Marlin A. Simpson, Plaintiff-appellant, v. (nfn) Graff, Warden, Corporate Corrections of America,defendant-appellee, 76 F.3d 393 (10th Cir. 1996)

ORDER AND JUDGMENT¹ 

This matter is before the court on appellant's motion for leave to proceed on appeal without prepayment of costs. He contends the district court improperly dismissed his pro se civil action on the ground he failed to state a claim. Mr. Simpson's complaint averred defendant's negligence was the cause of physical injuries he sustained while an inmate in the Leavenworth, Kansas, federal holding facility. He also maintained he was not given proper medical care to treat his injury.

The district court dismissed the pro se complaint filed under 28 U.S.C. 1331 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The court held plaintiff's allegation of negligence was insufficient to state a constitutional claim. See Daniels v. Williams, 474 U.S. 327 (1986). The court also held Mr. Simpson had merely challenged the medical judgment rendered by his treating physicians and expressed "a mere difference of opinion concerning the appropriate course of treatment." This, the court held was insufficient to state a claim of constitutional proportions. Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992). Upon appellant's motion, the district court denied leave to appeal in forma pauperis on the ground the appeal was legally frivolous. In these holdings, we concur.

To succeed on a motion for leave to proceed without payment of fees, an appellant must show both a financial inability to pay the required filing fees, and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C.1915(a); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir. 1962). We conclude appellant can make no rational argument on the law or facts in support of the issues raised; therefore, the motion for leave to proceed on appeal without prepayment of costs or fees is DENIED. It is further ordered the appeal is DISMISSED because no rational argument can be made. The mandate shall issue forthwith.