UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MELVIN EARL WHITE,

Plaintiff - Appellant,

FRANKIE TURNER; MICHAEL EDMONDSON; AKBAR MAHMOUD; BRUCE JOHNSON,

Plaintiffs,

vs.

JOHN WHETSEL, Sheriff, ARGY L. DICK, Chaplain,

Defendants - Appellees.

No. 00-6428

(	D.C. No. CIV-99-946-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before EBEL, KELLY, and LUCERO, Circuit Judges.**

Melvin Earl White, an inmate proceeding pro se, appeals from the district court's dismissal of his conditions of confinement claims seeking damages and injunctive relief under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Mr. White and four other plaintiffs brought several claims1 that were referred to a magistrate judge.2 The magistrate judge recommended that the claim against Defendant Dick be voluntarily dismissed pursuant to Fed. R. Civ. P. 41(a)(1), and that the complaint be dismissed for failure to state a claim for which relief may be granted and that the dismissal should count as a "prior occasion" or "strike" under 28 U.S.C. § 1915(g). R. Doc 66, at 12; see also 28 U.S.C. § 1915(e)(2)(b)(ii). Of the five initial plaintiffs, only Mr. White filed objections to the magistrate judge's Report & Recommendation ("R&R"). R. Doc. 72. After considering Mr. White's objections, the district court adopted the magistrate's judge's R&R and dismissed the complaint. R. Doc. 74, at 2.

Mr. White appeals seven of the fourteen claims dismissed by the district court: 1) Overcrowding in the OCDC created a dangerous situation, Aplt. Br. at 3, 17, 19; 2) Inmates are forced to live in an unclean environment and not given proper cleaning supplies, id.; 3) Inmates do not receive proper medical care, id. at 3, 17-19; 4) Members from opposing gangs are housed together creating a dangerous environment, id. at 3, 17, 19; 5) Inmates suffer due to under-staffing of the OCDC, id. at 3; 6) Inmates can enter and exit individual cells at will creating a dangerous environment, id. at 3, 17-20; and 7) The air conditioner is too cold in cells causing inmates to suffer head colds. Id. at 19. We construe all of these claims as alleged Eighth Amendment violations.

We review de novo the district court's decision to dismiss the complaint under § 1915(e)(2), taking the allegations of the complaint as true. Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001), petition for cert. filed, No. 01-5423 (July 17, 2001). Dismissal is appropriate only when it is apparent that the pro se plaintiff cannot prevail on the facts alleged, and amendment would be futile. Id. With that standard in mind, we affirm the dismissal of this complaint on the basis that Plaintiffs failed to adequately allege deliberate indifference on the part of the remaining defendant, Sheriff John Whetsel. Wilson v. Seiter, 501 U.S. 294, 297 (1991).

Defendant reminds us that the constitution "'does not mandate comfortable prisons.'" Aplee. Br. at 4 (citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)), and that an inmate must show injury. An inmate is required to "show that conditions were more than uncomfortable, and instead rose to the level of 'conditions posing a substantial risk of serious harm' to inmate health or safety." Despain v. Uphoff, No. 99-8003, 2001 WL 776785, at *4 (10th Cir. July 10, 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Thus, there is no requirement that an inmate suffer serious harm before a very serious condition is actionable. Shannon v. Graves, No. 00-3029, 2001 WL 775732, at *2 (10th Cir. July 10, 2001); Benefield v. McDowall, 241 F.3d 1267, 1271-72 (10th Cir. 2001).

With that clarification, we AFFIRM the district court's dismissal of Mr. White's complaint.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge