[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1496

ROBERT M. JOOST,

Plaintiff, Appellant,

v.

CORNELL CORRECTION, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge, Stahl and Lipez, Circuit Judges.

Robert M. Joost on brief pro se. Michael C. Donahue, M. Christine Breslin and Gelerman, Cashman & Donahue on brief for appellees.

May 9, 2000 Per Curiam. In 1996, in order to attend his new

trial on a criminal count that had been vacated on appeal,

plaintiff Robert Joost was transferred from a federal prison

in Pennsylvania to the Wyatt Detention Facility (Wyatt) in

Rhode Island. He was at that time already serving a lengthy

sentence on a related count of conviction. Less than five

months later, after again being convicted and sentenced on

the vacated count, he was returned to Pennsylvania. In this

Bivens action for damages, plaintiff alleges that various

conditions at Wyatt violated his constitutional rights and

contravened Bureau of Prison (BOP) regulations. The

district court, adopting, as amended, the report and

recommendation of a magistrate judge, dismissed for failure

to state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm

substantially for the reasons enumerated below, adding only

the following comments.

1. Wyatt is a municipally owned, privately

operated facility that houses federal prisoners, among

others, pursuant to a contract with the United States

Marshals Service. Whether the BOP regulations apply to such

a facility--an issue over which the magistrate judge and

district judge divided--need not be resolved here.

-2- Plaintiff's claims prove to be deficient even if we assume,

without deciding, that the regulations do apply.

2. We endorse the determination made below that,

for purposes of the instant case, plaintiff should be deemed

a convicted prisoner rather than a pretrial detainee.

Indeed, the very regulations relied on by plaintiff so

specify. See

(a)(3).

3. In his Eighth Amendment claims, plaintiff

alleges that four separate conditions at Wyatt constituted

cruel and unusual punishment: his inability to properly

exercise; his confinement in an overcrowded two-person cell;

his occasional confinement in a holding area; and his

exposure to loud noise. In each instance, we agree that

plaintiff has failed to satisfy the objective component of

the Eighth Amendment test--i.e., to "show that he is

incarcerated under conditions posing a substantial risk of

serious harm." Farmer v. Brennan,

(1994);

see, e.g., Giroux v. Somerset County,

(1st

Cir. 1999).

The latter three claims require little comment.

Plaintiff has admitted that the noise quieted down by 11:00

at night. His confinement in the holding cell entailed

nothing more than "routine discomfort." Hudson v.

-3- McMillian,

(1992). And he has not contended

that the double celling or other incidents of overcrowding

led to "deprivations of essential food, medical care, or

sanitation," increased "violence among inmates," or created

"other conditions intolerable for prison confinement."

Rhodes v. Chapman,

(1981).

His complaint about lack of exercise comes closest

to stating a claim. See, e.g., Antonelli v. Sheahan,

(7th Cir. 1996) ("Lack of exercise may rise

to a constitutional violation in extreme and prolonged

situations where movement is denied to the point that the

inmate's health is threatened."). Yet that complaint is

vague and qualified; he alleges only that he was "denied any

opportunity to properly exercise" and that he thereby

incurred an unspecified shoulder injury. Moreover, it is

undisputed that plaintiff could leave his cell for six hours

per day. He acknowledges that a "recreation place" and a

(cramped) weight room were available. And the docket sheet

from his retrial reveals that he attended court sessions on

at least nine occasions. Considering the relative brevity

of plaintiff's 140-day stay at Wyatt, we agree as a matter

of law that this claim is not "sufficiently serious" to make

-4- out an Eighth Amendment violation. Wilson v. Seiter,

(1991).

4. Plaintiff's due process claims involve a

separate trio of conditions: the denial of contact visits;

an 18-hour lockdown policy; and a telephone system that

permitted only collect calls to be made at exorbitant rates.

Plaintiff contends that each of these conditions contravened

BOP regulations. In the latter two cases, he is clearly

mistaken. And in the case of contact visits, such an

argument draws a modicum of support only from a provision to

which he has not referred (

(g)(2)).

Regardless, where all Wyatt inmates have been denied contact

visits, that deprivation cannot be deemed an "atypical and

significant hardship ... in relation to the ordinary

incidents of prison life" so as to implicate a

constitutionally protected liberty interest. Sandin v.

Conner,

(1995). The same conclusion

applies to the lockdown, to which at least half of Wyatt's

inmates were subjected; plaintiff's analogy to

administrative segregation is unpersuasive.

In turn, the contention that plaintiff had a

property interest in reasonable phone rates is unsupported.

The settlement agreement reached in an unrelated case,

-5- involving a type of phone system not in place at Wyatt,

avails him little. And to the extent plaintiff's complaint

can be construed as a demand for injunctive relief in this

regard, that request is now moot.

5. Plaintiff's final series of claims, alleging

violations of equal protection, involve this same trio of

conditions. The magistrate judge accurately described "the

gravamen" of these claims as alleging "that [plaintiff] and

other prisoners housed at Wyatt enjoy[ed] fewer privileges

than those enjoyed by prisoners incarcerated in most prisons

operated by the Bureau of Prisons." That argument was

properly dismissed. See, e.g., Biliski v. Harborth,

(5 th Cir. 1995) (per curiam) (rejecting equal

protection claim where plaintiff sought to compare

conditions at different prisons).

Before the district judge, and again on appeal,

plaintiff has insisted that the magistrate judge

"misinterpreted" his claims and that he was mainly

complaining about differential treatment among separate

groups of Wyatt inmates. To the contrary, his earlier

pleadings contained no such argument; instead, they demanded

that plaintiff be treated the same as the other "100,000-

plus federal prisoners." This complaint about different

-6- conditions within Wyatt itself thus constitutes a new

argument that, not having been presented to the magistrate

judge, has been waived. See, e.g., Maine Green Party v.

Maine Secretary Of State,

(1 st Cir. 1999);

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec.

Co.,

(1st Cir. 1988) ("We hold

categorically that an unsuccessful party is not entitled as

of right to de novo review by the judge of an argument never

seasonably raised before the magistrate."). At least from

the record before us, we add that the argument appears of

dubious merit in any event.

Affirmed.

-7-