F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        June 17, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 MICHAEL R. FAGAN,
              Plaintiff-Appellant,                      No. 05-3125
 v.                                            (D.C. No. 04-CV-3114-GTV)
 (FNU) LINNEMAN, Mental Health                          (D. Kansas)
 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,
              Defendants-Appellees.


                           ORDER AND JUDGMENT *


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       This order and judgment is not binding precedent, except under the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.
      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, 

, 104 (1976). “Deliberate indifference” occurs when an

official “knows of and disregards an excessive risk to inmate health or safety.”

Farmer v. Brennan, 

, 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, 

, 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


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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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