                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    November 6, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

 HERM AN BARNES, JR.,

          Plaintiff - Appellant,
                                                       No. 06-1307
 v.                                            (D.C. No. 06-CV-00448-ZLW )
                                                         (D . Colo.)
 R . W ILEY ; L. LEY BA ; M . N A ILEY;
 and H. W ATTS,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      Petitioner-Appellant Herman Barnes Jr., a federal inmate appearing pro se,

appeals the district court’s order and judgment dismissing his civil rights

complaint as frivolous. 28 U.S.C. § 1915(e)(2)(B). He asks that we reverse the

district court and reinstate his claim.

      M r. Barnes is an inmate at the United States Penitentiary, Administrative

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
M aximum, in Florence, Colorado. After exhausting the Bureau of Prison’s (BO P)

grievance procedure, M r. Barnes initiated this action by filing a pro se civil rights

suit against various prison officials pursuant to Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971). H e seeks monetary damages and injunctive relief.

      M r. Barnes alleges the defendants violated his Eighth Amendment right to

be free from cruel and unusual punishment. He alleges that, as a side effect of his

diabetes, he is required to urinate at least six times an hour. Because the toilet in

his cell is timed to allow only two flushes per hour, M r. Barnes alleges that he has

been subjected to the smell of urine and feces between permitted flushes. His

grievances w ere denied on the basis that no medical necessity required him to

flush more than two times per hour and that such restrictions w ere designed to

regulate water usage and save money by preventing flooding damage. R. Doc. 3

at 20, 22, 25.

      A district court may dismiss a prisoner action if it determines the action is

frivolous or malicious, fails to state a claim upon which relief may be granted, or

seeks monetary relief from a defendant who is immune from such relief. 28

U.S.C. § 1915(e)(2)(B)(i)-(iii). An action is frivolous if “‘the claim [is] based on

an indisputably meritless legal theory’ or if it is founded on ‘clearly baseless’

factual contentions.” Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997)

(quoting Neitzke v. W illiams, 490 U.S. 319, 327 (1989)). In this case, the district

court concluded that M r. Barnes’s claim was indisputably meritless because he

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failed to “allege that he has been deprived of any of life’s necessities.” R. Doc. 9

at 3. W e review a district court’s determination that an action is frivolous for an

abuse of discretion, but to the extent that the determination is based on a legal

conclusion, our review is de novo. Conkle v. Potter, 352 F.3d 1333, 1335 n.4

(10th Cir. 2003).

      To succeed on an Eighth Amendment claim based on the conditions of

confinement, an inmate must allege facts to demonstrate the deprivation is

“sufficiently serious” and that prison officials acted with “deliberate indifference

to inmate health or safety.” Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir.

2006). “[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.” W ilson v. Seiter, 501 U.S. 294, 298 (1994) (internal citation and

quotation omitted). However, such a deprivation may include a condition that

constitutes a serious risk of substantial harm. Helling v. M cKinney, 509 U.S. 25,

33-35 (1993). Areas of basic human need include “shelter, sanitation, food,

personal safety, medical care, and adequate clothing.” Clemmons v. Bohannon,

956 F.2d 1523, 1527 (10th Cir. 1992); see also Farmer v. Brennan, 511 U.S. 825,

832-33 (1994).

      In this circuit, exposure to human waste has been deemed to be sufficiently

serious to satisfy the objective component of an Eighth Amendment violation.

Despain v. Uphoff, 264 F.3d 965, 974-75 (10th Cir. 2001); Shannon v. Graves,

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257 F.3d 1164, 1168 (10th Cir. 2001); M cBride v. Deer, 240 F.3d 1287, 1292

(10th Cir. 2001). The cases generally have concerned the total denial of facilities

or inoperative facilities resulting in physical exposure to human waste over a

multi-day period. See, e.g., Despain, 264 F.3d at 974-75; M cBride, 240 F.3d at

1292. This case is dissimilar. M r. Barnes is allowed to flush his toilet twice per

hour. That amounts to a maximum of forty-eight flushes per day, which the

district court was well w ithin its discretion to conclude is a sanitary condition.

Though M r. Barnes complains that he is also being discriminated against because

the two-flush-per hour rule does not apply to the warden, the staff, or other

inmates in other federal prisons, we remain unpersuaded that its application to

him constitutes cruel and unusual punishment or that he states an equal protection

claim, even with liberal construction of the complaint.

      W e DENY M r. Barnes’s motion to proceed IFP and DISM ISS this appeal.

W e ORDER M r. Barnes to immediately pay any unpaid costs and fees due this

court. Furthermore, M r. Barnes is reminded of his continuing obligation to

comply with the payment plan for his filing fee before the district court.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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