UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

RONNIE M. CHANCE, 

 Plaintiff - Appellant,

v.

JARRED ROBERTS; STARLA 

PHILLIPS; SHARON MCCOY; 

CHERI ATKINSON, 

 Defendants - Appellees.

No. 22-7008

(D.C. No. 6:20-CV-00373-RAW-SPS)

(E.D. Okla.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges.

_________________________________

Ronnie M. Chance, proceeding pro se, sued various Oklahoma prison officials

under 42 U.S.C. § 1983, alleging violations of his Eighth Amendment right to be free 

from cruel or unusual punishment. The district court ruled against him on all of his 

claims, and also made a number of procedural rulings with which he disagrees. For 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 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.

FILED

United States Court of Appeals

Tenth Circuit

December 7, 2022

Christopher M. Wolpert

Clerk of Court

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the reasons explained below, we affirm in part, reverse in part, and remand for 

further proceedings.

I. BACKGROUND & PROCEDURAL HISTORY

At all times relevant to this lawsuit, Chance was a prisoner in the custody of 

the Oklahoma Department of Corrections (ODOC) and housed at the Jess Dunn

Correctional Center.

1

 In August 2020, he filed a § 1983 lawsuit in the United States 

District Court for the Western District of Oklahoma, later transferred to the Eastern 

District. The latter court screened his complaint and ordered him to amend it, which 

he did. The amended complaint (still the operative complaint) named four prison 

officials (collectively, “defendants”):

• Jarrod Roberts, the prison’s healthcare administrator;

• Starla Phillips, head of food services at the prison;

• Sharon McCoy, the warden; and

• Cheri Atkinson, an employee at ODOC’s central office for medical 

matters.

Chance accused defendants of numerous wrongs, mostly having to do with failure to

provide proper medical care. Chance attached voluminous exhibits, such as the 

administrative grievances he filed about these issues.

1 After this appeal was fully briefed, Chance discharged his sentence and was 

released from ODOC custody. But, to the extent he could recover damages for his 

allegedly unconstitutional treatment in prison, his case is not moot. See, e.g.,

Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004).

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The district court ordered ODOC to prepare a Martinez report concerning 

Chance’s allegations.2

 About two-and-a-half months later, defendants filed the 

report, which largely focused on whether Chance had exhausted his administrative 

remedies. The report included numerous exhibits, most of which duplicated what 

Chance had already attached to his complaint.

Defendants then filed a motion to dismiss with an alternative request for 

summary judgment (MTD/MSJ). They argued, based on documents from the report, 

that Chance had not exhausted his administrative remedies as to any claim. They

alternatively argued on the merits that he failed to state any viable claim, still relying 

on documents from the report. Finally, they argued that they were entitled to 

qualified immunity.

Chance responded in opposition.3

 Ultimately, the district court ruled:

2 A Martinez report is a procedure first approved in Martinez v. Aaron, 

570 F.2d 317, 319 (10th Cir. 1978). As we later explained, the district court may 

“direct prison officials to respond in writing to the [prisoner’s] various allegations, 

supporting their response by affidavits and copies of internal disciplinary rules and 

reports. The purpose of the Martinez report is to ascertain whether there is a factual 

as well as a legal basis for the prisoner’s claims.” Gee v. Estes, 829 F.2d 1005, 1007 

(10th Cir. 1987).

3 Chance filed what he captioned as a cross-motion for summary judgment. 

But the document argued that there were “no grounds for dismissal or summary 

judgment in favor of the Defendants.” R. vol. III at 314; see also id. at 348 (“For 

reasons set forth in this pleading the Defendants are not entitled to summary 

judgment or dismissal.”). So, in substance, the document was a response, and the 

district court appropriately treated it as such. We accordingly reject Chance’s 

argument that the district court should have treated this document as a true summary 

judgment motion.

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• Chance had exhausted one of his claims (regarding the need for a 

medical diet), but that claim failed on the merits;

• an alleged equal protection violation was both unexhausted and failed 

on the merits;

• Chance failed to plead a proper supervisory-liability claim against 

McCoy or Atkinson; and

• Chance failed to exhaust all other claims.

Accordingly, the district court granted defendants’ MTD/MSJ and entered final 

judgment.

Chance timely appealed, and we have jurisdiction under 28 U.S.C. § 1291. 

We will provide more details about Chance’s claims, the parties’ arguments, and the 

district court’s reasoning as they become relevant to the issues addressed below.

II. STANDARD OF REVIEW

Because the district court treated one of its rulings—regarding supervisory 

liability—as a pure failure to state a claim, it dismissed under Federal Rule of Civil 

Procedure 12(b)(6). As to the remainder of its rulings, the district court said it was 

granting summary judgment, presumably because it was relying on documents 

attached to the Martinez report. We review both types of rulings de novo. See, e.g.,

Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011) (summary 

judgment); Janke v. Price, 43 F.3d 1390, 1391 (10th Cir. 1994) (dismissal for failure 

to state a claim).

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III. ANALYSIS

A. Medical Need for a Special Diet

Chance pleaded that Phillips, Roberts, and McCoy violated his Eighth 

Amendment right to adequate food in prison between February and August 2019. 

The district court found that Chance exhausted this claim but it failed on the merits. 

Defendants argue on appeal, however, that Chance failed to exhaust all his claims—

which would necessarily include this one.

To sort this out, we will first describe the exhaustion procedure generally. We 

will then describe how that procedure played out with respect to Chance’s medicaldiet claim, and how the district court resolved the exhaustion question. Then we will 

return to defendants’ argument that he failed to exhaust the claim.

1. Exhaustion of Administrative Remedies in Oklahoma Prisons

Prisoners may not sue based on prison conditions “until such administrative 

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). During the 

timeframe relevant to this lawsuit, Oklahoma required a prisoner to take the 

following steps to exhaust his or her claim:

1) talk to the appropriate staff member;

2) submit a written Request to Staff (RTS) on the approved form within 

seven days;

3) submit a written grievance on the approved form no more than fifteen 

days after receiving a response to the RTS; and

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4) file an appeal on the approved form to the Administrative Review 

Authority (ARA) (or, for medical complaints, to a separate entity known 

as the Medical ARA) no more than fifteen days after receiving a 

response to the grievance.

Also, if the prisoner has received no response to an RTS (see step 2) within 

thirty days, then, no later than sixty days after submitting it, the prisoner “may file a 

grievance” (see step 3) specifically about “the issue of the lack of response.” R. vol. 

III at 252.4

2. Additional Background

We now turn to Chance’s efforts to grieve the lack of a proper diet. The 

record does not say whether Chance ever spoke informally with the relevant actors

about this issue, as required by step 1 of the grievance process. But defendants do 

not argue that Chance failed to satisfy step 1. We will therefore focus on his efforts 

to fulfill steps 2, 3, and 4. Cf. Woodford v. Ngo, 548 U.S. 81, 101 (2006) (“[T]he 

PLRA exhaustion requirement is not jurisdictional . . . .”).

The events relevant to Chance’s medical-diet claim happened between January 

and August 2019. In mid-January of that year, an outside physician saw Chance for 

symptoms of gastroesophageal reflux disease (GERD) and recommended that he 

4 The district court described this feature of the grievance policy—i.e., 

submitting a grievance about the lack of response to an RTS—as a mandatory step in 

the exhaustion process, if applicable. On appeal, Chance strenuously argues that the 

policy is permissive on this point, not mandatory. We need not resolve this question 

because we cannot find where the district court deemed any claim unexhausted for 

failure to file a grievance about the lack of response to an RTS.

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adopt a “GERD diet.” R. vol. III at 193. On February 4, Chance sent an RTS to 

Phillips (the prison’s food service supervisor) stating that he had been “prescribed” a 

Mediterranean diet, and asking, “Do you offer this diet here?” R. vol. II at 73. 

Phillips responded on February 19 that the prison “offer[ed] healthy heart or 

vegetarian.” Id.5

 During this same timeframe, Chance was corresponding with the 

prison chaplain, asking to change his religious preference to messianic Jew, and then 

to be placed on the list for a kosher diet.

6

It is not clear what happened between February 19 and April 19. On the latter 

date, however, Chance signed a “Kosher/Halal Diet Request Form.” Id. at 71. The 

form required the requesting inmate to agree, among other things, not to barter the 

prepackaged meals. The form also stated, “Due to ordering and shipping 

requirements, it can take up to 60 days before you begin receiving the diet, depending 

on the shipping and storage options available.” Id. The chaplain approved Chance’s 

request form the same day (April 19). 

5 In truth, it is difficult to say who responded to this RTS, or any of the other 

RTS’s described below, because the signatures on these responses are illegible. But 

the court must draw reasonable inferences from the summary judgment record in 

Chance’s favor. See Twigg, 659 F.3d at 997. It is a reasonable inference that the 

person to whom Chance directed an RTS is also the person who responded to it. 

Also, defendants do not claim that they were not the responders. Thus, for purposes 

of this order and judgment, the court will assume that the RTS addressee is also the 

responder.

6 Several months later, during step 3 of the grievance process, Chance 

explained that a prison doctor told him he should try to get a kosher diet if a 

Mediterranean diet was not available. 

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The next relevant event came on May 7, when Chance submitted an RTS to 

“Ms. Phillips/Food Service.” Id. at 79. He claimed he

need[ed] kosher for MEDICAL reasons. I can not eat most 

of the food on your regular menu. . . . I know I was told 

by the chaplin [sic] that you have 60 days to put me on 

kosher but this is a medical problem not just religious. . . . 

Can you please fix this problem[?]

Id. at 79, 80.

While awaiting Phillips’s response, Chance submitted an RTS to Roberts (the 

prison’s healthcare administrator) on May 24. Chance again claimed that he had 

been prescribed a Mediterranean diet and asked, “Can you give me my Mediteranion

[sic] diet or something equivalent to that for my dietary needs[?]” Id. at 449.

That same day, Chance sent a written message to his case manager, asking her 

to “verify that I have discussed with you problems with not receiving proper food for 

my dietary need and that you have tried to communicate these to food service through 

e-mail on two occasion[s] to Ms Phillips.” Id. at 112. Later that day, the case 

manager responded, “We have spoke[n] about food issues several times. A hard copy 

& e-mailed copy of kosher meal approval was sent to food service.” Id.

Chance sent another RTS to “Ms Phillips/Food Service” on June 3. Id. at 81. 

Similar to his May 7 RTS, he asserted, “I know I was told by the chaplin [sic] that 

you have 60 days to put me on kosher but this is a medical problem not just [a] 

religious problem.” Id. at 82. He then added,

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[ODOC] has taken ever[y] penny from me for over four 

years[.][7]

 I can not buy my own food. I have been 

washing people’s stuff so I can have something to eat on 

most night[s]. . . . Can you please give me my kosher [diet] 

so I can have something to eat[?]

Id.

The next day, June 4, Roberts responded to Chance’s May 24 RTS. The 

response stated that there was “[n]o order for diet in medical record” and told Chance 

to discuss the issue at a medical appointment on June 11. Id. at 449.

On June 20, Chance formally grieved Phillips’s failure to respond to his May 7

and June 3 RTS’s. He asserted that he “signed for kosher [on] 4-19-19” but had not 

yet received it. Id. at 83. He also asserted that his case manager and another person 

(whose role is unknown) “have both sent numerous e-mail copies to Ms Phillips at 

Food Service,” apparently referring to information about his dietary needs. Id. His 

request for relief was: “allow me the dietary nutritions that are legally, and prescribed 

to me.” Id.

The next day, June 21, Chance formally grieved Roberts’s June 4 response to 

his May 24 RTS (i.e., the response telling him there was no diet prescription in his 

medical record). He claimed, “I have had very little to eat for several months. . . . 

I was approved for kosher on 4-19-19. I have had to find my own food.” Id. at 84.

Both of Chance’s grievances were received by the “Warden’s Office” within 

four days of filing. See id. at 83, 84.

7 This accusation relates to Chance’s claim that he was being improperly 

charged for medications, discussed below.

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On July 12, Phillips responded to Chance’s May 7 and June 3 RTS’s. It is not 

clear whether Chance’s June 20 grievance prompted this response. In any event, 

Phillips simply wrote, “No response.” Id. at 79, 81.

On August 1, Warden McCoy responded to Chance’s June 20 grievance. She

repeated the language from the kosher request form stating that it can take up to sixty 

days to begin receiving kosher meals. She also said that “[f]ood services verified on 

8-1-19 that you have been receiving Kosher meals since 7-16-19.” Id. at 85.

On August 12, Chance appealed McCoy’s response to the ARA. He asserted 

he had been receiving kosher meals since July 23, not July 16, and in any event, 

“[t]his is after multiple staff member[s] requested that food service give me food that 

I could eat. I went 97 days with out proper amounts of food to eat. I was not 

supposed to . . . go more th[a]n 60 days.” Id. at 86.

8

On August 28, an ARA employee named Mark Knutson affirmed McCoy’s 

response because, he said, Chance did not substantiate his appeal. Knutson then

announced that this disposition meant Chance had “satisfied the exhaustion of 

administrative remedies.” Id. at 88.

As part of the Martinez report submitted in this lawsuit, ODOC included an 

affidavit from Knutson. Knutson asserted that Chance exhausted his administrative 

remedies as to his claim “regarding a prescribed Kosher diet.” R. vol. III at 22, 

8 Chance’s claim of ninety-seven days appears to be a slightly miscalculated 

reference back to April 19 (ninety-five days earlier), which was the day the chaplain 

approved his kosher diet request.

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¶¶ 7, 8. ODOC also submitted an affidavit from Cheri McCleave-Redpath, who is a 

manager for the medical ARA. She stated that the medical ARA had not received a 

grievance appeal from Chance as to any medical issue, including “a specific medical 

diet.” Id. at 19, ¶ 5. Thus, Chance had “not exhausted his administrative remedy . . . 

with respect to any medical issues.” Id. ¶ 7.

The district court said nothing about this apparent conflict. But it relied on 

Knutson’s affidavit (without mentioning McCleave-Redpath’s) to find that the 

“Administrative Review Authority agrees [Chance’s medical-diet] claim was 

exhausted.” R. vol. IV at 58 n.2. The district court then ruled against Chance on the 

merits. 

3. Defendants’ Argument that Chance Did Not Exhaust Any Claim

As noted, defendants argue on appeal that Chance failed to exhaust all his 

claims, which would necessarily include his medical-diet claim. If so, this could be 

reason to affirm the district court’s disposition without reaching the merits. But 

defendants do not frame this as an alternate argument for affirmance. They appear to 

believe, rather, that the district court found lack of exhaustion on all claims. 

See Aplee. Resp. Br. at 17 (“The District Court properly found that Appellant failed 

to exhaust and, therefore . . . granted summary judgment.”). Even more oddly, 

defendants support their argument that Chance “failed to exhaust his administrative 

remedies as to any claim” by citing the McCleave-Redpath affidavit and the Knutson 

affidavit, as if they say the same thing. Id.

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We choose not to take up defendants’ argument, even if intended as an 

alternate basis on which to affirm. True, “[w]e may affirm on any ground adequately 

presented to the district court,” Griffith v. Colo., Div. of Youth Servs., 17 F.3d 1323, 

1328 (10th Cir. 1994), and we recognize that defendants argued complete failure of 

exhaustion to the district court (including by citing the two affidavits, as if they 

support each other, see R. vol. III at 235). But this argument fails on the 

“adequately” part of “adequately presented.”

We simply do not know what to make of this situation: two state prison 

employees giving the district court diametrically opposed opinions about whether a 

prisoner exhausted his claim. We also cannot say, on this record, that Chance could 

only properly exhaust his medical-diet claim through the medical ARA. McLeaveRedpath only tells us that the claim was not exhausted through the medical ARA. 

She does not say it had to be exhausted through the medical ARA. Knutson does not 

say that either, and he would be the person we would expect to say so, if it were true 

(e.g., “This claim could not be exhausted through the general ARA; Chance needed 

to send it to the medical ARA.”).

Moreover, we do not deem it obvious that any grievance touching on a 

medically needed diet must go to the medical ARA. Chance’s grievance paperwork 

shows he was not asking to be prescribed a medical diet. He was asking that prison 

food services provide him a medical diet that (he believed) he had already been 

prescribed. We cannot say that Oklahoma’s prisoner grievance policy 

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unquestionably requires such a grievance—primarily directed at food services 

personnel, not medical personnel—to be exhausted through the medical ARA.

In short, because defendants failed to develop the record, we will not further 

consider the possibility of affirming the district court’s disposition of the medicaldiet claim on the alternate basis that Chance failed to exhaust that claim.

4. Merits Analysis

We now ask whether the district court properly granted summary judgment to 

Phillips and Roberts on this claim, and properly dismissed for failure to state a claim 

against McCoy. 

The Eighth Amendment requires prison officials to “ensure that inmates 

receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 

511 U.S. 825, 832 (1994). A prisoner claiming a violation of this requirement must 

show: (i) “the deprivation alleged [is], objectively, sufficiently serious”; and (ii) the 

responsible official acted with “deliberate indifference to inmate health or safety.” 

Id. at 834 (internal quotation marks omitted). Deliberate indifference means “the 

official knows of and disregards an excessive risk to inmate health or safety; the 

official must both be 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.

at 837. 

The district court found that Chance satisfied the first element (an objectively 

sufficiently serious deprivation, i.e., starvation) but he failed to show a genuine 

dispute of material fact about deliberate indifference. The court explained, “While 

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there was a delay in Plaintiff’s receiving his medical diet, there is no evidence of 

interference with the medical diet or that the delay was intentional.” R. vol. IV at 62.

Chance disputes this reasoning. He claims it is “not even remotely plausible”

that the prison “did not have any food that [he] could eat or no way of remedying this 

issue for this extremely long period of time.” Aplt. Opening Br. at 19. In this light, 

the question is if the record before the district court raised a genuine issue whether 

Phillips or Roberts, or both, were deliberately indifferent to Chance’s lack of food, 

and whether he plausibly pleaded McCoy’s liability in her role as warden. We will 

discuss each defendant separately, beginning with Roberts. Cf. Ashcroft v. Iqbal, 

556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each Government-official 

defendant, through the official’s own individual actions, has violated the 

Constitution.”).

a. Roberts

As relevant to this claim, the only evidence Chance submitted about Roberts 

was the May 24 RTS, where he asked, “Can you give me my Mediteranion [sic] diet 

or something equivalent to that for my dietary needs[?]” R. vol. II at 449. There is 

no hint here that Chance did not have enough to eat. Thus, Chance failed to raise a 

genuine dispute about whether Roberts “kn[ew] of and disregard[ed] an excessive 

risk to [Chance’s] health or safety.” Farmer, 511 U.S. at 837. We therefore affirm 

the district court’s grant of summary judgment in Roberts’s favor on this claim.

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b. Phillips

Chance’s May 7 RTS to Phillips stated that a kosher diet was a medical need, 

not just a religious request. In that light, Chance asked, in essence, if there was some 

way the typical sixty-day lag to start receiving kosher meals could be shortened. 

Then, in his June 3 RTS to Phillips, Chance repeated that his need for a kosher diet 

was medical, not just religious, and he added, “I can not buy my own food. I have 

been washing people’s stuff so I can have something to eat on most night[s].” R. vol. 

II at 82. Phillips waited until July 12 to respond to both RTS’s, and then her 

response was, “No response.” Id. at 79, 81. Finally, viewing the evidence in the 

light most favorable to Chance, he started receiving kosher meals on July 23.9

This evidence is enough to raise a genuine issue that Phillips knew Chance 

was not receiving enough food for reasons beyond his control. Moreover, Phillips

has never argued that she lacked power to do anything about the situation. She 

instead emphasizes a part of the record showing that Chance received supplemental 

snacks.

The issue of snacks refers to documents in the Martinez report showing that

prison medical personnel had authorized Chance to receive one snack daily beginning 

in June 2018 at the latest, increased to two snacks daily beginning on July 10, 2019

(shortly before he began receiving kosher meals). The district court recognized there 

9 Our analysis of Phillips’s potential culpability does not turn on whether 

Chance started receiving kosher meals on July 23, as Chance claims, or on July 16, as 

reported in McCoy’s response to Chance’s grievance.

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was a genuine dispute over the purpose of these snacks because Chance claimed they 

had been authorized before his GERD diagnosis, on account of the large amount of 

medication he takes.

Because the record supports Chance’s explanation, the court must accept it for 

summary judgment purposes. Thus, the court must assume that Chance received 

snacks for reasons other than difficulty in obtaining a kosher diet. Notably, 

defendants offer no evidence that Phillips knew Chance was receiving snacks.

It is still conceivable that Chance’s snacks were enough to keep him 

adequately fed, but Phillips does not argue as much and Chance’s contemporaneous 

RTS’s say he was not receiving enough food. Moreover, any argument that Chance

happened to be receiving enough food from other sources would be an attack on the 

district court’s finding that Chance’s need was “sufficiently serious and meets the 

objective component of the deliberate indifference standard.” R. vol. IV at 62. 

Phillips could have made this argument as an alternative basis to affirm, but if she 

intended to, she has not supported it. Our own review of the record has not turned up 

any support either (i.e., evidence from which a reasonable jury could only conclude 

that the minimal amount Chance could eat from the regular prison menu, plus his 

supplemental snacks, was enough to feed him properly). Accordingly, on this record, 

the court must assume that Chance’s snacks were not prescribed to make up for his 

limited ability to eat from the general prison menu, and, in any event, were not

enough to make up the shortfall.

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Phillips further argues that there was no evidence Chance had been prescribed 

a Mediterranean diet or a kosher diet. We need not decide if we agree with Phillips’s 

view of the evidence because Phillips has not explained to us why a formal 

prescription would matter, at least when an inmate complains he cannot eat the food 

served on the regular menu and has therefore been scrounging for food on his own. 

Again, Phillips has not argued that she was powerless to act.

In sum, the record before the district court contained enough evidence to 

reasonably infer that Phillips was deliberately indifferent to Chance’s lack of 

adequate food. But that does not end the inquiry. Phillips also asserted (and 

continues to assert) qualified immunity. This means Chance has the burden to

“demonstrate on the facts alleged both that [1] the defendant violated his 

constitutional or statutory rights, and that [2] the right was clearly established at the 

time of the alleged unlawful activity.” Riggins v. Goodman, 572 F.3d 1101, 1107 

(10th Cir. 2009).

Chance’s allegations, if accepted by a factfinder, would be enough to show 

that Phillips violated his Eighth Amendment right to adequate food in prison. The 

question is whether the right was clearly established. “The law is clearly established 

when a Supreme Court or Tenth Circuit decision is on point, or if the clearly 

established weight of authority from other courts shows that the right must be as 

plaintiff maintains.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 

2003). Usually, the relevant precedent “must be particularized to the facts.” 

Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). But “general 

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precedents may clearly establish the law when the defendant’s conduct obviously 

violates the law. Thus, a right is clearly established when a precedent involves 

materially similar conduct or applies with obvious clarity to the conduct at issue.”

Id. (internal quotation marks, brackets, and citation omitted; emphasis removed).

Chance cites only general precedents about prison officials’ duty to adequately 

feed prisoners (such as Farmer’s declaration that inmates must receive “adequate 

food, clothing, shelter, and medical care,” 511 U.S. at 832), and he relies on the idea 

of obviousness. In this circumstance, we are persuaded that he has fulfilled his

burden to show the right was clearly established. The general duty to feed prisoners 

applies with obvious clarity when a prisoner complains he is not getting enough food

because his medical condition prevents him from eating almost everything on the 

general prison menu. See, e.g., Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 

2002) (“A substantial deprivation of food may be sufficiently serious to state a 

conditions of confinement claim under the Eighth Amendment.”). Put slightly 

differently, as between allowing the prisoner to starve and finding medically suitable 

food, we do not see how prison officials would have any room for doubt about their

obligation. Thus, on the limited record before the district court (i.e., the parties’ 

pre-discovery filings, plus the Martinez report), the district court incorrectly granted 

summary judgment in Phillips’s favor on Chance’s medical-diet claim.

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c. McCoy10

Through his grievance filed on June 21, 2019, Chance informed McCoy, 

“I have had very little to eat for several months. . . . I have had to find my own 

food.” R. vol. II at 84. The grievance also listed the employees from whom Chance 

had sought relief, including Phillips. Chance pleaded that McCoy, in her role as 

warden, had a duty to act when she received this information (no later than June 25). 

But she did not address his grievance until August 1.

“Supervisors are only liable under § 1983 for their own culpable involvement 

in the violation of a person’s constitutional rights.” Serna v. Colo. Dep’t of Corr., 

455 F.3d 1146, 1151 (10th Cir. 2006). As relevant here, Chance must show: (1) “the 

supervisor’s subordinates violated the constitution”; and (2) “the active participation 

or acquiescence of the supervisor in the constitutional violation by the subordinates.” 

Id.

Chance satisfies the first element because we have concluded that his 

allegations, if accepted, would be enough to demonstrate Phillips violated his Eighth 

Amendment right to an adequate amount of food. As to the second element, we hold 

10 As against McCoy, the district court dismissed Chance’s medical-diet claim 

under Rule 12(b)(6), so the question before us is whether Chance’s complaint 

“contain[ed] sufficient factual matter, accepted as true, to state a claim to relief 

[against McCoy] that is plausible on its face,” Iqbal, 556 U.S. at 678 (internal 

quotation marks omitted). For these purposes, the documents Chance attached to his 

complaint are treated as part of the complaint. See Hall v. Bellmon, 935 F.2d 1106, 

1112 (10th Cir. 1991).

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that Chance likewise has plausibly pleaded McCoy’s acquiescence to Phillips’s 

inaction, given that McCoy waited over a month to respond.

As for qualified immunity, this strikes us as another instance of “obvious 

clarity,” Apodaca, 864 F.3d at 1076 (internal quotation marks omitted; emphasis 

removed), such that general precedents are enough to clearly establish the right. We 

cannot see how a warden who learns that her subordinates are depriving an inmate of 

adequate food could have any doubt about the need to take action. Indeed, this 

circuit declared in 1976 that a supervisor may be held liable for acquiescing to a 

subordinate’s constitutional violation. See Kite v. Kelley, 546 F.2d 334, 337 

(10th Cir. 1976).

For these reasons, Chance stated a plausible claim to relief. The district court 

therefore incorrectly dismissed Chance’s medical diet claim against McCoy.

B. Charging for Medicine

Chance pleaded that, for at least four years, prison officials wrongly charged 

his inmate account for the cost of medicine prescribed to him, allegedly in violation 

of prison policy. Chance characterized this as an equal protection violation. Chance

seems to have directed this claim at McCoy and perhaps Atkinson (who responded to 

medical grievance appeals on behalf of ODOC).

The district court denied relief on the merits of this claim without discussing

whether Chance had exhausted it administratively. Then, after discussing a different

claim, the court returned to this claim and ruled that Chance had not exhausted it. 

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Because we agree the claim fails on the merits, we will not decide whether Chance

properly exhausted it.11

The district court characterized Chance’s equal protection claim as a “class of 

one” claim, and Chance does not dispute that. Such a claim requires the plaintiff to 

demonstrate (1) “other similarly situated individuals were treated differently,” and 

(2) “there is no rational basis for the different treatment.” A.M. ex rel. F.M. v. 

Holmes, 830 F.3d 1123, 1167 (10th Cir. 2016) (internal quotation marks and brackets 

omitted). “The requirement that a plaintiff show that similarly situated persons were 

treated differently is especially important in class-of-one cases.” Jicarilla Apache 

Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1212 (10th Cir. 2006) (internal quotation 

marks omitted). “Accordingly, courts have imposed exacting burdens on plaintiffs to 

demonstrate similarity in class-of-one cases.” Id. at 1213.

In his summary judgment briefing, Chance said his differential treatment 

should be obvious by comparing his circumstances to the prison policies and 

procedures that allegedly apply. But the question is not whether the prison failed to 

follow its policies and procedures as to him. The question is whether it failed to 

follow those policies and procedures only as to him. Chance did not offer any 

relevant argument here, nor did he make a request that the district court defer 

summary judgment so Chance could pursue discovery on this claim. See Fed. R. Civ. 

11 We therefore do not reach Chance’s argument that Atkinson interfered with 

his ability to exhaust this claim when she issued him a warning for misuse of the 

grievance process.

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P. 56(d).

12 Accordingly, we affirm the district court’s grant of summary judgment on 

this claim.13

C. Other Medical Claims

Chance pleaded that he did not receive adequate medical care for shoulder pain 

and lymphedema. The district court ruled that Chance failed to exhaust his 

administrative remedies as to these claims.

Chance’s appellate brief does not mention his claim based on shoulder pain, so 

we deem him to have abandoned it. Chance’s only mention of lymphedema is a 

reference to being “hospitalized for serious illness that was not properly treated.” 

Aplt. Opening Br. at 27 (citing a motion filed with this court in April 2022, in which 

he requested an injunction requiring defendants to treat his lymphedema). But 

Chance raises this issue only to argue that the district court erred when it denied him 

injunctive relief. Chance does not explain why the district court’s exhaustion 

analysis was wrong. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 

(10th Cir. 2015) (“The first task of an appellant is to explain to us why the district 

court’s decision was wrong. Recitation of a tale of apparent injustice may assist in 

that task, but it cannot substitute for legal argument.”). Thus, we deem Chance to 

12 Chance argued that discovery would prove lack of proper treatment for 

many medical issues. See R. vol. III at 334. But assuming this was a proper 

Rule 56(d) request, it is not relevant to the question of differential treatment.

13 Given this disposition, we need not decide whether Chance adequately 

pleaded McCoy’s or Atkinson’s personal participation in the alleged constitutional 

violation.

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have abandoned his lymphedema claim as well. We therefore affirm the district 

court’s grant of summary judgment on these claims.14

D. Interference with Legal Mail

For the first time on appeal, Chance alleges that his constitutional right of 

access to the courts was interfered with because his legal mail was tampered with or 

confiscated. He does not specify which of the defendants, if any, was responsible. 

Regardless, Chance cannot plead a new cause of action for the first time in this court. 

See, e.g., Petrini v. Howard, 918 F.2d 1482, 1483 n.4 (10th Cir. 1990) (“A federal 

appellate court, as a general rule, will not reverse a judgment on the basis of issues 

not presented below.”). So we will not further address this claim.

E. Procedural Rulings

Finally, we address Chance’s challenges to a number of procedural rulings.

1. Denial of Chance’s Motion for Appointment of Counsel

While defendants’ MTD/MSJ was pending, Chance moved for appointment of 

counsel. The district court denied that motion because Chance showed he could 

present his claims himself, and the legal issues were not complex. Chance argues 

this was error. 

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

Dempsey, 869 F.2d 543, 547 (10th Cir. 1989), but “[t]he court may request an 

14 We will not reach Chance’s arguments about injunctive relief because the 

issue is moot. As noted, Chance was discharged from prison in July 2022, so the 

district court cannot now enjoin defendants to meet his medical needs. See

Wirsching, 360 F.3d at 1196. 

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attorney to represent any person unable to afford counsel,” 28 U.S.C. § 1915(e)(1). 

“[T]he factors to be considered in deciding whether to appoint counsel[] includ[e] 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.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (internal 

quotation marks omitted). “We review the denial of appointment of counsel in a civil 

case for an abuse of discretion,” id., although abuse of discretion in this context is 

even more deferential than usual: “Only in those extreme cases where the lack of 

counsel results in fundamental unfairness will the district court’s decision be 

overturned,” McCarthy v. Weinberg, 753 F.2d 836, 839 (10th Cir. 1985). 

The district court’s ruling did not result in fundamental unfairness, nor do we 

see an abuse of discretion in any event. We therefore reject Chance’s challenge to 

the district court’s ruling denying his motion for appointment of counsel.15

2. Alleged Delay in Processing Chance’s Motion for Judgment on 

the Pleadings, Resulting in its Denial

Chance claims the U.S. Marshals served his complaint on defendants in midJanuary 2021 and defendants’ time to answer expired a few weeks later. So he 

mailed a motion for judgment on the pleadings (which was, in substance, something 

like a motion for default judgment) on February 26, 2021, but the district court did 

not file it until May 20, 2021. In between those dates, defendants prepared and filed 

15 We do not mean to foreclose the possibility of appointing counsel on 

remand, if appropriate.

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the Martinez report, and filed the MTD/MSJ (on May 11). Because defendants had 

filed their motion by the time Chance’s motion for judgment on the pleadings was 

docketed, the district court denied Chance’s motion, apparently as moot. 

Chance seems to argue that the alleged delay robbed him of a chance to win 

his case early, or at least to have his version of the facts deemed undisputed. But 

whatever argument he means to present, the record does not support his claim that he 

prepared and mailed his motion in February 2021. The law library supervisor, who 

claims to have deposited the motion in the mail, says that he or she did so on May 17, 

2021. See R. vol. III at 307. And in the motion itself, Chance claims he had not

received a copy of the Martinez report “as of May 17th, 2021.” Id. at 303. 

Because the record contradicts Chance’s claim of a two-month delay between 

the motion’s mailing and its filing, the court need not consider relief a party might be 

entitled to in the alleged circumstances, if any. 

3. Denial of Chance’s Motion to Supplement His Exhibits

A week after filing his response to the MTD/MSJ, Chance moved to 

supplement his exhibits with a medical services request and an RTS complaining 

about a recent policy change. Previously, the prison delivered his food directly to his 

cell. After the policy change, however, he needed specific medical authorization for 

such treatment (which he had apparently never received). Chance did not explain the 

relevance of these documents.

The district court denied Chance’s motion because, in its opinion, the 

documents did not relate to Chance’s existing claims (as opposed to a potential new 

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claim about the policy change). In this appeal, Chance argues that the documents 

would have shown “a continuance of wrongs and further retaliatory acts.” Aplt. 

Opening Br. at 28. We review for abuse of discretion. See Sports Racing Servs., Inc. 

v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997) (noting that a 

district court’s decision to admit or exclude evidence at summary judgment is 

reviewed for abuse of discretion, “[l]ike other evidentiary rulings”).

As noted, Chance never explained to the district court the relevance of the 

supplemental exhibits. Even if he had, the district court was well within its 

discretion to conclude that the documents were not relevant to the issues raised in the 

MTD/MSJ. We therefore reject Chance’s argument.

IV. CONCLUSION

We reverse the district court’s grant of summary judgment to Phillips, and its 

dismissal of McCoy, on Chance’s medical-diet claim. As to all other issues, we 

affirm. We remand for further proceedings consistent with this opinion.16

Entered for the Court

Allison H. Eid

Circuit Judge

16 This disposition does not foreclose the possibility that Phillips or McCoy, or 

both, may be entitled to summary judgment at the conclusion of discovery.

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