                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   October 27, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    FRED RAYNEL LUCERO,

                Plaintiff-Appellant,

    v.                                                  No. 08-1068
                                            (D.C. No. 1:06-cv-01467-WDM-CBS)
    MESA COUNTY SHERIFF’S                                (D. Colo.)
    DEPARTMENT; STANLEY HILKEY;
    STEVEN FARLOW; JIM
    WESTERMEYER; KEVIN MCCABE;
    MESA COUNTY DETENTION
    FACILITY,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.



         Fred Raynel Lucero, a Colorado inmate proceeding pro se, appeals the

district court’s grant of summary judgment to defendants in his prison-conditions



*
       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)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
suit under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291, and

we AFFIRM.

                                           I.

      Mr. Lucero set forth three claims of violations of his Eighth-Amendment

right to be free of cruel and unusual punishment. All of his claims stem from his

temporary transfer in April 2006 from Sterling Correctional Facility (SCF) to

Mesa County Detention Facility (MCDF) for a hearing.

      Mr. Lucero was housed at MCDF from April 19 to April 26, 2006. He

complains that, first, officials violated his medical and housing restrictions by

making him carry his bedding and personal property to a second-tier cell, and

second, his cell constituted inadequate shelter because it was made to

accommodate a second inmate by adding a portable bunk. The bunk took up a

great deal of the cell’s floor space, leaving a gap of less than eight inches

between the two bunks. Mr. Lucero states that, due to the narrow space between

the bunks, he repeatedly caught his foot, tripped, and fell.

      On April 26, Mr. Lucero began the journey back to SCF. He and seven

other inmates were transported by van from MCDF to the Denver Reception and

Diagnostic Center. Mr. Lucero complains that, during the ride, the rear

compartment of the van became extremely hot and intolerable because its blower

vents were not functioning and exhaust fumes were entering the compartment.




                                          -2-
The trip took about four to five hours of driving time. During two interim stops,

the inmates were allowed out of the van.

      Mr. Lucero’s first claim focused on his conditions of confinement at

MCDF. His second claim alleged that he was subjected to carbon monoxide

poisoning during the van ride, and his third stated that he was subjected to

extreme heat with no ventilation during that ride. In a comprehensive report and

recommendation, the magistrate judge recommended granting summary judgment

to defendants on all claims because Mr. Lucero had established neither the

objective nor the subjective elements required to prevail on his claims. Thus, the

magistrate judge recommended granting qualified immunity to defendants in their

individual capacities. Mr. Lucero objected to the recommendation as to claims

one and three against defendants in their individual capacities, but he explicitly

disclaimed any objections to the dismissal of his second claim, his claims against

defendants in their official capacities, and his requests for injunctive relief. The

district court accepted the report and recommendation and granted judgment to

the defendants. Mr. Lucero appeals.

                                         II.

      We review de novo a district court’s summary judgment decision regarding

qualified immunity. Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007)

(en banc). In evaluating qualified immunity, the court first determines whether

the facts alleged by the plaintiff, taken in the light most favorable to him, show

                                           -3-
that the defendants’ conduct violated a constitutional right. Saucier v. Katz,

533 U.S. 194, 201 (2001). If so, then the court determines whether the right was

clearly established such that a reasonable person in the defendants’ position

would have known that his conduct violated that right. Id.

      Prison officials must ensure that prisoners are afforded “humane conditions

of confinement,” such as “adequate food, clothing, shelter, and medical care,” and

“take reasonable measures to guarantee the safety of the inmates.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (quotation omitted). Establishing an Eighth

Amendment conditions-of-confinement claim requires a showing that

(1) objectively, the deprivation was “sufficiently serious so as to deprive inmates

of the minimal civilized measure of life’s necessities . . . [or] so as [to] constitute

a substantial risk of serious harm,” and (2) subjectively, the defendants “act[ed]

or fail[ed] to act with deliberate indifference to inmate health and safety.”

Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (quotations omitted).

Jail conditions may be “restrictive and even harsh,” yet not unconstitutional.

Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

                                    Claims 1 and 3

      We have reviewed the record de novo, with special attention to factual

issues Mr. Lucero contends were improperly decided against him. On the whole,

we agree with the district court’s analysis. Therefore, we affirm the grant of

summary judgment to defendants on Mr. Lucero’s first and third claims, based on

                                           -4-
qualified immunity, for substantially the reasons set forth by the magistrate judge

and the district court.

      To the extent Mr. Lucero requests the van ride and the conditions at MCDF

be evaluated in combination, we decline to do so. “Some conditions of

confinement may establish an Eighth Amendment violation ‘in combination’

when each would not do so alone, but only when they have a mutually enforcing

effect that produces the deprivation of a single, identifiable human need such as

food, warmth, or exercise . . . .” Wilson v. Seiter, 501 U.S. 294, 304 (1991).

“Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and

unusual punishment when no specific deprivation of a single human need exists.”

Id. at 305. The conditions complained of here did not involve the deprivation of a

single human need, making evaluation “in combination” improper.

                                      Claim 2

      Mr. Lucero claims he misdescribed his second claim for relief as carbon

monoxide poisoning instead of exhaust inhalation because of his lack of

sophistication in legal matters, and had counsel been appointed as he requested,

the claim would have been sufficiently pled and summary judgment avoided.




                                         -5-
      Be that as it may, 1 Mr. Lucero did not object to the magistrate judge’s

recommendation that judgment be entered against him on his second claim.

Under this court’s “firm waiver rule,” a party who fails to file timely objections

to a magistrate judge’s report and recommendation waives appellate review,

unless the interests of justice dictate otherwise. Wirsching v. Colorado, 360 F.3d

1191, 1197 (10th Cir. 2004). He did, however, object to at least two of the

magistrate judge’s denials of his repeated requests for counsel. Thus, we will

review whether the district court erred in denying those requests. Our review is

for an abuse of discretion. Hill v. SmithKline Beecham Corp., 393 F.3d 1111,

1115 (10th Cir. 2004). “Only in those extreme cases where the lack of counsel

results in fundamental unfairness will the district court’s decision be overturned.”

Id. (citation and quotations omitted). In evaluating a request for counsel, the

court should consider “the merits of a prisoner’s claims, the nature and

complexity of the factual and legal issues, and the prisoner’s ability to investigate

the facts and present his claims.” Id.




1
       Even without the assistance of counsel, Mr. Lucero recognized the problem
before filing his objections to the magistrate judge’s report and recommendation.
See R. Doc. 161 at 1 n.1 (“In this matter, Plaintiff misconstrued ‘carbon
monoxide poisoning’ with ‘exhaust inhalation’ and based on this error and the
Magistrate’s recommendation, Plaintiff in good faith does not object to summary
judgment for his Claim Two.”). He could have sought relief from his error at that
time, but instead he chose not to object to the recommendation that judgment be
granted in favor of defendants.

                                         -6-
      The district court considered the appropriate factors. Its denial of

Mr. Lucero’s requests was not an abuse of discretion, nor did the denials create

fundamental unfairness for Mr. Lucero, who adequately presented his case. We

recognize that an incarcerated person faces limitations with access to legal

materials and ability to investigate the facts, but there is no indication that, had

Mr. Lucero had counsel, the result on his second claim would have differed.

                                    Award of Costs

      Finally, Mr. Lucero complains that the court awarded costs against him.

Federal Rule of Civil Procedure 54(d)(1) provides that, generally, “costs–other

than attorney’s fees–should be allowed to the prevailing party.” Rule 54(d)(1)’s

general presumption operates even though Mr. Lucero paid his filing fee and his

complaint was not frivolous. Moreover, Mr. Lucero failed to file for review of

costs with the district court within five days of the clerk’s award of costs, so he

waived his right to challenge the award. Bloomer v. United Parcel Serv., Inc.,

337 F.3d 1220, 1221 (10th Cir. 2003) (per curiam).

                                          III.

      Mr. Lucero’s motion for transcripts at taxpayer expense is DENIED. The

judgment of the district court is AFFIRMED.


                                                      Entered for the Court

                                                      Terrence L. O’Brien
                                                      Circuit Judge

                                          -7-
