                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 3, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 REGINALD LAWRENCE HARRIS,

              Plaintiff–Appellant,

 v.

 SERGEANT (FIRST NAME
 UNKNOWN) GUTIERREZ (CCCF);
 CAPTAIN (FIRST NAME
                                                        No. 09-1184
 UNKNOWN) KOLHANDER (CCCF);
                                              (D.C. No. 1:09-CV-00424-ZLW)
 STAFF OFFICER (FIRST NAME
                                                         (D. Colo.)
 UNKNOWN) HANBY (CCCF);
 STAFF OFFICER (FIRST NAME
 UNKNOWN) PELSTER (CCCF);
 STAFF OFFICER (NAME
 UNKNOWN) JOHN DOE (CCCF); and
 (CCCF - CROWLEY COUNTY
 CORRECTIONAL FACILITY),

              Defendants–Appellees.


                          ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
      Reginald Lawrence Harris, a state prisoner proceeding pro se, appeals the

dismissal of his 42 U.S.C. § 1983 action. He claims the defendants violated his

rights under the Eighth and Fourteenth Amendments by placing him in an unlit

cell for over three hours and thereafter serving him a dinner of cold pizza.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Harris is a prisoner at Colorado’s Sterling Correctional Facility. On May

16, 2008, he was transferred to a segregation cell. According to Harris, this

transfer violated prison policy in several respects: he was not strip-searched when

placed in the cell and his cell had not been inspected. As evening approached,

Harris attempted to turn on the light in his cell, but it was not working. He

notified Sergeant Gutierrez and asked to be moved to a different cell. Gutierrez

denied Harris’ request and ordered him to “strip out.” When Harris refused,

Gutierrez became angry and would not bring Harris food or transfer him out of

the unlit cell. After Gutierrez’s shift ended, another prison official strip searched

Harris and transferred him to a different cell. In the new cell, Harris was finally

fed. However, the pizza he was provided was cold; Harris describes it as

“inedible.” The entire incident lasted approximately three and one half hours.

      After exhausting his prison grievance procedures, Harris filed suit in

federal district court. He alleges that the actions of Gutierrez and other prison

officials constituted cruel and unusual punishment and denied him due process.




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The district court dismissed his suit as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(I). Harris appeals.

      We agree with the district court that Harris fails to state an Eighth

Amendment claim. He does not allege a “sufficiently serious” deprivation that

resulted “in the denial of the minimal civilized measure of life’s necessities.”

Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (quotation omitted). As

described, the single incident Harris complains of falls well short of this standard.

Further, Harris’ descriptions of the defendants’ actions do not demonstrate

deliberate indifference. He has not alleged that the defendants knew of or

disregarded “an excessive risk to inmate health or safety.” Farmer v. Brennan,

511 U.S. 825, 837 (1994).

      We also agree with the district court’s dismissal of Harris’ due process

claim. Harris asserts that he was denied due process when Gutierrez and two

other prison officials refused to notify the shift commander of Harris’ complaints.

However, he has not alleged that he was subjected to “atypical and significant

hardship . . . in relation to the ordinary incidents of prison life” or “action [that]

will inevitably affect the duration of his sentence.” Sandin v. Conner, 515 U.S.

472, 484, 487 (1995). Accordingly, Harris has not pled a constitutionally

protected liberty interest.

      Because we conclude this appeal was frivolous, we DISMISS under 28

U.S.C. § 1915(e)(2)(B)(I) and DENY Harris’ motion for leave to proceed on

                                           -3-
appeal without prepayment of fees. Harris must immediately pay the balance due

on his filing fee. We further note that our dismissal counts as a strike under 28

U.S.C. § 1915(g).


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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