*

This order and judgment is not binding precedent except under the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

March 7, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY SEARLES,

Plaintiff - Appellant, No. 07-3265

v. (D. Kansas)

L. E. BRUCE, Warden, Hutchinson

Correctional Facility; KARIM

KHALIL GREEN, Chaplain for

KDOC, Hutchinson Correctional

Facility; STEVEN DeCHANT, Deputy

Warden for KDOC Hutchinson

Correctional Facility; WILLIAM

CUMMINGS, Deputy Secretary of

Corrections for KDOC; FNU LNU,

Unknown Security Person,

Defendants - Appellees.

(D.C. No. 01-CV-03379-JTM)

ORDER AND JUDGMENT*

Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination
1

Defendants argue that we can affirm the district court’s grant of a directed

verdict on the basis that Searles failed to provide the transcript of the proceedings

in which Green and Searles testified as to what happened regarding the provision

of the items Searles sought. They argue that, in failing to provide the transcript

while challenging the sufficiency of the evidence, Searles has violated 10th Cir.

R. 10.1(A)(1)(a). Defendants further argue that Searles’ status as a prisoner

provides no excuse from this obligation. Pursuant to 28 U.S.C. § 753(f) and Fed.

R. App. P. 10(b)(1), a plaintiff in a non-criminal, non-habeas proceeding may

(continued...)

-2-

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.

Plaintiff and appellant, Jimmy Searles, a prisoner proceeding pro se,

appeals the district court’s grant of a directed verdict for defendants, employees

of the Kansas Department of Corrections, in this 42 U.S.C. § 1983 case alleging a

violation of Searles’ First Amendment right to freely exercise his religious

beliefs. We affirm.

Searles is a self-proclaimed Orthodox Jew. In September 2000, while

incarcerated at the Hutchinson Correctional Facility (“HCF”) in Kansas, Searles

requested the provision of an apple, honey and grape juice to permit him to

celebrate the Jewish holiday of Rosh Hashanah. At the time, Karim Khalil Green

was the Administrator of the Pastoral Care Department at HCF. Green testified,

as the district court noted and the record demonstrates, that he authorized the

provision of an apple, honey and grape juice to Searles at the beginning of Rosh

Hashanah, in accordance with Searles’ request. Searles admitted that he received

the honey and grape juice. See Tr. of Proceedings at 18, lines 5-15.1

 He
1

(...continued)

obtain a transcript at the government’s expense if: (1) he is permitted to proceed

in forma pauperis; (2) he moves for a transcript; and (3) he demonstrates that the

appeal is not frivolous but, rather, presents a substantial question. In the district

court, Searles initially filed a “Motion for Partial Transcript” and a “Motion to

Proceed in Forma Pauperis.” Searles then filed his appellate brief before this

court, without a trial transcript and without waiting for the district court to rule on

his motions. The district court subsequently denied both motions on the ground

that Searles’ financial documents indicated he had a balance of over $1000 in his

prison bank account and he did not demonstrate a substantial question for appeal. 

Searles has not appealed those denials.

While we recognize that Searles has indeed technically failed to comply

with our rules in not providing a transcript, the record has been supplemented

with the transcript, which ultimately proves unhelpful to Searles’ claims.

2

During recross examination of Searles, the following exchange occurred:

Q. . . . . You are upset because the Department of Corrections

did not deliver to you on a tray at a time that you designated all of

the items that you considered relevant; isn’t that correct?

A. That they did not provide the time that would be

appropriate. Yes, I agree with that statement.

Q. You really can’t even dispute that you, in fact, got the

apples and honey, even if your allegations are true that it only came

at 3:00 o’clock. You still cannot say you did not get an apple?

A. Correct.

Tr. of Proceedings at 47, lines 12-21.

-3-

ultimately admitted that he received the apple as well, although at 3:00 p.m.,

some four or four and one-half hours prior to his receipt of the honey and grape

juice. See id. at 47.2

 He gives no explanation why he could not have simply held

on to the apple until he received the other items necessary for his Rosh Hashanah

observance. Thus, this case ultimately boils down to whether the district court

erred in directing a verdict for defendants on Searles’ claim that the four-hour
3

Searles has filed a motion before our court to proceed without prepayment

of the appellate filing fee. On November 8, 2007, our court assessed fees,

payable in partial payments. We deny Searles’ motion to proceed without

prepayment of fees, and we order immediate payment of the unpaid balance due.

-4-

difference in his receipt of the apple and the other items violated his First

Amendment right to freely exercise his religion. We have reviewed the record,

Searles’ brief, and defendants’ brief, and we affirm the district court’s grant of a

directed verdict in favor of defendants for substantially the reasons stated in the

district court’s order dated August 22, 2007.3

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge