* 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 Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 

### FEB 10 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MILTON T. COLBERT, II, Plaintiff-Appellant,

v. PRISON HEALTH SERVICES; (FNU) SHELTON, Warden, Norton Correctional Facility; (FNU) TIEN, RN, Norton Correctional Facility; (FNU) JOHNSTON, RN, Administrator, Norton Correctional Facility, Defendants-Appellees. No. 04-3259 (D.C. No. 03-CV-3247-GTV)

(Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

Milton T. Colbert, II, a prison inmate proceeding pro se and in forma pauperis , appeals the district court’s dismissal pursuant t o 28 U.S.C. §1 The district court granted Mr. Colbert leave to pro ceed in forma pauperis

in his proceedings before the district court, as we ll as on appeal.

2According to the record, the medical staff told Mr. Colbert he had been scheduled for an appointment on May 21, but failed to appear and was rescheduled for June 3. Mr. Colbert contended this was a mistake since he did not even go to the medical facility until May 21. -2- 1915(c)(2)(B) of his civil rights suit under 42 U.S .C. § 1983 for failure to state a claim. 1 We affirm. In his complaint, Mr. Colbert alleged prison offici als and medical staff at the Norton Correctional Facility in Norton, Kansas, subjected him to cruel and unusual punishment by denying him medical attention . He claimed that on May 21, 2003, he went to the prison medical facility co mplaining of back, leg, and head pains that he believed were the result of an e arlier, serious car accident. He informed the nurse he would like to see a doctor as soon as possible, but was told no appointment was available until at least May 29. He visited the facility again on May 25 to seek an earlier appointment but was to ld his situation was not an emergency. He was scheduled to see a doctor on Jun e 3. 2He filed this suit after exhausting administrative remedies. The district court ruled that the prison officials and medical staff were not deliberatively indifferent to Mr. Colbert’s serious medical needs and therefore did not violate his Eighth Amendment rights. The courtfurther ruled that any delay in providing medical care did not violate the Eight h Amendment because Mr.-3-

Colbert did not demonstrate he had been substantial ly harmed. On the contrary, the court held the record submitted by Mr. Colbert demonstrated he received adequate and timely attention. We review Mr. Colbert’s submissions liberally as di rected by Haines v.
Kerner , 404 U.S. 519, 520 (1972). We review a district c ourt’s dismissal of a case for failure to state a claimde novo

. Perkins v. Kansas Dep’t of Corrs. , 165 F.3d 803, 806 (10th Cir. 1999). Dismissal of a pro se complaint for failure to stat e a claim is proper only where it is obvious that the plaintiff cannot preva il on the facts he has alleged and it would be futile to give him an opportunity to amend. In determining whether dismissal is proper, we must ac cept the allegations of the complaint as true and we must construe those al legations, and any reasonable inferences that might be drawn from them , in the light most favorable to the plaintiff. Id. (citations omitted). In reviewing the pleadings, w e also consider any attached exhibits. See Oxendine v. Kaplan , 241 F.3d 1272, 1275 (10th Cir. 2001). In this case, Mr. Colbert submitted a complaint and a suppl emental pleading arguing that he had exhausted administrative remedies, to which medical and grievance documents were attached. To state a claim under the Eighth Amendment regardi ng inadequate or delayed medical attention, a prisoner must demonstr ate that officials were deliberately indifferent to his or her serious medi cal needs. See Estelle v. Gamble , 429 U.S. 97, 104-06 (1976); Oxendine , 241 F.3d at 1276

. This standard-4-

includes both objective and subjective components: the deprivation must be “sufficiently serious” and the government official must have “acted with a sufficiently culpable state of mind.” Oxendine , 241 F.3d at 1276. A deprivation is “sufficiently serious” if it “has been diagnosedby a physician as mandating treatment or . . . is so obvious that even a lay pe rson would easily recognize the necessity for a doctor’s assessment.” Id. (quotation omitted). A prisoner must further establish that any delay in medical attenti on resulted in “substantial harm.” Id. (quotation omitted)

. Generally speaking, “a prisoner who merely disagrees with a diagnosis or a prescribed course o f treatment does not state a constitutional violation.” Perkins , 165 F.3d at 811. On appeal, Mr. Colbert contends he established thatthe prison officials and medical staff were deliberately indifferent to his medical needs “by showing that they did not let me see a doctor on the date I was supposed to and moved it to a later date because of a mistake that was made by th em.” Aplt. Br. at 2. In support of his arguments, he cites Hamilton v. Endell , 981 F.2d 1062, 1067 (9th Cir. 1992) (for purposes of qualified immunity anal ysis, prison officials’ forcing plaintiff to fly after ear surgery against the orde rs of his treating physician could have constituted deliberate indifference), abrogation recognized on other grounds by Estate of Ford v. Ramirez-Palmer , 301 F.3d 1043, 1048-49 (9th Cir. 2002); and Mullen v. Smith , 738 F.2d 317, 318-19 (8th Cir. 1984) (dismissal r eversed in-5-

part where prison officials abused plaintiff and de nied plaintiff pain treatment for six weeks after plaintiff fell). He also claims th e district court did not consider that the prison officials and medical staff failed to “look into” the fact “that [he] had a bad accident.” Aplt. Br. at 4. We agree with the district court that Mr. Colbert r eceived treatment and did not sufficiently allege the treatment was inadequat e. His dissatisfaction is essentially with the medical treatment he did recei ve. Although we sympathize with Mr. Colbert’s assertions of chronic pain due t o his prior injuries and his frustration over the prison’s apparent mistake regarding the scheduling of his doctor’s appointment, the complaint and supplementa l attachments show that Mr. Colbert visited with a nurse practitioner at the ti me he first requested treatment and received pain medication, nursing staff assesse d his situation as not an emergency, the prison ordered Mr. Colbert’s medical records related to the prior car accident, and the doctor he ultimately saw revi ewed those records the same day and directed no change in treatment. While Mr. Colbert says his pains worsened during the time he was waiting to meet with the doctor, he does not allege any facts that undermine the nurses’ course of treatment. More importantly, even assuming Mr. Colbert has sho wn a delay in adequate treatment, he has not pointed to facts est ablishing he suffered “substantial harm.” Mr. Colbert’s alleged harms ar e not comparable to those in3 In dismissing Mr. Colbert’s action for failure to state a claim pursuant to

18 U.S.C. § 1915(e)(2)(B)(ii), the district court n oted that such dismissal counted as a strike under the 3-strike provision of 28 U.S. C. § 1915(g). Our affirmance of the district court’s dismissal solidifies the exist ence of that single strike. See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). We also determine Mr. Colbert’s appeal lack s any arguable basis in law or fact, and therefore deem it frivolous under 28 U.S. C. § 1915(e)(2)(B)(I) and resulting in an additional strike against Mr. Colbe rt. Id. We advise Mr. Colbert that upon incurring three strikes, he will no longe r be able to proceed in forma pauperis in a civil action in federal court, unless is he i s under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). We also remind Mr. Colbert he is obligated to continue making payments toward the balance of his assessed district court and appellate filing fees until theyare paid in full. -6- the cases upon which he relies, see Hamilton , 981 F.2d at 1067; Mullen , 738 F.2d at 318, nor do they include examples of delayed tre atment for life-threatening circumstances, exacerbation of his medical problems , or harm resulting in permanent handicap or loss. See Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999) (citing Hill v. Dekalb Reg’l Youth Det. Ctr. , 40 F.3d 1176, 1187-88 & n.21 (11th Cir. 1994) (collecting cases)). Accordingly, we AFFIRM the district court’s dismissal of Mr. Colbert’s suit for failure to state a claim. 3

ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge