*After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 

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

### OCT 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN JAMES, Plaintiff-Appellant, v. UNKNOWN WILEY and UNKNOWN SKITON, Defendants-Appellees. No. 97-6056 (D.C. No. CIV-96-0082-R) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.

Plaintiff-appellant Steven James, a black North Car olina prisoner who was housed for forty days at the Great Plains Correctio nal Facility in Hinton, Oklahoma, has alleged violations of his constitutio nal rights under the Eighth and Fourteenth Amendment. The district court granted s ummary judgment to the defendants, employees at the privately operated pri son, ruling that the plaintiff- 2 -

failed to present sufficient evidence of any consti tutional violations in the treatment he received. Finding no error in the dis trict court’s decision, we affirm for substantially the same reasons given by the dis trict court.
I. Mr. James was transferred to the Great Plains Corre ctional Facility on August 25, 1995, and three days later, prison offic ials placed him in administrative segregation after discovering that M r. James’s co-defendant also was present in the prison and concluding that the t wo might be a danger to each other. (See R., Mag. J.’s Report & Recommendation, at 1-2.) Approximately two weeks after being placed in administrative segregat ion, Mr. James complained to prison officials of chest pains and shortness of br eath. (See R., Dist. Ct. Mem. Op. & Order at 3.) He was attended by prison perso nnel within five minutes of his complaint, and he was treated by a prison licen sed practical nurse within 90 minutes. (See id. at 1-2.) He was treated by a nurse and then a phy sician the next day, with the doctor prescribing medication for a s tomach ailment. (See id. at 2.) Mr. James contends that he was not suffering from astomach ailment, but rather had a respiratory problem. (See id. ) Mr. James, proceeding pro se, filed this civil acti on in forma pauperis under 42 U.S.C. § 1983, alleging that the defendants viol ated his due process rights under the Fourteenth Amendment by placing him in ad ministrative segregation;- 3 -

violated his equal protection rights under the Fourteenth Amendment by treating him differently than white inmates in administrativ e segregation; and violated his right against cruel and unusual punishment under th e Eighth Amendment by failing to provide fresh air, exercise, and adequat e medical care in the administrative segregation unit. (See id. at 2.) Mr. James sought a declaratory judgment and money damages in excess of $100,000. (See R., Complaint, ¶ 9.) The district court referred the case to a magistrat e judge, who reviewed the prison’s Martinez report, see Martinez v. Aaron , 570 F.2d 317, 318-19 (10th Cir. 1978), and recommended that the district court awar d summary judgment to the defendants. (See R., Mag. J.’s Report & Recommendation, at 8.) Aft er reviewing the report and the record de novo, the district cou rt adopted the magistrate judge’s findings and granted summary judgment to the defend ants. (See R., Dist. Ct. Mem. Op. & Order at 5.)
II. We review a district court’s grant or denial of sum mary judgment on constitutional claims de novo. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). We examine the factual record and the reasonable inferences therefrom in the light most favorable to the non-mo ving party. See id. If the movant carries his initial burden of showing no dis pute over material facts, the opposing party may not rest on his pleadings, but h e must set forth specific facts1 The magistrate judge in this case relied on pre-Sandincase law that made a

distinction between punitive and non-punitive administrative segregation for due process purposes. (SeeR., Mag. J.’s Report & Recommendation, at 4-5.) This distinction, however, is no longer dispositive under Sandin . As the Court noted in Sandin , the conditions of punitive and non-punitive segregation in the Hawaii prison system were virtually identical. Sandin , 115 S. Ct. at 486. Thus, the crucial question is not the semantic label attached to the segregation but whether the conditions of the segregation impose “atypical and significant” hardships. Seeid. at 484. - 4 - showing a genuine factual issue for trial. See id. In a case brought pro se, we construe the plaintiff’s pleadings liberally, but w e will not supply additional factual allegations to round out the pleadings. Se e Witney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997). In this case, we affirm the district court’s judgme nt because Mr. James has failed to meet his burden of showing a genuine issu e for trial. First, Mr. James has no constitutional liberty interest with respectto whether he is housed in administrative segregation as long as the condition s of the segregation are not atypical of normal prison life. See Sandin v. Conner , 515 U.S. 472, 484 (1995) (holding that a prisoner has a liberty interest onl y in being free from restraints that “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”). 1 Mr. James has failed to provide evidence that the conditions in the Great Plains administrative s egregation unit, particularly when limited to a duration of forty days, are atypi cal from the ordinary incidents of prison life, and thus, he fails to establish that he had a protected liberty- 5 -

interest. The decision to place Mr. James in admin istrative segregation for his own protection and for the protection of his co-def endant did not deprive him of any constitutional rights. Second, Mr. James has failed to show any credible e vidence of discriminatory intent in the manner of his custody in the administrative segregation unit. As a result, Mr. James has faile d to present a colorable claim that his right to equal protection has been violate d, and the district court properly dismissed this claim. See Watson v. City of Kansas City, Kansas , 857 F.2d 690, 694 (10th Cir. 1988) (“[T]o survive summary judgmen t, the plaintiff must go beyond her pleadings and . . . provide evidence that discrimination was a motivating factor for the defendants.”). Third, Mr. James’ Eighth Amendment claim that he re ceived inadequate medical care is insufficient as a matter of law bec ause he has failed to show any deliberate indifference on the part of the defendan ts. To survive summary judgment, a claim under the Eighth Amendment must s how both that the state action has denied the plaintiff “the minimal civili zed measure of life’s necessities” and that the state actors have shown “ deliberate indifference” to the plaintiff’s needs. See Wilson v. Seiter , 501 U.S. 294, 298 (1991). Furthermore, when a prisoner does in fact receive medical care, he has no Eighth Amendment claim based merely on his disagreement with the nat ure of the care provided. See- 6 -

Ledoux v. Davies , 961 F.2d 1536, 1537 (10th Cir. 1992). In Mr. Jam es’ case, prison employees responded as quickly as possible t o his medical complaints. (See R., Dist. Ct. Mem. Op. & Order, at 3-4.) Thus, th e district court properly dismissed the Eighth Amendment claim. Finally, although the district court did not explic itly address Mr. James’ claim for cruel and unusual punishment based on a d eprivation of fresh air and exercise, we find this claim groundless. We have h eld that a prison exercise cell in an administrative segregation unit meets the min imum standards for exposure to fresh air and exercise. See Housley v. Dodson , 41 F.3d 597, 599 (10th Cir. 1994). Mr. James has not alleged that he was preve nted from exercising in the administrative segregation unit’s exercise cell. T hus, this claim also properly was dismissed. For the foregoing reasons, we AFFIRM the judgment o f the district court. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge