                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        APR 27 2004
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 JOSEPH ANTHONY MCDANIELS,

          Plaintiff - Appellant,
 v.
                                                      No. 03-1231
 MARK MCKINNA; RANDY TATE;                    (D.C. No. 99-RB-2035 (OES))
 CARLA CAMPBELL; BOB                                    (D. Colo.)
 DUNAGAN; RONALD RODRIGUEZ;
 MCKENSIE and DANIELS,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.




      Plaintiff Joseph Anthony McDaniels, a prisoner of the Washington state

Department of Corrections and a former inmate at the Crowley County

Correctional Facility (“CCCF”), appeals from the May 9, 2003 order of the


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
District Court for the District of Colorado granting summary judgment in favor of

the Defendants, current and former correction officials of the CCCF.

      Plaintiff’s suit, brought pursuant to 42 U.S.C. § 1983, alleges that

Defendants violated his First, Eighth, and Fourteenth Amendment rights during

his incarceration at the CCCF between March 4, 1999 and May 11, 2000.

Specifically, he claims that he was denied adequate medical care and an

appropriate diet for his diabetes, that his conditions of confinement violated the

Eighth Amendment’s prohibition on cruel and unusual punishment, that the prison

officials failed to protect him from other inmates, that he was denied access to the

courts, and that his First Amendment rights of free speech and free exercise of

religion were infringed. Finding that Plaintiff had failed to demonstrate any

disputed issues of material fact, the district court granted summary judgment in

favor of all Defendants on all counts.

      Plaintiff, proceeding pro se, now appeals the entry of summary judgment on

his claims alleging denial of medical care, failure to protect, cruel and unusual

conditions of confinement, and violation of his First Amendment rights. 1 We


      1
       Plaintiff’s appellate brief fails to mention his claim for denial of access to
the courts, and makes no mention of his inadequate medical care claim based on
Defendants’ alleged failure to provide him with a diet appropriate for diabetics.
While we construe pro se pleadings liberally, we will not address issues that are
wholly absent from the briefs presented to us on appeal. Plaintiff’s brief does
contain fleeting mention of his conditions of confinement claim and of his First
                                                                        (continued...)

                                         -2-
AFFIRM entry of summary judgment as to Plaintiff’s Eighth Amendment claims,

and REVERSE and REMAND as to his First Amendment claims. 2



Applicable Law

      Plaintiff argues that this court should apply Ninth Circuit precedent in

deciding his case, since he is a prisoner of the Washington Department of

Corrections. He is incorrect.

      Plaintiff filed this civil case pursuant to 42 U.S.C. § 1983 in the Federal

District Court for the District of Colorado, alleging that his constitutional rights

were violated during his incarceration in Colorado. Our precedents govern the

application and interpretation of federal law in cases where the alleged

constitutional violation occurred within this circuit. Plaintiff’s argument that the

contract between the Washington DOC and CCCF is governed by Washington law



      1
        (...continued)
Amendment claim regarding deprivation of legal materials, and we therefore
address those issues below.
       Plaintiff filed an unopposed motion for leave to file a reply to Defendants’
answer brief out of time on October 24, 2003. We grant the motion and consider
Plaintiff’s reply brief in reaching our decision set forth below.
      2
       In an order entered on June 26, 2003, the district court clarified its earlier
order granting summary judgment for all defendants and dismissing the case,
pointing out that Defendants McKensie and Daniels had been dismissed from the
case entirely, pursuant to the recommendation of the magistrate judge, because
they had never been served. Plaintiff does not challenge this ruling on appeal,
and so the Defendants McKensie and Daniels are no longer party to this case.

                                         -3-
is beside the point. His § 1983 suit before us does not seek to enforce this

contract; rather, he seeks redress for alleged violation of his federal constitutional

rights.



Obligation to Advise the Plaintiff re: Summary Judgment

          Plaintiff relies on the Ninth Circuit’s “fair notice” rule for pro se prisoners

to argue that he was entitled to directions from the district court or from

Defendants to assist him in responding to a motion for summary judgment under

Fed. R. Civ. P. 56. There is no such requirement in this Circuit. While we

construe pleadings filed by a pro se litigant liberally, the courts do not serve as

the pro se litigant’s advocate, and pro se litigants are expected to follow the

Federal Rues of Civil Procedure, as all litigants must.



Appropriateness of Summary Judgment Ruling

1.        Summary Judgment Standard

          We review the district court’s entry of summary judgment de novo.

Summary judgment is appropriate where the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the


                                             -4-
evidence in the record in the light most favorable to the nonmoving party. The

moving party bears the initial burden of demonstrating the absence of a genuine

issue of material fact. Once the moving party has shown that the nonmoving

party’s case is not supported by the evidence, the nonmoving party “may not rest

on mere allegations or denials of his pleading, but must set forth specific facts

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 477

U.S. 242, 256 (1986).



2.    Plaintiff’s Deprivation of Adequate Medical Treatment Claim

      Plaintiff argues on appeal that the district court ignored the existence of

outstanding disputed issues of material fact and improperly entered summary

judgment for the Defendants on his inadequate medical treatment claims. Estelle

v. Gamble, 429 U.S. 97 (1976), establishes that prison officials violate the Eighth

Amendment when their conduct demonstrates deliberate indifference to the

serious medical needs of prisoners in their charge. There are two parts to the

Estelle standard. First, the prisoner must produce objective evidence that the

medical need in question was in fact “serious.” Second, the prisoner must

produce subjective evidence of the prison official’s culpable state of mind—that

he was deliberately indifferent to the prisoner’s medical needs. Id. at 106. See

also Wilson v. Seiter, 501 U.S. 294, 297-98 (1991) (elaborating on the general


                                         -5-
standard for deprivations that violate the Eighth Amendment). “Deliberate

indifference” in the Eighth Amendment context requires that the prison official

“know[] of and disregard[] an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

      In addition, “personal participation is an essential allegation” that must be

proven before a plaintiff can recover on a § 1983 claim. Mitchell v. Maynard, 80

F.3d 1433, 1441 (10th Cir. 1996). Simply demonstrating that the defendant

occupied a supervisory position is not sufficient to establish individual liability.

Id. Rather, a § 1983 plaintiff must “show that an affirmative link exists 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) (internal quotation marks

omitted). Where deliberate indifference is alleged on the basis of a supervisor’s

failure to train subordinates, the plaintiff must show “a complete failure to train,

or training that is so reckless or grossly negligent that future misconduct is almost

inevitable.” Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988).

      Plaintiff’s appellate brief directs us to the affidavits attached to his motion

in opposition to summary judgment filed with the district court, but there are no


                                          -6-
facts there that create a material factual dispute under the legal standard laid out

above. Plaintiff’s fact claims boil down to two basic propositions—first, that

McKinna was aware of Plaintiff’s many medical issues; and second, that

McKinna, in his role as Warden, had general supervisory responsibility for the

operations of the CCCF. The conclusory averments in the affidavits offered by

Plaintiff—to the effect that McKinna and his deputy Tate were “hands-on”

managers to whom all departments of the CCCF reported directly—do not create

any dispute over whether McKinna personally participated in depriving Plaintiff

of medical treatment or whether McKinna was deliberately indifferent to

Plaintiff’s medical difficulties.

       Since Plaintiff has failed to carry his burden to set forth specific facts

showing the existence of a genuine and material fact issue for trial, the district

court properly granted summary judgment to Defendants on the medical care

claim. 3




      Plaintiff’s briefs and affidavits make no mention, in connection with this
       3

inadequate medical care claim, of any Defendants other than McKinna and, much
more briefly, Tate. Therefore, the district court properly granted summary
judgment on this count to all Defendants.

                                           -7-
3.    Plaintiff’s Failure to Protect Claim

      As with cases claiming inadequate medical care, an inmate’s § 1983 claim

under the Eighth Amendment for failure to protect can only succeed if the

plaintiff shows “personal involvement or participation in the incident” on the part

of the defendant prison official. Supervisor status alone does not create liability.

Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). The plaintiff must also

show that he was “incarcerated under conditions posing a substantial risk of

harm” and that prison officials were deliberately indifferent to that risk. Farmer,

511 U.S. at 834.

      The mere fact that an inmate was injured is not sufficient to demonstrate

that the inmate was subjected to conditions posing a substantial risk of harm.

Grimsley, 93 F.3d at 682. Such conditions have been found to exist where prison

officials have disregarded repeated threats or warnings predicting harm to a

specific prisoner or where adequate safety devices are not provided for those

working with an obviously dangerous piece of machinery. Id. at 681.

      Plaintiff’s appellate brief claims that the district court improperly made

credibility judgments about Plaintiff’s factual allegation that there were no

correction officers other than Recreation Coordinator Dunagan in the yard at the

time of the fight in which Plaintiff was injured. The magistrate judge’s

recommendation, however, accepts the facts as narrated by Plaintiff in his


                                         -8-
deposition, and concluded that those facts did not demonstrate deliberate

indifference on the part of Dunagan or other members of the CCCF staff.

      Plaintiff presented two arguments to oppose summary judgment on his

failure to protect claim; first, that an inadequate number of prison officers were

present in the yard at the time of the incident, and second, that Dunagan

demonstrated deliberate indifference by not personally intervening to halt the

fight and by not pushing an emergency button that would have summoned

assistance from other officers. Plaintiff’s first claim, that staffing the yard with

only one officer to oversee a football game created conditions that posed a

substantial risk of serious harm, is supported only by conclusory assertions that

one officer was not enough. He fails to state what staffing level would have been

appropriate, nor does he present any evidence that one officer had been

insufficient in the past to quell fights that broke out after football games.

      Plaintiff’s second claim, that Dunagan did not properly intervene to protect

him, is supported by evidence that might, at most, establish negligence on

Dunagan’s part. In Plaintiff’s telling, Dunagan failed to physically intervene in

the fight until Plaintiff reached for a yard marker to use as a weapon for self-

defense. The entire incident, by Plaintiff’s own admission, lasted three minutes.

Plaintiff does not claim, moreover, that Dunagan had prior knowledge of any

specific threat to Plaintiff’s safety. Thus, while Dunagan’s slow reaction to the


                                          -9-
fight might constitute negligence, it does not rise to the level of deliberate

indifference required to establish liability under the Eighth Amendment. The

district court’s entry of summary judgment on this count was therefore proper.



4.    Plaintiff’s Conditions of Confinement Claim

      The general standard governing liability under the Eighth Amendment for

medical care and inmate protection also applies to claims over general conditions

of confinement. The district court granted summary judgment on Plaintiff’s

claims, finding that Plaintiff had not introduced facts from which the court could

conclude the conditions of his confinement were sufficiently “serious,” and that

Plaintiff had not presented any evidence to show Defendants were personally

involved in keeping him in those conditions and did so with deliberate

indifference to the risk of harm. Plaintiff’s appellate brief fails to discuss his

conditions of confinement claim, except for a single cursory reference to his

claims to have suffered from frostbite, and he fails to point to anything in the

record that would contradict the district court’s conclusions. We therefore find

that summary judgment was properly entered on this count.




                                          -10-
5.    Plaintiff’s First Amendment Claims

      Plaintiff argues that he is eligible for compensatory damages in connection

with his First Amendment claims for deprivation of various religious items and of

his legal materials. He bases his argument, however, on Ninth Circuit precedent

which, as we mentioned above, does not control our decision. As the district

court properly noted, this court’s interpretation of the Prison Litigation Reform

Act of 1996 (PLRA) in Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001),

prevents him from advancing any claims for compensatory damages in the

absence of physical injury. 42 U.S.C. § 1997e(e).

      Nevertheless, we conclude that the district court’s entry of summary

judgment on this claim was improper. The magistrate judge’s recommendations,

which were adopted by the district court, recognized that our decision in Searles

did not foreclose prisoners’ claims for First Amendment violations that only

sought nominal damages or punitive damages. In finding that this Plaintiff was

not entitled to pursue a claim for nominal damages, however, the magistrate judge

and the district court appeared to argue that the fact that Plaintiff was no longer

incarcerated at CCCF made his claims moot. The district court was correct that

Plaintiff would not have a valid declaratory judgment claim now that he is no

longer housed at that facility. The unique justiciability limits on declaratory




                                         -11-
judgment actions, however, do not apply to actions seeking nominal damages,

even if the practical effects of both actions are similar.

      In O’Connor v. City and County of Denver, this court held that a claim for

nominal damages sought past damages, and was therefore not mooted by revisions

in the law that had been challenged by the plaintiffs. 894 F.2d 1210, 1215-16

(10th Cir. 1990). We relied on the same reasoning in Committee for the First

Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992), where we reversed a

grant of summary judgment on the grounds that the plaintiffs’ claims for nominal

damages were not mooted by a change in the challenged policy. Id. at 1526-27.

In Beyah v. Coughlin, the Second Circuit applied this principle to an inmate’s

Free Exercise claims, finding that, while the prisoner’s claims for declaratory and

injunctive relief might be mooted by his transfer to another facility, his claims for

nominal damages were not. 789 F.2d 986, 988-89 (2d Cir. 1986).

      Since the district court based its entry of summary judgment on Plaintiff’s

First Amendment claims on what appear to be mootness grounds, we REMAND

this case so that the district court may have the opportunity to consider whether

these claims can survive summary judgment on their merits under the standards

set forth in O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) , and Turner v.

Safley, 482 U.S. 78 (1987) .




                                          -12-
      We therefore AFFIRM the entry of summary judgment as to Plaintiff’s

Eighth Amendment claims against all Defendants, and REVERSE and REMAND

the entry of summary judgment on Plaintiff’s Free Exercise and Free Speech

claims for further consideration by the district court. 4



                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




      4
        Plaintiff moved this court to allow his appeal to proceed without
prepayment of his filing fees under 28 U.S.C. § 1915(b). We grant his motion,
but note that no partial payments have been received since his motion was
conditionally granted on August 15, 2003. We therefore remind Plaintiff that he
is obligated to make the partial payments required by statute and by our order of
August 15, 2003 until the entire fee has been paid.

                                          -13-
