First, the inmate must submit his complaint, using a Form

BP-9, to the prison staff.   Id. § 542.14. If he is dissatisfied with the response at

that level, he must appeal to the Regional Director of the Bureau of Prisons, using

Form BP-10.     Id. § 542.15(a). Finally, the inmate may file a final administrative

appeal to the General Counsel, using Form BP-11.       Id.

       Smith attached copies of his three administrative claims to the complaint he

filed in district court. In BP-9, he alleged only that his current physical and

mental condition were the result of deliberate medical indifference and

incompetence by unnamed medical personnel in returning him to the prison in



2
      Section 1997e(a) provides that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”

                                           -4-
Florence. R. doc. 1, exhibits. In his BP-10, he complained that he had not seen a

neurologist since his return to Florence.    Id. In his BP-11, he complained that he

had not received adequate medical care or physical therapy since his return

despite his request to see a neurologist.   Id.

       The district court found that Smith failed to exhaust his administrative

remedies. We disagree. In fact, the parties responding to Smith’s administrative

complaints specifically addressed the claims he raised in his complaint against

Drs. Tharp and Serrano.      See R. doc. 6 exhibits (noting that “telemedicine”

conferences were held at which it was determined that Smith did not need

physical therapy, that he had been evaluated by the staff physician, and that he

was being monitored in the chronic care clinic). In his complaint in district court,

moreover, Smith alleged that Drs. Tharp and Serrano had refused to treat him for

his stroke and had refused to provide him with physical therapy.      See id. doc. 12

at 6. Accordingly, we conclude that Smith exhausted his administrative remedies

as to Drs. Tharp and Serrano.

        Despite his exhaustion of administrative remedies, Smith’s claims

ultimately fail because he brought them against Drs. Tharp and Serrano only in

their official capacities and seeking only injunctive relief. It has been previously

established that a Bivens claim cannot be brought against individual defendants in

their official capacities.   Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001)


                                            -5-
(“There is no such animal as a   Bivens suit against a public official tortfeasor in

his or her official capacity.”). Further, Drs. Tharp and Serrano cannot provide the

injunctive relief sought by Smith.

      Finally, on the merits, Smith has failed to state an Eighth Amendment

claim. At best, Smith has alleged only a disagreement with medical personnel as

to the care he is receiving. Such allegations are not up to the standards that we

have previously required to make out a claim of deliberate indifference to serious

medical needs.   See, e.g. , Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980)

(concluding that a prisoner’s disagreement with medical personnel about the care

administered is insufficient to make out a claim of deliberate indifference to

serious medical needs).

      For the foregoing reasons, we    AFFIRM the judgment of the district court.

We GRANT Smith’s motion to proceed in forma pauperis on appeal and remind

him of his obligation to make partial payments of the appellate filing fee pursuant

to 28 U.S.C. § 1915(b) until the entire fee is paid. The mandate shall issue

forthwith.


                                                      Entered for the Court


                                                      Carlos F. Lucero
                                                      Circuit Judge



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