                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         DEC 3 2002
                      UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                                    TENTH CIRCUIT



 LAVOY L. STEVENSON,

          Plaintiff - Appellant,
 v.
                                                       No. 02-6191
                                                  D.C. No. 01-CV-1440-A
 JOHN WHETSEL, Sheriff;
                                                    (W. D. Oklahoma)
 OKLAHOMA COUNTY
 COMMISSIONER,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      Lavoy L. Stevenson filed this pro se action under 42 U.S.C. § 1983 against

Sheriff John Whetsel and the Board of County Commissioners of Oklahoma

County (the “Board”) seeking damages for injuries allegedly sustained due to

prison overcrowding while he was a pre-trial detainee. The district court



      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 36.3.
dismissed the complaint against Whetsel in his personal and official capacity

pursuant to Fed. R. Civ. P. 12(b)(6) and against the Board pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). Stevenson appeals. We have jurisdiction pursuant to 28

U.S.C. § 1291. Because we agree that Stevenson failed to state a claim upon

which relief may be granted, we affirm.

                                          I

      While housed at the Oklahoma County Detention Center, Stevenson fell off

the top bunk in his cell in the course of attempting to descend without landing on

an inmate sleeping on the floor below. He hit his head on the bottom bunk,

causing an injury requiring stitches and staples. Stevenson alleges that the

cramped conditions in his cell—housing three inmates in a cell designed for

two—caused his injury. Convinced that the injuries he allegedly sustained due to

prison overcrowding amounted to a violation of his federal constitutional rights,

Stevenson filed a claim under 42 U.S.C. § 1983 seeking damages from Sheriff

Whetsel and the Board. Whetsel moved to dismiss Stevenson’s complaint,

asserting a lack of personal participation and entitlement to qualified immunity. 1


      1
         The district court correctly determined that Whetsel was entitled to
qualified immunity. Under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982),
“government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Because there is nothing to suggest that placing three prisoners in
                                                                       (continued...)

                                        -2-
After reviewing the magistrate’s recommendation de novo, the district court

granted Whetsel’s 12(b)(6) motion and dismissed the complaint against the Board

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 2 We review a dismissal for failure to

state a claim under Rule 12(b)(6) de novo. Kidd v. Taos Ski Valley, Inc., 88 F.3d

848, 854 (10th Cir. 1996). Because the language of § 1915(e)(2)(B)(ii) parallels

that of Fed. R. Civ. P. 12(b)(6), we also review de novo the district court’s

dismissal of the complaint against the Board.

                                           II

      While the Due Process Clause of the Fourteenth Amendment guarantees

pre-trial detainees humane conditions of confinement, “the Eighth Amendment

standard provides the benchmark for such claims.” Craig v. Eberly, 164 F.3d 490,

495 (10th Cir. 1998). Under Craig, in order to hold a jailer personally liable for

an alleged constitutional violation, a plaintiff must satisfy two requirements: (1)



      1
        (...continued)
a cell designed for two, of itself, violates clearly established constitutional rights,
Whetsel is entitled to qualified immunity.
      2
          Stevenson’s complaint was also challenged for a failure to exhaust
administrative remedies. We need not reach this issue, however, because the
district court did not dismiss Stevenson’s complaint for lack of exhaustion.
Rather, dismissal was based on a failure to state a valid claim for relief under
§ 1983. See 42 U.S.C. § 1997e(c)(2) (“In the event that a claim is, on its face,
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, the court
may dismiss the underlying claim without first requiring the exhaustion of
administrative remedies.”).

                                          -3-
an objective element, requiring that “the alleged deprivation be sufficiently

serious” and (2) a subjective element, which “requires the jail official to have a

sufficiently culpable state of mind.” Id. (quotation omitted). In the prison

context, a sufficiently culpable state of mind “is one of deliberate indifference to

inmate health and safety.” Id. (quotation omitted).

      Regarding the objective prong, overcrowding alone is not “sufficiently

serious” to establish a constitutional violation. See Rhodes v. Chapman, 452 U.S.

337, 348–49 (1981) (finding that housing two inmates in a cell designed for one

does not, without more, violate the Eighth Amendment). “[T]he Constitution does

not mandate comfortable prisons. . . .” Id. at 349. “[O]nly those deprivations

denying the minimal civilized measure of life’s necessities . . . are sufficiently

grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter,

501 U.S. 294, 298 (1991) (quotation omitted). Stevenson has not demonstrated

that placing three inmates in a cell designed for two denied him the minimal

civilized measure of life’s necessities. He has not alleged that the situation led to

“deprivations of essential food, medical care, or sanitation.” Rhodes, 452 U.S. at

348. Nor has he alleged facts allowing an inference that conditions rose to the

level of “conditions posing a substantial risk of serious harm.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994). Rather, Stevenson’s complaint alleges only a

discrete incident and what was possibly a temporary state of affairs. “To the


                                         -4-
extent that such conditions are restrictive and even harsh, they are part of the

penalty that criminal offenders pay for their offenses against society.” Rhodes,

452 U.S. at 347. In sum, without more factual support, we are unable to say that

placing three prisoners in a cell designed for two, of itself, rises to the level of an

Eighth Amendment violation.

      Regarding the second element, the subjective prong, Stevenson’s complaint

is also deficient, for Stevenson has failed to state a claim of deliberate

indifference by Whetsel. There is nothing in the record to suggest that prison

officials were aware that placing three prisoners in a cell designed for two created

excessive risks to inmate safety but nevertheless disregarded the possible risks.

Farmer, 511 U.S. at 837. Having failed to allege facts to support the necessary

objective and subjective elements, Stevenson has failed to state a claim of a

constitutional violation.

      Claims against Whetsel in his official capacity or against the Board are the

equivalent of an action against the county itself. See Lopez v. LeMaster, 172

F.3d 756, 762 (10th Cir. 1999). To create liability under § 1983, Stevenson

would have to establish: (1) that a constitutional violation occurred and (2) that

some official policy or custom was the moving force behind the violation. City of

Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1984). Because Stevenson has failed

to state a claim of a constitutional violation, there can be no liability against


                                          -5-
Whetsel in his official capacity or against the Board. However, even if Stevenson

had alleged facts to support a claim of a constitutional violation, he has not

alleged any facts to support a claim that his injuries resulted from an

unconstitutional policy or custom. Watson v. City of Kansas City, 857 F.2d 690,

695 (10th Cir. 1988). Thus, Stevenson’s claim against Whetsel in his official

capacity and against the Board fails to state a claim upon which relief may be

granted.

                                          III

      Measured by these standards, none of the alleged facts suggest the

occurrence of a constitution violation. Thus, Stevenson has failed to state a claim

upon which relief may be granted. We conclude that the district court properly

dismissed Stevenson’s complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 28

U.S.C. § 1915(e)(2)(B)(ii). The order of the district court is AFFIRMED.

Stevenson’s motion to proceed without prepayment of fees is GRANTED.

Stevenson is reminded that he must make partial payments until the filing fee is

paid in full. The mandate shall issue forthwith.


                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge


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