UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GREGORY SHANE McGEE,

Plaintiff-Appellant,

v.

DR. BLOOR; DR. NEUFELD; TRACY LOTT; ERNIE PYLE; DONICE NEAL; RON JOHNSON; SGT. HUDSPETH,

Defendants-Appellees.

No. 99-1536

(District of Colorado)

(D.C. No. 98-B-1002)

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.

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. 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). 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