                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 2 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EDWARD RICHARD NEWTON,

                Plaintiff-Appellant,

    v.                                                   No. 97-2174
                                                  (D.C. No. CIV-97-236-BB)
    SOCORRO COUNTY,                                       (D. N.M.)

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , EBEL , 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); 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff appeals the district court’s sua sponte dismissal of his civil rights

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(b)(6).

A district court may dismiss an     in forma pauperis complaint under

§ 1915(e)(2)(B)(i), (ii) if it determines that the action is frivolous or malicious or

that it fails to state a claim on which relief can be granted. A dismissal under

Rule 12(b)(6) is proper “when it appears that the plaintiff can prove no set of

facts in support of the claims that would entitle him to relief, accepting the

well-pleaded allegations of the complaint as true and construing them in the light

most favorable to the plaintiff.”    Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224

(10th Cir.) (quotation omitted),    cert. denied , 118 S. Ct. 55 (1997). A sua sponte

dismissal under Rule 12(b)(6) is proper when “it is patently obvious that the

plaintiff could not prevail on the facts alleged, and allowing him an opportunity to

amend his complaint would be futile.”      Hall v. Belmon , 935 F.2d 1106, 1110

(10th Cir. 1991) (quotation omitted). Because plaintiff is a pro se litigant,

we construe his allegations liberally.    See Haines v. Kerner , 404 U.S. 519, 520

(1972).

       In his complaint, plaintiff alleged that during his nine-month pretrial

detention in the Socorro County jail, his repeated requests for corrective surgery

for his chronically painful varicose veins were denied pursuant to an unidentified

county policy. The district court concluded that, even if one assumed that


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plaintiff’s varicose veins constituted a serious medical condition, his allegations

did not show deliberate indifference to his condition.

       As a pretrial detainee, the Eighth Amendment standard for medical

attention applies to plaintiff.   See Barrie v. Grand County, Utah , 119 F.3d 862,

867 (10th Cir. 1997). Only the “unnecessary and wanton infliction of pain”

violates the Eighth Amendment.        Estelle v. Gamble , 429 U.S. 97, 102-03 (1976).

Therefore, to state a cognizable claim plaintiff “must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Id. at 106. “[A]n official acts with deliberate indifference if its conduct (or

adopted policy) disregards a known or obvious risk that is very likely to result

in the violation of a prisoner’s constitutional rights.”   Barrie , 119 F.3d at 869.

       The conclusory allegations in plaintiff’s complaint do not state an Eighth

Amendment claim. Moreover, even if we were to consider the additional facts

provided by plaintiff on appeal, they demonstrate that plaintiff suffered at most

only a delay in medical treatment. After he returned to the custody of the

Colorado Department of Corrections, plaintiff received the corrective surgery.

A delay in medical treatment for a serious medical need does not violate a

prisoner’s constitutional rights unless the prisoner can show that the delay

resulted in substantial harm.     See Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir.




                                              -3-
1993). Plaintiff has made no showing of substantial harm resulting from the delay.

      Therefore, we AFFIRM the judgment of the district court dismissing

plaintiff’s complaint under 28 U.S.C. § 1915(e)(2)(B) and Rule 12(b)(6). We

note that plaintiff’s appeal is frivolous or fails to state a claim under 28 U.S.C.

§ 1915(e)(2)(B) for purposes of counting “prior occasions” under 28 U.S.C.

§ 1915(g). Plaintiff is hereby notified that three filings of cases that are

dismissed or affirmed on the basis that they are frivolous or fail to state a claim

under § 1915(g) will result in him being unable to proceed    in forma pauperis

under the provisions of § 1915(g).   1
                                         Defendant’s motion to strike is DENIED

as moot.



                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




1
       On June 24, 1997, this court entered an order assessing plaintiff fees and
costs in the amount of $105.00 for this appeal. Plaintiff has yet to pay any
portion of the assessment. While it appears that plaintiff is unable to pay the
assessment at this time, plaintiff is hereby notified that he remains under a
continuing obligation to pay the fees and costs assessed. Failure to pay the fees
and costs as required will be recorded by the Clerk of the Court of the United
States Court of Appeals and such information will be provided to this court upon
the filing of any future appeals in the Tenth Circuit.

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