F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 8 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MERRIL WADE AYERS,
Plaintiff-Appellant, No. 99-8014
&
v. No. 99-8075
(D.C. No. 95-CV-262-B)
JUDITH UPHOFF, Wyoming (D. Wyo.)
Department of Corrections Director,
individually and in her official
capacity; JIM DAVIS, Wyoming
Department of Corrections Health
Services Administrator, individually
and in his official capacity; DUANE
SHILLINGER, individually; JAMES
FERGUSON, Wyoming Department
of Corrections State Penitentiary
Warden, individually and in his
official capacity; JERRY STEELE,
Wyoming Department of Corrections
State Penitentiary Associate Warden,
individually and in his official
capacity; ARCHIE KERSCH,
individually; WILLIAM HETTGAR,
Wyoming Department of Corrections
State Penitentiary Associate Warden,
individually and in his official
capacity; DONALD FERGUSON,
Wexford Contract Physician,
individually; GREGORY JOHNSON,
MD, Wexford Contract Physician,
individually; JOHN PEERY,
individually; CINDY FAULKNER,
individually; JEAN SCHUTTERLEE,
individually; WEXFORD HEALTH
SOURCES, INC.; RICK SHINKLE,
Corrections Officer, Wyoming
Department of Corrections State
Penitentiary, individually and in his
official capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
Plaintiff Merril Wade Ayers, pro se and in forma pauperis, appeals the
district court’s entry of summary judgment in favor of defendants on his civil
rights claims brought under 42 U.S.C. § 1983. Our jurisdiction arises under 28
U.S.C. § 1291. We affirm for substantially the same reasons set forth by the
district court in its order entered on August 4, 1999, and for the additional
reasons discussed below.
*
This order and judgment is not binding precedent, except under the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.
-2-
I. Background and Dismissal of Plaintiff’s First Appeal
Plaintiff is an inmate at the Wyoming State Penitentiary. Defendants are
employees of either the Wyoming Department of Corrections, the operator of the
penitentiary, or Wexford Health Sources, Inc., a contract health care provider at
the penitentiary.
Plaintiff filed suit against defendants under 42 U.S.C. § 1983 alleging a
number of constitutional violations. In response to the motions for summary
judgment filed by defendants, however, plaintiff abandoned the bulk of his claims
and expressly limited them to two alleged constitutional violations. First,
plaintiff alleged that defendants violated his Eighth Amendment rights by failing
to provide him with a special diet prescribed by a prison physician. Second,
plaintiff alleged that defendants violated his First Amendment rights by
retaliating against him for filing prisoner grievances.
In its order dated January 22, 1999, the district court adopted the magistrate
judge’s recommendation and entered summary judgment in favor of defendants on
plaintiff’s claims. However, because the district court failed to provide plaintiff
with a ten-day period to object to the magistrate judge’s recommendation, as
required by Fed. R. Civ. P. 72(b), the district court subsequently permitted
plaintiff to file objections to the recommendation. After considering plaintiff’s
-3-
objections, the district court entered a second order granting summary judgment
on August 4, 1999.
Plaintiff appeals from both of the district court’s summary judgment orders.
In No. 99-8014, plaintiff appeals the district court’s order dated January 22, 1999.
In No. 99-8075, plaintiff appeals from the district court’s subsequent order dated
August 4, 1999. We previously consolidated these appeals on our own motion.
We dismiss No. 99-8014 on the grounds that plaintiff’s first appeal is moot
given the course of the proceedings before the district court after plaintiff filed
his first notice of appeal. 1
II. Standard of Review
We review the district court’s grant of summary judgment de novo,
examining the record and the reasonable inferences to be drawn therefrom in the
light most favorable to the nonmoving party. Kaul v. Stephan , 83 F.3d 1208,
1212 (10th Cir. 1996).
1
Plaintiff’s appeal of the first summary judgment order is moot due to the
fact that the district court entered a second, and superseding, summary judgment
order on August 4, 1999. The fact that the district court denied plaintiff’s motion
to vacate the first summary judgment order does not alter this result. As set forth
in the district court’s order dated May 7, 1999, plaintiff’s motion to vacate was
moot given the fact that the district court had previously agreed in its order dated
February 1, 1999 to reconsider the first summary judgment order. As a result, the
district court did not consider the first order to be a final judgment and there was
no need for the district court to formally vacate the order.
-4-
Summary judgment is appropriate if there is no genuine issue as to any
material fact and the moving party is entitled to summary judgment as a matter of
law. Id. To oppose a motion for summary judgment, “the nonmoving party must
come forward with ‘specific facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)
(quoting Fed. R. Civ. P. 56(e)). This requirement applies with full force and
effect to Eighth Amendment claims brought by pro se prisoner litigants like
plaintiff. See Clemmons v. Bohannon , 956 F.2d 1523, 1526 (10th Cir. 1992). 2
III. Eighth Amendment Claim/Special Diet
“Prison officials violate the Eighth Amendment’s prohibition against cruel
and unusual punishment when they act deliberately and indifferently to serious
medical needs of prisoners in their custody.” Hunt v. Uphoff , 199 F.3d 1220,
1224 (10th Cir. 1999) (citing Estelle v. Gamble , 429 U.S. 97, 104-06 (1976)). For
purposes of establishing a violation of the Eighth Amendment, “[a] medical need
2
Both in his district court and appellate briefs, plaintiff alleges that he was
not properly advised of the requirements of Rule 56 by the district court as
required in cases involving pro se litigants. However, we find that any such
failure by the district court was harmless error given the fact that the response
briefs filed by plaintiff in opposition to defendants’ motions for summary
judgment contained detailed discussions of Rule 56 and its requirements.
Plaintiff also demonstrated a good understanding of the mechanics of Rule 56 in
the proceedings before the district court as evidenced by the fact that he
submitted some twenty affidavits in opposition to defendants’ motions.
-5-
is serious if it is one that has been diagnosed by a physician as mandating
treatment . . .” Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980) (quotation
omitted); accord Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000).
This can include a special medical diet that is prescribed for an inmate by a prison
physician. See Byrd v. Wilson , 701 F.2d 592, 594-95 (6th Cir. 1983) (prison
officials’ deliberate indifference towards inmate’s special diet can form basis for
Eighth Amendment claim if diet is medically necessary).
The record indicates that a prison physician prescribed a special low fat and
bland diet for plaintiff in 1994. Plaintiff alleges in his sworn complaint that the
prison’s kitchen staff has failed to provide him with substitute food items that are
acceptable under this special diet. Plaintiff has also submitted sworn affidavits
from other prisoners, and the prisoner grievances that he filed with the prison’s
staff, to support this allegation.
The record indicates that plaintiff’s primary complaint is that he does not
like the substitute food items that the kitchen staff prepares for him and the other
inmates on similar special diets. Plaintiff therefore demanded that the prison staff
prepare and provide him with a special menu of various types of substitute foods
so that he could preselect and individualize his meals in advance. We conclude
that the prison staff’s refusal to comply with this demand does not rise to a
constitutional violation because plaintiff has no constitutional right to preselect
-6-
foods or demand a certain variety of foods. In short, plaintiff’s dissatisfaction
with the menu at the prison is not sufficient to support an Eighth Amendment
claim.
The record indicates that there may have been a few occasions when the
kitchen staff completely failed to provide plaintiff with substitute food items.
However, plaintiff has failed to set forth specific facts showing that any of the
named defendants personally participated in the actions of the kitchen staff on
these occasions. This omission is fatal to plaintiff’s § 1983 claim. See Mitchell
v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996) (personal participation is an
essential element of § 1983 claim).
We also reject any claim by plaintiff that certain of the named defendants
are liable for the actions of the kitchen staff in their capacities as prison
supervisors. To establish supervisory liability under § 1983, plaintiff must prove
that the prison supervisors personally directed or acquiesced in the alleged
failures of the kitchen staff to provide him with substitute food items. Woodward
v. City of Worland , 977 F.2d 1392, 1399-1400 (10th Cir. 1992). There is no such
evidence in the record. To the contrary, as found by the district court, the record
shows that the prison supervisors took a number of affirmative steps to ensure
that the kitchen staff was properly accommodating plaintiff’s special dietary
needs.
-7-
IV. First Amendment Claim/Retaliation for Prisoner Grievances
Plaintiff alleges that there is sufficient evidence in the record to support his
claim that defendants violated his First Amendment rights by retaliating against
him for filing prisoner grievances. Specifically, plaintiff alleges on appeal that
there is evidence in the record showing that defendants wrongfully retaliated
against him by limiting his access to the prison grievance system and by denying
him medical treatment and medications. We disagree.
First, the record reveals that, despite numerous warnings from prison
officials, plaintiff continually abused the prison’s grievance procedures by filing
multiple and overlapping grievances and by making excessive demands on the
prison’s staff. Given this unopposed evidence, we believe that the limitations
placed on plaintiff’s use of the prison’s grievance procedures were justified and
reasonable under the circumstances and did not amount to a violation of
plaintiff’s First Amendment rights. 3
Second, while the record supports plaintiff’s claim that he filed numerous
grievances regarding alleged deficiencies at the prison concerning his medical
treatment and medications, plaintiff has failed to set forth specific facts showing
that he was denied medical treatment or medications in retaliation for filing these
3
The record indicates that, at one point, plaintiff was prohibited for six
months from filing any grievances unless an emergency situation existed.
-8-
grievances or that any of the named defendants personally participated in the
alleged retaliatory conduct. Instead, the record indicates that plaintiff received
appropriate medical care at the prison and that the prison’s staff made reasonable
efforts to investigate and rectify any legitimate complaints about plaintiff’s
medical care.
V. Qualified Immunity
Plaintiff argues that the district court improperly granted defendants
protection from his § 1983 claims under the doctrine of qualified immunity. We
will not address this aspect of plaintiff’s appeal because we find that the
defendants did not violate plaintiff’s constitutional rights in any respect. See
Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (to determine whether
government official is entitled to qualified immunity, court must first determine
whether a constitutional violation exists). 4
4
Plaintiff also argues that the district court violated 10th Cir. R. 36.3 by
adopting a magistrate judge’s report that contained citations to unpublished
decisions of this court. We disagree. 10th Cir. R. 36.3 only applies to litigants
practicing before the Tenth Circuit and it is inapplicable to district court judges
and magistrates. Furthermore, Rule 36.3 permits citations to unpublished
decisions if they have “persuasive value with respect to a material issue that has
not been addressed in a published opinion” and they “would assist the court in its
disposition.” 10th Cir. R. 36.3(B)(1) and (2).
-9-
The judgment of the United States District Court for the District of
Wyoming is AFFIRMED. The mandate shall issue forthwith. 5
Entered for the Court
Wade Brorby
Circuit Judge
5
Plaintiff is reminded that his outstanding court costs will continue to be
collected from his prison account until they are paid off in full.
-10-