      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 99-1496

                       ROBERT M. JOOST,

                    Plaintiff, Appellant,

                              v.

              CORNELL CORRECTION, INC., ET AL.,

                    Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]


                            Before

                    Torruella, Chief Judge,
               Stahl and Lipez, Circuit Judges.




     Robert M. Joost on brief pro se.
     Michael C. Donahue, M. Christine Breslin and Gelerman,
Cashman & Donahue on brief for appellees.




                         May 9, 2000
           Per Curiam.       In 1996, in order to attend his new

trial on a criminal count that had been vacated on appeal,

plaintiff Robert Joost was transferred from a federal prison

in Pennsylvania to the Wyatt Detention Facility (Wyatt) in

Rhode Island.    He was at that time already serving a lengthy

sentence on a related count of conviction.                    Less than five

months later, after again being convicted and sentenced on

the vacated count, he was returned to Pennsylvania.                     In this

Bivens action for damages, plaintiff alleges that various

conditions at Wyatt violated his constitutional rights and

contravened     Bureau      of    Prison     (BOP)   regulations.          The

district    court,     adopting,       as    amended,      the   report    and

recommendation of a magistrate judge, dismissed for failure

to state a claim.      See Fed. R. Civ. P. 12(b)(6).               We affirm

substantially for the reasons enumerated below, adding only

the following comments.

           1.     Wyatt      is    a   municipally        owned,   privately

operated    facility     that     houses     federal      prisoners,     among

others,    pursuant    to    a    contract    with     the    United    States

Marshals Service.      Whether the BOP regulations apply to such

a facility--an issue over which the magistrate judge and

district    judge      divided--need         not     be      resolved    here.


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Plaintiff's claims prove to be deficient even if we assume,

without deciding, that the regulations do apply.

            2.    We endorse the determination made below that,

for purposes of the instant case, plaintiff should be deemed

a   convicted     prisoner    rather     than    a   pretrial     detainee.

Indeed, the very regulations relied on by plaintiff so

specify.    See 28 C.F.R. § 551.101(a)(3).

            3.     In his Eighth Amendment claims, plaintiff

alleges that four separate conditions at Wyatt constituted

cruel and unusual punishment: his inability to properly

exercise; his confinement in an overcrowded two-person cell;

his   occasional     confinement    in    a     holding   area;    and    his

exposure to loud noise.          In each instance, we agree that

plaintiff has failed to satisfy the objective component of

the   Eighth     Amendment    test--i.e.,       to   "show   that    he    is

incarcerated under conditions posing a substantial risk of

serious harm."      Farmer v. Brennan, 511 U.S. 825, 834 (1994);

see, e.g., Giroux v. Somerset County, 178 F.3d 28, 32 (1st

Cir. 1999).

            The latter three claims require little comment.

Plaintiff has admitted that the noise quieted down by 11:00

at night.        His confinement in the holding cell entailed

nothing    more     than     "routine    discomfort."           Hudson     v.


                                   -3-
McMillian, 503 U.S. 1, 9 (1992).       And he has not contended

that the double celling or other incidents of overcrowding

led to "deprivations of essential food, medical care, or

sanitation," increased "violence among inmates," or created

"other    conditions   intolerable    for    prison   confinement."

Rhodes v. Chapman, 452 U.S. 337, 348 (1981).

            His complaint about lack of exercise comes closest

to stating a claim.       See, e.g., Antonelli v. Sheahan, 81

F.3d 1422, 1432 (7th Cir. 1996) ("Lack of exercise may rise

to   a   constitutional   violation   in    extreme   and   prolonged

situations where movement is denied to the point that the

inmate's health is threatened.").           Yet that complaint is

vague and qualified; he alleges only that he was "denied any

opportunity    to   properly   exercise"    and   that   he   thereby

incurred an unspecified shoulder injury.           Moreover, it is

undisputed that plaintiff could leave his cell for six hours

per day.     He acknowledges that a "recreation place" and a

(cramped) weight room were available.         And the docket sheet

from his retrial reveals that he attended court sessions on

at least nine occasions.       Considering the relative brevity

of plaintiff's 140-day stay at Wyatt, we agree as a matter

of law that this claim is not "sufficiently serious" to make




                                -4-
out an Eighth Amendment violation.                Wilson v. Seiter, 501

U.S. 294, 298 (1991).

             4.     Plaintiff's       due    process    claims          involve    a

separate trio of conditions: the denial of contact visits;

an 18-hour lockdown policy; and a telephone system that

permitted only collect calls to be made at exorbitant rates.

Plaintiff contends that each of these conditions contravened

BOP regulations.           In the latter two cases, he is clearly

mistaken.         And in the case of contact visits, such an

argument draws a modicum of support only from a provision to

which   he   has    not    referred    (28    C.F.R.        §    540.51(g)(2)).

Regardless, where all Wyatt inmates have been denied contact

visits, that deprivation cannot be deemed an "atypical and

significant       hardship    ...     in    relation        to    the    ordinary

incidents     of     prison       life"     so    as        to     implicate       a

constitutionally protected liberty interest.                            Sandin    v.

Conner, 515 U.S. 472, 484 (1995).                     The same conclusion

applies to the lockdown, to which at least half of Wyatt's

inmates      were         subjected;        plaintiff's            analogy        to

administrative segregation is unpersuasive.

             In    turn,    the   contention     that       plaintiff       had    a

property interest in reasonable phone rates is unsupported.

The   settlement     agreement      reached      in    an       unrelated    case,


                                      -5-
involving a type of phone system not in place at Wyatt,

avails him little.             And to the extent plaintiff's complaint

can be construed as a demand for injunctive relief in this

regard, that request is now moot.

             5.      Plaintiff's final series of claims, alleging

violations of equal protection, involve this same trio of

conditions.        The magistrate judge accurately described "the

gravamen" of these claims as alleging "that [plaintiff] and

other prisoners housed at Wyatt enjoy[ed] fewer privileges

than those enjoyed by prisoners incarcerated in most prisons

operated by the Bureau of Prisons."                         That argument was

properly dismissed.             See, e.g., Biliski v. Harborth, 55 F.3d

160,   162   (5 th      Cir.    1995)   (per    curiam)       (rejecting     equal

protection        claim        where    plaintiff          sought   to    compare

conditions at different prisons).

             Before the district judge, and again on appeal,

plaintiff         has     insisted      that         the     magistrate     judge

"misinterpreted"           his     claims      and    that     he   was    mainly

complaining        about       differential     treatment       among     separate

groups of Wyatt inmates.                 To the contrary, his earlier

pleadings contained no such argument; instead, they demanded

that plaintiff be treated the same as the other "100,000-

plus federal prisoners."                This complaint about different


                                        -6-
conditions     within    Wyatt   itself     thus    constitutes     a   new

argument that, not having been presented to the magistrate

judge, has been waived.          See, e.g., Maine Green Party v.

Maine Secretary Of State, 173 F.3d 1, 4-5 (1 st Cir. 1999);

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec.

Co.,   840    F.2d   985,   990-91   (1st    Cir.    1988)   ("We       hold

categorically that an unsuccessful party is not entitled as

of right to de novo review by the judge of an argument never

seasonably raised before the magistrate.").              At least from

the record before us, we add that the argument appears of

dubious merit in any event.

             Affirmed.




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