                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JAN 26 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 URBANO CABRERA ALEJO,

          Plaintiff - Appellant,
                                                        No. 99-1403
 v.
                                                    (D.C. No. 98-B-2510)
                                                    (District of Colorado)
 GONZALEZ, Correctional Office[r],

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      This case arises from the denial of a prison inmates’ request for treatment

of a headache. Appellant Urbano Cabrera Alejo appeals pro se the district court’s

dismissal of his Eighth Amendment deliberate indifference claim as frivolous and

for failure to state a claim upon which relief may be granted. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                         I


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      In the late afternoon of August 3, 1998, Alejo developed intense pain on

the side of his head that lasted until the following morning. Due to a prior head

injury occurring in 1991, Alejo was concerned that the current head pain was

related and therefore could have serious medical consequences if not treated

promptly. According to Alejo, Officer Enrique A. Gonzalez denied his request to

see a physician’s assistant and told him that “if he pressed his duress button again

he was going to write him up.” (Appellant’s Br. at 17.) Both Gonzalez and

Physician Assistant Ronald C. Camacho assert that Gonzalez called Camacho, but

when the two went to Alejo’s cell, he refused to see them. Later that week, on

August 6, Alejo was treated for another headache, as well as chills, vomiting, and

nausea.

                                          II

      We review de novo the dismissal of plaintiff’s claims for failure to state a

claim upon which relief can be granted.    See Sutton v. Utah State Sch. for the

Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). It is undisputed that

convicted inmates are protected from “deliberate indifference” to their “serious

medical needs.”   Estelle v. Gamble , 429 U.S. 97, 104 (1976). To establish

deliberate indifference, a prisoner must demonstrate more than mere negligence; a

negligent failure to provide adequate medical care, even one constituting medical




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malpractice, does not rise to the level of a constitutional violation.    See id. at

105-06.

       A delay in prescribing medical treatment constitutes a violation of the

Eighth Amendment only “‘if there has been deliberate indifference which results

in substantial harm.’”    Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993)

(quoting Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir. 1993))         . “Delays that

courts have found to violate the Eighth Amendment have frequently involved

life-threatening situations and instances in which it is apparent that delay would

exacerbate the prisoner’s medical problems.” Hunt v. Uphoff, No. 98-8073, 1999

WL 1268340, at *3 (10th Cir. Dec. 30, 1999) (citing Hill v. Dekalb Reg’l Youth

Detention Ctr., 40 F.3d 1176, 1187 & n.21 (11th Cir. 1994) (collecting cases)).

Prison officials may be liable for delays resulting in lifelong handicaps or

permanent losses. See Hunt, 1999 WL 1268340, at *3. Alejo’s claim necessarily

fails because he has not alleged “deliberate indifference which result[ed] in

substantial harm” from the failure to treat his head pain. Olson, 9 F.3d at 1477.

His headache subsided by morning without treatment and did not result in any

harm, much less “a lifelong handicap or a permanent loss.” Hunt, 1999 WL

1268340, at *3.




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                                         III

      If we dismiss as frivolous the appeal of an action the district court

dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes. See

Jennings v. Natrona County Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th

Cir. 1999). The district court correctly determined that the complaint was

frivolous, and, lacking any arguable basis in law or fact, we also deem this appeal

frivolous under 28 U.S.C. § 1915(e)(2)(B). Alejo incurs strikes one and two. He

now has two strikes for purposes of § 1915(g) because he did not accumulate any

strikes prior to this lawsuit. Alejo is advised that if he incurs one more strike by

filing another frivolous suit, he will no longer be entitled to proceed in forma

pauperis in any further federal lawsuits, other than habeas, which do not involve

“imminent danger of serious physical injury.” White v. Colorado, 157 F.3d 1226,

1232 (10th Cir. 1998), cert. denied, 119 S. Ct. 1150 (1999). Finally, we remind

Alejo of his continuing obligation to pay all installments of the deferred appellate

filing fee until it is paid in full. No exception is made for dismissed appeals. See

28 U.S.C. § 1915(b)(2); Jennings, 175 F.3d at 781.

      AFFIRMED. The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge

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