                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              JAN 8 2001
                         FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                   Clerk

MERRIL WADE AYERS,

            Plaintiff-Appellant,                No. 99-8014
                                                      &
v.                                              No. 99-8075
                                          (D.C. No. 95-CV-262-B)
JUDITH UPHOFF, Wyoming                           (D. Wyo.)
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
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, this panel has determined

unanimously to grant the parties’ request for a decision 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 pauperis, appeals the

district court’s entry of summary judgment in favor of 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 same reasons set forth by the

district court in its order entered on August 4, 1999, and for the additional

reasons discussed below.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                         -2-
              I. Background and Dismissal of Plaintiff’s First Appeal

      Plaintiff is an inmate at the Wyoming State Penitentiary. Defendants are

employees of either the Wyoming Department of Corrections, the operator of the

penitentiary, or Wexford Health Sources, Inc., a contract 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 to the motions for summary

judgment filed by defendants, however, plaintiff abandoned the bulk of his claims

and expressly limited them to two alleged constitutional violations. First,

plaintiff alleged that defendants violated his Eighth Amendment rights by failing

to provide him with a special diet prescribed by a prison physician. Second,

plaintiff alleged that defendants violated his First Amendment rights by

retaliating against him for filing prisoner grievances.

      In its order dated January 22, 1999, the district court adopted the magistrate

judge’s recommendation and entered summary judgment in 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 judge’s recommendation, as

required by Fed. R. Civ. P. 72(b), the district court subsequently permitted

plaintiff to file objections to the recommendation. After considering plaintiff’s



                                         -3-
objections, the district court entered a second order 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 district court’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 plaintiff’s first appeal is moot

given the course of the proceedings before the district court after plaintiff filed

his first notice of appeal.   1




                                  II. Standard of Review

       We review the district court’s grant of summary judgment 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).



1
       Plaintiff’s appeal of the first summary judgment order 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 district court denied plaintiff’s motion
to vacate the first summary judgment order does not alter this result. As set forth
in the district court’s order dated May 7, 1999, plaintiff’s motion to vacate was
moot given the fact that the district court had previously agreed in its order dated
February 1, 1999 to reconsider the first summary judgment 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 the order.

                                           -4-
       Summary judgment is appropriate if there is no genuine issue as to any

material fact and the moving party is entitled to summary judgment as a matter of

law. Id. To oppose a motion for summary judgment, “the nonmoving party must

come forward with ‘specific facts showing that there 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 prohibition against cruel

and unusual punishment when they act deliberately and 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


2
       Both in his district court and appellate briefs, plaintiff 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. However, we find that any such
failure by the district court was harmless error given the fact that the response
briefs filed by plaintiff in opposition to defendants’ 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 evidenced by the fact that he
submitted some twenty affidavits in opposition to defendants’ motions.


                                            -5-
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 prescribed 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 necessary).

       The record indicates that a prison physician prescribed a special low fat and

bland diet for plaintiff in 1994. Plaintiff alleges in his sworn complaint that the

prison’s kitchen staff has failed to provide him with 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 complaint is that he does not

like the substitute food items that the kitchen staff prepares for him and the other

inmates on similar special diets. Plaintiff therefore demanded that the prison staff

prepare and provide him with a special menu of various types of substitute foods

so that he could preselect and individualize his meals 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 constitutional right to preselect


                                           -6-
foods or demand a certain variety of foods. In short, 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 plaintiff with substitute food items.

However, plaintiff has failed to set forth specific facts showing that any of the

named defendants personally participated in the actions 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 under § 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 plaintiff’s special dietary

needs.


                                             -7-
          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 defendants wrongfully retaliated

against him by limiting his access to the prison grievance 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 excessive 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 amount to a violation of

plaintiff’s First Amendment rights.   3



      Second, while the record supports plaintiff’s claim that he filed numerous

grievances regarding alleged deficiencies at the prison 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 these


3
     The record indicates that, at one point, plaintiff was prohibited for six
months from filing any grievances unless an emergency situation existed.

                                          -8-
grievances or that any of the named defendants personally participated in the

alleged retaliatory conduct. Instead, the record indicates that plaintiff received

appropriate medical care at the prison and that the prison’s staff made reasonable

efforts to investigate and rectify any legitimate complaints about plaintiff’s

medical care.


                                  V. Qualified Immunity

       Plaintiff argues that the district court improperly granted defendants

protection from his § 1983 claims under the doctrine 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 immunity, court must first determine

whether a constitutional violation exists).    4




4
       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 inapplicable to district court judges
and magistrates. Furthermore, Rule 36.3 permits citations to unpublished
decisions if they have “persuasive value with respect 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-
      The judgment of the United States District Court for the District of

Wyoming is AFFIRMED. The mandate shall issue forthwith.        5




                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




5
       Plaintiff is reminded that his outstanding court costs will continue to be
collected from his prison account until they are paid off in full.

                                        -10-
