           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 21, 2007

                                     No. 07-10095                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JAMES JOHNSON

                                                  Plaintiff-Appellant

v.

SHERIFF DEE ANDERSON; CLASSIFICATION AGENTS FOR SHERIFF
DEE ANDERSON

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:06-CV-384


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.

PER CURIAM:*
       James Johnson, Texas prisoner # 793518, appeals the district court’s
dismissal of his pro se, in forma pauperis civil rights suit as frivolous and for
failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C.




       *
           Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 07-10095

§ 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). For the reasons stated
below, we AFFIRM.
       Johnson filed a complaint under 42 U.S.C. § 1983, alleging that Tarrant
County Sheriff Dee Anderson and his classification agents subjected him to cruel
and unusual conditions of confinement in violation of the Eighth Amendment by
housing him in a filthy, unsanitary administrative segregation cell for seven
days before it was cleaned.1 Johnson also alleged that the unnamed classifi-
cation agents tried to prevent him from filing a lawsuit.              The district court
dismissed all of Johnson’s claims. Johnson does not challenge the district court’s
dismissal of his claims against the unnamed defendants. Additionally, although
he sets forth various allegations regarding his ability to file his civil rights
complaint, he specifies that the only claim for this court to consider is his
challenge to the conditions of his confinement in administrative segregation at
the Tarrant County Corrections Center. As a result, his claims against the
unnamed defendants and any assertion of a denial of access to the courts are
deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
       This court reviews for abuse of discretion a district court’s dismissal of a
complaint as frivolous under either § 1915A(b)(1) or § 1915(e)(2)(B)(i). See
Harper v. Showers, 174 F.3d 716, 718 & n.3 (5th Cir. 1999); Black v. Warren,
134 F.3d 732, 733 (5th Cir. 1998). We review de novo a district court’s dismissal
of a complaint for failure to state a claim under either § 1915A(b)(1) or
§ 1915(e)(2)(B)(ii). See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999); Black,



       1
         Johnson alleges in his complaint that he was placed in administrative segregation on
May 11, 2006 and that his cell was not cleaned for seven days. But he submitted with his
complaint a copy of a prison grievance form he filed on May 14, 2006 that contains a response
from a prison official stating that Johnson’s cell was cleaned on May 16, 2006, his sixth day
in the cell. Also, Johnson claims on appeal that his cell was cleaned on his sixth day in it.
(Appellant’s Brief at 9.)

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134 F.3d at 734. This court may affirm a judgment upon any basis supported by
the record. See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
      The district court did not err in dismissing Johnson’s complaint because
Johnson’s conditions of confinement claim did not rise to an Eighth Amendment
violation. “The Constitution does not mandate comfortable prisons . . . but
neither does it permit inhumane ones, and it is now settled that the treatment
a prisoner receives in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.” Woods v. Edwards, 51 F.3d
577, 581 (5th Cir. 1995) (internal quotations omitted). A prisoner must satisfy
a two-part test, consisting of an objective and a subjective component, to state
a claim that the conditions of his confinement violated the Eighth Amendment.
Davis, 157 F.3d at 1006. First, a prisoner must demonstrate the objective
component of conditions “so serious as to deprive prisoners of the minimal
measure of life's necessities, as when it denies the prisoner some basic human
need.” Harper, 174 F.3d at 720. “[E]xtreme deprivations are required to make
out a conditions-of-confinement claim.” Davis, 157 F.3d at 1006 (internal
quotations omitted). “Second, under a subjective standard, the prisoner must
establish that the responsible prison officials acted with deliberate indifference
to his conditions of confinement.” Harper, 174 F.3d at 720.
      Johnson's allegations failed to state a conditions of confinement claim. We
need not decide whether Johnson has alleged facts that satisfy the objective
component of an Eighth Amendment claim, because his allegations fail to
demonstrate deliberate indifference by Anderson. A prison official acts with
deliberate indifference “only if he knows that inmates face a substantial risk of
serious harm and [he] disregards that risk by failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). Johnson
does not allege that Anderson was aware of the conditions of his cell when he
was placed in administrative segregation on May 11, 2006. Instead, Johnson

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contends that he put Anderson on notice of these conditions when he sent him
a letter on May 13, 2006. There is nothing in the record to indicate when
Anderson received this letter. But Johnson acknowledges that three or four days
after he sent the letter his cell was inspected, photographed, and cleaned by
prison staff. He also alleges that on that same day Anderson and five ranking
prison staff members toured the wing of the prison where he was housed and
inspected cells there. Johnson specifically asserts that a prison official inspected
his cell that day and reported back to Anderson about it.
      Although the facts alleged by Johnson, if true, arguably demonstrate that
Anderson was negligent by not remedying the situation more quickly, they are
insufficient to demonstrate that he acted with deliberate indifference. See
Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind
more blameworthy than negligence.”). Johnson’s allegations do not show that
Anderson recklessly disregarded a substantial risk to his health by failing to
take reasonable measures to fix the conditions in his cell. See Farmer, 511 U.S.
at 836 (“[A]cting or failing to act with deliberate indifference to a substantial
risk of serious harm to a prisoner is the equivalent of recklessly disregarding
that risk.”). On the contrary, Johnson’s own factual allegations demonstrate
that reasonable measures were taken in response to his complaints:
(1) Johnson’s cell was cleaned, (2) prison officials inspected Johnson’s cell,
documented its condition by taking photos, and reported back to Anderson about
it on the day it was cleaned, and (3) Anderson toured Johnson’s wing of the
prison and individual cells on the day it was cleaned. Although Johnson may
have preferred a speedier response, a briefly delayed yet reasonable response
does not constitute deliberate indifference. Cf. Bradley v. Puckett, 157 F.3d
1022, 1026 (5th Cir. 1998) (finding deliberate indifference by prison officials who
“knowingly deprived [a prisoner] of sanitary conditions for approximately two
months”).

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      Because Johnson did not allege sufficient facts to establish that Anderson
acted with deliberate indifference, he failed to state a conditions of confinement
claim under the Eighth Amendment. Therefore, the dismissal of Johnson’s
complaint is AFFIRMED.




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