                    NONPRECEDENTIAL DISPOSITION
                      To be cited only in accordance with
                              Fed. R. App. P. 32.1



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Submitted March 8, 2007*
                             Decided March 12, 2007

                                     Before

                    Hon. DANIEL A. MANION, Circuit Judge

                    Hon. MICHAEL S. KANNE, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

No. 06-3478

CHRIS J. JACOBS III,                        Appeal from the United States District
     Plaintiff-Appellant,                   Court for the Eastern District of
                                            Wisconsin
      v.
                                            No. 04 C 725
MATTHEW J. FRANK, Secretary,
    Defendant-Appellee.                     Rudolph T. Randa,
                                            Chief Judge.

                                   ORDER

       In this action under 42 U.S.C. § 1983, Wisconsin inmate Chris Jacobs
principally alleged that he wasn’t getting enough food and that his weight had
dropped to 190 pounds, nearly 60 pounds less than what he weighed in 1998 before
he went to prison. Jacobs also alleged that his access to his legal materials had
been impeded and that he suffered retaliation for filing grievances and lawsuits.
He sought only injunctive relief and named as the sole defendant the Secretary of


      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-3478                                                                      Page 2

the Department of Corrections. The district court invited Jacobs to add defendants
other than the Secretary, but Jacobs added no one else when he amended his
complaint. After two years of litigation, the court granted summary judgment for
the Secretary, and Jacobs appeals. We affirm the judgment, but our reasons differ
from those given by the district court.

        At summary judgment Jacobs submitted an unsworn statement but no
admissible evidence, so we accept as uncontested the statement of facts submitted
by the Secretary with his motion. See E.D. Wis. L. R. 56.2; Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003). The Secretary did not deny Jacobs nutritionally adequate
food or prevent him from accessing his legal materials or retaliate for his use of the
grievance system and courts. It is not DOC policy to deprive inmates of
nutritionally adequate food or to hinder their access to legal materials or to
retaliate when they complain about prison conditions. The Secretary, moreover,
was not personally involved in responding to the various grievances and
administrative appeals submitted by Jacobs. It follows, the district court reasoned,
that summary judgment for the Secretary is warranted because he did not
participate in the underlying events and there is no evidence that the alleged
constitutional violations resulted from a DOC custom or policy. The court also
concluded, regardless, that Jacobs was not entitled to injunctive relief because he
was moved to a different prison after filing his complaint.

       We cannot agree with the district court’s reasoning. If this was a damages
action the Secretary’s lack of personal involvement would be conclusive, see Johnson
v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006); Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995), but since Jacobs sought only injunctive relief it is irrelevant
whether the Secretary participated in the alleged violations, see Houston v.
Sheahan, 62 F.3d 902, 903 (7th Cir. 1995); Ogden v. U.S., 758 F.2d 1168, 1177 (7th
Cir. 1985). And while it is clear that enjoining the Secretary would be appropriate
to remedy a deprivation that resulted from an official policy or custom, see Hafer v.
Melo, 502 U.S. 21, 25-26 (1991), we have not yet decided whether an underlying
policy or custom is essential when the relief requested is limited to injunctive relief,
Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001).
Compare Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 71 (1st Cir. 2002);
Greensboro Prof’l Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962,
967 n.6 (4th Cir. 1995); Church v. City of Huntsville, 30 F.3d 1332, 1347 (11th Cir.
1994); and Nix v. Norman, 879 F.2d 429, 433 (8th Cir. 1989), with Chaloux v.
Killeen, 886 F.2d 247, 250 (9th Cir. 1989). Morever, as Jacobs correctly observes,
his transfer to a different facility did not moot his demand for injunctive relief
because he alleged in his complaint that the deprivations occurred over time in
more than one facility, which makes the Secretary an appropriate defendant.
See Lehn v. Holmes, 364 F.3d 862, 871-72 (7th Cir. 2004).
No. 06-3478                                                                     Page 3

       Nonetheless, our review of a grant of summary judgment is de novo, Koszola
v. Bd. of Educ. of Chi., 385 F.3d 1104, 1107 (7th Cir. 2004), and we may affirm on
any basis fairly supported by the record, Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092,
1098 (7th Cir. 2004). In this case the district court focused on Jacobs’s choice of
defendant and the availability of the relief he sought, but these concerns do not
matter unless there was a constitutional violation. And Jacobs submitted no
evidence that there was. In order to defeat a motion for summary judgment, a
plaintiff must do more than rest on his pleadings; he must adduce evidence setting
forth “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). The plaintiff “retains the burden of producing enough evidence to support a
reasonable jury verdict in his favor.” Lawrence v. Kenosha County, 391 F.3d 837,
842 (7th Cir. 2004). Failure to do so will result in the entry of summary judgment.
Fed. R. Civ. P. 56(c), (e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       Jacobs responded to the motion for summary judgment, but the statement he
submitted was not made under oath. Neither did he swear to his amended
complaint. And since he produced nothing else at summary judgment, there simply
is no evidence in the record to support his allegations. For that reason it was
appropriate to grant summary judgment for the Secretary. See Celotex, 477 U.S. at
323 (“[A] complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”); Cady v. Sheahan, 467
F.3d 1057, 1061 (7th Cir. 2006). We add, however, that we have read the statement
Jacobs submitted at summary judgment plus other documents he attached to prior
filings. They do not support his contention that his prison diet is inadequate, which
is the claim at the center of this case. An inmate must be given sufficient,
nutritionally adequate food, Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006);
Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996), but Jacobs by his own
account has weighed between 190 and 200 pounds since November 2003. His
weight, according to a letter Jacobs received from a prison nurse and forwarded to
the district court, is at the top of the 150- to 190-pound range appropriate for a man
of his height. What Jacobs really contends is that the DOC is obligated to feed him
enough to maintain his pre-incarceration weight of 250 pounds, but there is nothing
in the record suggesting that his current weight presents a risk to his health.

                                                                            AFFIRMED.
