FILED

United States Court of Appeals

Tenth Circuit

November 24, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL P. GALLAGHER,

Plaintiff-Appellant,

v. No. 09-3113

J. L. SHELTON, Warden, Norton

Correctional Facility; R. C. PERDUE,

Deputy Warden, Norton Correctional

Facility; ROGER WERHOLTZ,

Secretary of Corrections; GALEN

PENNER, Chaplain, Norton

Correctional Facility; (FNU)

GROWELL, Aramark Supervisor,

Norton Correctional Facility; (FNU)

RATLIFF, Aramark Employee/Line

Supervisor, Norton Correctional

Facility; GLORIA GEITHER, Director

of Religious Programs, Kansas

Department of Corrections,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 5:03-CV-03454-SAC)

Submitted on the briefs:

Michael P. Gallagher, pro se.

Steve Six, Kansas Attorney General and Eric J. Aufdengarten, Assistant Attorney

General, Topeka, Kansas, for Defendants-Appellees Werholtz, Geither, Shelton,

Perdue and Penner.
1

 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, submitted without oral argument.

2

 Gallagher references his claims in terms of “Counts.” The district court

used that same reference, and for clarity, we will as well. 

2

Marcos Barbosa of Baker, Sterchi, Cowden & Rice, L.L.C.-KC, Kansas City,

Missouri, for Defendants-Appellees Ratliff and Growell.

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff Michael P. Gallagher, an inmate in the custody of the Kansas

Department of Corrections appearing pro se, appeals the district court’s dismissal

of his 42 U.S.C. § 1983 action. The district court dismissed Gallagher’s amended

complaint for failure to exhaust administrative remedies and for failure to state a

claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the

dismissal of Counts I, II, and III of Gallagher’s complaint. We also affirm the

dismissal of Gallagher’s claims on Counts IV and V, but we remand with

directions to vacate the dismissal on Counts IV and V only for the purpose of

clarifying that such dismissal is without prejudice.1 2

I

Gallagher, an Orthodox Jew, alleged in his complaint that while he was in
3

 Throughout the record, this defendant’s name is alternately spelled as

“Growell” and “Gruwell.” Because the briefs refer to her as “Growell,” we will

as well.

3

custody at the Norton Correctional Facility (“NCF”) in Norton, Kansas, the

defendants violated his right to free exercise of religion and equal treatment

pursuant to the First and Fourteenth Amendments. In his original complaint,

Gallagher alleged three grounds for relief: (I) his requests for religious

accommodations were untimely approved; (II) he did not receive food that was

prepared in accordance with kosher requirements, a defendant made an offensive

comment regarding his religion, and his kosher meal did not include a special

dessert comparable to the general population on the Fourth of July; and (III)

prison officials did not adequately review his grievances. Gallagher then

amended his complaint to include two additional counts: (IV) he was served a

meal tainted with bodily fluids; and (V) the prison chaplain failed to help him

obtain a Menorah and candles in order to celebrate Hanukkah. Gallagher brought

these claims against several defendants: Kansas Secretary of Corrections

Werholtz, Kansas Department of Corrections Director of Religious Programs

Geither, former NCF chaplain Rev. Penner, NCF Warden Shelton, NCF Deputy

Warden Perdue, and Ms. Growell3

 and Ms. Ratliff, employees of ARAMARK

Correctional Services, LLC, a private company which prepares and serves food to
4

 Gallagher originally included four additional ARAMARK Corporation

defendants, who had already been dismissed. Their dismissal is not presented as

an issue in this appeal.

5

 See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

4

inmates at NCF.4

The district court requested the preparation of a Martinez report.5 The

report detailed that Gallagher fully exhausted his administrative remedies related

to Counts I, II, and III. However, the report noted that Counts IV and V were not

administratively exhausted, and no grievance had been filed relating to either

count. Defendants subsequently filed motions to dismiss, arguing that Gallagher

failed to exhaust his administrative remedies and failed to state a claim.

After considering the pleadings, the Martinez report, and defendants’

motions to dismiss, the district court dismissed Gallagher’s complaint. The

district court concluded that Gallagher had failed to exhaust his administrative

remedies regarding Counts IV and V, and the district court dismissed the

remaining counts pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim. 

Gallagher timely appealed the dismissal of his complaint, claiming that the

defendants interfered with his right to exercise his religion. The district court

granted Gallagher’s motion for leave to proceed in forma pauperis on appeal. 

Gallagher argues on appeal: (1) the district court incorrectly construed his

responses to the district court’s order to show cause on September 28, 2004 as an
6

 Contrary to defendants’ assertion, we do have jurisdiction to consider the

denials of these other motions. “[A] notice of appeal which names the final

judgment is sufficient to support review of all earlier orders that merge in the

final judgment.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th

Cir. 2002). However, because we conclude that Gallagher’s complaint was

properly dismissed, we do not address the district court’s interlocutory rulings on

these motions. 

5

amended complaint; (2) the district court improperly denied his Motion for Trial

Per Pais; (3) defendants violated his right to receive a kosher diet; (4) he was

refused his right to celebrate his religious holidays, and the district court did not

read his motions and exhibits; and (5) his Motion to Open Proceedings and his

request to collect evidence were incorrectly denied.6

II

“We review de novo a district court’s dismissal of an inmate’s suit for

failure to exhaust his or her administrative remedies.” Patel v. Fleming, 415 F.3d

1105, 1108 (10th Cir. 2005). We also review de novo a district court’s dismissal

pursuant to Rule 12(b)(6). Russell v. United States, 551 F.3d 1174, 1178 (10th

Cir. 2008). Because Gallagher is appearing pro se, we construe his pleadings and

papers liberally, but our role is not to act as his advocate. See Garrett v. Selby

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

A. Failure to Exhaust Administrative Remedies

We begin with the district court’s dismissal of Counts IV and V for failure

to exhaust administrative remedies. The Prison Litigation Reform Act provides
7

 The Martinez report may not be used to resolve disputed factual issues. 

Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993). However, an

uncontroverted report may serve as the basis for a dismissal. McKinney v.

Maynard, 952 F.2d 350, 353 n.8 (10th Cir. 1991) (noting that the report may serve

as a basis for dismissal under Rule 12(b)(6)), overruled on other grounds by

McAlpine v. Thompson, 187 F.3d 1213 (10th Cir. 1999).

6

that “no action shall be brought with respect to prison conditions under [42

U.S.C. 1983], or any other Federal law by a prisoner confined in any jail, prison,

or other correctional facility until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). Failure to exhaust is an affirmative

defense; a plaintiff is not required to plead or demonstrate exhaustion in the

complaint. Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007).

In support of their motion to dismiss, defendants argued that Gallagher

failed to exhaust his remedies on Counts IV and V. Although Gallagher

responded to the defendants’ motions to dismiss, he did not contest the failure to

exhaust his administrative remedies. Upon reviewing the pleadings, exhibits, and

the uncontroverted Martinez report,7

 the district court concluded that Gallagher

did not exhaust his administrative remedies. The record indicates that Gallagher

did not file a grievance regarding the allegation that there were bodily fluids in

his meal (Count IV). Additionally, Gallagher did not seek administrative

remedies or file a grievance relating to his request for a Menorah and candles for

Hanukkah (Count V). See ROA, at 203 (Doc. 45 at 3). 

On appeal, Gallagher asserts that he did write a grievance relating to Count
7

IV, alleging that there were bodily fluids in his meal, but that the grievance was

lost. In his response to defendants’ motion to dismiss before the district court,

Gallagher did not contend that he filed such a grievance, or that any grievances

were lost or misplaced. Indeed, the district court explicitly noted that Gallagher

did not contest his failure to exhaust administrative remedies, nor did he contend

he was prevented from pursuing administrative relief. Because Gallagher did not

raise this issue in the district court, we do not consider that argument on appeal. 

See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling

reasons, we do not consider arguments that were not presented to the district

court.”); see also Shaw v. Rogers, 250 F. App’x 908, 910 (10th Cir. 2007)

(unpublished) (applying general rule to pro se litigant claiming on appeal that he

asked for a grievance form but did not receive it). Gallagher does not contest the

district court’s conclusion that he failed to exhaust his administrative remedies

relating to Count V. Because Gallagher failed to exhaust his administrative

remedies, the district court properly dismissed Counts IV and V. 

In its conclusion, the district court ruled that “defendants’ motions to

dismiss the amended complaint . . . are granted, and that the amended complaint

is dismissed and all relief is denied.” ROA, at 501 (Doc. 81 at 17). But, the

district court did not specify whether its dismissal of Counts IV and V was with

or without prejudice. Ordinarily, a dismissal based on a failure to exhaust

administrative remedies should be without prejudice. Fitzgerald v. Corr. Corp. of
8

Am., 403 F.3d 1134, 1139 (10th Cir. 2005). Therefore, while we uphold the

district court’s conclusion that Gallagher failed to exhaust his administrative

remedies relating to Counts IV and V, we remand to the district court with

directions to vacate its dismissal only to clarify that this dismissal is without

prejudice. See id. at 1140.

The record indicates that Gallagher did exhaust his administrative remedies

on Counts I through III, and the defendants do not dispute that conclusion. 

Therefore, we turn to the district court’s dismissal of Counts I through III for

failure to state a claim. See Jones v. Bock, 549 U.S. 199, 219–21 (2007)

(rejecting a requirement of total exhaustion of all claims).

B. Failure to State a Claim

The district court granted defendants’ motion to dismiss the remaining

three counts for failure to state a claim pursuant to Rule 12(b)(6). In reviewing

the district court’s dismissal pursuant to Rule 12(b)(6), we assume the factual

allegations are true and ask whether it is plausible that the plaintiff is entitled to

relief. Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1191

(10th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.

Ct. 1937, 1949 (2009). Conclusory allegations are not enough to withstand a

motion to dismiss. See Cory v. Allstate Ins. --- F.3d ----, 2009 WL 2871541, at
9

*4 (10th Cir. 2009).

Gallagher contends that the defendants violated his right to free exercise of

religion. Under the First and Fourteenth Amendments, inmates are entitled to the

reasonable opportunity to pursue their sincerely-held religious beliefs. See Makin

v. Colo. Dep’t. of Corr., 183 F.3d 1205, 1209 (10th Cir. 1999). What constitutes

a “reasonable opportunity” is determined in reference to legitimate penological

objectives. Id.

We first turn to the district court’s dismissal of Counts I and III against

Secretary Werholtz, Warden Shelton, and Deputy Warden Purdue. “Individual

liability under § 1983 must be based on personal involvement in the alleged

constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). 

Supervisory status alone does not create §1983 liability. Duffield v. Jackson, 545

F.3d 1234, 1239 (10th Cir. 2008). Rather, there must be “an affirmative link . . .

between the constitutional deprivation and either the supervisor’s personal

participation, his exercise of control or direction, or his failure to supervise.” 

Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (quotation and brackets

omitted). 

Gallagher’s only allegation involving these defendants relates to their

denials of his grievances, namely that they “rubber-stamped” his various

grievances. ROA, at 21 (Doc. 1 at 4). We agree with the reasoning in our

previous unpublished decisions that a denial of a grievance, by itself without any
8

 It appears that in his original complaint in Count II, Gallagher alleged that

he was treated differently from other inmates on account of his religion because

the non-kosher meal on the Fourth of July included a special dessert, and his

kosher meal did not. Additionally, he alleged that Ratliff stated “I don’t know

why we even cook for you Jews.” ROA, at 17 (Doc. 1 at 3). The district court

dismissed Gallagher’s claim for equal protection under Rule 12(b)(6), but

Gallagher has not argued that issue on appeal. Rather, Gallagher argues only that

the defendants violated his right to free exercise of religion. Thus, we consider

only Gallagher’s claims relating to his alleged denial of his right to free exercise

of religion. 

10

connection to the violation of constitutional rights alleged by plaintiff, does not

establish personal participation under § 1983. See Whitington v. Ortiz, 307 F.

App’x 179, 193 (10th Cir. 2009) (unpublished); Larson v. Meek, 240 F. App’x

777, 780 (10th Cir. 2007) (unpublished); see also Lomholt v. Holder, 287 F.3d

683, 684 (8th Cir. 2002) (per curiam) (“[Plaintiff] failed to state First Amendment

claims relating to his grievances . . . because defendants’ denial of his grievances

did not state a substantive constitutional claim.”). Because Gallagher’s only

allegations involving these defendants relate to the denial of his grievances, he

has not adequately alleged any factual basis to support an “affirmative link”

between these defendants and any alleged constitutional violation. Accordingly,

the claims against Werholtz, Shelton, and Purdue were properly dismissed. 

Gallagher contends that the remaining defendants personally violated his

right to exercise his religion.8

 Specifically, in Count I, Gallagher alleged that

defendants Penner and Geither failed to accommodate his right to celebrate his

religious holidays; in Count II, Gallagher alleged that defendants Ratliff and
11

Growell denied him the right to a kosher diet. In order to state a claim that

defendants violated his right to free exercise of religion, Gallagher must

adequately allege that the defendants “substantially burdened [his] sincerely-held

religious beliefs.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). 

In Count I, Gallagher alleged that Geither and Penner failed to approve his

requests for religious accommodation in a timely fashion. Gallagher made

religious accommodation requests to NCF Chaplain Penner, who forwarded them

to Director of Religious Programs Geither in Topeka, but a few of the requests

were approved after the holidays had passed. According to the record, on

November 18, 2002, Gallagher requested fried food for Hanukkah, which began at

sunset on November 29. The request was approved on January 9, 2003, after

Hanukkah had passed. Additionally, on July 14, 2003, Gallagher requested two

sack lunch meal accommodations for days of fasting: July 17 and August 17,

2003. These requests were approved on August 19, 2003, after the days of fasting

had already passed. 

Taking these allegations as true, defendants’ actions were, at most, isolated

acts of negligence, not pervasive violations of Gallagher’s right to free exercise

of religion. We agree with our previous, unpublished decision recognizing that an

isolated act of negligence would not violate an inmate’s First Amendment right to

free exercise of religion. See White v. Glantz, 986 F.2d 1431 (Table), 1993 WL

53098, at *2 (10th Cir. February 25, 1993) (unpublished) (“Although the Plaintiff
12

was most certainly annoyed and exasperated, [the] isolated negligent act of the

Defendants cannot support a claim that the Plaintiff was denied his First

Amendment right to freedom of religion.”); see also Lovelace v. Lee, 472 F.3d

174, 201 (4th Cir. 2006) (“[Plaintiff] must assert conscious or intentional

interference with his free exercise rights to state a valid claim under § 1983.”). 

Gallagher’s allegation that defendants Geither and Penner did not timely approve

his requests for religious accommodations does not support a claim that the

defendants substantially burdened his religious beliefs, i.e., that they violated his

right to free exercise of religion. Therefore, Count I was properly dismissed for

failure to state a claim. 

In Count II of his complaint, Gallagher claimed that Growell and Ratliff

violated his right to free exercise of religion by denying him his right to a kosher

diet. Gallagher alleged that his food was not prepared according to the kosher

requirements. Specifically, serving utensils that were reserved for the kosher

food preparation were improperly cleaned with non-kosher utensils. 

We have previously recognized that an inmate’s right to free exercise of

religion includes the right to a diet that conforms with their religious beliefs. See

Beerheide v. Suthers, 286, F.3d 1179, 1185 (10th Cir. 2002). Nonetheless, we

agree with the district court that Gallagher has failed to state a claim upon which

relief can be granted. Upon reviewing the pleadings, Gallagher has alleged a

single violation of his kosher diet, not a prison policy. Taking Gallagher’s
9

 Accordingly, we do not consider Growell and Ratliff’s alternative

argument that they were not acting under color of state law, as required by 

§ 1983.

13

allegations as true, the fact that the utensils were not properly washed indicates

that the defendants imperfectly implemented the kosher requirements, or were

even negligent in implementing his kosher diet. But there is no basis to conclude

that any of the defendants deliberately contaminated the kosher utensils, in

violation of Gallagher’s right to free exercise of religion, or that defendants

repeatedly violated kosher requirements. 

As discussed above, such an isolated act of negligence does not support a

claim that Gallagher was denied his First Amendment right to free exercise of

religion. See White, 1993 WL 53098, at *2 (finding no support for the claim that

an “isolated occurrence” of being given a meal that did not comply with the

plaintiff’s religious dietary requirements “amounted to a deprivation of

Constitutional rights”). We agree with the district court that Count II failed to

state a claim upon which relief could be granted. Therefore, Count II was

properly dismissed.9

The district court was correct to dismiss Counts I, II, and III. Because we

conclude that the district court properly dismissed Gallagher’s complaint, we do

not address Gallagher’s appeal from the district court’s denial of his various other

motions filed prior to the dismissal of his complaint. 
14

III

We AFFIRM the judgment of the district court dismissing Counts I, II, and

III. We also AFFIRM the dismissal of Gallagher’s claims on Counts IV and V,

but we REMAND with directions to VACATE the dismissal on Counts IV and V

only for the purpose of clarifying that such dismissal is without prejudice. We

remind Mr. Gallagher of his continuing obligation to make partial payments

toward his appellate filing fee until the entire balance of the fee is paid in full. 

See 28 U.S.C. § 1915(b)(1)–(2).