                    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Dennis Block, in his official and        *   [UNPUBLISHED]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     *
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 (SDSP) inmate William R. Cody appeals
following the preservice dismissal of certain defendants and the adverse grant of
summary judgment to the remaining defendants, in his 42 U.S.C. § 1983 lawsuit.
Cody’s lawsuit was based on alleged failures to provide him a special diet for his
hypertension, diabetes, and high cholesterol, 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 Douglas 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 earlier




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orders). We further conclude that the district court’s1 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 them 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 construed, 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 judgment 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 that Preyer failed to
provide him with a special diet, as ordered 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 nutrition 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


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota

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defendants ignored an acute or escalating situation 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 reassignment if party files timely
and sufficient affidavit stating 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 movant 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 rulings is unwarranted absent gross abuse of
discretion resulting in fundamental unfairness).

      Accordingly, we affirm the district court's decisions.
                     ______________________________




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