# FILED July 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk DONALD DAVIS, ) ) Sumner Circuit Plaintiff/Appellant, ) No. 16897-C ) VS. ) ) SUMNER COUNTY SHERIFF, J.D. ) Appeal No. VANDERCOOK, BILLY TEMPLETON, ) 01A01-9712-CV-00696 ASSISTANT ADMINISTRATOR, ) SONYA TROUTT, ) ) Defendants/Appellee

s. )
IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CIRCUIT COURT OF SUMNER COUNTY AT GALLATIN, TENNESSEE HONORABLE THOMAS GOODALL, JUDGE
Donald Davis, #117350 D.C.I., Box 700 Waupun, WI 53963 PRO SE PLAINTIFF/APPEL LANT William R. Wright, BPR 4024 Leah May Dennen, BPR 12711 Office of the Law Director Sumner County Administration Building 355 North Belvedere Drive, Room 208 Gallatin, Tennessee 37066 ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION-2-

CONCURS: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE DONALD DAVIS, ) ) Sumner Circuit Plaintiff/Appellant, ) No. 16897-C ) VS. ) ) SUMNER COUNTY SHERIFF, J.D. ) Appeal No. VANDERCOOK, BILLY TEMPLETON, ) 01A01-9712-CV-00696 ASSISTANT ADMINISTRATOR, ) SONYA TROUTT, ) ) Defendants/Appellee

s. ) 

## O P I N I O N
The captioned appel

lant is a prisoner

in the punitive custody of the Tennessee Department

of Correction. He sued the Sheriff of Sumner County and two of his employees for violation of 42 USC § 1983 by violating his civil rights by failing

to provide him with a “no pork diet” upon his demand therefor.

The defendan ts moved to dismiss for failure to state a claim for which relief can be granted. Ho wever, de fendants filed affidavits which were considered by the Tria l Judge and mentioned in his judgment dismissing plaintiff’s suit. Therefore the motion was properly treated
as a motion for summary judgment, and the judgment may be reviewed as a summary judgment.

The affidavit of

the Jail Administrato

r states: 1. I am the Jail Administrator of the Sumner County Jail. 2. When Plaintiff

Donald Davis ente

red the Jail he did not request a

special diet. 3. When we became aware of this, we notified the kitchen and have attempted to provide him alternate food sources.-3- 4. On several occas ions, Mr. Davis has turned down these alternative food sources as he deemed them not as savory as the pork dishes being served. 5. Never

theless, we will continu e to offer him nopork substitutes whe

n pork is offered

in the diet. The counter affidavit of the plaintiff is composed ent ir ely of argument, including the following: 3. The defendants have to date, failed to address the m ea ls that we’re served on the dates in question of complaint, 11/96 to 4/97. Meals being ser ved from 5/97 to pr esent may be nutritionally adequate, plaintiff is no long e r there, therefore can not argue these meals

of dates in question within complaint.
Plaintiff’s affidavit

does not deny the unequivocal affidavit of the administrator that, a
n on-po rk diet was furnishe

d to plaintiff from

the time of his requ

est for the durat

ion of his incarceration.

When a party moving for summary judg ment has filed evidence which, if uncontradicted, requires a summa

ry judgment as a matter of law, the moving party is entitled to summary judgment unless the opposing

party offe

rs evidence con

tradicti ng tha t of the mov ing p art y. TRCP Rule 56. Roberts v. Roberts , Tenn. App. 1992, 845 S.W.2d 225.

In the present

case, the plaintiff filed no evidence to contradict that offered by defenda

nts. Therefore, the

entry of sum

mary judgm

ent of dismissal wa

s correct.

The judgment of the T

rial Court is affir

med. Costs of this app

eal are taxed ag

ainst appellant. The c

ause is remanded

to the Trial Court f

or appropriate f

urther proceed

ings. AFFIRMED AND REMANDED.

_________________________________ HENRY F. TODD P RESID ING JUDGE, MIDDLE SECT IO N CONCUR:-4-

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WILLIA M C. KOCH, JR., JUDGE