                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           FEB 7 1997

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 EDWIN O. OGBOLU,

          Plaintiff-Appellant,
                                                        No. 96-6275
 v.
                                                 (D.C. No. CIV-95-1944-C)
                                                      (W. Dist. Okla.)
 LIEUTENANT McLEMORE; BOB
 GUZIK,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.

      Plaintiff Edwin Ogbolu filed a civil rights complaint against defendant

prison officials alleging that they violated the Eighth Amendment to the U.S.

      *
       This order and judgment is not binding precedent, except under the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.
Constitution by placing him in segregation without provocation or due process

and by confining him in a cold, wet, and drafty cell. Defendants filed a motion

for summary judgment, which the district court granted. Mr. Ogbolu appeals only

on the ground that the conditions of confinement in the solitary cell were

unsanitary and subhuman.

       A review of Mr. Ogbolu’s complaint establishes that his entire criticism

about the state of his cell was as follows:

       “The isolation cell was cold, wet and drafty. . . . Plaintiff showered
       in the cell and because there was no shower curtain the water spilled
       over to the floor. Plaintiff asked to have the wet floor cleaned but
       the officers ignored the request or did not care.”

Complaint at 2. Defendants responded with a motion for summary judgment,

attaching documents directed primarily at the propriety of placing Mr. Ogbolu in

segregation, an issue he does not contest on appeal. Defendants also provided

documentation that Mr. Ogbolu was in segregation for only two days. In his

response to the summary judgment motion, Mr. Ogbolu expanded his complaint

about his cell to this:

       “The solitary confinement cell was damp, wet, unsanitary with dirty
       mangled hair all over the floor as a result of malfunctioning shower
       stand. Petitioner was given only one blanket which had to be used to
       absorb soggy water from the overflowing shower and further as a
       cover because the guards refused to give petitioner a clean blanket,
       the guards also refused to clean the floor or allow petitioner access to
       a mop to clean the floor.”



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Petitioner’s Response to Government Brief at 4. Petitioner conceded he “was

faced with a damp cell and not a freezing one.” Id. The magistrate judge

concluded that these alleged conditions for such a short period of time did not rise

to the level of a constitutional violation, and recommended that summary

judgment be granted to defendants.

      Having failed to convince the magistrate judge of the inhumanity of his

temporary conditions, Mr. Ogbolu expanded his complaint even further in his

objections to the magistrate’s recommendation. He added an assertion, without

verification, that he “was forced to live with filth, leaking and inadequate

plumbing, roaches, flies and rodents and the constant smell of human waste, dirty

and unclean beding [sic], without toilet paper”, causing him to lose his appetite

and giving him hypertension. Motion to Reconsider Findings and

Recommendations of United States Magistrate Judge at 6. He also claimed he

was unable to sleep for fear a roach might crawl up his nose, ears or mouth. Id.

      The District Court was entitled to assess Mr. Ogbolu’s assertions as he

made them in his complaint and in his response to defendant’s motion for

summary judgment. Based on those assertions, unelaborated by the inspiration

Mr. Ogbolu apparently received from losing before the magistrate judge, we are

not persuaded that a very short stay in a drafty cell containing a shower that

splashed water on the floor for lack of a shower curtain amounted to cruel and


                                         -3-
unusual punishment within the meaning of the Eighth Amendment where, as here,

the prisoner had a blanket, a bed, and food. See, e.g., Hutto v. Finney, 437 U.S.

678, 686-87 (1978) (“A filthy, overcrowded cell and a diet of ‘grue’ might be

tolerable for a few days and intolerably cruel for weeks or months.”); Mitchell v.

Maynard, 80 F.3d 1433, 1443 (10th Cir. 1996) (lack of heat combined with lack

of clothing and bedding and lack of hot water for extensive period of time

presents fact issue on Eighth Amendment claim); Whitnack v. Douglas County, 16

F.3d 954, 958 (8th Cir. 1994) (patently offensive and unsanitary conditions of cell

for twenty-four hours not Eighth Amendment violation).

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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