                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 24 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT REYNOLDS, JR.,

                Plaintiff-Appellant,

    v.                                                   No. 96-6272
                                                   (D.C. No. CIV-94-1004-C)
    COMANCHE COUNTY BOARD OF                             (W.D. Okla.)
    COUNTY COMMISSIONERS;
    COMANCHE COUNTY JAIL;
    KENNETH STRADLEY,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before TACHA, MCKAY, and BALDOCK, 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); 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Robert Reynolds, Jr. appeals the dismissal of his 42 U.S.C. § 1983

civil rights complaint, alleging various constitutional violations in relation to his

three-month confinement as a pretrial detainee in the Comanche County Jail.

Upon consideration of the parties’ briefs and review of the record, we exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. 1



                                           I.

      Plaintiff was held in the Comanche County Jail for approximately one

hundred days on a charge of escape. Although plaintiff had been convicted and

was serving his sentence when he escaped, he was being held as a pretrial

detainee during the period of time in question here. In his complaint, plaintiff

claimed that his rights under the First, Eighth, and Fourteenth Amendments were

violated during his detention. He also claimed he was denied needed medical

treatment for an injury he received while he was incarcerated.




1
       Plaintiff filed his notice of appeal on August 1, 1996, after the April 26,
1996, enactment of the Prison Litigation Reform Act (PLRA), Pub.L. No.
104-134, 110 Stat. 1321. The district court did not grant plaintiff leave to
proceed in forma pauperis on appeal. Thus, we grant plaintiff permission to
proceed on appeal without prepayment of the filing fee, but hereby assess plaintiff
the filing fee in accordance with § 1915(b), as amended by the PLRA. The Clerk
of the Court is directed to enter an order assessing the fee and requiring
submission of appropriate forms and documents.


                                          -2-
      Upon recommendation of the magistrate judge, the district court dismissed

all of plaintiff’s claims except his complaints regarding the conditions of his

confinement and the denial of needed medical care. The matter was returned to

the magistrate judge for further proceedings. Following an evidentiary hearing,

the magistrate judge entered judgment in favor of defendants. 2 On appeal,

plaintiff claims that the magistrate judge’s decision in favor of defendants was

incorrect. We do not agree.



                                         II.

      Plaintiff alleged that (1) his cell was unclean and overcrowded, forcing him

to sleep on the floor without a mattress; 3 (2) he was confined without proper toilet

facilities; (3) his cell contained poor lighting and inadequate ventilation; (4) he

was denied access to personal hygiene articles; and (5) he was denied proper

exercise. Plaintiff contends that although individually, these conditions of

confinement do not constitute a due process violation, when considered together

over a period of one hundred days, plaintiff’s constitutional rights were violated.




2
      The parties consented to final adjudication by the magistrate judge pursuant
to 28 U.S.C. § 636(c).
3
      On appeal, plaintiff appears to have abandoned his claim that he had no
mattress, and instead contends that he was forced to sleep on the floor without a
bed. See Appellant’s Br. at 3-4.

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      The Supreme Court has held that, while the Eighth Amendment’s

proscription against cruel and unusual punishment does not apply to pretrial

detention, “[d]ue process requires that a pretrial detainee not be punished.” Bell

v. Wolfish, 441 U.S. 520, 535 n.16 (1979). In determining whether certain

conditions imposed on a pretrial detainee amount to punishment, the court must

determine whether the conditions were imposed for the purpose of punishment or

whether the conditions were incident to some other government purpose. See id.

at 538.

      Upon his arrival at Comanche County Jail on August 2, 1993, plaintiff was

initially placed in a cell which, although designed to house sixteen inmates, held

twenty to twenty-four inmates on a fluctuating basis. He was in this cell for only

four or five days, at which point he was moved, at his request, to a cell designed

to house eighteen inmates. Jail records indicate that during August 1993, the

number of inmates in this cell ranged from eighteen to twenty-seven, during the

month of September 1993, from fourteen to twenty-three, and during the month of

October 1993, from fourteen to twenty-three. See Appellant’s App. at 19 n.5.

During September and October 1993, the number of inmates housed in the cell

fell at or below capacity for a substantial number of days. See id. The magistrate

judge acknowledged that the jail records indicate that during plaintiff’s

incarceration, the number of toilets, showers, and basins mandated per inmate fell


                                         -4-
below the standard of one for every twelve inmates. See id. at 28-29. Moreover,

the ventilation and lighting provided were also below standard. See id. at 29.

      We have held that prison officials must provide “reasonably adequate”

ventilation, sanitation, bedding, hygienic materials, and utilities. Ramos v.

Lamm, 639 F.2d 559, 568 (10th Cir. 1980). Referring to the testimony of E. M.

Martin, the Oklahoma state jail inspector for Comanche County, the magistrate

judge concluded that although conditions in the jail during plaintiff’s stay “were

undoubtedly uncomfortable and unpleasant,” they did not constitute punishment in

violation of his constitutional rights. Appellant’s App. at 26. Mr. Martin

testified that despite the overcrowding, at all times relevant to plaintiff,

conditions at the jail were reasonably adequate to meet plaintiff’s needs, and did

not constitute inhumane treatment or a deprivation of the basic needs of life. See

id. at 136-37. Moreover, Mr. Martin testified that if that had not been the case,

he would have shut the jail down as he had done with other facilities. See id. at

137-38.

      An important factor to consider in reviewing plaintiff’s complaints is his

length of stay in the jail facility. The Supreme Court has stated that “confining a

given number of people in a given amount of space in such a manner as to cause

them to endure genuine privations and hardship over an extended period of time

might raise serious questions under the Due Process Clause as to whether those


                                          -5-
conditions amounted to punishment.” Bell, 441 U.S. at 542. The facility at issue

in Bell was routinely releasing a majority of its detainees within sixty days. The

court concluded that the prison conditions endured during this period were not

constitutionally inadequate. See id. at 542-43. Likewise, while the conditions

and deprivations of which plaintiff complains may, over a long period of time,

become punishment, we agree with the magistrate judge that for the few months

of plaintiff’s confinement, they were constitutionally permissible.



                                        III.

      Next plaintiff asserts that he was denied medical treatment for an injury to

his back received during an altercation with an officer at the jail on October 22,

1993. Following the altercation, plaintiff was placed in a maximum security cell

because he was out of control and presented a danger to himself and others.

Plaintiff claimed that Diana Laux, a nurse at the jail, observed him through a

window on October 23, 1993, but did not treat him until October 26, 1993, at

which time she recommended that plaintiff be seen by a doctor. Plaintiff asserts,

in a conclusory fashion, that the delay in treatment constituted a deliberate

indifference to his injury.

      At the hearing, Ms. Laux testified that the injury to plaintiff’s back was a

small abrasion of “a type that you would receive from a carpet burn or maybe


                                         -6-
concrete if you skinned your knee or something.” Appellant’s App. at 162.

Because the jail personnel consulted Ms. Laux by telephone regarding whether,

and in what manner, plaintiff should be restrained, Ms. Laux was aware of the

altercation. She testified, however, that she did not know of any injury until she

treated plaintiff on October 26, 1993. See id. at 160-62. Although she

determined that plaintiff’s injury was not of a serious nature and did not require

treatment by a doctor, she testified that, because plaintiff was demanding to see a

doctor, she authorized a hospital visit. See id. at 159, 162-63. Plaintiff saw a

doctor on August 31, 1993.

      Under the due process clause of the Fourteenth Amendment, as a pretrial

detainee, plaintiff was entitled to the same protection of his need for medical

attention as that afforded a convicted prisoner under the Eighth Amendment. See

Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992). Plaintiff’s claim,

therefore, is considered under the “deliberate indifference to serious medical

needs” standard of Estelle v. Gamble, 429 U.S. 97, 104 (1976). A constitutional

violation occurs only when the government official has exhibited deliberate

indifference to an established serious medical need. See Frohmader, 958 F.2d at

1028. A mere delay in medical treatment does not constitute a constitutional

violation unless it can be shown that the delay was the result of deliberate




                                         -7-
indifference resulting in substantial harm. See Olson v. Stotts, 9 F.3d 1475, 1477

(10th Cir. 1993).

      The magistrate judge determined that plaintiff’s injuries were not

sufficiently serious to satisfy the first prong of the Supreme Court’s test in

Estelle--the existence of a serious medical need. On appeal, plaintiff does not

assign error to this finding. See Hein v. TechAmerica Group, Inc., 17 F.3d 1278,

1279 (10th Cir. 1994) (holding that a reviewing court accepts as undisputed the

district court findings not expressly appealed by the litigant). Even if we were to

assume, however, that plaintiff’s injury was sufficiently serious, we agree with

the magistrate judge that plaintiff failed to show that any delay in treatment was

the result of deliberate indifference, or that the delay resulted in substantial harm.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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