                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 30 2001
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

    KENNETH R. KOETTING,

                Plaintiff-Appellant,

    v.                                                   No. 00-6146
                                                  (D.C. No. 98-CV-1730-M)
    NOBLE COUNTY BOARD OF                               (W.D. Okla.)
    COUNTY COMMISSIONERS;
    JERRY COOK; NOBLE
    COUNTY JAIL,

                Defendants-Appellees.


                            ORDER AND JUDGMENT           *




Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.



         Plaintiff Kenneth R. Koetting brought this action under 42 U.S.C. § 1983

alleging a variety of types of unconstitutional treatment while he was a prisoner in

the Noble County Jail in Perry, Oklahoma, and seeking damages and declaratory

and injunctive relief. The district court concluded that Koetting’s complaint


*
      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not binding precedent, except under the doctrines of law of the case, res judicata,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.
failed to state a claim on which relief could be granted and dismissed it pursuant

to Fed. R. Civ. P. 12(b)(6). Koetting appeals. We affirm for the reasons stated

below.

      Koetting was incarcerated in the Noble County Jail from October 1998 to

May 1999. Most of this time he was a pretrial detainee, but during the last few

days of his confinement at the jail, he was a convicted felon awaiting transfer to

the custody of the Oklahoma Department of Corrections. (He is currently

incarcerated in the Lawton Correctional Facility.) He filed this action pro se

while still a pretrial detainee at the jail. He alleged that defendants failed to

adequately fund, staff and operate the jail and that this resulted in inadequate

access to a law library and legal materials; denial of his First Amendment right to

newspapers and magazines; and an assortment of unconstitutional prison

conditions involving, inter alia, medical care, recreational facilities, visitation

policy, and possible hazardous substances in the jail. He also alleged that

28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (PLRA),

is unconstitutional. Defendants filed a motion to dismiss or, in the alternative,

for summary judgment. Following Koetting’s response, a magistrate judge

considered the parties’ arguments and recommended that the complaint be

dismissed for failure to state a claim. Adopting the magistrate judge’s report and

recommendation, the district court dismissed Koetting’s complaint and assessed


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him a strike pursuant to 28 U.S.C. § 1915(g). The district court also denied his

request for reconsideration filed under Fed. R. Civ. P. 59(e).

       We review a dismissal for failure to state a claim de novo.   1
                                                                         Sutton v. Utah

State Sch. for the Deaf & Blind   , 173 F.3d 1226, 1236 (10th Cir. 1999). Because

Koetting is proceeding pro se, the district court and this court must construe his

complaint liberally.   Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).

Nonetheless,

       [t]he broad reading of the plaintiff’s complaint does not relieve the
       plaintiff of the burden of alleging sufficient facts on which a
       recognized legal claim could be based. Not every fact must be
       described in specific detail, and the plaintiff whose factual
       allegations are close to stating a claim but are missing some
       important element that may not have occurred to him, should be
       allowed to amend his complaint. Nevertheless, conclusory
       allegations without supporting factual averments are insufficient to
       state a claim on which relief can be based. This is so because a
       pro se plaintiff requires no special legal training to recount the facts
       surrounding his alleged injury, and he must provide such facts if the
       court is to determine whether he makes out a claim on which relief
       can be granted. Moreover, in analyzing the sufficiency of the
       plaintiff’s complaint, the court need accept as true only the plaintiff’s
       well-pleaded factual contentions, not his conclusory allegations.

Id. (citations omitted).



1
       Defendants moved alternatively for dismissal for failure to state a claim or
for summary judgment. While the district court stated that it was dismissing
Koetting’s complaint under Rule 12(b)(6), it appears to have considered evidence
submitted by defendants--a jail inspection report--that was outside the complaint.
In our analysis of the court’s action under Rule 12(b)(6), we will not consider this
report. See Brown v. Zavaras , 63 F.3d 967, 970 (10th Cir. 1995).

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       We agree with the district court that Koetting’s complaint was too

vague and conclusory to state a claim of unconstitutional prison conditions,

denial of access to courts, or denial of his First Amendment rights. Conditions

of confinement claims under the Eighth Amendment have an objective

component--the deprivation must be sufficiently serious--and a subjective

component--the officials responsible must have acted with a sufficiently culpable

state of mind, which means deliberate indifference to the inmate’s health and

safety. Perkins v. Kansas Dep’t of Corr.       , 165 F.3d 803, 809 (10th Cir. 1999).   2



With the possible exception of his claim relating to inadequate medical care,

Koetting failed to satisfy either component; that is, he failed to allege how the

conditions caused him any injury,       see Swoboda v. Dubach , 992 F.2d 286, 289

(10th Cir. 1993), and he failed to allege that defendants were aware of and

disregarded an excessive risk to his health and safety,        Lopez v. LeMaster ,

172 F.3d 756, 761 (10th Cir. 1999). He contended that he was “stressed” by his

jailer’s failure to provide him the full amount of his heart medication, which is

not a sufficiently serious injury to state a claim.       See Olson v. Stotts , 9 F.3d 1475,

1477 (10th Cir. 1993);     Clemmons v. Bohannon , 956 F.2d 1523, 1526-27 (10th Cir.



2
      While Koetting’s conditions-of-confinement claims as a pretrial detainee
are analyzed as due process claims and those as a convicted felon are analyzed as
Eighth Amendment claims, the same analysis applies to both types of claims.
See Lopez v. LeMaster , 172 F.3d 756, 759 n.2 (10th Cir. 1999).

                                              -4-
1992). His First Amendment claim was also vague and conclusory, lacking any

indication how he was injured. His access-to-courts claim failed because he did

not allege that the absence of legal resources hindered his efforts to pursue

nonfrivolous claims; that is, he again failed to allege injury.     Penrod v. Zavaras ,

94 F.3d 1399, 1403 (10th Cir. 1996).      3



       Koetting contends on appeal that the district court never indicated to him

prior to the magistrate judge’s report and recommendation that his complaint was

deficient and that it should have allowed him to amend his complaint, though he

does not indicate how. In neither his response to defendants’ motion, his

objections to the magistrate judge’s report, his motion for reconsideration, nor by

separate motion did he seek leave to amend his complaint. For a variety of

reasons, he may not raise that issue now.       See Walker v. Mather (In re Walker)      ,

959 F.2d 894, 896 (10th Cir. 1992) (appellate court will not consider arguments

not presented to district court);   Moore v. United States , 950 F.2d 656, 659

(10th Cir. 1991) (appellate court will not consider argument not included in

objections to magistrate judge’s recommendation);          Glenn v. First Nat’l Bank ,




3
       The district court correctly noted that because Koetting has been transferred
to another facility and there is no reasonable expectation he will return to the jail,
his requests for declaratory and injunctive relief are moot. See McAlpine v.
Thompson , 187 F.3d 1213, 1216-18 (10th Cir. 1999).

                                              -5-
868 F.2d 368, 369-71 (10th Cir. 1989) (district court not obligated to sua sponte

allow plaintiff to amend complaint).

      We also agree with the district court that Koetting’s contention that

PLRA is unconstitutional fails to state a claim. We have already upheld the

constitutionality of PLRA on several grounds.   White v. Colo. , 157 F.3d 1226,

1232-35 (10th Cir. 1998). We find the additional grounds asserted by

Koetting--violation of separation of powers doctrine, invalid taking, taxation

without representation, inter alia--to be without merit.

      Koetting also challenges the district court’s denial of his motion for

reconsideration in which he contended that the district court did not adequately

consider his objections to the magistrate judge’s report and recommendation and

that the magistrate judge did not give him notice of the standards she was

employing. The district court stated that it conducted a de novo review, and we

accept that statement as adequate indication the court properly considered the

objections. See Clark v. Poulton , 963 F.2d 1361, 1368 (10th Cir. 1992).

Additionally, the magistrate judge was not obligated to give Koetting notice of

the standards governing her analysis of defendants’ motion. By the types of relief

sought, defendants’ motion gave Koetting notice of the applicable standards.




                                          -6-
      We have considered Koetting’s other arguments and find them equally

unpersuasive. The judgment of the district court is AFFIRMED. All outstanding

motions are DENIED. Koetting is reminded of his continuing obligation to make

partial payments until the docketing fees are fully paid.


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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