                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUN 29 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    SAMUEL E. TOOTLE, II,

                  Plaintiff-Appellant,

    v.                                                   No. 03-3292
                                                  (D.C. No. 01-CV-3092-GTV)
    FABIAS UITENHAM, MSG, Ft.                               (D. Kan.)
    Leavenworth, KS; MARK
    ANDERSEN,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before HENRY , MURPHY , and TYMKOVICH , 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)(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      This order and judgment is not binding precedent, except under the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.
       Samuel E. Tootle, II, appeals pro se from the district court’s orders

dismissing his claims for damages against the defendants. At the time he filed

this action, Tootle was a military prisoner in the United States Disciplinary

Barracks at Fort Leavenworth, Kansas and his claims arise out of injuries he

alleges that he sustained there. The district court dismissed Tootle’s damage

claims, relying on the Feres doctrine, see Feres v. United States , 340 U.S. 135

(1950), as applied to military prisoners in    Ricks v. Nickels , 295 F.3d 1124 (10th

Cir.), cert. denied , 537 U.S. 1056 (2002). We affirm.

       Although he sought both damages and injunctive relief in his complaint, all

of Tootle’s issues on appeal concern the denial of his claims for monetary relief

under the Feres doctrine. In his statement of facts, he explains that after he

sought and obtained additional time to work on court documents, defendants

retaliated against him by moving him to a tier that required him to climb

additional flights of stairs, exacerbating his knee injury. He argues (1) that the

district court erred in determining that his injuries were “incident to service”

under Feres ; (2) that the dismissal of his request for monetary relief denied him

equal protection and violated the Thirteenth and Fourteenth Amendments to the

Constitution by discriminating against military prisoners; and (3) that application

of the Feres doctrine to military prisoners creates a “suspect class of prisoners.”

Aplt. Br. at 2.


                                              -2-
       A dismissal under the Feres doctrine is properly treated as a dismissal

under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.    Ricks , 295

F.3d at 1127. We review such dismissals       de novo . Id. Upon review, we affirm

the challenged dismissal for substantially the same reasons stated by the district

court in its original order of partial dismissal of September 25, 2002, and its order

denying reconsideration dated September 22, 2003.

       The judgments of the district court are AFFIRMED. The mandate shall

issue forthwith.



                                                         Entered for the Court



                                                         Michael R. Murphy
                                                         Circuit Judge




                                             -3-
