Filed: Patrick Fisher

F I L E D
United States Court of Appeals

Tenth Circuit
MAY 6 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT
Clerk
MONTE LEE BRIDGES,

Plaintiff - Appellant,
v.
No. 97-1432
(D. Colorado)
DR. JENNINGS, DR. KAPLAN,

WARDEN PUGH,
(D.C. No. 97-D-1850)
Defendants - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of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.
*
Monte Lee Bridges appeals the district courts dismissal of his civil action
brought pursuant to 42 U.S.C. 1983. Bridges contends the district court erred in
finding that his claim that the defendants were deliberately indifferent to his
serious medical needs was frivolous and failed to state a claim. We grant
Bridges motion to proceed in forma pauperis and dismiss the appeal.
The facts are fully set forth in the district courts order. See R. Vol. I, Doc.
9. Briefly, Bridges chief complaint is that doctors at the Florence Correctional
Institution have refused to continue prescribing Xanax (to which he had become
addicted) for his anxiety disorder, and that he consequently suffers numerous
anxiety symptoms, including breakouts of itching rashes which he scratches
uncontrollably. Additionally, he complains of high blood pressure, foot problems,
back and neck problems, and stomach pain, which he claims the doctors have
either failed to treat or have inadequately treated. However, he acknowledges that
he has been given a sleeping medication which he dislikes, that he receives high
blood pressure medication, that he was given a cane, and that he was offered a
new medication for his anxiety/depression.
In this case, the district court dismissed Bridges action pursuant to 28
U.S.C. 1915(e)(2)(B) as legally frivolous and for failure to state a claim. We
review the district court's dismissal for frivolousness under 1915 for an abuse of
discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Although recent
-2-
unpublished Orders and Judgments in this circuit have suggested a de novo

standard might apply to the review of a district courts dismissal of a 1915 case
for failure to state a claim, we have not yet published an opinion which definitely
settles the question of whether the applicable standard should be abuse of
discretion or de novo. 1 Despite the lack of binding precedent, we need not settle
this issue here because, in any event, our disposition meets either standard of
review.
A claim is frivolous if the factual contentions supporting the claim are
clearly baseless, or the claim is based on a legal theory that is indisputably
meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). A complaint fails to
state a claim if, taking the well-pleaded allegations as true and construing them in
the light most favorable to plaintiff, no relief can be granted based on a
dispositive issue of law. See id. at 326-27.
Since Bridges is representing himself, we construe his pleadings liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In order to state a cognizable
claim, a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S.
97, 106 (1976). In Wilson v. Seiter, 501 U.S. 294 (1991), the Court clarified the
See Dahler v. Goodman, No. 97-3177, 1998 WL 67359, at *2 (10th Cir. Feb. 19,
1998) for a list of other unpublished cases that have noted, but not decided, the question.
1
-3-
Eighth Amendments deliberate indifference standard under Estelle. [O]nly the

unnecessary and wanton infliction of pain implicates the Eighth Amendment.
Wilson, 501 U.S. at 297 (emphasis in the original) (quotation omitted). More
recently, in Farmer v. Brennan, 511 U.S. 825 (1994), the Court reiterated and
emphasized the subjective requirement for finding a constitutional violation. Id.
at 837 (requiring conscious disregard of a known, serious risk to inmate health or
safety to establish deliberate indifference).
In this case, the facts which Bridges recites demonstrate that prison doctors
are substituting a different medication in the attempt to alleviate Bridges
addiction to Xanax, and that Bridges objects to the decision to treat his addiction.
Additionally, the facts indicate that Bridges believes doctors have failed to
provide sufficient treatment for his other ailments, although he concedes they
have provided some treatment. That is, Bridges constitutional claim is based
upon his disagreement with the medical judgment of the prison doctors. Such a
difference of opinion respecting medical judgment does not support a claim of
cruel and unusual punishment. See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980).
-4-
Accordingly, we find that this appeal is frivolous or fails to state a claim

under 28 U.S.C. 1915(e)(2)(B)(i) or (ii) for purposes of counting prior
occasions under 28 U.S.C. 1915(g). This appeal is DISMISSED.
ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge
-5-

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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

MONTE LEE BRIDGES,

DR. JENNINGS, DR. KAPLAN,

(D.C. No. 97-D-1850)

unpublished Orders and Judgments in this circuit have suggested a de novo

Eighth Amendments deliberate indifference standard under Estelle. [O]nly the

Accordingly, we find that this appeal is frivolous or fails to state a claim

ENTERED FOR THE COURT

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