## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 8 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MERRIL WADE AYERS,

Plaintiff-Appellant,

v. JUDITH UPHOFF, Wyoming Department of Corrections Director, individually and in her official capacity; JIM DAVIS, Wyoming Department of Corrections Health Services Administrator, individually and in his official capacity; DUANE SHILLINGER, individually; JAMES FERGUSON, Wyoming Department of Corrections State Penitentiary Warden, individually and in his official capacity; JERRY STEELE, Wyoming Department of Corrections State Penitentiary Associate Warden, individually and in his official capacity; ARCHIE KERSCH, individually; WILLIAM HETTGAR, Wyoming Department of Corrections State Penitentiary Associate Warden, individually and in his official capacity; DONALD FERGUSON, Wexford Contract Physician, individually; GREGORY JOHNSON, MD, Wexford Contract Physician, individually; JOHN PEERY, individually; CINDY FAULKNER, individually; JEAN SCHUTTERLEE, individually; WEXFORD HEALTH SOURCES, INC.; RICK SHINKLE, Corrections Officer, Wyoming No. 99-8014 & No. 99-8075 (D.C. No. 95-CV-262-B) (D. Wyo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- Department of Corrections State Penitentiary, individually and in his official capacity,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument. Plaintiff Merril Wade Ayers, pro se and in forma pa uperis, appeals the district court’s entry of summary judgment in favorof defendants on his civil rights claims brought under 42 U.S.C. § 1983. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm for substantially the sam e reasons set forth by the district court in its order entered on August 4, 19 99, and for the additional reasons discussed below.-3- I. Background and Dismissal of Plaintiff’s First Appeal Plaintiff is an inmate at the Wyoming State Peniten tiary. Defendants are employees of either the Wyoming Department of Corre ctions, the operator of the penitentiary, or Wexford Health Sources, Inc., a co ntract health care provider at the penitentiary. Plaintiff filed suit against defendants under 42 U. S.C. § 1983 alleging a number of constitutional violations. In response t o the motions for summary judgment filed by defendants, however, plaintiff ab andoned the bulk of his claims and expressly limited them to two alleged constitut ional violations. First, plaintiff alleged that defendants violated his Eigh th Amendment rights by failing to provide him with a special diet prescribed by a prison physician. Second, plaintiff alleged that defendants violated his Firs t Amendment rights by retaliating against him for filing prisoner grievan ces. In its order dated January 22, 1999, the district c ourt adopted the magistrate judge’s recommendation and entered summary judgmentin favor of defendants on plaintiff’s claims. However, because the district court failed to provide plaintiff with a ten-day period to object to the magistrate j udge’s recommendation, as required by Fed. R. Civ. P. 72(b), the district cou rt subsequently permitted plaintiff to file objections to the recommendation. After considering plaintiff’s1 Plaintiff’s appeal of the first summary judgment or der is moot due to the

fact that the district court entered a second, and superseding, summary judgment order on August 4, 1999. The fact that the distric t court denied plaintiff’s motion to vacate the first summary judgment order does notalter this result. As set forth in the district court’s order dated May 7, 1999, pl aintiff’s motion to vacate was moot given the fact that the district court had pre viously agreed in its order dated February 1, 1999 to reconsider the first summary ju dgment order. As a result, the district court did not consider the first order to be a final judgment and there was no need for the district court to formally vacate t he order. -4- objections, the district court entered a second ord er granting summary judgment on August 4, 1999. Plaintiff appeals from both of the district court’s summary judgment orders. In No. 99-8014, plaintiff appeals the district court’s order dated January 22, 1999. In No. 99-8075, plaintiff appeals from the districtcourt’s subsequent order dated August 4, 1999. We previously consolidated these appeals on our own motion. We dismiss No. 99-8014 on the grounds that plaintif f’s first appeal is moot given the course of the proceedings before the dist rict court after plaintiff filed his first notice of appeal. 1

II. Standard of Review We review the district court’s grant of summary jud gment de novo, examining the record and the reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).2 Both in his district court and appellate briefs, pl aintiff alleges that he was

not properly advised of the requirements of Rule 56 by the district court as required in cases involving pro se litigants. Howe ver, we find that any such failure by the district court was harmless error gi ven the fact that the response briefs filed by plaintiff in opposition to defendan ts’ motions for summary judgment contained detailed discussions of Rule 56 and its requirements. Plaintiff also demonstrated a good understanding of the mechanics of Rule 56 in the proceedings before the district court as eviden ced by the fact that he submitted some twenty affidavits in opposition to d efendants’ motions.

-5- Summary judgment is appropriate if there is no genu ine issue as to any material fact and the moving party is entitled to s ummary judgment as a matter of law. Id. To oppose a motion for summary judgment, “the non moving party must come forward with ‘specific facts showing that ther e is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). This requirement applies with full force and effect to Eighth Amendment claims brought by pro se prisoner litigants like plaintiff. See Clemmons v. Bohannon , 956 F.2d 1523, 1526 (10th Cir. 1992). 2

III. Eighth Amendment Claim/Special Diet “Prison officials violate the Eighth Amendment’s pr ohibition against cruel and unusual punishment when they act deliberately a nd indifferently to serious medical needs of prisoners in their custody.” Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999) (citing Estelle v. Gamble , 429 U.S. 97, 104-06 (1976)). For purposes of establishing a violation of the Eighth Amendment, “[a] medical need-6-

is serious if it is one that has been diagnosed by a physician as mandating
treatment . . .” Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980) (quotation omitted); accord Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). This can include a special medical diet that is pre scribed for an inmate by a prison physician. See Byrd v. Wilson , 701 F.2d 592, 594-95 (6th Cir. 1983) (prison officials’ deliberate indifference towards inmate’s special diet can form basis for Eighth Amendment claim if diet is medically necessa ry). The record indicates that a prison physician prescr ibed a special low fat and bland diet for plaintiff in 1994. Plaintiff allege s in his sworn complaint that the prison’s kitchen staff has failed to provide him wi th substitute food items that are acceptable under this special diet. Plaintiff has also submitted sworn affidavits from other prisoners, and the prisoner grievances that he filed with the prison’s staff, to support this allegation. The record indicates that plaintiff’s primary compl aint is that he does not like the substitute food items that the kitchen sta ff prepares for him and the other inmates on similar special diets. Plaintiff theref ore demanded that the prison staff prepare and provide him with a special menu of vari ous types of substitute foods so that he could preselect and individualize his me als in advance. We conclude that the prison staff’s refusal to comply with this demand does not rise to a constitutional violation because plaintiff has no c onstitutional right to preselect-7-

foods or demand a certain variety of foods. In sho rt, plaintiff’s dissatisfaction with the menu at the prison is not sufficient to support an Eighth Amendment claim. The record indicates that there may have been a few occasions when the kitchen staff completely failed to provide plaintif f with substitute food items. However, plaintiff has failed to set forth specific facts showing that any of the named defendants personally participated in the act ions of the kitchen staff on these occasions. This omission is fatal to plaintiff’s § 1983 claim. See Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996) (personal participation is an essential element of § 1983 claim). We also reject any claim by plaintiff that certain of the named defendants are liable for the actions of the kitchen staff in their capacities as prison supervisors. To establish supervisory liability un der § 1983, plaintiff must prove that the prison supervisors personally directed or acquiesced in the alleged failures of the kitchen staff to provide him with substitute food items. Woodward v. City of Worland , 977 F.2d 1392, 1399-1400 (10th Cir. 1992). There is no such evidence in the record. To the contrary, as found by the district court, the record shows that the prison supervisors took a number of affirmative steps to ensure that the kitchen staff was properly accommodating p laintiff’s special dietary needs.3 The record indicates that, at one point, plaintiff was prohibited for six

months from filing any grievances unless an emergen cy situation existed. -8- IV. First Amendment Claim/Retaliation for Prisoner Grievances Plaintiff alleges that there is sufficient evidence in the record to support his claim that defendants violated his First Amendment rights by retaliating against him for filing prisoner grievances. Specifically, plaintiff alleges on appeal that there is evidence in the record showing that defend ants wrongfully retaliated against him by limiting his access to the prison gr ievance system and by denying him medical treatment and medications. We disagree

. First, the record reveals that, despite numerous warnings from prison officials, plaintiff continually abused the prison’ s grievance procedures by filing multiple and overlapping grievances and by making e xcessive demands on the prison’s staff. Given this unopposed evidence, we believe that the limitations placed on plaintiff’s use of the prison’s grievance procedures were justified and reasonable under the circumstances and did not amou nt to a violation of plaintiff’s First Amendment rights. 3 Second, while the record supports plaintiff’s claimthat he filed numerous grievances regarding alleged deficiencies at the pr ison concerning his medical treatment and medications, plaintiff has failed to set forth specific facts showing that he was denied medical treatment or medications in retaliation for filing these4 Plaintiff also argues that the district court violated 10th Cir. R. 36.3 by

adopting a magistrate judge’s report that contained citations to unpublished decisions of this court. We disagree. 10th Cir. R. 36.3 only applies to litigants practicing before the Tenth Circuit and it is inapp licable to district court judges and magistrates. Furthermore, Rule 36.3 permits ci tations to unpublished decisions if they have “persuasive value with respe ct to a material issue that has not been addressed in a published opinion” and they“would assist the court in its disposition.” 10th Cir. R. 36.3(B)(1) and (2). -9- grievances or that any of the named defendants pers onally participated in the alleged retaliatory conduct. Instead, the record i ndicates that plaintiff received appropriate medical care at the prison and that the prison’s staff made reasonable efforts to investigate and rectify any legitimate c omplaints about plaintiff’s medical care.
V. Qualified Immunity Plaintiff argues that the district court improperlygranted defendants protection from his § 1983 claims under the doctrin e of qualified immunity. We will not address this aspect of plaintiff’s appeal because we find that the defendants did not violate plaintiff’s constitutional rights in any respect. See
Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (to determine whether government official is entitled to qualified immuni ty, court must first determine whether a constitutional violation exists). 45 Plaintiff is reminded that his outstanding court co sts will continue to be

collected from his prison account until they are pa id off in full. -10- The judgment of the United States District Court f or the District of Wyoming is AFFIRMED. The mandate shall issue forthwith. 5

Entered for the Court

Wade Brorby Circuit Judge