* This order and judgment is not binding precedent, e xcept under the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

### FEB 7 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWIN O. OGBOLU, Plaintiff-Appellant,

v. LIEUTENANT McLEMORE; BOB GUZIK, Defendants-Appellees. No. 96-6275 (D.C. No. CIV-95-1944-C) (W. Dist. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Plaintiff Edwin Ogbolu filed a civil rights complai nt against defendant prison officials alleging that they violated the Ei ghth Amendment to the U.S.-2-

Constitution by placing him in segregation without provocation or due process and by confining him in a cold, wet, and drafty cel l. Defendants filed a motion for summary judgment, which the district court gran ted. Mr. Ogbolu appeals only on the ground that the conditions of confinement in the solitary cell were unsanitary and subhuman. A review of Mr. Ogbolu’s complaint establishes thathis entire criticism about the state of his cell was as follows: “The isolation cell was cold, wet and drafty. . . . Plaintiff showered in the cell and because there was no shower curtain the water spilled over to the floor. Plaintiff asked to have the wetfloor cleaned but the officers ignored the request or did not care.” Complaint at 2. Defendants responded with a motion for summary judgment, attaching documents directed primarily at the propr iety of placing Mr. Ogbolu in segregation, an issue he does not contest on appeal . Defendants also provided documentation that Mr. Ogbolu was in segregation fo r only two days. In his response to the summary judgment motion, Mr. Ogboluexpanded his complaint about his cell to this: “The solitary confinement cell was damp, wet, unsan itary with dirty mangled hair all over the floor as a result of malf unctioning shower stand. Petitioner was given only one blanket which had to be used to absorb soggy water from the overflowing shower and further as a cover because the guards refused to give petitionera clean blanket, the guards also refused to clean the floor or allow petitioner access to a mop to clean the floor.”-3-

Petitioner’s Response to Government Brief at 4. Pe titioner conceded he “was faced with a damp cell and not a freezing one.” Id

. The magistrate judge concluded that these alleged conditions for such a short period of time did not rise to the level of a constitutional violation, and rec ommended that summary judgment be granted to defendants. Having failed to convince the magistrate judge of t he inhumanity of his temporary conditions, Mr. Ogbolu expanded his compl aint even further in his objections to the magistrate’s recommendation. He added an assertion, without verification, that he “was forced to live with filt h, leaking and inadequate plumbing, roaches, flies and rodents and the consta nt smell of human waste, dirty and unclean beding [sic], without toilet paper”, ca using him to lose his appetite and giving him hypertension. Motion to Reconsider Findings and Recommendations of United States Magistrate Judge at 6. He also claimed he was unable to sleep for fear a roach might crawl up his nose, ears or mouth. Id

. The District Court was entitled to assess Mr. Ogbol u’s assertions as he made them in his complaint and in his response to d efendant’s motion for summary judgment. Based on those assertions, unelaborated by the inspiration Mr. Ogbolu apparently received from losing before t he magistrate judge, we are not persuaded that a very short stay in a drafty ce ll containing a shower that splashed water on the floor for lack of a shower cu rtain amounted to cruel and-4-

unusual punishment within the meaning of the Eighth Amendment where, as here, the prisoner had a blanket, a bed, and food. See , e.g. , Hutto v. Finney , 437 U.S. 678, 686-87 (1978) (“A filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months.”); Mitchell v. Maynard , 80 F.3d 1433, 1443 (10th Cir. 1996) (lack of heatcombined with lack of clothing and bedding and lack of hot water for e xtensive period of time presents fact issue on Eighth Amendment claim); Whi tnack v. Douglas County , 16 F.3d 954, 958 (8th Cir. 1994) (patently offensive a nd unsanitary conditions of cell for twenty-four hours not Eighth Amendment violatio n). The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge