F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 19 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
GREGORY SHANE McGEE,
Plaintiff-Appellant,
v.
No. 99-1536
(District of Colorado)
DR. BLOOR; DR. NEUFELD;
(D.C. No. 98-B-1002)
TRACY LOTT; ERNIE PYLE;
DONICE NEAL; RON JOHNSON;
SGT. HUDSPETH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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.
Gregory McGee, proceeding pro se and in forma pauperis, appeals from a
portion of an order of the district court granting the defendants’ “Motion to
Dismiss and/or For Summary Judgment.” 1 McGee filed this civil rights suit
pursuant to 42 U.S.C. § 1983, alleging, inter alia, 2 that the defendants had denied
him adequate medical care in violation of the Eighth Amendment. On initial
review pursuant to 28 U.S.C. § 636, a magistrate judge recommended that the
defendants’ motion be granted and the case dismissed. In particular, the
magistrate judge thoroughly cataloged the undisputed evidence and concluded that
McGee had received consistent care for his medical conditions. Although McGee
was clearly dissatisfied with the treatment plan advanced by the defendants, the
magistrate correctly noted that differences of opinion between a prisoner and
physicians concerning the need or treatment or the adequacy of treatment do not
constitute deliberate indifference to serious medical need. See Johnson v.
1
Because it appeared that McGee had not timely filed his notice of appeal,
this court issued a show cause order directing the parties to brief the question of
whether this court had jurisdiction. Because the prison mail log demonstrates that
McGee placed his notice of appeal in the prison mailbox within thirty days of the
district court’s judgment, this court has appellate jurisdiction. See Fed. R. App.
P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
2
Although McGee raised several additional claims before the district court,
his appellate filings focus exclusively on his claim that he has not received
adequate medical attention. Issues asserted before the district court but not raised
on appeal are deemed waived. See Harris v. Champion, 51 F.3d 901, 905 (10th
Cir. 1995).
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Stephan, 6 F.3d 691, 692 (10th Cir. 1993). Upon de novo review, the district
court adopted the magistrate judge’s recommendation and dismissed the action.
Upon de novo review, this court finds that it has nothing to add to the clear
and thorough analysis of the magistrate judge. The record is clear that McGee
received consistent medical attention and that this dispute amounts to nothing
more than a disagreement between McGee and the defendants as to the proper
course of treatment. See Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir.
1968) (“The prisoner’s right is to medical care–not to the type or scope of medical
care which he personally desires. A difference of opinion between a physician
and a patient does not give rise to a constitutional right or sustain a claim under §
1983).
In light of magistrate judge’s clear explication of the appellate record and
the applicable law, McGee’s appellate assertions that he is entitled to direct his
own treatment plan are clearly frivolous. Accordingly, this court DISMISSES
this appeal for substantially those reasons set forth in the magistrate judge’s
report and recommendation dated August 30, 1999. See 28 U.S.C. §
1915(e)(2)(b). This dismissal counts as a strike for purposes of § 1915(g).
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McGee is reminded that despite this court’s dismissal of his appeal pursuant to §
1915(e)(2)(B), he remains obligated to continue making partial payments of the
appellate filing fee pursuant to § 1915(b).
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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McGee v. Bloor
Combined Opinion