*This order and judgment is not binding precedent, except under the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

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 not materially assist the

determination of this appeal. See FED. R. APP. P. 34(a); 10 TH CIR. R. 34.1(G). 

The case is therefore ordered submitted without oral argument. 
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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 Adult Detention Center in

Olathe, Kansas. On July 23, 2004, Mr. Herl filed a 42 U.S.C. § 1983 complaint in

federal district court, alleging that defendants Dr. Gamble and Major Cortright

were deliberately indifferent to his pain and suffering and intentionally denied

him medical care, thereby violating his Eighth Amendment 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 through the Due Process

Clause of the Fourteenth Amendment, prohibits infliction 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 Amendment claim for failure to

provide adequate medical care, “‘a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical
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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 indifference

requirement has two components: (1) an objective component requiring that the

pain or deprivation be sufficiently serious, and (2) a subjective component

requiring that the offending officials act with a sufficiently 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 court 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 between plaintiff and prison
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doctor “does not support a claim of cruel and unusual punishment”). At most,

Mr. Herl has alleged that defendants were negligent in 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 state a claim.

Finally, because Mr. Herl has appealed the district court’s dismissal to this

court and we hereby affirm, the district court’s dismissal 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 his 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 court’s dismissal of Mr.

Herl’s complaint, DENY all other motions as moot, and remind Mr. Herl that he

must continue to make partial payments until the entire balance of the appellate 
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filing fee is paid. 

Entered for the Court,

Robert H. Henry

Circuit Judge