                                                    FILED
                                                         July 31, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
DONALD DAVIS,                )
                             )          Sumner Circuit
     Plaintiff/Appellant,    )          No. 16897-C
                             )
VS.                          )
                             )
SUMNER COUNTY SHERIFF, J.D.  )          Appeal No.
VANDERCOOK, BILLY TEMPLETON, )          01A01-9712-CV-00696
ASSISTANT ADMINISTRATOR,     )
SONYA TROUTT,                )
                             )
     Defendants/Appellees.   )


              IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

       APPEAL FROM THE CIRCUIT COURT OF SUMNER COUNTY
                   AT GALLATIN, TENNESSEE

                HONORABLE THOMAS GOODALL, JUDGE



Donald Davis, #117350
D.C.I., Box 700
Waupun, WI 53963
PRO SE PLAINTIFF/APPELLANT


William R. Wright, BPR 4024
Leah May Dennen, BPR 12711
Office of the Law Director
Sumner County Administration Building
355 North Belvedere Drive, Room 208
Gallatin, Tennessee 37066
ATTORNEYS FOR DEFENDANTS/APPELLEES



                    AFFIRMED AND REMANDED.



                                HENRY F. TODD
                                PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE

DONALD DAVIS,                )
                             )                        Sumner Circuit
     Plaintiff/Appellant,    )                        No. 16897-C
                             )
VS.                          )
                             )
SUMNER COUNTY SHERIFF, J.D.  )                        Appeal No.
VANDERCOOK, BILLY TEMPLETON, )                        01A01-9712-CV-00696
ASSISTANT ADMINISTRATOR,     )
SONYA TROUTT,                )
                             )
     Defendants/Appellees.   )



                                     OPINION

       The captioned appellant is a prisoner in the punitive custody of the Tennessee

Department of Correction. He sued the Sheriff of Sumner County and two of his employees for

violation of 42 USC § 1983 by violating his civil rights by failing to provide him with a “no pork

diet” upon his demand therefor.



       The defendants moved to dismiss for failure to state a claim for which relief can be

granted. However, defendants filed affidavits which were considered by the Trial Judge and

mentioned in his judgment dismissing plaintiff’s suit. Therefore the motion was properly treated

as a motion for summary judgment, and the judgment may be reviewed as a summary judgment.



       The affidavit of the Jail Administrator states:

                     1.        I am the Jail Administrator of the Sumner
               County Jail.

                      2.      When Plaintiff Donald Davis entered the Jail
               he did not request a special diet.

                       3.     When we became aware of this, we notified
               the kitchen and have attempted to provide him alternate food
               sources.


                                             -2-
                        4.      On several occasions, Mr. Davis has turned
                 down these alternative food sources as he deemed them not as
                 savory as the pork dishes being served.

                        5.      Nevertheless, we will continue to offer him no-
                 pork substitutes when pork is offered in the diet.

       The counter affidavit of the plaintiff is composed entirely of argument, including the

following:

                          3.     The defendants have to date, failed to address
                 the meals that we’re served on the dates in question of
                 complaint, 11/96 to 4/97. Meals being served from 5/97 to
                 present may be nutritionally adequate, plaintiff is no longer
                 there, therefore can not argue these meals of dates in question
                 within complaint.


       Plaintiff’s affidavit does not deny the unequivocal affidavit of the administrator that, a

non-pork diet was furnished to plaintiff from the time of his request for the duration of his

incarceration.



       When a party moving for summary judgment has filed evidence which, if uncontradicted,

requires a summary judgment as a matter of law, the moving party is entitled to summary

judgment unless the opposing party offers evidence contradicting that of the moving party.

TRCP Rule 56. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225.



       In the present case, the plaintiff filed no evidence to contradict that offered by defendants.

Therefore, the entry of summary judgment of dismissal was correct.



       The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

appellant. The cause is remanded to the Trial Court for appropriate further proceedings.

                               AFFIRMED AND REMANDED.


                                                        _________________________________
                                                        HENRY F. TODD
                                                        PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



                                                -3-
____________________________
BEN H. CANTRELL, JUDGE


____________________________
WILLIAM C. KOCH, JR., JUDGE




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