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No. 05-3125
(D.C. No. 04-CV-3114-GTV)
(FNU) LINNEMAN, Mental Health Professional, Corrections Care Services, El Dorado Correctional Facility, in his official and private capacities; and ROGER WERHOLTZ, Secretary, Kansas Department of Corrections, in his official and private capacities,
(D. Kansas)


Before EBEL, McKAY, and HENRY, Circuit Judges.

After examining Appellant's brief and the 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 is a pro se civil rights appeal under 42 U.S.C. § 1983. In his complaint, Mr. Fagan asserts that his civil rights were violated by Kansas Department of Corrections officials (Defendants). Mr. Fagan claims Defendants violated the Eighth Amendment guarantee against cruel and unusual punishment by depriving him of adequate medical care for his previously diagnosed bipolar disorder. The district court dismissed Mr. Fagan's complaint because he failed to state a claim for relief under 42 U.S.C. § 1983 and entered judgment in Defendants' favor. Mr. Fagan appeals to this court.

We agree with the district court that Mr. Fagan fails to state a cognizable Eighth Amendment claim. To pursue his § 1983 claim based on such a constitutional violation, Mr. Fagan must show "deliberate indifference." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "Deliberate indifference" occurs when an official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Proof of "deliberate indifference" requires evidence that the pain or deprivation was sufficiently serious and that the offending official's state of mind was sufficiently culpable. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Mr. Fagan failed to allege facts that meet this two-part test. Thus, Mr. Fagan's § 1983 claim is not cognizable.

After a thorough review of Appellant's brief and the record, and for substantially the same reasons set forth in the district court's well-reasoned August 9, 2004, order and judgment of dismissal, we hold that Mr. Fagan failed to state a claim upon which relief may be granted.

The decision of the district court is AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge

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*. 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.

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