                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 2 1997
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 STEVEN JAMES,

          Plaintiff-Appellant,
 v.                                                       No. 97-6056
                                                   (D.C. No. CIV-96-0082-R)
 UNKNOWN WILEY and UNKNOWN                       (Western District of Oklahoma)
 SKITON,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      Plaintiff-appellant Steven James, a black North Carolina prisoner who was

housed for forty days at the Great Plains Correctional Facility in Hinton,

Oklahoma, has alleged violations of his constitutional rights under the Eighth and

Fourteenth Amendment. The district court granted summary judgment to the

defendants, employees at the privately operated prison, ruling that the plaintiff


      *
         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(f) and 10th Cir. R. 34.1.9. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
failed to present sufficient evidence of any constitutional violations in the

treatment he received. Finding no error in the district court’s decision, we affirm

for substantially the same reasons given by the district court.

                                          I.

      Mr. James was transferred to the Great Plains Correctional Facility on

August 25, 1995, and three days later, prison officials placed him in

administrative segregation after discovering that Mr. James’s co-defendant also

was present in the prison and concluding that the two might be a danger to each

other. (See R., Mag. J.’s Report & Recommendation, at 1-2.) Approximately two

weeks after being placed in administrative segregation, Mr. James complained to

prison officials of chest pains and shortness of breath. (See R., Dist. Ct. Mem.

Op. & Order at 3.) He was attended by prison personnel within five minutes of

his complaint, and he was treated by a prison licensed practical nurse within 90

minutes. (See id. at 1-2.) He was treated by a nurse and then a physician the next

day, with the doctor prescribing medication for a stomach ailment. (See id. at 2.)

Mr. James contends that he was not suffering from a stomach ailment, but rather

had a respiratory problem. (See id.)

      Mr. James, proceeding pro se, filed this civil action in forma pauperis under

42 U.S.C. § 1983, alleging that the defendants violated his due process rights

under the Fourteenth Amendment by placing him in administrative segregation;


                                         -2-
violated his equal protection rights under the Fourteenth Amendment by treating

him differently than white inmates in administrative segregation; and violated his

right against cruel and unusual punishment under the Eighth Amendment by

failing to provide fresh air, exercise, and adequate medical care in the

administrative segregation unit. (See id. at 2.) Mr. James sought a declaratory

judgment and money damages in excess of $100,000. (See R., Complaint, ¶ 9.)

      The district court referred the case to a magistrate judge, who reviewed the

prison’s Martinez report, see Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir.

1978), and recommended that the district court award summary judgment to the

defendants. (See R., Mag. J.’s Report & Recommendation, at 8.) After reviewing

the report and the record de novo, the district court adopted the magistrate judge’s

findings and granted summary judgment to the defendants. (See R., Dist. Ct.

Mem. Op. & Order at 5.)

                                         II.

      We review a district court’s grant or denial of summary judgment on

constitutional claims de novo. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th

Cir. 1996). We examine the factual record and the reasonable inferences

therefrom in the light most favorable to the non-moving party. See id. If the

movant carries his initial burden of showing no dispute over material facts, the

opposing party may not rest on his pleadings, but he must set forth specific facts


                                         -3-
showing a genuine factual issue for trial. See id. In a case brought pro se, we

construe the plaintiff’s pleadings liberally, but we will not supply additional

factual allegations to round out the pleadings. See Witney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).

      In this case, we affirm the district court’s judgment because Mr. James has

failed to meet his burden of showing a genuine issue for trial. First, Mr. James

has no constitutional liberty interest with respect to whether he is housed in

administrative segregation as long as the conditions of the segregation are not

atypical of normal prison life. See Sandin v. Conner, 515 U.S. 472, 484 (1995)

(holding that a prisoner has a liberty interest only in being free from restraints

that “impose[] atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life”). 1 Mr. James has failed to provide evidence that

the conditions in the Great Plains administrative segregation unit, particularly

when limited to a duration of forty days, are atypical from the ordinary incidents

of prison life, and thus, he fails to establish that he had a protected liberty



      1
         The magistrate judge in this case relied on pre-Sandin case law that made a
distinction between punitive and non-punitive administrative segregation for due process
purposes. (See R., Mag. J.’s Report & Recommendation, at 4-5.) This distinction,
however, is no longer dispositive under Sandin. As the Court noted in Sandin, the
conditions of punitive and non-punitive segregation in the Hawaii prison system were
virtually identical. Sandin, 115 S. Ct. at 486. Thus, the crucial question is not the
semantic label attached to the segregation but whether the conditions of the segregation
impose “atypical and significant” hardships. See id. at 484.

                                          -4-
interest. The decision to place Mr. James in administrative segregation for his

own protection and for the protection of his co-defendant did not deprive him of

any constitutional rights.

      Second, Mr. James has failed to show any credible evidence of

discriminatory intent in the manner of his custody in the administrative

segregation unit. As a result, Mr. James has failed to present a colorable claim

that his right to equal protection has been violated, and the district court properly

dismissed this claim. See Watson v. City of Kansas City, Kansas, 857 F.2d 690,

694 (10th Cir. 1988) (“[T]o survive summary judgment, the plaintiff must go

beyond her pleadings and . . . provide evidence that discrimination was a

motivating factor for the defendants.”).

      Third, Mr. James’ Eighth Amendment claim that he received inadequate

medical care is insufficient as a matter of law because he has failed to show any

deliberate indifference on the part of the defendants. To survive summary

judgment, a claim under the Eighth Amendment must show both that the state

action has denied the plaintiff “the minimal civilized measure of life’s

necessities” and that the state actors have shown “deliberate indifference” to the

plaintiff’s needs. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Furthermore,

when a prisoner does in fact receive medical care, he has no Eighth Amendment

claim based merely on his disagreement with the nature of the care provided. See


                                           -5-
Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992). In Mr. James’ case,

prison employees responded as quickly as possible to his medical complaints.

(See R., Dist. Ct. Mem. Op. & Order, at 3-4.) Thus, the district court properly

dismissed the Eighth Amendment claim.

      Finally, although the district court did not explicitly address Mr. James’

claim for cruel and unusual punishment based on a deprivation of fresh air and

exercise, we find this claim groundless. We have held that a prison exercise cell

in an administrative segregation unit meets the minimum standards for exposure

to fresh air and exercise. See Housley v. Dodson, 41 F.3d 597, 599 (10th Cir.

1994). Mr. James has not alleged that he was prevented from exercising in the

administrative segregation unit’s exercise cell. Thus, this claim also properly was

dismissed.

      For the foregoing reasons, we AFFIRM the judgment of the district court.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        -6-
