                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 10 1999
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    REV. APPLESEED NAPTHALI
    JESUSDAUGHTER,

             Plaintiff-Appellant,
                                                       No. 99-1092
    v.                                             (D.C. No. 96-D-1831)
                                                         (D. Colo.)
    BARBARA McDONNELL, GEORGE
    KAWAMURA, HAROLD CARMEL,
    ROBERT HAWKINS, ALBERT
    SINGLETON, JOHN OLIN, NORMA
    ADAMSON, JAKOB CAMP, DAVID
    JOHNSON, LEE ARGUELLO, ABEL
    MANZANARES, KAAREEN
    ARRIAGA, AGATHA JACKSON,
    JANICE HOOVER, LINDA DOTSON,
    JIM BRAMALL, THEODORE
    QUINTANA, CATHY VIGIL, LEE
    SMITH, CHARLES BENNETT,
    JAMES MARSHALL, YVONNE
    LOPEZ, KARL MALDONADO,
    KRISTINA TOFOYA, and JOSE
    MEDINA,

             Defendants-Appellees.


                          ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the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.
Before ANDERSON , BARRETT , and BRISCOE , Circuit Judges.




       After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff-appellant appeals from summary judgment granted in favor of

defendants on her civil rights complaint filed pursuant to 42 U.S.C. § 1983.

Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

       At the time suit was filed, plaintiff was incarcerated at the Colorado Mental

Health Institute at Pueblo, Colorado (CMHIP). All defendants are present or past

employees or officials at CMHIP or the Colorado Department of Human Services.

Plaintiff alleges in her   pro se complaint that various staff members at CMHIP

violated her civil rights while acting in their official capacities and under color

of state law. She requests monetary damages of $100,000 per defendant in the

complaint, and in March 1997 also filed a motion for preliminary injunction. The

magistrate judge to whom the case was assigned traveled to CMHIP and held an

evidentiary hearing on plaintiff’s motion for preliminary injunction in July 1997.

See Appellee’s App. Vol. I at 43. After the hearing, he recommended denial of



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the motion for injunction, and the district court adopted this recommendation.

See id. at 47.

       Defendants then filed motions to dismiss and for summary judgment

together with affidavits and medical records, and plaintiff submitted various

affidavits and other documents she alleged support her claims. After considering

the record and the July 1997 hearing testimony, the magistrate judge

recommended granting either the motion to dismiss and/or summary judgment

on plaintiff’s claims on several bases:    1
                                                (1) there was no evidence to support

plaintiff’s claims that certain defendants personally participated in alleged

violations of her constitutional rights,       see id. Vol. II at 449; (2) there was no

evidence that inappropriate professional judgments were made regarding her

medications or the need to place her in seclusion when she refused to take

medication and became “out of control,”          see id. at 450; (3) no evidence supported

her claim that her constitutional rights were violated as to involuntary medication,

see id. at 450-51; (4) no evidence supported plaintiff’s claim that the diet

prescribed for her high triglyceride levels for a short period of time violated her

constitutional rights,   see id. at 451-52; (5) no evidence supported plaintiff’s claim

that she had been unconstitutionally denied physical therapy,          see id. at 452; (6) no


1
       Although the magistrate judge did not number his proposed findings, we do
so for ease of reference, and it is these numbers that are referred to in the rest of
this order and judgment.

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evidence supported plaintiff’s claim that she was denied her right to practice her

religion, she has no constitutional right to evangelize at the facility, and her

methods of loudly proselytizing to others confined at the facility were properly

curtailed under the circumstances,    see id. at 453-54; (7) no evidence existed

supporting plaintiff’s claims that defendants had denied her mail,        see id. at 454;

(8) no evidence existed to support plaintiff’s violation of due process claim

regarding grievances,   see id. at 455; (9) no evidence supported plaintiff’s claim

that she was the victim of retaliation as a result of filing this lawsuit or her many

grievances, see id. ; and (10) damage claims against state employees sued in their

official capacities were barred by the Eleventh Amendment,           see id. at 456. After

carefully reviewing the recommendations and the record, the district court

adopted the findings and recommendations and granted the motion for summary

judgment. See id. Vol. I at 4-5.

       On appeal, plaintiff argues that the district court’s judgment was biased and

prejudicial because she is a   pro se litigant with a mental impairment. She also

claims that the court improperly refused to appoint legal counsel, failed to

properly address motions, and allowed evidence to be removed from the court

clerk that proved all her allegations of abuse. She requests review of the full

record of proceedings, petitions, and evidence, and reversal of the district court.




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

See McKnight v. Kimberly Clark Corp.        , 149 F.3d 1125, 1128 (10th Cir. 1998).

In conducting that review,

       [w]e examine the record to determine whether any genuine issue of
       material fact was in dispute; if not, we determine [whether] the
       substantive law was applied correctly, and in so doing we examine
       the factual record and reasonable inferences therefrom in the light
       most favorable to the party opposing the motion. However, where the
       non moving party will bear the burden of proof at trial on a
       dispositive issue that party must go beyond the pleadings and
       designate specific facts so as to make a showing sufficient to
       establish the existence of an element essential to that party’s case in
       order to survive summary judgment.

Id. (quotations and citations omitted). The movant need not negate the

nonmovant’s claim, but need only point to an “absence of evidence to support the

nonmoving party’s case.”      Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986).

“[I]t is not enough that the nonmovant’s evidence be ‘merely colorable’ or

anything short of ‘significantly probative.’”         Committee for the First Amendment

v. Campbell , 962 F.2d 1517, 1521 (10th Cir. 1992) (citation omitted). There is no

genuine issue of fact “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party.”      Matsushita Elec. Indus.

Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

       We have reviewed the whole record, including all of plaintiff’s documents

submitted on appeal and the tapes of the evidentiary hearing. There is no

substance to plaintiff’s claim that evidence proving her allegations, specifically

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a pillow slip that she submitted to the district court, has been removed from the

district court record. The pillow slip is in the record as Exhibit D to Document

89. There is also nothing to support her claims that the district court was biased

or prejudiced against her because she is   pro se with a mental impairment.

Further, the court properly denied her request for appointment of legal counsel.

The district court was able to determine whether plaintiff’s claim had merit and

whether the issues raised were unusually complex, and did not abuse its discretion

by deciding that further assistance was not needed.   See Bee v. Utah State Prison ,

823 F.2d 397, 399 (10th Cir. 1987).

       We conclude that the district court properly dismissed defendants

McDonnell, Kawamura, Carmel, Hawkins, Singleton, Bennett, Vigil, and Olin for

lack of personal participation.   See Mitchell v. Maynard , 80 F.3d 1433, 1441

(10th Cir. 1996) (“[P]ersonal participation is an essential allegation to a § 1983

claim.”) (quotation omitted). As to the other specific findings in the

recommendation cited above, we conclude that findings 1, 2, 4, 5, 6, 9, and 10

are well supported by the record, and dismissal of the causes of action associated

with those findings was proper.

       It is unclear from plaintiff’s complaint whether defendants were sued in

their individual as well as official capacities. Whether they are sued in their

individual capacities is relevant only to adopted findings 3, 7, and 8. We have


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reviewed the course of proceedings as required by        Kentucky v. Graham , 473 U.S.

159, 167 n.14 (1985), and conclude that defendants were sued only in their

official capacities. We hold that the district court correctly determined that

plaintiff’s claims for monetary damages against       all defendants in their official

capacities may not be entertained in federal court, and all of plaintiff’s claims

were therefore properly dismissed.      See Edelman v. Jordan , 415 U.S. 651, 663

(1974) (stating that the Eleventh Amendment bars suits in federal court “by

private parties seeking to impose a liability which must be paid from public funds

in the state treasury”).

       Plaintiff’s motion for leave to proceed on appeal without prepayment of

costs or fees is granted. The judgment of the district court is    AFFIRMED .



                                                         Entered for the Court



                                                         Mary Beck Briscoe
                                                         Circuit Judge




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