*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)(2) and 10th Cir. R.

34.1(G). The case is therefore submitted without oral 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judgment is not binding precedent, except under the doctrines of law of the case,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 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

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 to 28 U.S.C. §
1The district court granted Mr. Colbert leave to proceed in forma pauperis

in his proceedings before the district court, as well 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.

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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 officials 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 complaining of back, leg, and

head pains that he believed were the result of an earlier, 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 told his situation was not an

emergency. He was scheduled to see a doctor on June 3.2

 He 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 court further ruled that any delay

in providing medical care did not violate the Eighth Amendment because Mr.
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Colbert did not demonstrate he had been substantially 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 directed by Haines v.

Kerner, 404 U.S. 519, 520 (1972). We review a district court’s dismissal of a

case for failure to state a claim de 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 state a claim is proper only

where it is obvious that the plaintiff cannot prevail 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 accept the allegations of

the complaint as true and we must construe those allegations, 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, we 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 supplemental pleading arguing that

he had exhausted administrative remedies, to which medical and grievance

documents were attached. 

To state a claim under the Eighth Amendment regarding inadequate or

delayed medical attention, a prisoner must demonstrate that officials were

deliberately indifferent to his or her serious medical needs. See Estelle v.

Gamble, 429 U.S. 97, 104-06 (1976); Oxendine, 241 F.3d at 1276. This standard
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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 diagnosed by a physician as mandating

treatment or . . . is so obvious that even a lay person would easily recognize the

necessity for a doctor’s assessment.” Id. (quotation omitted). A prisoner must

further establish that any delay in medical attention resulted in “substantial

harm.” Id. (quotation omitted). Generally speaking, “a prisoner who merely

disagrees with a diagnosis or a prescribed course of treatment does not state a

constitutional violation.” Perkins, 165 F.3d at 811.

On appeal, Mr. Colbert contends he established that the 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 them.” 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 analysis, prison officials’ forcing

plaintiff to fly after ear surgery against the orders 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 reversed in
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part where prison officials abused plaintiff and denied plaintiff pain treatment for

six weeks after plaintiff fell). He also claims the 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 received treatment and did

not sufficiently allege the treatment was inadequate. His dissatisfaction is 

essentially with the medical treatment he did receive. Although we sympathize

with Mr. Colbert’s assertions of chronic pain due to his prior injuries and his

frustration over the prison’s apparent mistake regarding the scheduling of his

doctor’s appointment, the complaint and supplemental attachments show that Mr.

Colbert visited with a nurse practitioner at the time he first requested treatment

and received pain medication, nursing staff assessed 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 reviewed 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 shown a delay in

adequate treatment, he has not pointed to facts establishing he suffered

“substantial harm.” Mr. Colbert’s alleged harms are not comparable to those in
3

 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 noted 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 existence 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 lacks 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. Colbert. Id. We advise Mr. Colbert

that upon incurring three strikes, he will no longer be able to proceed in forma

pauperis in a civil action in federal court, unless is he is 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 they are paid in full.

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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 treatment 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