* This order and judgment is not binding precedent, except under the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. 

** Honorable William F. Downes, District Judge, United States District Court

for the District of Wyoming, sitting by designation. 

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 12 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ARTHUR JAMES MOORE,

Plaintiff-Appellant,

v.

WARDEN HENDERSON; CAPTAIN

HOLDITCH,

Defendants-Appellees.

No. 96-1353

(D.C. No. 95-B-3089)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY and HENRY, Circuit Judges, and DOWNES,** District Judge.

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Plaintiff Arthur James Moore appeals from an order of the district court

dismissing his complaint, filed pursuant to 42 U.S.C. § 1983, for failure to state a

claim. We dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(ii).

Mr. Moore commenced this action against the defendant warden and the

captain of his living unit alleging cruel and unusual punishment under the Eighth

Amendment because female officers entered the living unit when male inmates

were taking showers and using the toilets. He also alleged deliberate indifference

to inmate health and safety as inmates were forced to eat near mops, mop buckets,

and the open showers. He further alleged that the living unit had inadequate fire

detection devices. Mr. Moore acknowledged that he had suffered no specific

physical injury from any of the alleged conditions.

The magistrate judge recommended that defendants’ motion to dismiss for

failure to state a claim be granted because plaintiff had shown no personal

participation by the defendants and no deliberate indifference. Mr. Moore

responded and objected only to the magistrate judge’s determination regarding the

viewing of male inmates by female officers. This issue alone is preserved for

appeal. See United States v. One Parcel of Real Property, with Buildings,

Appurtenances, Improvement, & Contents, 73 F.3d 1057, 1060 (10th Cir.), cert.

denied, 117 S. Ct. 271 (1996) (setting forth requirement that party must timely
-3-

and specifically object to magistrate judge’s ruling to preserve issues for appellate

review).

We review the district court’s dismissal of a complaint for failure to state a

claim de novo. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir. 1996). 

We will uphold the dismissal “only when it appears that the plaintiff can prove no

set of facts in support of the claims that would entitle him to relief, accepting the

well-pleaded allegations of the complaint as true and construing them in the light

most favorable to the plaintiff.” Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.

1996).

The viewing of nude inmates by prison guards of the opposite sex is not per

se unconstitutional. See Somers v. Thurman,109 F.3d 614, 619-20 (9th Cir.),

petition for cert. filed, No. 96-9487 (U.S. Jun. 23, 1997). Mr. Moore has not

shown that either defendant was deliberately indifferent to his need for privacy. 

Mr. Moore’s motion for appointment of counsel is DENIED. We DISMISS

this appeal under 28 U.S.C. § 1915(e)(2)(B)(ii). The mandate shall issue

forthwith.

Entered for the Court

William F. Downes 

District Judge