*This order and judgment is not binding precedent, except under the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

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, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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 noted by the district court, however,

the Eighth Amendment standard serves as the analytical 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 that defendants subjected him to

cruel and unusual punishment when they placed him in 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 first set out the standard governing

conditions-of-confinement claims from Farmer v. Brennan, 511 U.S. 825 (1994). 

Applying that standard, the district court concluded that McMahan had failed to

demonstrate he was incarcerated under conditions that 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 casual 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 a history of violent or risky

behavior that would increase the likelihood of transmission to other inmates. In

fact, McMahan had not alleged any instances where he had come into contact with

his cellmate’s bodily fluids. Because McMahan failed to come forward with any
2This 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 judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The factual record and reasonable inferences therefrom are viewed

in the light most favorable to the party opposing summary 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 by lawyers, 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 excessive risk to his health, the

district court concluded the defendants were entitled to summary judgment.

This court has reviewed de novo2 the parties’ briefs and contentions, the

district court’s order, and the entire record on appeal. 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