## 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Facility; MARY MCIVER, Nurse, Hutchinson No. 02-3260 (D.C. No. 98-CV-3412-MLB) (D. Kansas)* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

-2- 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, th is 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). T he case is therefore ordered submitted without oral argument.1 We 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, M r. Baker dropped from his appeal ten of the original defendants in the ac tion who were also awarded summary judgment by the district court. Pursuant t o this notice, we order these individuals dismissed as parties. -3- 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 C orrections employees Charles Simmons, Steve Dechant, John Turner, Rudy R odriguez, and Durward Van Bebber. 2 Mr. Baker also appeals the district court’s entry of judgment for contract food service employees Judy Siebert and Ma rk Shimick, pursuant to a jury verdict in their favor. Finally, he appeals interlocutory orders of the di strict court denying his motion to supplement the complain t, 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 De partment of Corrections since 1989. He is serving four consecutive life sentences for two counts of first degree murder and two counts of agg ravated kidnaping, together with a consecutive three to ten year sentence for o ne count of aggravated assault.3 The Defendants included the Governor of Kansas, emp loyees of the

Kansas Department of Corrections, contracted food s ervice workers at the Hutchinson Correctional Facility, and Prison HealthServices, Inc., which provided medical services to the Kansas Department of Corrections, together with a number of its employees. Mr. Baker also sued twe nty-six unnamed “Does” who were never otherwise identified or served.

4 “Every person who, under color of any statute, ordi nance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the Unite d 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 liab le to the party injured in an action at law, suit in equity, or other proper proc eeding for redress . . . .” 42 U.S.C. § 1983 (2003). -4- On December 18, 1998, Mr. Baker filed a complaint i n the United States District Court for the District of Kansas against twenty-thr ee Defendants, 3 individually and in their official capacities, alleging violatio n of his Eighth Amendment right to be free from cruel and unusual punishment. He b rought his complaint under 42 U.S.C. § 1983 (2003) 4 seeking damages, as well as declaratory and injunc tive relief. He alleged the Defendants demonstrated deliberate i ndifference to his serious medical needs. Mr. Baker claimed his negle cted medical needs dated to 1992 and included hypoglycemia, hypertension, denta l 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 adminis tratively required $2.00 copayment for medical services. The district courtgranted summary judgment in5 Mr. 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 hi s claims for declaratory relief, are without merit for the reasons discussed below. -5- favor of all Defendants, except Ms. Siebert and Mr . Shimick; their cases proceeded to a jury trial where a verdict, and subs equent judgment, was entered in their favor. From this order, and several interloc utory orders, Mr. Baker appeals.
DISCUSSION I. Entry of Judgment We review the district court’s grant of summary jud gment 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 off icials 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 infavor of all Defendants in their official capacities was appropr iate as to the damage claims. 5 Mr. Baker’s claims that Aramark Corporation and Pri son Health Services, Inc. were vicariously liable for the actions of the ir employees at the prison is also6 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. W e agree with the district court that Mr. Baker was unable to rebut this affid avit, and as such, Aramark Corporation was not a proper Defendant. Instead, A ramark Correctional Services, Inc., a different corporate entity, contracted with the State of Kansas to provide food services to the Kansas Department of Correctio ns and employed Ms. Siebert and Mr. Shimick. -6- without merit. “[C]orporate defendants cannot be h eld 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 Corporation 6 and Prison Health Services, Inc. was appropriate . The district court correctly granted summary judge ment to Kansas Department of Corrections employees Charles Simmons (Secretary of Corrections of the State of Kansas), Steve Dechant (Deputy Ward en, Hutchinson Correctional Facility) and John Turner (Deputy Warden, Hutchinso n Correctional Facility). Mr. Baker’s complaints against these individuals in their supervisory roles, even liberally construed, are devoid of any allegation a ffirmatively linking them to a subordinate’s alleged deliberate indifference to hi s medical needs. Mr. Baker’s allegations are, at best, conclusory. “[A] supervi sor is not liable under § 1983 for-7-

the actions of a subordinate unless an affirmative link exists between the constitutional deprivation and either the superviso r’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 favor able jury verdicts for Ms. Siebert and Mr. Shimick–contract food service w orkers at the Hutchinson Correctional Facility who allegedly acted with deli berate indifference to his medical needs by failing to adhere to his prescribe d 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 a dverted to in a perfunctory manner, unaccompanied by some effort at developed a rgumentation.” Murrell v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994) (quotation and citation omitted). Therefore, judgment for Ms. Siebert and Mr. Shimickis affirmed. “A prison official violates an inmate’s clearly est ablished Eighth Amendment rights if he acts with deliberate indiffe rence to an inmate’s serious medical needs--if he knows of and disregards an exc essive 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 objec tive and subjective component. A “serious medical need” is objectively established by proof the inmate’s7 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 man dating treatment or . . . is so obvious that even a lay person would easily recogni ze the necessity for a doctor’s attention.” Id. (quotations and citations omitted). The subjective aspect of the test, “deliberate indifference,” is established whe re “the prison official both was aware of facts from which the inference could be dr awn that a substantial risk of serious harm exists, and he must also draw the infe rence.” Id. (quotation and citations omitted). “[A] delay in medical care onl y constitutes an Eighth Amendment violation where the plaintiff can show th at the delay resulted in substantial harm.” Id. at 950 (quotation and citation omitted). “[A]ccid ental or inadvertent failure to provide adequate medical car e, 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 opi nion between an inmate and medical staff as to the need for or adeq uacy 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 re viewed the record, including a Martinezreport ordered by the district court. 7We adopt the reasoningsuit alleging a constitutional violation. “Thus, t he state prison administration, at

a level where the facts can be adequately developed , first examines and considers the incident, circumstances, and conditions which g ave rise to the asserted cause of action and develops a record before the court mu st proceed beyond the preliminary stages.” Id. at 320.

8 Mr. Baker claimed Belinda Saiz, records clerk for P rison 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 medica l refill) because he refused to sign a paper acknowledging his responsibility for an administratively required $2.00 copayment for medical services. The copaymen t only applied to the initial visit to sick call for a specific complaint or cond ition and, at that, only to visits initiated by the inmate. Furthermore, the regulatio n provided, “No inmate shall be refused medical treatment for financial reasons.” See K AN
. A DMIN
. REGS . 44-5- 115(c) (2000). Mr. Baker also claims Kansas Governor Bill Graves committed a constitutional violation by promulgating this admin istrative regulation. These claims are defeated by Mr. Baker’s requested dismis sal 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 copayme nt does not deprive him of access to medical services. -9- of the district court and agree with its conclusion that Mr. Baker failed to state a cognizable Eighth Amendment claim against the remai ning Kansas Department of Corrections employees (Officer Rodrigues and Chapla in VanBebber) or Prison Health Services, Inc. employees (Marvin Mettscher, Debra Wheat, Louisia Osborne and Dennis Goff). Neither health care prov iders nor corrections officials have barred Mr. Baker from seeking medical treatmen t. 8 In fact, the record contains abundant evidence he has obtained treatmen t for his medical needs since 1992. At best, he disagrees with his health care p roviders and corrections officials as to the recommended treatment regimen for his stated ailments. Such complaints-10-

are not of constitutional magnitude. See Johnson, 6 F.3d at 692. II. Interlocutory Orders Mr. Baker raises other issues in his brief which th e district court disposed of by interlocutory order before entry of judgment forthe Defendants. We will consider those issues, even though not specificallyidentified in the notice of appeal, under the rule that “a notice of appeal wh ich 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 sup plement his complaint, his motions that the district court judge recuse himsel f, 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 districtcourt as brought under Fed. R. Civ. P. 15(d), to supplement his complaint by addin g 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 Decemb er 18, 1998.” The district court denied the motion to supplement the complaint , reasoning the case would “never be resolved if plaintiff is permitted to con tinuously ‘update’ his claims and add additional parties . . . .” ROA, Vol. II, Doc. 90, p.4.9 “Whenever a party to any proceeding in a district c ourt makes and files a

timely and sufficient affidavit that the judge befo re 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 mind ful 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 exten sive record, we conclude the district court did not abuse its discretion in deny ing 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 firstmotion to recuse under 28 U.S.C. § 144 (2003). He later supported this motio n with an affidavit of prejudice. 9 The district court denied the motion on the grou nds Mr. Baker’s affidavit of prejudice was insufficient. On November 2, 2001, Mr. Baker filed a second motion for change of judge, supported by ano ther affidavit of prejudice. The district court also denied this motion on the g rounds it was a forbidden second10 For example, Mr. Baker complains the presiding judg e addressed him in a

condescending manner, belittled his lack of legal s kills, improperly commented on the propriety of naming certain persons as Defendan ts, exhibited bias by alluding to his claims as a “laundry list of complaints,” an d 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 fe deral court to make sure that his rights as a convict are not violated.” ROA, Vol. 3 , Doc. 128, pp. 22-23 -12- 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 th e judge in the course of the proceedings. Mr. Baker believes those remarks to h ave 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 fact s introduced or events occurring in the course of the current proce edings, or of prior proceedings, do not constitute a basis for a bias o r partiality motion unless they display a deep-seated favoritism or ant agonism that would make fair judgment impossible. Thus, judicial rema rks 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 maydo so if they reveal an opinion that derives from an extrajudicial source; and they willdo so if they reveal such a high degree of favoritism or antagonism as t o 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 abus e 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-13-

construed against the affiant and there is a substa ntial 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 ru lings 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 c hallenged 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 f rom an extrajudicial source. As to whether they evidence “such a high degree of fav oritism 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 o f the proceedings. While uttered with some apparent passion, they do not dem onstrate 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 f irst motion with the explanation: “Given the narrow issues involved and plaintiff’s f ailure to request a jury trial, the court believes that the interests of justice do notrequire 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 appearan ce of witnesses at trial on his behalf. As best we can decipher his argument, Mr. Baker al leges error in limiting the role of appointed counsel. “There is no constitutional right to appointed coun sel in a civil case.” Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). However, “[t]h e 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 counse l 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 t o appoint counsel, the district court should consider a variety of factors, includi ng 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.”-15-

Id. While the preferred practice is for the district co urt 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 propr iety” 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 considere d the Meese factors ourselves, we conclude the district court did not a buse its discretion in failing to appoint counsel to assist Mr. Baker.
CONCLUSION For the reasons given, we AFFIRM the judgment of th e district court. Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge