* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### APR 11 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID O. McMAHAN, Plaintiff-Appellant,

v. BOB WILDER, County Sheriff; LINDA VOYLES, Jail Administrator, Defendants-Appellees. No. 04-7115 (Eastern District of Oklahoma) (D.C. No. 03-CV-166-W)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges. After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of 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.1 It appears that McMahan was a pretrial detainee at the time of the events

giving rise to his civil rights complaint. As note d by the district court, however, the Eighth Amendment standard serves as the analyti cal benchmark for such claims. See McClendon v. City of Albuquerque , 79 F.3d 1014, 1022 (10th Cir. 1996). -2- David O. McMahan appeals from the district court’s grant of summary judgment in favor of the defendants on McMahan’s 42 U.S.C. § 1983 civil rights complaint. In his complaint, McMahan asserted thatdefendants subjected him to cruel and unusual punishment when they placed him i n a jail cell with an inmate known to be infected with Hepatitis C. 1 In a thorough order granting summary judgment to the defendants, the district court firs t set out the standard governing conditions-of-confinement claims from Farmer v. Brennan , 511 U.S. 825 (1994). Applying that standard, the district court conclude d that McMahan had failed to demonstrate he was incarcerated under conditions th at posed a substantial risk of harm. In particular, the district court noted the record demonstrated that Hepatitis C is not spread through airborne transmission or ca sual contact, but is instead spread only through an exchange of bodily fluids. Here, the record was devoid of any evidence that McMahan’s infected cellmate had ahistory of violent or risky behavior that would increase the likelihood of tran smission to other inmates. In fact, McMahan had not alleged any instances where h e had come into contact with his cellmate’s bodily fluids. Because McMahan fail ed to come forward with any2 This court reviews a grant of summary judgment de novo , applying the

same standards employed by the district court. Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgmentis appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue of material fact and that the moving party is entitled to judgm ent as a matter of law.” Fed. R. Civ. P. 56(c). The factual record and reasonable i nferences therefrom are viewed in the light most favorable to the party opposing s ummary judgment. Concrete Works of Colo., Inc., v. City & County of Denver , 36 F.3d 1513, 1517 (10th Cir. 1994). Although a pro se plaintiff’s pleadings are construed liberally and held to a less stringent standard than pleadings drafted bylawyers, McMahan must nevertheless set forth sufficient facts to support his claims. Hall v. Bellmon , 935 F.2d 1106, 1110-12 (10th Cir. 1991). -3- evidence that the defendants disregarded an excessi ve risk to his health, the district court concluded the defendants were entitl ed to summary judgment. This court has reviewed de novo 2the parties’ briefs and contentions, the district court’s order, and the entire record on ap peal. That review demonstrates no reversible error. Accordingly, the district court is affirmed for substantially those reasons set out in its order dated October 20 , 2004. AFFIRMED
. ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge