## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-1474

___________ William R. Cody, * * Appellant, * * Appeal from the United States v. * District Court for the * District of South Dakota. CBM Correctional Food Services; * Dennis Block, in his official and * [UNPUBLISHED] individual capacity, * * Appellees, * * C. Crowell, in her/his official and * individual capacity, * * Defendant, * * Sgt. Duffy, in her/his official and * individual capacity; Ms. Fraser, in her * official and individual capacity; Sandy * Hunter, in her official and individual * capacity; Al Madsen, in his official and * individual capacity; Lenora Moeckel, * in her official and individual capacity; * Carl Preyer, in his official and * individual capacity; Daryl R. Slykhuis, * in his official and individual capacity; * J.P. Syverson, in his official and * individual capacity; Others Unknown, * in their official and individual * capacities; Eugene R. Regier, Dr., * M.D., in his official and individual *-2- capacity; B. Trowbridge, in her/his * official and individual capacity; Crystal * Van Vooren, in her official and * individual capacity; Douglas L. Weber, * in his official and individual capacity; * Greg Zike, in his official and individual * capacity; * * Appellees. *

___________ Submitted: May 15, 2007 Filed: August 15, 2007

___________ Before COLLOTON, BEAM, and BENTON, Circuit Judges.

___________ PER CURIAM. South Dakota State Penitentiary (SD SP) inmate William R. Cody appeals following the preservice dismissal of certain defendants and th e adverse grant of summary judgment to the remaining defendants, in his 42 U.S.C. § 1983 lawsuit. Cody’s lawsuit was based on a lleged failures to provide hi m a special diet for his hypertension, diabetes, and high cholestero l, and related failures to act on his complaints and grievances. We affirm.
First, we grant Cody’s motion to add defendants Greg Zike, C. Crowell, B. Trowbridge, Crystal Van Vooren, and Dougl as L. Weber as appellees, because we believe Cody properly evinced an intent to appeal from the order dismissing these defendants. See Berdella v. Delo , 972 F.2d 204, 208 n.6 (8th Cir. 1992) (if proper notice is given, appeal of final order permits review of issues resolved in earlier1 The Honorable Richard H. Battey, United States District Judge for the District of South Dakota
-3- orders). We further concludethat the district court’s 1 dismissal of the claims against these defendants, pursuant to 28 U.S.C. § 1915A, was correct, see Cooper v. Schriro , 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (de novo review of § 1915A dismissals), as the allegations against th em did not describe conduct that violated Cody’s constitutional rights, see Stone v. Harry , 364 F.3d 912, 914-15 (8th Cir. 2004) (pro se complaints are to be liberally c onstrued, but court is not required to assume facts not alleged or to construct legal theory that assumes facts not pleaded).
Next, we conclude that summary judgmen t was proper as to all the remaining defendants. See Alberson v. Norris , 458 F.3d 762, 765 (8th Cir. 2006) (standard of review). The conduct Cody attributed to the defendants did not result in a deprivation of Cody’s constitutional rights.
The issue closest to being trialworthy is Cody's claim th at Preyer failed to provide him with a special diet, as orde red by Dr. Eugene Regier, in accordance with menus prepared by CBM dietician Lenora Moeckel. This issue is controlled by Wishon v. Gammon , 978 F.2d 446 (8th Cir. 1992). In Wishon , a prisoner accused prison officials of being deliberately indifferent to his dietary needs. Id . at 449. This court recognized that prisoners have a right to adequate nutriti on and the failure to provide adequate nutrition may qualify as a deliberate indifference that violates the Eighth Amendment. Id . However, a prisoner must show ". . .the food he was served was nutritionally inadequate or prepared in a manner presenting an immediate danger to his health, or that his health suffered as a result of the food." Id.
In this case, Cody presented no evidence of an immediate danger to his health or that his health suffered due to Preyer's failure to provide the prescribed diet. The district court found that "[Cody] offers no 'verifying medical evidence that the-4- defendants ignored an acute or escalating s ituation or that delays adversely affected the prognosis given the kind of injury in this case.'" The district court correctly granted summary judgment for Preyer.
Finally, we find no abuse of discretion in the district court’s denial of Cody’s motion for recusal, see 28 U.S.C. § 144 (requiring reassi gnment if party files timely and sufficient affidavit stati ng judge has personal bias or prejudice against him or in favor of adverse party); Bannister v. Delo , 100 F.3d 610, 614 (8th Cir. 1996) (district judge’s impartiality is presumed and m ovant bears substantial burden of proving otherwise), or in the court’s discovery rulings, see Sheets v. Butera , 389 F.3d 772, 780 (8th Cir. 2004) (reversal of discovery ruli ngs is unwarranted ab sent gross abuse of discretion resulting in fundamental unfairness).
Accordingly, we affirm the district court's decisions.

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