                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2462
                                    ___________

Dwight M. Clark,                         *
                                         *
      Plaintiff - Appellant,             *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Steve Long; Gene Stubblefield;           * Eastern District of Missouri.
Larry Rowley; Shirley McClary;           *
Frank Wilson; Donna Brown;               *
George Lombardi,                         *
                                         *
      Defendants - Appellees.            *
                                    ___________

                               Submitted: April 12, 2001

                                   Filed: July 9, 2001
                                    ___________

Before BOWMAN and FAGG, Circuit Judges, and VIETOR,1 District Judge.
                           ___________

BOWMAN, Circuit Judge.




      1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa, sitting by designation.
       Dwight M. Clark appeals from the order of the District Court2 granting judgment
as a matter of law (JAML) to the defendants3 at the close of Clark's presentation of his
case to the jury on his claim under 42 U.S.C. § 1983 (Supp. IV 1998) alleging
violations of his First Amendment rights. We affirm.

       We review the decision to grant JAML de novo, applying the same standard as
did the District Court. Miller v. City of Springfield, 146 F.3d 612, 614 (8th Cir. 1998).
For that standard, we turn first to the language of Federal Rule of Civil Procedure
50(a)(1):

      If during a trial by jury a party has been fully heard on an issue and there
      is no legally sufficient evidentiary basis for a reasonable jury to find for
      that party on that issue, the court may determine the issue against that
      party and may grant a motion for judgment as a matter of law against that
      party with respect to a claim or defense that cannot under the controlling
      law be maintained or defeated without a favorable finding on that issue.

Further, a court called upon to rule on a motion for JAML may not resolve factual
disputes or make credibility determinations and must view all evidence in the light most
favorable to the nonmoving party. Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th
Cir. 2000). The nonmovant receives the benefit of all reasonable inferences that may
be drawn from the evidence, but those inferences may not be based solely on
speculation. Id. at 1026. JAML should be granted only if, after evaluating all the

      2
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
      3
       Shirley McClary is no longer an employee of the Missouri Department of
Corrections and is not represented by the Missouri Attorney General in this appeal.
Although counsel withdrew from representing McClary before trial, the Defendants'
Motion for Judgment as a Matter of Law argues that Clark failed to make a case against
McClary, as well as the other defendants. Our holding in favor of the
defendants/appellees also applies to McClary.
                                           -2-
evidence in the manner described above, no reasonable juror could have found for the
nonmoving party. Fed. R. Civ. P. 50(a)(1). Mindful of these standards, we recite the
facts of this case.4

        Clark "proclaim[s] Islamism" as his religion, Tr. at 24, and is a member of the
Moorish Science Temple of America, id. at 25. Under the tenets of his faith, Clark
testified, "I don't handle pork. I don't eat it. I don't touch it." Id. at 29. Beginning in
October 1996, and at all times relevant to this appeal, Clark was incarcerated at
Missouri Eastern Correctional Center (MECC). When he arrived at MECC, he was
assigned to wash pots and pans in the prison kitchen. Around March 6 or 7, in a year
not clearly identified,5 a prison cook "brought some pans back there that contained pork
meat" to be cleaned. Id. at 33. Clark, who was the only pan washer present, told the
cook, "I don't do pork." Id. The cook left. A corrections officer (not named as a
defendant in Clark's complaint) arrived and told Clark that he would have to "lock
[Clark] up" on the instructions of a sergeant (also not named as a defendant) if Clark
did not wash the pans. Id. at 34. Another Muslim inmate pan washer who had been
sent to the kitchen said he was not "going to the hole," and so he and Clark washed the
pans. Id.

       After the pan-washing incident, Clark left the kitchen and went to the "police
office," id., where he confronted Frank Wilson, guard supervisor at MECC and the first
of the named defendants with whom Clark had contact in Clark's chronology of the
events leading to his lawsuit. Clark told Wilson, "I am a Muslim. I don't clean pork."
Id. at 35. Wilson then handcuffed Clark, apparently believing Clark had refused to
wash the pans. Clark told Wilson he had washed the pans and was there only to find

      4
       Clark was the only witness called before he rested his case and, therefore, his
testimony provides the only evidence supporting his claim.
      5
        In his brief, Clark says the date of the incident was May 6, 1997, but that was
not his testimony.
                                            -3-
out who was ordering Muslims to wash pots and pans in which pork had been cooked.
According to Clark, Wilson said that he was responsible, "[b]y order of the
superintendent," whom Clark understood to mean defendant Gene Stubblefield,
superintendent at MECC. Id. Clark then left, evidently having been released from the
handcuffs after telling Wilson that he had washed the pans. As he left, Wilson told him,
"And if there are any more, you better do them too." Id. at 36. The next day, Clark
filed an Informal Resolution Request (IRR) with defendant Donna Brown, Clark's unit
supervisor. Twenty-eight days later, when Clark learned the kitchen would be serving
pork, he went to speak with Brown again and asked her to intervene so that he would
not have to wash any pans in which pork had been cooked. She made a call and then
told Clark, in his words, "Mr. Clark, if you can't wash pork pans, you can't make $30
a month," referring to the fact that most jobs at MECC paid much less. Id. There was
no evidence that Clark washed any "pork pans" on that day.

       At some point, Clark filed a formal grievance regarding the March incident. In
response, Stubblefield proposed that Clark could either wear boots, gloves, and goggles
when washing pans that had contained pork or else get a different job in the prison.
Clark appealed to defendant Steve Long, assistant director of the Missouri Department
of Corrections; the appeal was denied. Although the timing is unclear, Clark testified
that he spoke with defendant Larry Rowley, an associate superintendent at MECC, two
times: once to complain about the amount of work he was expected to do by himself,
apparently unrelated to pans that had contained pork (Clark testified that Rowley
responded on the spot by raising his pay from $7.50/month to $30.00/month), and once
to complain that a MECC employee, unidentified by Clark in his testimony, threw a
pair of gloves at him.6 In an interoffice memorandum from Rowley to Stubblefield,
Rowley said that he had discussed the "issue" with George Lombardi, an assistant


      6
        In the defendants' JAML motion, they said that Clark testified that defendant
McClary threw the gloves. That is not in the trial transcript; in fact, Clark did not
identify McClary by name anywhere in his testimony.
                                          -4-
director of the Department of Corrections, who "support[ed] [Rowley's]
recommendation that the cleaning crew be required to clean any time requested or as
detailed in their job duties." Id. at 43. There was no evidence, however, of any
occasion other than the March incident recounted by Clark when he was required upon
threat of discipline, or otherwise forced, to wash pots or pans that had contained pork.
Further, Clark testified that he was never disciplined for refusing to wash pans. Clark
rested his case after his own testimony, following a discussion among counsel for the
parties and the court wherein the judge questioned the relevance of the proffered
testimony of two witnesses Clark had proposed to call.

       We conclude that this evidence, even with reasonable inferences that may be
drawn from it, could not support a verdict for Clark on his First Amendment claim
against the named defendants. There was no evidence that any of the defendants
compelled Clark during the March incident (or afterwards, for that matter) to wash pans
in which pork had been cooked. The actions of the defendants about which Clark
complains all occurred after the only pan-washing episode about which he testified.
"In order to establish a violation of constitutional rights under § 1983, the plaintiff must
prove that the defendant's unconstitutional action was the 'cause in fact' of the plaintiff's
injury." Butler v. Dowd, 979 F.2d 661, 669 (8th Cir. 1992), cert. denied, 508 U.S. 930
(1993). But it was the unnamed guard and not any of the defendants who threatened
Clark with discipline if he did not wash the pans; he was required to wash those pans
irrespective of his later dealings with the defendants. Clark would have us speculate
that he continued to wash pans in which pork had been cooked after the March
incident, but there was no evidence of that, notwithstanding that Clark's sole
witness—himself—was perhaps in the best position to know of and testify to such
incidents. Clark failed to make a case that the defendants had "direct responsibility for"
the only alleged violation of his First Amendment rights to which he testified—the
March pan-washing incident. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990) (concluding that defendant prison officials could be subject to suit under § 1983


                                             -5-
where plaintiff inmate proffered evidence of continued violations of the rights asserted
in his complaint even after he had filed grievances).

        Notwithstanding the dearth of evidence supporting his claim, Clark maintains
that we should reverse the JAML because of the court's "failure to give [Clark] the
opportunity to correct deficiencies in his proof" before ruling on the defendants' motion
for JAML.7 Brief for Appellant at 10. Clark relies on this language from the Advisory
Committee Notes to the 1991 amendment of Rule 50(a) to support his argument: "In
no event, however, should the court enter judgment against a party who has not been
apprised of the materiality of the dispositive fact and been afforded an opportunity to
present any available evidence bearing on that fact." An advisory committee note, of
course, does not have the force of law, and to the extent the opinions Clark cites from
other circuits may be read to put the onus on the court to affirmatively tell the plaintiff
in all cases that he has failed to make his case before a JAML motion may be granted
(and we think such a reading is a stretch), they are not binding on this court. See
Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1260 (10th Cir.
1999); Waters v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996). But assuming without
deciding that the Eighth Circuit would require a district court to give a plaintiff notice
of the deficiencies in his case before JAML could be granted, we believe Clark had
such notice.

      As we noted above, when Clark was finished testifying, the court questioned the
relevancy of his remaining witnesses, and the following colloquy between Clark's
counsel and the court ensued:




      7
      Clark also complains about the court's decision to grant JAML before the
defendants put on their case, citing cases that discourage the practice. Rule 50(a)(1),
however, clearly contemplates such an early decision.
                                            -6-
            COUNSEL: Mr. Clark testified to Mr. Lombardi, who wrote a
      memorandum stating that: That inmates are to wash pots and pans on the
      clean-up crew. Period.

             THE COURT: Right. I heard him say that, but I didn't hear him
      say or testify that he has had to wash these pots and pans. He testified
      about one incident. I mean, I understand that he's still -- or that he has
      washed and continued to work as a pot and pan washer. Well, I mean it's
      not real clear to me where you're going with this.

Tr. at 69-70 (emphasis added). Immediately after this, notwithstanding what the court
told him, Clark's counsel rested his case and moved for JAML, presumably
understanding the standards of a Rule 50(a) motion. Granted, the discussion above did
not occur in the context of the defendants' motion for JAML. But in these
circumstances it is clear that Clark had all the information necessary to put him on
notice that the court did not think he had made his case. The court identified for
counsel—before he rested his case—precisely what was lacking in the proof of his
claim. After he decided to rest anyway, and made his own oral motion for JAML
(which was denied), the defendants announced their intention to file a motion for
JAML. The court instructed the Assistant Attorney General to file her written motion
the next morning. She did so, with Clark receiving a copy, and the court heard
arguments from both sides. The court then ruled from the bench in the defendants'
favor. At no time, despite having ample opportunity, did counsel ask the court for
leave to recall Clark or to reopen his case in order to put on evidence that Clark now
says would have proved his § 1983 claim against the named defendants. In other
words, Clark never sought the opportunity he now says he was denied.

      The defendants also assert (1) that they are entitled to qualified immunity
because the constitutional right Clark asserts is not clearly established (distinguishing
washing pans that have contained pork from "handling" pork); (2) that Clark's religious
beliefs regarding pork are not sincerely held; and (3) that Clark could have opted for

                                           -7-
a job other than pan washer but chose not to in order to make more money. Our
holding that Clark failed to make his case against these defendants rests on very solid
ground. Therefore, we see no need for an alternate holding and decline to consider the
defendants' other arguments.

      The judgment of the District Court is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -8-
