* This order and judgment is not binding precedent, except under the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

JUN 27 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEROME LEON DEBROW,

Plaintiff-Appellant,

v.

STEPHEN KAISER, Warden of the

Davis Correctional Facility; KATHY

MILLER, Medical Director of the

Davis Correctional Facility; DR.

HARVEY, Medical Doctor at the

Davis Correctional Facility,

Defendants-Appellees.

No. 01-7090

(D.C. No. 00-CV-364-S)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of
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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.

Mr. Debrow challenges the decision of the district court dismissing his

complaint of inadequate medical care as frivolous pursuant to 28 U.S.C.

§ 1915(e). We affirm.

In his complaint, Mr. Debrow alleged that prison officials denied and

delayed medical treatment for his asthma, as well as for pain caused by a bullet

lodged in his chest from an old gunshot wound. The district court, after

examining the pleadings and Mr. Debrow’s medical records attached to those

pleadings, concluded that he had received adequate treatment for his ailments and

that he had therefore failed to prove that prison officials acted with deliberate

indifference to serious medical needs. See Estelle v. Gamble , 429 U.S. 97,

104 (1976) (deliberate indifference to serious medical needs of a prisoner

constitutes unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment).

28 U.S.C. § 1915(e)(2)(B)(i) permits dismissal of an in forma pauperis

action at any time if the court determines that the action or appeal is frivolous or

malicious. An action is frivolous if it lacks an arguable basis in either fact or

law. See Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995). We review a
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district court’s dismissal for frivolousness for abuse of discretion only. See

Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997).

Because Mr. Debrow’s medical records clearly indicate that he received a

consistent course of treatment for the medical ailments complained of, and in

light of our precedent in Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976)

(holding that where there is evidence of a series of sick calls, examinations,

diagnoses, and medications, it cannot be said there was deliberate indifference to

the prisoner’s complaints), the district court did not abuse its discretion in

dismissing the action.

Accordingly, we affirm the judgment of the United States District Court for

the Eastern District of Oklahoma for substantially the reasons stated in the district

court’s order of June 22, 2001. The district court granted Mr. Debrow’s

application to proceed without prepayment of the appellate filing fee;

consequently, we deny as moot his motion before this court to the same effect. 

We remind Mr. Debrow of his continuing obligation to make partial payments

until the entire balance of the filing fee is paid.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge