                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            JUL 25 2003
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

 GREGORY LEE MCCALL,

              Plaintiff - Appellant,
                                                         No. 03-3088
 v.                                              (D.C. No. 02-CV-3184-GTV)
                                                         (D. Kansas)
 JOHNSON COUNTY SHERIFF’S
 DEPARTMENT,

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **


      Plaintiff-Appellant Gregory Lee McCall, appearing pro se and in forma

pauperis, appeals from the district court’s dismissal of his civil rights action

against the Johnson County Sheriff’s Department. The district court construed

Mr. McCall’s complaint to allege that the Johnson County, Kansas Adult


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Detention Center’s policy of charging a copayment for medical services and a

monthly charge for medication inflicts cruel and unusual punishment in violation

of the Eighth Amendment. The district court dismissed the complaint for failure

to state a claim on which relief may be granted under 28 U.S.C. §

1915(e)(2)(B)(ii). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

      “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under

color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). A complaint filed

pro se must be given a liberal construction. See Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991). Such a complaint may, however, be dismissed upon initial

review if it is frivolous or malicious, fails to state a claim upon which relief may

be granted, or seeks monetary damages against a defendant who is immune from

such relief. 28 U.S.C. § 1915(e).

      Mr. McCall’s claim that his Eighth Amendment rights have been violated is

without merit. While it is true that a state statute that does not allow for

exceptions to a copayment requirement would be unconstitutional, that is not the

case here. Cf. Collins v. Romer, 962 F.2d 1508, 1514 (10th Cir. 1992).

      It is clearly constitutionally acceptable to charge inmates a small fee for

health care where, as here, indigent inmates are guaranteed service regardless of


                                          -2-
ability to pay. See Reynolds v. Wagner, 128 F.3d 166, 173-74 (3d Cir. 1997).

Despite Mr. McCall’s claim, it appears that penurious prisoners have a debit

placed on their prison account balance. As such, Mr. McCall does not allege that

he was denied access to medical care due to any inability to satisfy the copayment

requirement, but simply that he would prefer his money be used to “supplement

the horrible menu.” R. Doc. 1 at 4. Mr. McCall’s claim lacks any cognizable

merit.

         Accordingly, we AFFIRM the dismissal of Mr. McCall’s complaint for

failure to state a claim upon which relief may be granted for substantially the

reasons given by the district court. Mr. McCall is reminded that he remains

obligated to make partial payments until the entire filing and appellate fees have

been paid.

         AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                         -3-
McCall v. Johnson County Sheriff’s Department, No. 03-3088



LUCERO, Circuit Judge, concurring.


I concur in the judgment. I see nothing in the record or in the facts as argued by

the appellant that suggests that the co-payments at issue are “so large in

comparison to inmate income” as to implicate Eighth Amendment concerns.

Collins v. Romer, 962 F.2d 1508, 1510 (10th Cir. 1992) (summarizing plaintiffs’

allegations).
