                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 24 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DON WAYLAND HADDOCK,

                Plaintiff-appellant,

    v.                                                   No. 98-6155
                                                     (D.C. No. 97-CV-202)
    RJW INC.; DR. SHAWN NEELY;                           (W.D. Okla.)
    RICHARD COFFMAN; OKLAHOMA
    COUNTY SHERIFF; OKLAHOMA
    COUNTY JAIL,

                Defendants-Appellees.




                             ORDER AND JUDGMENT           *




Before BALDOCK , BARRETT , and HENRY , 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      This order and judgment is not binding precedent, except under the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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Don Wayland Haddock, an inmate proceeding pro se and in forma

pauperis, filed a civil rights suit in district court under 42 U.S.C. § 1983, seeking

damages for allegedly inadequate medical care and other substandard conditions

of confinement. The district court dismissed plaintiff’s complaint pursuant to 28

U.S.C. § 1915A, holding that it failed to state a claim upon which relief may be

granted. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      In his complaint, Mr. Haddock, a sixty-three-year-old individual who has

undergone cardiac bypass surgery, alleged that the defendants violated his

constitutional rights while he was a federal pre-trial detainee at the Oklahoma

County Detention Center. Specifically, he complained of defendants’ locking him

down twenty-three hours daily without cause; failing to provide prescribed

medication, exercise, and low-fat diet; depriving him of frequent showers and

clean clothing; failing to assign him to a lower bunk as an accommodation to his

age and condition, which resulted in his falling from an upper bunk and breaking

his foot; and giving him delayed and unsatisfactory medical treatment for the foot

injury.

      The district court referred the matter to a magistrate judge.     See 28 U.S.C.

§ 636(b)(1)(B). After providing factual information in a       Martinez report, see


                                            -2-
Martinez v. Aaron , 570 F.2d 317 (10th Cir.1978), two defendants filed a motion

to dismiss. The magistrate judge analyzed plaintiff’s claims and recommended

dismissal of all claims against all defendants.

       Upon plaintiff’s objection to the recommendation, the district court

conducted a de novo review, adopted the magistrate judge ‘s recommendation,

and dismissed the case pursuant to 28 U.S.C. § 1915A. Plaintiff requested

reconsideration of the dismissal. Because the request was filed within ten days of

the date judgment was entered, the court treated it as a motion to alter or amend

the judgment pursuant to Fed. R. Civ. P. 59(e), concluded that reconsideration

was not warranted, and denied the motion. This appeal followed.

       We first address defendants’ argument that we lack jurisdiction over this

appeal because the notice of appeal was filed more than thirty days after entry of

the district court’s initial order of dismissal.     See Fed. R. App. P. 4(a). This

argument overlooks the operation of Fed. R. App. P. 4(a)(4), which tolls the time

for filing a notice of appeal until the district court rules on a motion for

reconsideration filed within ten days of entry of judgment.       See Grantham v. Ohio

Cas. Co. , 97 F.3d 434, 435 (10th Cir. 1996). Plaintiff’s appeal is timely.

       We review de novo a district court’s order dismissing a prisoner’s case for

failure to state a claim pursuant to 28 U.S.C. § 1915A.       See McGore v.

Wrigglesworth , 114 F.3d 601, 604 (6th Cir.1997);         see also Perkins v. Kansas


                                               -3-
Dep’t of Corrections , No. 98-3005, 1999 WL 33063, at *1 (10th Cir. Jan. 27,

1999) (establishing the de novo standard of review for a dismissal under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim).   1
                                                                Dismissal for failure to

state a claim is proper only where, after accepting all factual allegations as true,

the “ < plaintiff can prove no set of facts in support of his claims that would entitle

him to relief.’”   Leonhardt v. Western Sugar Co.      , 160 F.3d 631, 634 (10th Cir.

1998) ( quoting Dill v. City of Edmond , 155 F.3d 1193, 1201 (10th Cir.1998)).

We liberally construe a pro se litigants’ pleadings, but “this does not relieve the

plaintiff of the burden of alleging sufficient facts on which a recognized legal

claim could be based.”     Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).

       In Craig v. Eberly , 164 F.3d 490 (10th Cir. 1998), we summarized the

applicable standards for constitutional challenges to prison conditions:

       [J]ail officials [must] provide humane conditions of confinement by
       ensuring inmates receive the basic necessities of adequate food,
       clothing, shelter, and medical care and by taking reasonable measures
       to guarantee the inmates’ safety. To hold a jailer personally liable


1
       Three similar statutory provisions direct the district court to dismiss, on its
own motion or the motion of a party, a prisoner’s civil rights action filed in forma
pauperis if the court determines that the action is frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief.     See 28 U.S.C. § 1915A (concerning
the screening of prisoner suits “seek[ing] redress from a governmental entity or
officer or employee of a governmental entity” to determine if they are subject to
dismissal); 28 U.S.C. § 1915(e)(2)(B) (concerning dismissal of in forma pauperis
claims); 42 U.S.C. § 1997e(c) (concerning dismissal of prisoner civil rights suits
concerning prison conditions).

                                             -4-
      for violating an inmate’s right to humane conditions of confinement,
      a plaintiff must satisfy two requirements, consisting of an objective
      and subjective component. The objective component requires that
      the alleged deprivation be sufficiently serious. . . . [J]ail conditions
      may be restrictive and even harsh without violating constitutional
      rights. Indeed, only those deprivations denying the minimal civilized
      measure of life’s necessities are sufficiently grave to form the basis
      of an Eighth Amendment violation. . . .

             The subjective component requires the jail official to have a
      sufficiently culpable state of mind. In the context of
      prison-conditions claims, the required state of mind is one of
      deliberate indifference to inmate health and safety. In other words,
      the jailer is liable only if he or she knows of and disregards an
      excessive risk to inmate health and safety; the official must both be
      aware of facts from which the inference could be drawn that a
      substantial risk of serious harm exists, and he must also draw the
      inference. It is not enough to establish that the official should have
      known of the risk of harm.

Id. at 495-96 (quotations and citations omitted).

      Applying these standards, we determine that plaintiff has failed to allege

facts demonstrating either the objective or subjective components of a valid

claim. Concerning medical care, the record indicates that plaintiff received

medical attention for a variety of complaints, including those associated with his

heart condition and foot injury. The allegations of denied or delayed treatment

implicate only defendants’ negligence and do not establish the more culpable state

of mind necessary to support a constitutional claim. Similarly, plaintiff’s

complaints concerning other conditions do not suggest either deprivation of basic

necessities or deliberate indifference to plaintiff’s health and safety.


                                          -5-
      The judgment of the district court is AFFIRMED. Defendants' motion to

dismiss is DENIED. The mandate shall issue forthwith.



                                                Entered for the Court



                                                Bobby R. Baldock
                                                Circuit Judge




                                      -6-
