* This order and judgment is not binding precedent, e xcept under the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 24 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DON WAYLAND HADDOCK,

Plaintiff-appellant,

v. RJW INC.; DR. SHAWN NEELY; RICHARD COFFMAN; OKLAHOMA COUNTY SHERIFF; OKLAHOMA COUNTY JAIL,

Defendants-Appellees. No. 98-6155 (D.C. No. 97-CV-202) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Don Wayland Haddock, an inmate proceedingpro se and in forma pauperis, filed a civil rights suit in district cou rt under 42 U.S.C. § 1983, seeking damages for allegedly inadequate medical care and o ther substandard conditions of confinement. The district court dismissed plai ntiff’s complaint pursuant to 28 U.S.C. § 1915A, holding that it failed to state a c laim upon which relief may be granted. We exercise jurisdiction pursuant to 28 U .S.C. § 1291 and affirm. In his complaint, Mr. Haddock, a sixty-three-year-o ld individual who has undergone cardiac bypass surgery, alleged that the defendants violated his constitutional rights while he was a federal pre-tr ial detainee at the Oklahoma County Detention Center. Specifically, he complain ed of defendants’ locking him down twenty-three hours daily without cause; failin g to provide prescribed medication, exercise, and low-fat diet; depriving h im of frequent showers and clean clothing; failing to assign him to a lower bu nk as an accommodation to his age and condition, which resulted in his falling fr om an upper bunk and breaking his foot; and giving him delayed and unsatisfactorymedical treatment for the foot injury. The district court referred the matter to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B). After providing factual information in a Martinez report, see-3-

Martinez v. Aaron , 570 F.2d 317 (10th Cir.1978), two defendants file d a motion to dismiss. The magistrate judge analyzed plaintif f’s claims and recommended dismissal of all claims against all defendants. Upon plaintiff’s objection to the recommendation, the district court conducted a de novo review, adopted the magistrate judge ‘s recommendation, and dismissed the case pursuant to 28 U.S.C. § 1915 A. Plaintiff requested reconsideration of the dismissal. Because the requ est was filed within ten days of the date judgment was entered, the court treated itas a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e), con cluded that reconsideration was not warranted, and denied the motion. This app eal followed. We first address defendants’ argument that we lackjurisdiction over this appeal because the notice of appeal was filed more than thirty days after entry of the district court’s initial order of dismissal. See Fed. R. App. P. 4(a). This argument overlooks the operation of Fed. R. App. P . 4(a)(4), which tolls the time for filing a notice of appeal until the district co urt rules on a motion for reconsideration filed within ten days of entry of judgment. See Grantham v. Ohio
Cas. Co. , 97 F.3d 434, 435 (10th Cir. 1996). Plaintiff’s appeal is timely. We review de novo a district court’s order dismissi ng a prisoner’s case for failure to state a claim pursuant to 28 U.S.C. § 1915A. See McGore v. Wrigglesworth , 114 F.3d 601, 604 (6th Cir.1997); see also Perkins v. Kansas1 Three similar statutory provisions direct the distr ict court to dismiss, on its

own motion or the motion of a party, a prisoner’s c ivil rights action filed in forma pauperis if the court determines that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A (concerning the screening of prisoner suits “seek[ing] redress from a governmental entity or officer or employee of a governmental entity” to de termine if they are subject to dismissal); 28 U.S.C. § 1915(e)(2)(B) (concerning d ismissal of in forma pauperis claims); 42 U.S.C. § 1997e(c) (concerning dismissa l of prisoner civil rights suits concerning prison conditions). -4- Dep’t of Corrections , No. 98-3005, 1999 WL 33063, at *1 (10th Cir. Jan. 27, 1999) (establishing the de novo standard of review for a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim). 1 Dismissal for failure to state a claim is proper only where, after accepting all factual allegations as true, the “ 

### < plaintiff can prove no set of facts in support of h is claims that would entitle him to relief.’” Leonhardt v. Western Sugar Co. , 160 F.3d 631, 634 (10th Cir. 1998) ( quoting Dill v. City of Edmond , 155 F.3d 1193, 1201 (10th Cir.1998)). We liberally construe a pro se litigants’ pleadings , but “this does not relieve the plaintiff of the burden of alleging sufficient fact s on which a recognized legal claim could be based.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). In Craig v. Eberly , 164 F.3d 490 (10th Cir. 1998), we summarized the applicable standards for constitutional challenges to prison conditions: [J]ail officials [must] provide humane conditions o f confinement by ensuring inmates receive the basic necessities of a dequate food, clothing, shelter, and medical care and by taking r easonable measures to guarantee the inmates’ safety. To hold a jailerpersonally liable-5-

for violating an inmate’s right to humane condition s of confinement, a plaintiff must satisfy two requirements, consisti ng of an objective and subjective component. The objective component requires that the alleged deprivation be sufficiently serious. . . . [J]ail conditions may be restrictive and even harsh without violating constitutional rights. Indeed, only those deprivations denying th e minimal civilized measure of life’s necessities are sufficiently grav e to form the basis of an Eighth Amendment violation. . . . The subjective component requires the jail official to have a sufficiently culpable state of mind. In the context of prison-conditions claims, the required state of min d is one of deliberate indifference to inmate health and safety . In other words, the jailer is liable only if he or she knows of anddisregards an excessive risk to inmate health and safety; the off icial must both be aware of facts from which the inference could be dr awn that a substantial risk of serious harm exists, and he mus t also draw the inference. It is not enough to establish that the official should have known of the risk of harm. Id. at 495-96 (quotations and citations omitted). Applying these standards, we determine that plainti ff has failed to allege facts demonstrating either the objective or subject ive components of a valid claim. Concerning medical care, the record indicat es that plaintiff received medical attention for a variety of complaints, incl uding those associated with his heart condition and foot injury. The allegations o f denied or delayed treatment implicate only defendants’ negligence and do not es tablish the more culpable state of mind necessary to support a constitutional claim . Similarly, plaintiff’s complaints concerning other conditions do not sugge st either deprivation of basic necessities or deliberate indifference to plaintiff’s health and safety.-6-

The judgment of the district court is AFFIRMED. De fendants' motion to dismiss is DENIED. The mandate shall issue forthwi th.

Entered for the Court

Bobby R. Baldock Circuit Judge