* This order and judgment is not binding precedent, except under the doctrines of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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MONTE LEE BRIDGES,

Plaintiff - Appellant, No. 97-1432

v. (D. Colorado) DR. JENNINGS, DR. KAPLAN, WARDEN PUGH,

Defendants - Appellees. (D.C. No. 97-D-1850)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Monte Lee Bridges appeals the district court’s dism issal of his civil action brought pursuant to 42 U.S.C. § 1983. Bridges cont ends the district court erred in finding that his claim that the defendants were del iberately indifferent to his serious medical needs was frivolous and failed to s tate a claim. We grant Bridges’ motion to proceed in forma pauperis and di smiss the appeal. The facts are fully set forth in the district court ’s order. See R. Vol. I, Doc. 9. Briefly, Bridges’ chief complaint is that docto rs at the Florence Correctional Institution have refused to continue prescribing Xanax (to which he had become addicted) for his anxiety disorder, and that he con sequently suffers numerous anxiety symptoms, including breakouts of itching ra shes which he scratches uncontrollably. Additionally, he complains of highblood pressure, foot problems, back and neck problems, and stomach pain, which he claims the doctors have either failed to treat or have inadequately treated . However, he acknowledges that he has been given a sleeping medication which he di slikes, that he receives high blood pressure medication, that he was given a cane , and that he was offered a new medication for his anxiety/depression. In this case, the district court dismissed Bridges’ action pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous and forfailure to state a claim. We review the district court's dismissal for frivolous ness under § 1915 for an abuse of discretion. Denton v. Hernandez , 504 U.S. 25, 33 (1992). Although recent1 See Dahler v. Goodman , No. 97-3177, 1998 WL 67359, at *2 (10th Cir. Feb. 19,

1998) for a list of other unpublished cases that have noted, but not decided, the question. -3- unpublished Orders and Judgments in this circuit have suggested a de novo standard might apply to the review of a district co urt’s dismissal of a § 1915 case for failure to state a claim, we have not yet publi shed an opinion which definitely settles the question of whether the applicable stan dard should be abuse of discretion or de novo. 1 Despite the lack of binding precedent, we need n ot settle this issue here because, in any event, our disposit ion meets either standard of review. A claim is frivolous if the factual contentions sup porting the claim are clearly baseless, or the claim is based on a legal theory that is “indisputably meritless.” Neitzke v. Williams , 490 U.S. 319, 327 (1989). A complaint fails to state a claim if, taking the well-pleaded allegatio ns as true and construing them in the light most favorable to plaintiff, no relief ca n be granted based on a dispositive issue of law. See id. at 326-27. Since Bridges is representing himself, we construe his pleadings liberally. Haines v. Kerner , 404 U.S. 519, 520-21 (1972). “In order to state a cognizable claim, a prisoner must allege acts or omissions suf ficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble , 429 U.S. 97, 106 (1976). In Wilson v. Seiter , 501 U.S. 294 (1991), the Court clarified the-4-

Eighth Amendment’s deliberate indifference standardunder Estelle . “[O]nly the ‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment.” Wilson, 501 U.S. at 297 (emphasis in the original) (quotat ion omitted). More recently, in Farmer v. Brennan , 511 U.S. 825 (1994), the Court reiterated and emphasized the subjective requirement for finding aconstitutional violation. Id. at 837 (requiring conscious disregard of a known, s erious risk to inmate health or safety to establish deliberate indifference). In this case, the facts which Bridges recites demon strate that prison doctors are substituting a different medication in the atte mpt to alleviate Bridges’ addiction to Xanax, and that Bridges objects to the decision to treat his addiction. Additionally, the facts indicate that Bridges belie ves doctors have failed to provide sufficient treatment for his other ailments , although he concedes they have provided some treatment. That is, Bridges’ co nstitutional claim is based upon his disagreement with the medical judgment of the prison doctors. Such a difference of opinion respecting medical judgment d oes not support a claim of cruel and unusual punishment. See Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980).-5-

Accordingly, we find that this appeal is frivolous or fails to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) or (ii) for purp oses of counting “prior occasions” under 28 U.S.C. § 1915(g). This appeal is DISMISSED.

ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge