* 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

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

April 13, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GORDON EUGENE STROPE, a/k/a

Michael Lee Strope,

Plaintiff!Appellant,

v.

DAVID R. MCKUNE, Warden,

Lansing Correctional Facility; JASON

SUTTLEY, Officer, Lansing

Correctional Facility; TABOR

MEDILL, Counselor, Lansing

Correctional Facility; R. SUTTLES,

Counselor, Lansing Correctional

Facility; FRANK DORION, Kitchen

Manager, Lansing Correctional

Facility; DUANE MUCKENTHALER,

Counselor, Lansing Correctional

Facility; COLLETTE

WINKELBAUER, Classification Staff,

Lansing Correctional Facility; ANN

MCDOWELL, Lansing Correctional

Facility; WILLIAM CUMMINGS,

Assistant for the Secretary of

Corrections; MIKE NEVE, Deputy

Warden, Lansing Correctional Facility,

in their individual capacities,

Defendants!Appellees.

No. 09-3203

(D.C. No. 5:04-CV-03204-JTM-DWB)

(D. Kan.)

ORDER AND JUDGMENT*
*

(...continued)

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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Following a previous appeal, this case was remanded based on intervening

Supreme Court precedent, see Jones v. Bock, 549 U.S. 199 (2007). Strope v.

McKune, 227 F. App’x 738 (10th Cir. 2007).

-2-

Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.

Michael Lee Strope, an inmate at the Lansing Correctional Facility

proceeding pro se, appeals the district court’s orders granting summary judgment

in favor of the defendants on his claims brought under 42 U.S.C. §§ 1983 and

1985(3). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1

Background

Mr. Strope alleged that defendants violated his First, Eighth, and

Fourteenth Amendment rights by (1) failing to provide him with a varied and

fresh kosher diet, (2) failing to afford him adequate time to consume his meals,

(3) failing to release him from his cell for meals on several occasions, (3) failing

to release him from his cell to attend religious services, (4) refusing to process his

prison grievances, (5) imposing retaliatory sanctions, (6) treating him differently

than other inmates, (7) denying him access to the courts, and (8) conspiring to

violate his rights. Defendant Dorion was the prison food service director,

employed by a private entity that contracted to provide meals to the prisoners. 
2 Defendant Neve is deceased. The district court’s grant of summary

judgment to the other State defendants and this court’s affirmance also apply to

Mr. Strope’s claims against Mr. Neve.

3 Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam) (approving

order requiring prison officials to investigate facts surrounding inmate’s civil

rights action to construct an administrative record from which court may

determine jurisdiction and assess frivolity). 

-3-

Defendant McKune was the prison warden, defendant Cummings was the

Secretary of Corrections’ Designee, and the remaining defendants were staff

members at the prison (collectively, the State defendants).2

 

At the district court’s direction, defendants filed a Martinez report.3

 The

State defendants later moved for summary judgment supported by an affidavit

from each State defendant. Mr. Dorion separately filed a summary judgment

motion, also supported by his affidavit. Mr. Strope opposed the motions,

claiming disputed facts precluded summary judgment. In two separate orders, the

district court granted the defendants’ motions. Mr. Strope appeals, asserting that

the district court failed to address many of his claims and contending that the

court impermissibly decided factual disputes on summary judgment and instead

relied on defendants’ allegedly falsified responses to his grievances. 

Analysis

“We review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed. R. Civ. P. 56(c).” Steffey v.

Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (quotation omitted). For
-4-

dispositive issues on which the plaintiff will bear the burden of proof at trial, he

must “go beyond the pleadings and designate specific facts so as to make a

showing sufficient to establish the existence of an element essential to [his] case

in order to survive summary judgment.” Sealock v. Colorado, 218 F.3d 1205,

1209 (10th Cir. 2000) (quotation omitted). “[E]vidence, including testimony,

must be based on more than mere speculation, conjecture, or surmise. 

Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citation and

quotations omitted). Because Mr. Strope is representing himself, we liberally

construe his pleadings; however, we do not act as his advocate. Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). 

Mr. Strope contends that the district court failed to address his claims 4, 5,

6, 9, and 10. His appellate brief does not identify any specific portions of his

claims that were not addressed, however. Rule 28 of the Federal Rules of

Appellate Procedure is applicable to pro se litigants and requires that a brief

“contain more than a generalized assertion of error, with citations to supporting

authority. When a pro se litigant fails to comply with that rule, we cannot fill the

void by crafting arguments and performing the necessary legal research.” Garrett

v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation,

quotations, and alteration omitted). Nevertheless, our comparison of his
-5-

complaint and the district court’s analysis reveals that the court addressed those

claims. 

Mr. Strope also asserts that the district court accepted as true defendants’

statements as to the disputed facts, despite his opposition to summary judgment

controverting those statements. Although Mr. Strope made some specific

allegations, such as the dates on which he missed a meal, the district court

explained that such allegations did not state an Eighth Amendment claim. As for

his remaining allegations, Mr. Strope’s opposition failed to “set forth facts that

would be admissible in evidence,” because they presented only conclusory

allegations. See Hall, 935 F.2d at 1111; accord Ledoux v. Davies, 961 F.2d 1536,

1537 (10th Cir. 1992) (holding “[p]laintiff’s conclusory allegations are

insufficient to put a material fact in dispute”). Accordingly, the district court was

not required to accept Mr. Strope’s statements as true and they were insufficient

to demonstrate that there was a disputed issue of material fact sufficient to resist

summary judgment.

We have carefully reviewed the record on appeal, the parties’ briefs, and

the applicable law. Applying the standards set out above, we affirm the district

court’s grant of summary judgment to the defendants for the reasons stated in the

court’s orders dated February 27, 2009, and June 30, 2009. 
-6-

The district court granted Mr. Strope leave to proceed on appeal without

prepayment of costs and fees. He is reminded that he is obligated to continue

making partial payments until the entire fee has been paid. 

Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

John C. Porfilio

Circuit Judge