* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 2 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
GARY KEVIN RILEY,

Plaintiff-Appellant,
v. ANTHONY GRASSO,

Defendant-Appellee. No. 97-6234 (D.C. No. 96-CV-1912) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff, an inmate of the State of Oklahoma appea ring pro se, appeals from the district court’s order entering judgment i n favor of defendant in this civil rights suit filed under 42 U.S.C. § 1983. We exercise jurisdiction under 28 U.S.C. § 1291, grant plaintiff’s motion to proce ed in forma pauperis on appeal, and affirm. Plaintiff broke a bone in his right hand during his arrest for drunk and disorderly behavior on November 3, 1994. He allege d that defendant, a police officer, violated his Eighth and Fourteenth Amendme nt rights to be free from cruel and unusual punishment by denying him medical care for seven hours afterwards. In his verified complaint, plaintiff a lleged that he complained to defendant of pain in his right hand shortly after h is arrest and again when he was being placed in a cell, but that defendant ignored his injury. Seven hours later, plaintiff noticed his hand had swollen, and complai ned again to someone else. At that time, plaintiff was taken to a hospital formedical care. He was told by medical personnel that his hand could not be placedin a cast because it was too swollen, and surgery was required. He was told he could have had a cast placed instead of surgery if he had received treatment whe n his hand was first broken. Plaintiff contends his hand was permanently damagedas a result of not receiving immediate medical treatment.-3-

Defendant filed a motion to dismiss under Fed. R. C iv. P. 12(b)(6). The magistrate judge granted plaintiff leave to proceedin forma pauperis in the district court, treated defendant’s motion as one f or summary judgment under Fed. R. Civ. P. 56, and recommended that judgment b e entered for defendant. Plaintiff filed no objections to the magistrate jud ge’s recommendation, which the district court adopted. Because plaintiff was properly informed that his ri ght to district court and appellate review depended on his filing objections to the magistrate judge’s recommendation, his failure to do so amounts to a w aiver of appellate review. See Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996). Even if he had filed objections, as a pretrial detainee, his const itutional rights were violated only if defendant knew of his serious medical need and w as deliberately indifferent to it. See Barrie v. Grand County , 119 F.3d 862, 868-69 (10th Cir. 1997). “‘[A]n official . . . acts with deliberate indifference if [his] conduct . . . disregards a known or obvious risk that is very likely to resultin the violation of a prisoner’s constitutional rights.’” Id. at 869 (quoting Berry v. City of Muskogee , 900 F.2d 1489, 1496 (10th Cir. 1990)). Although defendant i gnored plaintiff’s initial complaints of pain, plaintiff was taken to the hosp ital for treatment as soon as he noticed his hand had swollen and showed it to a pol ice officer. We hold that the-4-

facts plaintiff alleged do not constitute deliberat e indifference as a matter of law, and plaintiff has failed to allege a constitutional violation. Plaintiff’s motion to proceed on appeal in forma pauperis is GRANTED. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court
Michael R. Murphy Circuit Judge