                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 6 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    RUSSELL M. BOLES,

                Plaintiff-Appellant,

    v.                                                   No. 99-1062
                                                     (D.C. No. 97-B-1742)
    FENTON SECURITY, INC. OF                               (D. Colo.)
    COLORADO, KERRY BYNES, and
    HARVEY DOOLEY,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , and BRISCOE, 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 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff-appellant Russell M. Boles, appearing         pro se , appeals from the

dismissal with prejudice of his civil rights claims brought pursuant to 42 U.S.C.

§ 1983. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       We review de novo the dismissal under Fed. R. Civ. P. 12(b)(6) of a

prisoner civil rights complaint for failure to state a claim     . See Riddle v.

Mondragon , 83 F.3d 1197, 1201 (10th Cir. 1996). A complaint should not be

dismissed under this rule “unless it appears beyond doubt that the plaintiff could

prove no set of facts in support of his claim that would entitle him to relief.”       Id.

In making this determination, a court presumes all of plaintiff's factual allegations

are true, construing them in the light most favorable to the plaintiff.       See id. at

1202. If the plaintiff is   pro se , a court construes his pleadings liberally, holding

them to a less stringent standard than formal pleadings drafted by lawyers.          See

id.

       The broad reading of the plaintiff's complaint does not relieve the
       plaintiff of the burden of alleging sufficient facts on which a
       recognized legal claim could be based. Not every fact must be
       described in specific detail, . . . and the plaintiff whose factual
       allegations are close to stating a claim but are missing some
       important element that may not have occurred to him, should be
       allowed to amend his complaint . . . . Nevertheless, conclusory
       allegations without supporting factual averments are insufficient to
       state a claim on which relief can be based.

Id. (quoting Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (citations

omitted)).


                                              -2-
      Plaintiff was incarcerated at the Park County Detention facility for

approximately four months in 1996. The facility is owned by defendant Fenton

Security, Inc., and the other two defendants were the chief administrator and

assistant chief administrator at the time relevant to the complaint. Plaintiff filed

his original complaint in September 1997. To avoid dismissal under 28 U.S.C.

§ 1915(e)(2)(B) (1997 Supp.), the district court outlined in detail the flaws in the

complaint and directed him to amend it.   See R. Doc. 21. Plaintiff attempted to

do so, filing an amended complaint in February 1998.

      In plaintiff’s amended complaint, he raised four claims. They include:

(1) his right of access to courts was denied because some of his legal papers were

confiscated when he was transferred to the facility; (2) while at the facility, he

was denied adequate medical treatment for his colitis and altitude sickness in

violation of the Eighth Amendment; (3) he was exposed to unsanitary and

dangerous conditions in regard to food preparation while at the facility; and (4)

his personal safety was jeopardized while housed there. Defendants filed a

motion to dismiss the amended complaint.

      The motion to dismiss was referred to a magistrate judge, who carefully

reviewed the amended complaint and recommended dismissal of all claims except

for the claims against defendants Dooley and Bynes concerning plaintiff’s diet.

See R. Doc. 53, at 13-14. Plaintiff, Dooley, and Bynes filed objections to the


                                          -3-
recommendations. The district court adopted the recommendations for dismissal

but rejected the recommendation that the diet claim not be dismissed. The court

concluded that the complaint failed to allege a sufficiently serious deprivation of

medical care and a sufficiently culpable state of mind, and did not meet the

deliberate indifference standard set forth by         Estelle v. Gamble , 429 U.S. 97, 104

(1976). See R. Doc. 62. We agree.

       In the amended complaint, plaintiff alleged that the facility’s doctor agreed

that a “diet high in ‘organic fiber’, low in fat, low starch, and low carbohydrates”

was proper treatment for his colitis and “ordered it be administered.” R. Doc. 22,

at 6. Plaintiff, who is Jewish, stated that the diet was “remarkably similar in

many respects to a strict Kosher diet,”    id. , and requested that the facility provide

him with Kosher foods.      See R. Doc. 4, attachment 4. The complaint does not

allege, however, that the doctor prescribed a Kosher diet, and the documents

submitted with plaintiff’s complaint indicate only that defendant Bynes rejected

plaintiff’s request for a Kosher diet.    See id. The amended complaint states that

defendants Dooley and Bynes, “both concurring, denied the doctor ordered diet

. . . because of cost” but allowed him to prepare his own food. R. Doc. 22, at 7.

The amended complaint alleges that his inability to get a consistent and adequate

diet put him “on a never ending roller-coaster of sickness in varying degrees” for

which the facility doctor could not find the “nature of the problem.”         Id. Thus,


                                                -4-
according to plaintiff’s statement of the facts, it appears that the doctors did not

specifically connect plaintiff’s health problems with diet.

       The complaint also alleges that, although a doctor recommended that he be

immediately transferred to a medical facility for further diagnosis, he was not

transferred for two months. The complaint alleges that doctors at the diagnostic

facility determined that his breathing problem was likely caused by altitude

sickness, which, to plaintiff, meant that he had been placed in danger of death

while at the Park County facility.   See id. at 7-8. We disagree with plaintiff’s

conclusion. Significantly, however, the complaint does not allege that any harm

arose from the two-month delay in transfer.

       “[D]eliberate indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain,’ . . . proscribed by the Eighth

Amendment.” Estelle , 429 U.S. at 104 (citation omitted). To state a cognizable

Eighth Amendment claim, a prisoner “must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs. It is only

such indifference that can offend ‘evolving standards of decency’ in violation of

the Eighth Amendment.”       Id. at 106. We agree with the district court that

plaintiff’s complaint failed to state a claim for which relief may be granted in

regard to his medical needs. For substantially the same reasons as stated in the




                                           -5-
magistrate judge’s recommendations, we also conclude that the district court

properly dismissed the rest of plaintiff’s claims.

      Plaintiff's motion for leave to proceed on appeal without prepayment of

costs or fees is GRANTED. The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




                                          -6-
