* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 of ficials denied and delayed medical treatment for his asthma, as well a s 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 re cords attached to those pleadings, concluded that he had received adequate treatment for his ailments and that he had therefore failed to prove that prison o fficials acted with deliberate indifference to serious medical needs. See Estelle v. Gamble , 429 U.S. 97, 104 (1976) (deliberate indifference to serious medi cal needs of a prisoner constitutes unnecessary and wanton infliction of pa in 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 a rguable basis in either fact or law. See Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995). We review a-3-

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 ailm ents 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 o f 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 S tates 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 courtgranted Mr. Debrow’s application to proceed without prepayment of the ap pellate filing fee; consequently, we deny as moot his motion before thi s court to the same effect. We remind Mr. Debrow of his continuing obligation t o make partial payments until the entire balance of the filing fee is paid. Entered for the Court

William J. Holloway, Jr. Circuit Judge