* This order and judgment is not binding precedent, e xcept under the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 10 TH C IR
. R. 36.3. 

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

### MAR 22 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SCOTT B. HERL,

Plaintiff - Appellant, No. 04-3423

v. (D. Kansas) JOHN GAMBLE, Doctor Employed by Johnson County Adult Detention Center through Prison Health Services; (FNU) CORTRIGHT, Major of Johnson County Jail,

Defendants - Appellees. (D.C. No. 04-CV-3228-GTV)

ORDER AND JUDGMENT *

Before EBEL , MCKAY , and HENRY , Circuit Judges.
After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a); 10 TH C IR
. R. 34.1(G). The case is therefore ordered submitted without ora l argument.-2-

Plaintiff appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND Mr. Herl is incarcerated at the Johnson County Adul t Detention Center in Olathe, Kansas. On July 23, 2004, Mr. Herl filed a42 U.S.C. § 1983 complaint in federal district court, alleging that defendants Dr . Gamble and Major Cortright were deliberately indifferent to his pain and suffe ring and intentionally denied him medical care, thereby violating his Eighth Amen dment rights. The district court dismissed Mr. Herl’s complaint for failure to state a claim for relief under 28 U.S.C. § 1915(e)(2)(B)(ii). We review such a dismissal de novo. Perkins v. Kansas Dep’t of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).

II. ANALYSIS “The Eighth Amendment, applied to the states throug h the Due Process Clause of the Fourteenth Amendment, prohibits infli ction of cruel and unusual punishments on those convicted of crimes.” Miller v. Glanz , 948 F.2d 1562, 1569 (10th Cir. 1991). To state a cognizable Eighth Ame ndment claim for failure to provide adequate medical care, “‘a prisoner must al lege acts or omissions sufficiently harmful to evidence deliberate indiffe rence to serious medical-3-

needs.’” Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (emphasis omitted) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)). The deliberate indiffer ence requirement has two components: (1) an objective co mponent requiring that the pain or deprivation be sufficiently serious, and (2 ) a subjective component requiring that the offending officials act with a s ufficiently culpable state of mind. Perkins , 165 F.3d at 809 (citing Wilson v. Seiter , 501 U.S. 294, 298-99 (1991)). As the district court noted, Mr. Herl complains of delay and ineffective treatment since April and May 2004 for an abscessed tooth, a swollen testicle, a possible hernia, urinary problems, and problematic hemorrhoids. It is clear from Mr. Herl’s submissions, which both the district cou rt and this court have construed as supplements to the complaint, that he received ongoing treatment for these concerns, including oral surgery and outside testing. What remains, therefore, is a difference of opinion between Mr. Herl and the defendants as to the adequacy of the treatment he did receive. A plaintiff’s difference of opinion with the medical judgment of a prison doctor is insufficient to support a claim of cruel and unusual punishment. Perkins , 165 F.3d at 811 (stating that “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation”); Olson , 9 F.3d at 1477 (noting that a difference of medical opinion b etween plaintiff and prison-4-

doctor “does not support a claim of cruel and unusu al punishment”). At most, Mr. Herl has alleged that defendants were negligentin his treatment. “A negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Perkins , 165 F.3d at 811 (citing Estelle , 429 U.S. at 105-106). The district court did not err in dismissing Mr. Herl’s complaint for failure to stat e a claim. Finally, because Mr. Herl has appealed the district court’s dismissal to this court and we hereby affirm, the district court’s di smissal counts as a “prior occasion” or “strike” for purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999) (“A district court dismissal under 28 U.S.C. § 1915(e)( 2)(B) does not count as a strike until after the litigant has exhausted or waived hi s opportunity to appeal. . . . If we affirm a district court dismissal under 28 U.S.C . § 1915(e)(2)(B), the district court dismissal then counts as a single strike.”).

III. CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s dismissal of Mr. Herl’s complaint, DENY all other motions as moot, a nd remind Mr. Herl that he must continue to make partial payments until the en tire balance of the appellate-5-

filing fee is paid. Entered for the Court,
Robert H. Henry Circuit Judge