* This order and judgment is not binding precedent, e xcept under the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

### SEP 24 1997 

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

ROBERT REYNOLDS, JR.,

Plaintiff-Appellant,

v. COMANCHE COUNTY BOARD OF COUNTY COMMISSIONERS; COMANCHE COUNTY JAIL; KENNETH STRADLEY,

Defendants-Appellees. No. 96-6272 (D.C. No. CIV-94-1004-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Plaintiff filed his notice of appeal on August 1, 1 996, after the April 26,

1996, enactment of the Prison Litigation Reform Act(PLRA), Pub.L. No. 104-134, 110 Stat. 1321. The district court did no t grant plaintiff leave to proceed in forma pauperis on appeal. Thus, we grant plaintiff permission to proceed on appeal without prepayment of the filing fee, but hereby assess plaintiff the filing fee in accordance with § 1915(b), as ame nded by the PLRA. The Clerk of the Court is directed to enter an order assessin g the fee and requiring submission of appropriate forms and documents.

-2- Plaintiff Robert Reynolds, Jr. appeals the dismissa l of his 42 U.S.C. § 1983 civil rights complaint, alleging various constituti onal violations in relation to his three-month confinement as a pretrial detainee in t he Comanche County Jail. Upon consideration of the parties’ briefs and revie w of the record, we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. 1

I. Plaintiff was held in the Comanche County Jail for approximately one hundred days on a charge of escape. Although plaintiff had been convicted and was serving his sentence when he escaped, he was be ing held as a pretrial detainee during the period of time in question here . In his complaint, plaintiff claimed that his rights under the First, Eighth, an d Fourteenth Amendments were violated during his detention. He also claimed he was denied needed medical treatment for an injury he received while he was in carcerated.2 The parties consented to final adjudication by the magistrate judge pursuant

to 28 U.S.C. § 636(c).

3 On appeal, plaintiff appears to have abandoned his claim that he had no mattress, and instead contends that he was forced t o sleep on the floor without a bed. See Appellant’s Br. at 3-4. -3- Upon recommendation of the magistrate judge, the di strict court dismissed all of plaintiff’s claims except his complaints reg arding the conditions of his confinement and the denial of needed medical care. The matter was returned to the magistrate judge for further proceedings. Foll owing an evidentiary hearing, the magistrate judge entered judgment in favor of d efendants. 2On appeal, plaintiff claims that the magistrate judge’s decisi on in favor of defendants was incorrect. We do not agree.

II. Plaintiff alleged that (1) his cell was unclean and overcrowded, forcing him to sleep on the floor without a mattress; 3 (2) he was confined without proper toilet facilities; (3) his cell contained poor lighting an d inadequate ventilation; (4) he was denied access to personal hygiene articles; and(5) he was denied proper exercise. Plaintiff contends that although individ ually, these conditions of confinement do not constitute a due process violati on, when considered together over a period of one hundred days, plaintiff’s cons titutional rights were violated.-4-

The Supreme Court has held that, while the Eighth A mendment’s proscription against cruel and unusual punishment d oes not apply to pretrial detention, “[d]ue process requires that a pretrial detainee not be punished.” Bell v. Wolfish , 441 U.S. 520, 535 n.16 (1979). In determining wh ether certain conditions imposed on a pretrial detainee amount to punishment, the court must determine whether the conditions were imposed for the purpose of punishment or whether the conditions were incident to some other government purpose. See id.
at 538. Upon his arrival at Comanche County Jail on August 2, 1993, plaintiff was initially placed in a cell which, although designed to house sixteen inmates, held twenty to twenty-four inmates on a fluctuating basi s. He was in this cell for only four or five days, at which point he was moved, at his request, to a cell designed to house eighteen inmates. Jail records indicate that during August 1993, the number of inmates in this cell ranged from eighteento twenty-seven, during the month of September 1993, from fourteen to twenty-th ree, and during the month of October 1993, from fourteen to twenty-three. See Appellant’s App. at 19 n.5. During September and October 1993, the number of in mates housed in the cell fell at or below capacity for a substantial number of days. See id. The magistrate judge acknowledged that the jail records indicate t hat during plaintiff’s incarceration, the number of toilets, showers, and basins mandated per inmate fell-5-

below the standard of one for every twelve inmates. See id. at 28-29. Moreover, the ventilation and lighting provided were also bel ow standard. See id. at 29. We have held that prison officials must provide “re asonably adequate” ventilation, sanitation, bedding, hygienic material s, and utilities. Ramos v.
Lamm , 639 F.2d 559, 568 (10th Cir. 1980). Referring to the testimony of E. M. Martin, the Oklahoma state jail inspector for Coman che County, the magistrate judge concluded that although conditions in the jai l during plaintiff’s stay “were undoubtedly uncomfortable and unpleasant,” they didnot constitute punishment in violation of his constitutional rights. Appellant’ s App. at 26. Mr. Martin testified that despite the overcrowding, at all tim es relevant to plaintiff, conditions at the jail were reasonably adequate to meet plaintiff’s needs, and did not constitute inhumane treatment or a deprivation of the basic needs of life. See id. at 136-37. Moreover, Mr. Martin testified that if that had not been the case, he would have shut the jail down as he had done with other facilities. See id. at 137-38. An important factor to consider in reviewing plaint iff’s complaints is his length of stay in the jail facility. The Supreme C ourt has stated that “confining a given number of people in a given amount of space i n such a manner as to cause them to endure genuine privations and hardship overan extended period of time might raise serious questions under the Due Process Clause as to whether those-6-

conditions amounted to punishment.” Bell , 441 U.S. at 542. The facility at issue in Bell was routinely releasing a majority of its detainee s within sixty days. The court concluded that the prison conditions endured during this period were not constitutionally inadequate. See id. at 542-43. Likewise, while the conditions and deprivations of which plaintiff complains may, over a long period of time, become punishment, we agree with the magistrate jud ge that for the few months of plaintiff’s confinement, they were constitutiona lly permissible.

III. Next plaintiff asserts that he was denied medical treatment for an injury to his back received during an altercation with an off icer at the jail on October 22, 1993. Following the altercation, plaintiff was pla ced in a maximum security cell because he was out of control and presented a dange r to himself and others. Plaintiff claimed that Diana Laux, a nurse at the j ail, observed him through a window on October 23, 1993, but did not treat him u ntil October 26, 1993, at which time she recommended that plaintiff be seen b y a doctor. Plaintiff asserts, in a conclusory fashion, that the delay in treatmen t constituted a deliberate indifference to his injury. At the hearing, Ms. Laux testified that the injury to plaintiff’s back was a small abrasion of “a type that you would receive fr om a carpet burn or maybe-7-

concrete if you skinned your knee or something.” Appellant’s App. at 162. Because the jail personnel consulted Ms. Laux by te lephone regarding whether, and in what manner, plaintiff should be restrained, Ms. Laux was aware of the altercation. She testified, however, that she did not know of any injury until she treated plaintiff on October 26, 1993. See id. at 160-62. Although she determined that plaintiff’s injury was not of a ser ious nature and did not require treatment by a doctor, she testified that, because plaintiff was demanding to see a doctor, she authorized a hospital visit. See id. at 159, 162-63. Plaintiff saw a doctor on August 31, 1993. Under the due process clause of the Fourteenth Amen dment, as a pretrial detainee, plaintiff was entitled to the same protec tion of his need for medical attention as that afforded a convicted prisoner und er the Eighth Amendment. See Frohmader v. Wayne , 958 F.2d 1024, 1028 (10th Cir. 1992). Plaintiff’ s claim, therefore, is considered under the “deliberate indi fference to serious medical needs” standard of Estelle v. Gamble , 429 U.S. 97, 104 (1976). A constitutional violation occurs only when the government official has exhibited deliberate indifference to an established serious medical need . See Frohmader , 958 F.2d at 1028. A mere delay in medical treatment does not c onstitute a constitutional violation unless it can be shown that the delay was the result of deliberate-8-

indifference resulting in substantial harm. See Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993). The magistrate judge determined that plaintiff’s in juries were not sufficiently serious to satisfy the first prong of the Supreme Court’s test in Estelle --the existence of a serious medical need. On appe al, plaintiff does not assign error to this finding. See Hein v. TechAmerica Group, Inc. , 17 F.3d 1278, 1279 (10th Cir. 1994) (holding that a reviewing cou rt accepts as undisputed the district court findings not expressly appealed by the litigant). Even if we were to assume, however, that plaintiff’s injury was suffic iently serious, we agree with the magistrate judge that plaintiff failed to show that any delay in treatment was the result of deliberate indifference, or that the delay resulted in substantial harm. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge