FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                  October 1, 2007
                                                    Elisabeth A. Shumaker
                         FO R TH E TENTH CIRCUIT        Clerk of Court



    R ON A LD M U RR AY ,

                Plaintiff-Appellant,

    v.                                                   No. 06-3376
                                                 (D.C. No. 04-CV-1298-JTM )
    EDW ARDS COUNTY SHERIFF’S                 

(D. Kan. 2006)
    DEPARTM ENT; KEN SCHM IDT;
    B RY A N T K U RTH ; JU LIE LO NG;
    KENNETH DU PREE; M ARK
    FRAM E,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




         Ronald M urray appeals pro se from the district court’s grant of summary

judgment in favor of defendants on all of his claims under 42 U.S.C. § 1983. His

claims relate to his confinement in the Edw ards County Jail (“Jail”) as a pretrial




*
       After examining the briefs and appellate record, this panel 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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
detainee for a period of approximately 11 months beginning in July 2003. He

sought damages for numerous alleged violations of his constitutional rights,

including the following: (1) the Jail was poorly ventilated, not adequately cooled

or heated, unsanitary, and insect-infested; (2) lights outside of the cells remained

illuminated 24 hours a day; (3) he was not provided with appropriate clothing and

a means to wash his clothing; (4) he was denied all out-of-cell exercise or

recreation; (5) he was not provided adequate medical, dental or psychological

care; (6) he was denied visitation with friends; (7) his non-legal mail was

screened or blocked; (8) he was not allowed physical access to the law library;

(9) the phone system at the Jail was inadequate; and (10) he was prohibited from

freely practicing his chosen religion.

      M r. M urray and defendants filed cross-motions for summary judgment.

The district court granted summary judgment in favor of defendants and

M r. M urray filed a timely appeal. For the reasons set forth below, we AFFIRM .

                               I. Standard of Review

      “W e review a district court’s grant of summary judgment de novo, viewing

all the evidence in the light most favorable to the nonmoving party.” Barney v.

Pulsipher, 

, 1306 (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




                                          -2-
genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law .” Fed. R. Civ. P. 56(c).

      The moving party does not have to negate the nonmovant’s claims in
      order to obtain summary judgment. The movant only bears the initial
      burden of showing–that is pointing out to the district court–that there
      is an absence of evidence to support the nonmoving party’s case. If
      the movant carries this initial burden, the non-movant may not rest
      upon its pleadings, but must set forth specific facts showing a
      genuine issue for trial as to those dispositive matters for which it
      carries the burden of proof.

(quotations, citations and alterations omitted).

                          II. Physical Injury Requirem ent

      The district court’s first basis for granting summary judgment to defendants

is that M r. M urray failed to make any claim of injury other than assertions of

mental and emotional distress. Therefore, the court concluded, his § 1983 claims

were barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), which

provides: “No Federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or emotional injury suffered

while in custody without a prior showing of physical injury.” M r. M urray does

not dispute that he seeks to recover damages for emotional or mental injury as a

result of the alleged constitutional violations. But he argues that § 1997e(e) is

ambiguous and should not be interpreted to require a physical injury if the claim

alleges a constitutional violation which rarely results in physical injury, such as

his claims under the First, Sixth, and Fourteenth Amendments. As M r. M urray



                                          -3-
acknowledges, however, this court has already held that “[t]he plain language of

the statute does not permit alteration of its clear damages restrictions on the basis

of the underlying rights being asserted.” Searles v. Van Bebber, 

,

876 (10th Cir. 2001). In Searles we rejected the contention that § 1997e(e)

should not be construed to require the showing of a physical injury in a claim for

violation of the First Amendment right to free exercise of religion. W e concluded

that “[t]he statute limits the remedies available, regardless of the rights asserted,

if the only injuries are mental or emotional.” 

M urray argues in the alternative that he did allege physical injuries.

W hen asked at his deposition to specify every physical injury he had sustained

while at the Jail, he testified as follow s:

       Defendants’ Counsel:        Any sort of physical impairment, muscle
                                   atrophy, bone deterioration, anything like
                                   that?

       M r. M urray:               Not that I know of. You know, I’m not a
                                   medical expert or anything.

       Defendants’ Counsel:        W ell, but did you notice any
                                   conditions–change of conditions in your
                                   physical condition during Edwards County?

       M r. M urray:               W ell, I lost w eight.

       Defendants’ Counsel:        Aside from losing weight?

       M r. M urray:               That’s–several times I guess I had problems
                                   sleeping sometimes. Headaches every now
                                   and then. Those might just be typical
                                   ailments.

                                               -4-
R., Vol. II, Doc. 191, Exhibit 2 at 67-8. The district court concluded that his only

claim of physical injury was his alleged weight loss as a result of his inability to

exercise outside of his cell. The court held, however, that the uncontroverted

evidence showed that he weighed the same amount when he entered and left the

Jail. 1

          M r. M urray contends on appeal that he suffered other physical injuries

including “headaches, muscle soreness and pains.” Aplt. Br. at 18. Nowhere in

the exchange quoted above, nor anywhere else in his deposition, did he mention

muscle soreness resulting from the conditions of his confinement in the Jail. Yet

he subsequently filed a contradictory affidavit supporting his summary judgment

motion, in which he complained of periodic sore and aching muscles. He did not

explain in his affidavit why he failed to testify about sore muscles at his

deposition. Nor did he attempt to clarify his prior testimony or claim that his

affidavit was based on newly-discovered evidence. Therefore, we hold that

M r. M urray’s affidavit fails to create a material disputed fact regarding whether

he suffered muscle soreness as a result of the conditions of his detainment in the

Jail. See Franks v. N im m o, 

, 1237 (10th Cir. 1986) (“[T]he utility

of summary judgment as a procedure for screening out sham fact issues would be




1
      M r. M urray does not argue on appeal that the district court erred in
reaching this conclusion regarding lack of evidence of his alleged weight loss.

                                            -5-
greatly undermined if a party could create an issue of fact merely by submitting

an affidavit contradicting his ow n prior testimony.”). 2

      M r. M urray did testify in his deposition that he experienced periodic

headaches w hile in the Jail, and in his affidavit in support of his summary

judgment motion he attributed his headaches to a lack of sleep due to the

continuous illumination of the cells. He also testified regarding periodic pain

resulting from defendants’ failure to provide him dental care for two broken

teeth. 3 For the purpose of this appeal, we w ill assume that M r. M urray’s



2
       The district court generally criticized much of M r. M urray’s evidence
attempting to controvert defendants’ facts, but did not make any specific
evidentiary rulings excluding particular evidence. Nonetheless, it is clear that the
district court disregarded his claim of muscle soreness. M oreover, we may affirm
on any ground if the record is sufficient to permit conclusions of law, even
grounds not relied upon by the district court. See Bell v. Bd. of County Com m’rs
of Jefferson County, 

, 1102 n.5 (10th Cir. 2006).
3
      M r. M urray testified as follows regarding his tooth pain:

      Defendants’ counsel:        And what were the symptoms you were
                                  having with the cracked teeth?

      M r. M urray:               W ell, when I would eat food I would get
                                  pain periodically from chewing down, and I
                                  mean, it wasn’t constant. It was just
                                  periodic. But the other one, the tooth
                                  cracked all the way to the gum, and, in fact,
                                  I ended up pulling a piece of it off
                                  because . . . it was bothering me, and they
                                  weren’t bringing me to the dentist, so I
                                  went ahead and pulled what piece I could.

R., Vol. II., Doc. 191, Exhibit 2 at 50.

                                           -6-
headaches and tooth pain are “physical injuries” sufficient to permit him to

recover damages for mental or emotional injury under § 1997e(e) on his claims

related to cell illumination and denial of dental care.

      M r. M urray does not argue that the district court erred by failing to

consider any other physical injuries resulting from any of his other claims.

Therefore, we affirm the district court’s grant of summary judgment on all claims

not related to cell illumination or dental care, based on his failure to show any

physical injury as required by § 1997e(e). 4

                              III. Rem aining Claim s 5

      The conditions of confinement may not amount to punishment of a pretrial

detainee. Bell v. Wolfish, 

, 535 (1979). But “jail conditions may be

restrictive and even harsh without violating constitutional rights.” Ledbetter v.

City of Topeka, 

, 1188 (10th Cir. 2003) (quotation omitted).

Although, as a pretrial detainee, M r. M urray was protected by the D ue Process



4
       In Searles we held that, even in the absence of a showing of physical
injury, § 1997e(e) does not bar recovery of nominal or punitive damages for a
constitutional 

, 881. But M r. M urray does not contend
on appeal that the district court erred in granting summary judgment where he
sought that relief. He therefore has waived that argument on appeal. See State
Farm Fire & Cas. Co. v. M hoon, 

, 984 n.7 (10th Cir. 1994) (holding
that issue not raised in opening appellate brief was w aived).
5
      In its analysis of the merits of M r. M urray’s various claims, the district
court did not directly address his claims regarding cell illumination and denial of
dental care. But again, we may affirm on any ground if the record is sufficient to
permit conclusions of law , even grounds not relied upon by the district court.

                                          -7-
Clause of the Fourteenth A mendment, in determining whether his rights were

violated we apply the same analysis as applied in § 1983 claims alleging Eighth

Amendment violations. See 

for a ‘deliberate indifference’ claim

under the Eighth Amendment has both an objective and a subjective component.”

Kikumura v. Osagie, 

, 1291 (10th Cir. 2006) (quotation omitted).

In order to satisfy the objective component, M r. M urray was required to show that

he suffered harm “sufficiently serious to implicate the Cruel and Unusual

Punishment Clause.” 

To satisfy the subjective

component, he needed to establish that defendants “kn[ew] of and disregard[ed]

an excessive risk to [his] health or safety.” 

      Under the objective “sufficiently serious” component, “a prison official’s

act or omission must result in the denial of the minimal civilized measure of life’s

necessities.” Farmer v. Brennan, 

, 834 (1994) (quotation omitted).

M r. M urray must show that he was detained “under conditions posing a

substantial risk of serious harm” to his health or safety. 

of the

“sufficiently serious” requirement “is to limit claims to significant, as opposed to

trivial, suffering. Consequently, we look to the alleged injury claimed by the

prisoner, and ask whether that harm is sufficiently serious.” Kikum 

(quotations and citation omitted). Under this objective prong, the court

examines the harm identified by the prisoner to determine if it was sufficiently




                                          -8-
serious, without regard to causation or the subjective prong. M ata v. Saiz,

, 753 (10th Cir. 2005).

      The subjective prong of the deliberate indifference test requires the
      plaintiff to present evidence of the prison official’s culpable state of
      mind. The subjective component is satisfied if the official knows of
      and disregards an excessive risk to inmate health or safety; the
      official must both be aware of facts from which the inference could
      be drawn that a substantial risk of serious harm exists, and he must
      also draw the inference.

(quotation, citation, and alteration omitted).

                                A. Cell Illum ination

      M r. M urray challenges the Jail’s practice of leaving certain lights on

24 hours a day as an unconstitutional deprivation of his basic right to sleep. In

order to prevail on this claim, he must present evidence that he suffered a harm

“‘sufficiently serious’ to implicate the Cruel and Unusual Punishment Clause.”

Kikum 

(quotation omitted). He must also produce evidence

that defendants caused the harm “with the requisite culpable state of mind.”

M 

. He must show that they “kn[ew] of and disregard[ed] an

excessive risk to [his] health or safety.” 

.

      He claims that lights outside of the cells, consisting of four 75-watt bulbs,

remained on continuously. Although the lights were two to three feet away from

the cells, they illuminated inside the cells, and the lights w ere bright enough to

sometimes disturb his sleep, resulting in headaches w hich he experienced “every

now and then.” R., Vol. II, Doc. 191, Ex. 2 at 68. According to M r. M urray, the

                                          -9-
lighting also “caused other psychological effects, such as depression.” 

at 7. He claims that he and other inmates asked that the lights be turned off, but

that their requests were refused. Instead, he and other inmates attempted to block

the lights with towels.

      W e have held that continuous lighting within a cell during a short-term

period of solitary confinement, along with other restrictions, did not amount to a

constitutional violation. See G regory v. Wyse, 

, 382 (10th Cir.

1975). M r. M urray contends that other courts have held that subjecting an inmate

to continuous lighting in a cell for a longer period of time may amount to an

Eighth Amendment violation. See, e.g., Keenan v. Hall, 

, 1090-91

(9th Cir. 1996) (holding inmate produced sufficient evidence on lighting claim to

avoid summary judgment), amended by 

(9th Cir. 1998). But the

plaintiff in Keenan alleged that as a result of the continuous lighting he “had no

way of telling night or day” and suffered “grave sleeping problems.” 

(quotations omitted).

      In contrast, M r. M urray failed to produce evidence of a sufficiently serious

injury caused by the continuous lighting in his cell. Although he asserts that his

inability to sleep amounted to a “deprivation of constitutional dimension,”

Kikum 

, his own testimony indicated that the lights only

sometimes disturbed his sleep and that he suffered headaches as a result of his

loss of sleep only every now and then. In referring to his sleep and headache

                                         -10-
problems, he even indicated that “[t]hose might just be typical ailments.” R.,

Doc. 191, Exhibit 2 at 68. 6 Therefore, he failed to establish that either his

sleeping problems or his headaches constituted sufficiently serious harm to

sustain a claim under the Cruel and Unusual Punishment Clause.

      M r. M urray did produce evidence that he suffered from significant

depression while he was in the Jail. He stated the following in his affidavit:

      The conditions of the Jail made me feel as though I were being
      punished, humiliated and degraded by the Jail employees. I was
      depressed most of the time in the Jail. Such lasted my entire
      detainment. I felt depressed most of the day, every day. I felt
      worthless. In fact I entertained thoughts of suicide or death
      periodically in the Jail. I felt fatigued or had a loss of energy all of
      the time. The Jail was dull and gloomy and I had no pleasure in
      [a]ny activity in the Jail. I pretty much had a loss of interest in
      everything, especially life in general.

R., Vol. II, Doc. 191, Ex. 1 at 3. But while he may have presented evidence of a

sufficiently serious harm with respect to his depression, he failed to show that it

was caused by the continuous illumination of his cell. See M 

(noting causation requirement). He produced no evidence that the lighting, which

only sometimes disturbed his sleep or gave him headaches, caused him to suffer



6
        W e note that M r. M urray stated in an affidavit that he “had alot of sleepless
nights and trouble sleeping, due to the lights remaining on for 24 hours per day,
every day for my entire 11 month detainment.” R., Vol. II, D oc. 191, Ex. 1 at 3.
He also stated that “[t]his continuous illumination made it very difficult to sleep
at night. It disturbed my sleep and caused restlessness, tossing and turning most
of the night.” 

But these statements contradict his previous testimony
that the lights only sometimes disturbed his sleep. Therefore, his affidavit again
fails to create a material disputed fact. See 

.

                                          -11-
the severe depression that he alleged. In fact, he cited numerous other conditions

and restrictions as causing or exacerbating his depression, such as the denial of

psychological treatment, see R., Vol. II, Doc. 191, Ex. 1 at 3.; the denial of all

outside or out-of-cell exercise or recreation, denial of visitation privileges, and

improper screening and blocking of his mail, see 

and the unsanitary

cell conditions, see 

at 6. Numerous inhumane conditions of

confinement may be actionable if in combination they “produce[] the deprivation

of a single, identifiable human need.” M itchell v. M aynard, 

, 1442

(10th Cir. 1996). But in this case we have already concluded that M r. M urray

cannot recover for his mental or emotional injuries related to any of these other

claims because he failed to produce evidence of a physical injury. Thus, his

failure to show that he suffered severe depression specifically as a result of the

illumination of his cell precludes his recovery on this claim.

      W e conclude that M r. M urray has failed to produce evidence creating a

genuine issue of material fact, and therefore the district court did not err in

granting summary judgment on his claim related to cell illumination.

                           B. Denial of Dental Treatm ent

      M r. M urray also contends that his requests for dental care were denied by

defendants, causing him to suffer sufficiently serious harm. Again, he must

produce evidence that he suffered from an objectively serious harm caused by

defendants’ deliberate indifference to his serious need for dental care. See M ata,

                                          

. Although M r. M urray presents a superficially persuasive

theory, a review of the evidence he presented does not support his claim.

        He testified that within the first few months of his detainment in the Jail,

which began in July 2003, he cracked two teeth while eating. He stated that his

tooth pain was not constant, but that he periodically experienced severe, shooting

pain when he ate. He says that he ended up pulling out some of one of the broken

teeth himself, in order to alleviate the pain. He testified that he asked several

times, including in writing, to see a dentist, but that his requests were refused.

Defendants deny that M r. M urray ever asked for dental care for any reason while

he was in the Jail, but we must view the evidence in the light most favorable to

him. But even when reviewed in that light, we find no evidence regarding the

nature of his requests for dental treatment while in the Jail or to whom they were

made.

        Subsequent to his detainment in the Jail, M r. M urray was incarcerated in

the Kansas D epartment of Corrections (“K-DOC”) prison system beginning in

M ay 2004. He testified that he informed K-DOC of his broken teeth during the

intake process and there is evidence indicating he had a dental exam on M ay 12,

2004. Defendants point out, however, that he did not receive treatment from

K-DOC until several months later, when one tooth was extracted. 7 The evidence

7
      M r. M urray explained that the intake process for K -DOC was intended only
to evaluate any medical needs and that treatment came several months later when
                                                                     (continued...)

                                          -13-
reflects that M r. M urray submitted a written medical request to K-DOC on

September 30, 2004, in which he indicated that his tooth w as either broken or a

filling had come out and he was experiencing a sharp pain when he chewed. That

tooth was extracted the next day. M r. M urray produced no evidence of any

treatment received for his second broken tooth after leaving the Jail.

      M r. M urray claims that he suffered a sufficiently serious harm resulting

from defendants’ denial of dental care. “The substantial harm requirement may

be satisfied by lifelong handicap, permanent loss, or considerable pain.” M 

(quotation omitted). He argues that defendants’ denial of dental

care caused him to be in extreme pain for the duration of his confinement in the

Jail and also resulted in the loss of two teeth. But he testified that his tooth pain

“wasn’t constant. It was just periodic.” R., Vol. II, Doc. 191, Ex. 2 at 50; see

also 

at 10 (stating pain was periodic rather than constant). And after

leaving the Jail he did not seek dental care for several more months, nor does the

record reflect any interim complaints to K-DOC of tooth pain. Although “pain

experienced while waiting for treatment” may constitute substantial harm, “not

every twinge of pain suffered as a result of delay in medical care is actionable.”

Kikum 

(quotation omitted).



7
 (...continued)
he was sent to a regular prison facility. But he did not present any evidence of
complaints of tooth pain from the time that he left the Jail in M ay 2004, until the
end of September.

                                          -14-
      But M r. M urray did testify that, after being denied treatment, he suffered

pain at some point that was severe enough to cause him to remove part of one of

his teeth himself, which could be sufficient to show “considerable pain.” M 

(quotation omitted); see also Kikum 

(holding that plaintiff’s “torturous” pain related to life-threatening illness, as well

as significant physical injuries, satisfied substantial harm requirement). And

evidence of the loss of a tooth could also satisfy the substantial harm requirement,

as a “permanent loss.” M 

(quotation omitted).

      Again, M r. M urray also must show that defendants caused the substantial

harm he claims to have suffered. In M ata we noted,

      [o]f course, a prisoner must be careful in selecting what harm to
      claim. The prisoner may be better off claiming some intermediate
      harm rather than the last untoward event to befall her. After all, the
      prisoner may not be able to prove that this last event was caused by
      any government actor or that the actor who caused the event acted
      with the requisite culpable state of mind.

Here, M r. M urray failed to support his claim that defendants’ refusal

to provide him dental treatment caused the loss of the tooth extracted in K-D OC.

First, he presented evidence of only one “lost” tooth. And the dental treatment he

ultimately received was the extraction of that tooth in K-DOC. He produced no

evidence that earlier dental treatment, while he was in the Jail, would have

prevented that consequence and allowed him to avoid removal of his tooth. See

Sealock v. Colorado, 

, 1210 (10th Cir. 2000) (noting lack of



                                          -15-
medical evidence that damage to heart resulted from delay in receiving care).

There is simply no evidence supporting M r. M urray’s assertion that defendants’

denial of dental care resulted in him losing any teeth.

      But he did produce evidence of causation with respect to the pain he

experienced w hich led him to pull out part of his tooth while at the Jail. He

indicated that he did so in order to alleviate the pain, after he was denied dental

treatment. See 

n.5 (holding there was sufficient evidence for jury to

conclude that delay in medical care unnecessarily prolonged prisoner’s pain and

suffering).

      Nonetheless, M r. M urray failed to produce evidence of any defendant’s

culpable state of mind in support of his claim regarding the denial of dental care.

“[T]he official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” M 

(quotation and alteration omitted). W e

addressed in M ata the proof necessary to satisfy this requirement. The plaintiff,

M s. M ata, offered evidence through deposition testimony and her affidavit that

she reported severe chest pain to a prison nurse. 

758-59. W e held that

evidence was sufficient to avoid summary judgment, noting:

      W hat is significant is that the evidence presented to the district court
      supports the conclusion that [the nurse] was in fact aw are M s. M ata
      was suffering from severe chest pains and required medical attention.
      M s. M ata personally reported as much to [the nurse].



                                         -16-


       M r. M urray, in contrast, testified that he made a written request to see a

dentist, which was denied. In his affidavit, he similarly said that he asked to see

a dentist several times, but his requests were denied. He also said that he “lodged

numerous complaints regarding medical, dental and psychological care, but all

were denied.” R., Vol. III, Doc. 216 at 3. But M r. M urray produced no evidence,

through his affidavit or otherwise, showing that he made known to any of the

defendants the nature of his need for dental treatment or the extent of his pain.

Thus, he failed to establish an inference that any of the individual defendants

knew of and disregarded an excessive risk to his health. See M 

. Nor has he shown that Edwards County acted with deliberate indifference

by producing evidence of a risk “so obvious that the official should have know n

of it.” 

n. 5. Therefore, M r. M urray failed to support

his claim with evidence from which a jury could infer the defendants’ deliberate

indifference. See M 

.

       W e again conclude that M r. M urray has failed to produce evidence creating

a genuine issue of material fact, and therefore the district court did not err in

granting summary judgment on his claim related to denial of dental treatment.




                                          -17-
                    IV. Denial of M otions to Strike Affidavits,
                       For Protective Order and Sanctions

      W e have considered M r. M urray’s arguments of error regarding the district

court’s denial of his various motions to strike certain affidavits, his motion for

protective order, and his motions for sanctions and find them to be without merit.

                                   V. Conclusion

      Because M r. M urray has failed to produce evidence establishing a dispute

of material fact on his claims related to cell illumination and denial of dental

treatment, we affirm the district court’s grant of sum mary judgment on those

claims. W e affirm the district court’s grant of summary judgment on all of

M r. M urray’s other claims based on his failure to show any physical injury as

required by § 1997e(e). The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Timothy M . Tymkovich
                                                     Circuit Judge




                                         -18-