F I L E D

United States Court of Appeals

Tenth Circuit

MAY 6 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TYRONE LAMONT BAKER, SR.,

Plaintiff-Appellant,

v.

CHARLES SIMMONS, Secretary of

Corrections for the KDOC; ROBERT

HANNIGAN, Warden, Hutchinson

Correctional Facility; STEVEN

DECHANT, Deputy Warden,

Hutchinson Correctional Facility;

GERALD POSTIER, JR., Officer,

Unit Team; RUDY P. RODRIGUEZ,

Unit Team; JEFF CONN, Unit Team;

MICHAEL NELSON, Warden,

ElDorado Correctional Facility; DON

THOMAS, Deputy Warden, ElDorado

Correctional Facility; JOHN

TURNER, Deputy Warden,

Hutchinson Correctional Facility;

PRISON HEALTH SERVICES, a

Delaware corporation; MARVIN L.

METTSCHER, Health Services

Administrator, Hutchinson

Correctional Facility; DEBRA

WHEAT, Health Services

Administrator, ElDorado Correctional

Facility; LOUISIA OSBORNE,

Director of Nursing, Hutchinson

Correctional Facility; DENNIS

GOFF, Nurse, Hutchinson

Correctional Facility; NANCY

HUDSON, Nurse, Hutchinson

Correctional Facility; MARY

MCIVER, Nurse, Hutchinson

No. 02-3260

(D.C. No. 98-CV-3412-MLB)

(D. Kansas)
*

 This order and judgment is not binding precedent except under the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.

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Correctional Facility; BRENDA

SHUFF, Nurse, Hutchinson

Correctional Facility; BELINDA

SAIZ, Records Clerk, Prison Health

Services; DURWARD A.

VANBEBBER, Chaplain, Hutchinson

Correctional Facility; ARAMARK

CORPORATION, a Pennsylvania

corporation; JUDY SIEBERT,

Aramark Employee; MARK

SHIMICK, Aramark Employee; BILL

GRAVES, Governor of Kansas,

Appellees-Defendants.

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY and O’BRIEN, Circuit Judges.

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.
1We liberally construe a pro se appellate brief. Ledbetter v. City of Topeka,

318 F.3d 1183, 1187 (10th Cir. 2003). We note Mr. Baker proceeded pro se in

the district court; we also liberally construe his pleadings there. Id.

2

In a notice to this Court filed October 28, 2002, Mr. Baker dropped from

his appeal ten of the original defendants in the action who were also awarded

summary judgment by the district court. Pursuant to this notice, we order these

individuals dismissed as parties.

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Tyrone L. Baker, acting pro se,1 appeals a decision of the district court

awarding summary judgment to Defendants Aramark Corporation, Prison Health

Services, Inc. and its employees Marvin Mettscher, Debra Wheat, Louisia

Osborne and Dennis Goff, and Kansas Department of Corrections employees

Charles Simmons, Steve Dechant, John Turner, Rudy Rodriguez, and Durward

Van Bebber.2

 Mr. Baker also appeals the district court’s entry of judgment for

contract food service employees Judy Siebert and Mark Shimick, pursuant to a

jury verdict in their favor. Finally, he appeals interlocutory orders of the district

court denying his motion to supplement the complaint, his motions to recuse and

his motions for appointment of counsel. Exercising jurisdiction under 28 U.S.C.

§ 1291 (2003), we affirm. 

BACKGROUND

Mr. Baker has been in the custody of the Kansas Department of

Corrections since 1989. He is serving four consecutive life sentences for two

counts of first degree murder and two counts of aggravated kidnaping, together

with a consecutive three to ten year sentence for one count of aggravated assault.
3The Defendants included the Governor of Kansas, employees of the

Kansas Department of Corrections, contracted food service workers at the

Hutchinson Correctional Facility, and Prison Health Services, Inc., which

provided medical services to the Kansas Department of Corrections, together with

a number of its employees. Mr. Baker also sued twenty-six unnamed “Does” who

were never otherwise identified or served.

4

“Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .” 42

U.S.C. § 1983 (2003).

-4-

On December 18, 1998, Mr. Baker filed a complaint in the United States District

Court for the District of Kansas against twenty-three Defendants,3

 individually

and in their official capacities, alleging violation of his Eighth Amendment right

to be free from cruel and unusual punishment. He brought his complaint under 42

U.S.C. § 1983 (2003)4 seeking damages, as well as declaratory and injunctive

relief. 

He alleged the Defendants demonstrated deliberate indifference to his

serious medical needs. Mr. Baker claimed his neglected medical needs dated to

1992 and included hypoglycemia, hypertension, dental complaints, and problems

with his feet, back, legs, fingers, and wrists. He also claimed the Defendants

wrongfully barred him from medical care because he refused to sign an 

acknowledgment of his responsibility for an administratively required $2.00

copayment for medical services. The district court granted summary judgment in
5Mr. Baker also sued Defendants in their official capacities for injunctive

and declaratory relief. While Defendants named in their official capacities are

not immune from suit for injunctive relief under 42 U.S.C. § 1983, Stidham v.

Peace Officer Stds. & Training, 265 F.3d 1144, 1156 (10th Cir. 2001), Mr.

Baker’s claims for injunctive relief, as well as his claims for declaratory relief,

are without merit for the reasons discussed below. 

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favor of all Defendants, except Ms. Siebert and Mr. Shimick; their cases

proceeded to a jury trial where a verdict, and subsequent judgment, was entered in

their favor. From this order, and several interlocutory orders, Mr. Baker appeals.

DISCUSSION

I. Entry of Judgment

We review the district court’s grant of summary judgment de novo,

applying familiar legal standards. Simms v. Okla. ex rel. Dep’t of Mental Health

& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), cert. denied,

528 U.S. 815 (1999). 

At the outset, we note “neither a State nor its officials acting in their

official capacities are ‘persons’ under § 1983.” Stidham v. Peace Officer Stds. &

Training, 265 F.3d 1144, 1156 (10th Cir. 2001) (quoting Will v. Michigan Dep’t

of State Police, 491 U.S. 58, 71 (1989)). Thus, summary judgment in favor of all

Defendants in their official capacities was appropriate as to the damage claims.5

Mr. Baker’s claims that Aramark Corporation and Prison Health Services,

Inc. were vicariously liable for the actions of their employees at the prison is also
6

In its motion for summary judgment, Aramark Corporation submitted an

affidavit in which it denied a contractual relationship with the State of Kansas

and denied employing Ms. Siebert or Mr. Shimick. We agree with the district

court that Mr. Baker was unable to rebut this affidavit, and as such, Aramark

Corporation was not a proper Defendant. Instead, Aramark Correctional Services,

Inc., a different corporate entity, contracted with the State of Kansas to provide

food services to the Kansas Department of Corrections and employed Ms. Siebert

and Mr. Shimick. 

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without merit. “[C]orporate defendants cannot be held vicariously liable for the

acts of their servants under section 1983.” Dickerson v. Leavitt Rentals, 995

F.Supp. 1242, 1247 (D. Kansas 1998), aff’d, 153 F.3d 726 (10th Cir. 1998), cert.

denied, 525 U.S. 1110 (1999); see also, DeVargas v. Mason & Hanger-Silas

Mason Co., Inc., 844 F.2d 714, 722 (10th Cir. 1988), cert. denied, 498 U.S. 1074

(1991). Accordingly, summary judgment for Aramark Corporation6

 and Prison

Health Services, Inc. was appropriate .

 The district court correctly granted summary judgement to Kansas

Department of Corrections employees Charles Simmons (Secretary of Corrections

of the State of Kansas), Steve Dechant (Deputy Warden, Hutchinson Correctional

Facility) and John Turner (Deputy Warden, Hutchinson Correctional Facility). 

Mr. Baker’s complaints against these individuals in their supervisory roles, even

liberally construed, are devoid of any allegation affirmatively linking them to a

subordinate’s alleged deliberate indifference to his medical needs. Mr. Baker’s

allegations are, at best, conclusory. “[A] supervisor is not liable under § 1983 for
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the actions of a subordinate unless an affirmative link exists between the

constitutional deprivation and either the supervisor’s personal participation or his

failure to supervise.” Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996)

(quotation and citation omitted).

Mr. Baker’s claim of error emanating from the favorable jury verdicts for

Ms. Siebert and Mr. Shimick–contract food service workers at the Hutchinson

Correctional Facility who allegedly acted with deliberate indifference to his

medical needs by failing to adhere to his prescribed medical diet–must also fail. 

On appeal, Mr. Baker points to no error in the jury trial and offers no authority or

cognizable argument for overturning the verdicts. Instead, he merely seeks to retry

his case on appeal. We will not consider “issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation.” Murrell v.

Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994) (quotation and citation omitted). 

Therefore, judgment for Ms. Siebert and Mr. Shimick is affirmed.

“A prison official violates an inmate’s clearly established Eighth

Amendment rights if he acts with deliberate indifference to an inmate’s serious

medical needs--if he knows of and disregards an excessive risk to inmate health or

safety.” Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001) (quotation and

citation omitted). The test contains both an objective and subjective component. 

A “serious medical need” is objectively established by proof the inmate’s
7

In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), we approved the

practice of the district court to order preparation of a report by the prison

administration, to be included in the pleadings in cases where a prisoner has filed

-8-

condition “has been diagnosed by a physician as mandating treatment or . . . is so

obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Id. (quotations and citations omitted). The subjective aspect of the

test, “deliberate indifference,” is established where “the prison official both was

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.” Id. (quotation and

citations omitted). “[A] delay in medical care only constitutes an Eighth

Amendment violation where the plaintiff can show that the delay resulted in

substantial harm.” Id. at 950 (quotation and citation omitted). “[A]ccidental or

inadvertent failure to provide adequate medical care, or negligent diagnosis or

treatment of a medical condition do not constitute a medical wrong under the

Eighth Amendment.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert.

denied, 450 U.S. 1041 (1981). Nor does a difference of opinion between an

inmate and medical staff as to the need for or adequacy of treatment “rise to the

level of a constitutional violation.” Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir.

1993).

With these principles in mind, we have carefully reviewed the record,

including a Martinez report ordered by the district court.7

 We adopt the reasoning
suit alleging a constitutional violation. “Thus, the state prison administration, at

a level where the facts can be adequately developed, first examines and considers

the incident, circumstances, and conditions which gave rise to the asserted cause

of action and develops a record before the court must proceed beyond the

preliminary stages.” Id. at 320.

8Mr. Baker claimed Belinda Saiz, records clerk for Prison Health Services,

Inc., and Officer Gerald Postier, Jr. of the Kansas Department of Corrections,

both posted to the Hutchinson Correctional Facility, barred him from medical care

on May 29, 1998 (attention to his feet and a medical refill) because he refused to

sign a paper acknowledging his responsibility for an administratively required

$2.00 copayment for medical services. The copayment only applied to the initial

visit to sick call for a specific complaint or condition and, at that, only to visits

initiated by the inmate. Furthermore, the regulation provided, “No inmate shall be

refused medical treatment for financial reasons.” See KAN. ADMIN. REGS. 44-5-

115(c) (2000). Mr. Baker also claims Kansas Governor Bill Graves committed a

constitutional violation by promulgating this administrative regulation. These

claims are defeated by Mr. Baker’s requested dismissal of Ms. Saiz, Officer

Postier and Governor Graves from this appeal. In any event, the regulation is

clear that an inmate’s inability to pay the copayment does not deprive him of

access to medical services.

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of the district court and agree with its conclusion that Mr. Baker failed to state a

cognizable Eighth Amendment claim against the remaining Kansas Department of

Corrections employees (Officer Rodrigues and Chaplain VanBebber) or Prison

Health Services, Inc. employees (Marvin Mettscher, Debra Wheat, Louisia

Osborne and Dennis Goff). Neither health care providers nor corrections officials

have barred Mr. Baker from seeking medical treatment.8

 In fact, the record

contains abundant evidence he has obtained treatment for his medical needs since

1992. At best, he disagrees with his health care providers and corrections officials

as to the recommended treatment regimen for his stated ailments. Such complaints
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are not of constitutional magnitude. See Johnson, 6 F.3d at 692.

II. Interlocutory Orders

Mr. Baker raises other issues in his brief which the district court disposed of

by interlocutory order before entry of judgment for the Defendants. We will

consider those issues, even though not specifically identified in the notice of

appeal, under the rule that “a notice of appeal which names the final judgment is

sufficient to support review of all earlier orders that merge in the final judgment.” 

McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002). Mr.

Baker appeals from orders denying his motion to supplement his complaint, his

motions that the district court judge recuse himself, and his motions for

appointment of counsel.

A. Denial of Motion to Supplement Complaint

On March 20, 2000, fifteen months after filing his complaint, Mr. Baker

filed a motion, correctly construed by the district court as brought under Fed. R.

Civ. P. 15(d), to supplement his complaint by adding claims against nine new

defendants. Mr. Baker characterized the new claims as the “same in nature to the

violations alleged in the complaint filed on December 18, 1998.” The district

court denied the motion to supplement the complaint, reasoning the case would

“never be resolved if plaintiff is permitted to continuously ‘update’ his claims and

add additional parties . . . .” ROA, Vol. II, Doc. 90, p.4. 
9

“Whenever a party to any proceeding in a district court makes and files a

timely and sufficient affidavit that the judge before whom the matter is pending

has a personal bias or prejudice either against him or in favor of any adverse

party, such judge shall proceed no further therein, but another judge shall be

assigned to hear such proceeding. . . . A party may file only one such affidavit in

any case.” 28 U.S.C. § 144 (2003).

-11-

Whether or not to grant a motion to supplement the pleadings lies within the

“broad discretion” of the district court. Walker v. United Parcel Serv., Inc., 240

F.3d 1268, 1278 (10th Cir. 2001). We are also mindful of the admonition that the

Federal Rules of Civil Procedure “be construed and administered to secure the

just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1. In

this light, and after a careful review of the extensive record, we conclude the

district court did not abuse its discretion in denying Mr. Baker’s motion to

supplement the complaint. 

B. Denial of Motions for Change of Judge

On July 27, 2000, shortly after the district court denied his motion to

supplement the complaint, Mr. Baker filed his first motion to recuse under 28

U.S.C. § 144 (2003). He later supported this motion with an affidavit of

prejudice.9

 The district court denied the motion on the grounds Mr. Baker’s

affidavit of prejudice was insufficient. On November 2, 2001, Mr. Baker filed a

second motion for change of judge, supported by another affidavit of prejudice.

The district court also denied this motion on the grounds it was a forbidden second
10For example, Mr. Baker complains the presiding judge addressed him in a

condescending manner, belittled his lack of legal skills, improperly commented on

the propriety of naming certain persons as Defendants, exhibited bias by alluding

to his claims as a “laundry list of complaints,” and remarked on the tragic irony of

a convicted double murderer enjoying “better access to health care than many

law-abiding citizens, not to mention access to a federal court to make sure that his

rights as a convict are not violated.” ROA, Vol. 3, Doc. 128, pp. 22-23

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affidavit of prejudice in the same case and, again, for insufficiency.

Mr. Baker’s allegations of bias or prejudice, as expressed in his two

affidavits, generally consist of remarks made by the judge in the course of the

proceedings. Mr. Baker believes those remarks to have been made in hostility to

him and to the detriment of his claims for relief.10 On this point, we turn for

guidance to the United States Supreme Court:

[O]pinions formed by the judge on the basis of facts introduced or

events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion

unless they display a deep-seated favoritism or antagonism that would

make fair judgment impossible. Thus, judicial remarks during the

course of a trial that are critical or disapproving of, or even hostile to,

counsel, the parties, or their cases, ordinarily do not support a bias or

partiality challenge. They may do so if they reveal an opinion that

derives from an extrajudicial source; and they will do so if they reveal

such a high degree of favoritism or antagonism as to make a fair

judgment impossible.

Liteky v. United States, 510 U.S. 540, 555 (1994)(emphasis in original).

We review the denial of a motion to recuse for abuse of discretion. United

States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992), cert. denied, 507 U.S.

1033(1993). “Under § 144, the affidavits filed in support of recusal are strictly
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construed against the affiant and there is a substantial burden on the moving party

to demonstrate that the judge is not impartial.” Id. “To sustain disqualification

under § 144, supra, there must be demonstrated bias and prejudice of the judge

arising from an extrajudicial source which renders his trial participation unfair in

that it results in an opinion formed . . . on some basis other than that learned from

his participation in the case.” United States v. Bray, 546 F.2d 851, 859 (10th Cir.

1976) (quotation and citation omitted). Adverse rulings by a judge in a case are

not grounds for disqualification. Id. at 857. While all factual allegations in an

affidavit of prejudice must be taken as true, the challenged presiding judge must

rule on the affidavit’s legal sufficiency. Id.

Here, the presiding judge’s comments clearly derive from the litigation itself

and Mr. Baker’s past criminal history rather than from an extrajudicial source. As

to whether they evidence “such a high degree of favoritism or antagonism as to

make a fair judgment impossible,” we think not. Liteky, 510 U.S. at 555. The

challenged remarks were no more than observations of the proceedings. While

uttered with some apparent passion, they do not demonstrate bias, but merely

reflect the reality of the proceedings. Mr. Baker did not meet his substantial

burden to establish partiality. 

C. Denial of Motions for Appointment of Counsel

Mr. Baker’s final assignment of error involves his two motions for
-14-

appointed counsel. The district court denied his first motion with the explanation: 

“Given the narrow issues involved and plaintiff’s failure to request a jury trial, the

court believes that the interests of justice do not require appointment of counsel

for plaintiff.” ROA, Vol. 4, Docket 135, p.8. The magistrate judge granted Mr.

Baker’s second motion for appointment of counsel for the limited purpose of

aiding him in identifying and securing the appearance of witnesses at trial on his

behalf. As best we can decipher his argument, Mr. Baker alleges error in limiting

the role of appointed counsel. 

“There is no constitutional right to appointed counsel in a civil case.” 

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). However, “[t]he court may

request an attorney to represent any person unable to afford counsel.” 28 U.S.C. §

1915(e)(1) (2003). “The decision to appoint counsel is left to the sound discretion

of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001),

cert. denied, 535 U.S. 1001 (2002). A district court’s denial of counsel “will not

be overturned unless it would result in fundamental unfairness impinging on due

process rights.” Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)(citation

and quotations omitted). “In determining whether to appoint counsel, the district

court should consider a variety of factors, including the merits of the litigant’s

claims, the nature of the factual issues raised in the claims, the litigant’s ability to

present his claims, and the complexity of the legal issues raised by the claims.” 
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Id. 

While the preferred practice is for the district court to fully explain its

reasons for denying appointment of counsel, to the extent the district court did not

do so here, “we may independently examine the propriety” of a request for

appointment of counsel. See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.

1995). Having thoroughly examined the record and considered the Meese factors

ourselves, we conclude the district court did not abuse its discretion in failing to

appoint counsel to assist Mr. Baker. 

CONCLUSION

For the reasons given, we AFFIRM the judgment of the district court.

Entered by the Court:

TERRENCE L. O’BRIEN

United States Circuit Judge