                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JAN 31 2000
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 SANDRA KAY HUMPHREY,

          Plaintiff-Appellant,

 v.                                                            No. 99-7092
                                                                (E.D. Okla.)
 McCURTAIN COUNTY, OKLAHOMA, as the                      (D.Ct. No. 98-CV-496-P)
 owner and operator of the McCurtain County
 Jail; JOHN T. GLASS, individually,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Sandra Kay Humphrey appeals the district court’s order granting

summary judgment to Appellee John T. Glass and dismissing her complaint filed

against him pursuant to 42 U.S.C. § 1983. 1 We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.



      Ms. Humphrey, a diabetic, filed her complaint against Mr. Glass, a former

administrator of the McCurtain County Jail, claiming violation of her civil rights

under 42 U.S.C. § 1983 for the period from September 19, 1997 through October

23, 1997, when she was hospitalized for one day, and for “several days beyond.”

Ms. Humphrey alleged Mr. Glass, and those working under him, acted negligently

and indifferently to her serious medical needs while she was incarcerated because

she did not receive a proper or edible diabetic diet nor timely and consistent

provision of insulin or blood-sugar testing materials.



      After reviewing the record, including various jail records and medication

logs, the magistrate judge issued an order granting Mr. Glass’ motion for

summary judgment. The magistrate judge found no evidence existed showing Mr.

Glass intentionally denied or delayed Ms. Humphrey’s access to medical care.


      1
       Ms. Humphrey is not appealing the district court’s decision granting summary
judgment to McCurtain County and McCurtain County Jail.


                                         -2-
Rather, the magistrate judge determined the uncontroverted evidence showed: (1)

jail personnel never denied Ms. Humphrey the opportunity to administer insulin;

(2) jail personnel monitored her insulin and sugar levels on a daily basis; and (3)

licensed dieticians planned the meals which she received. In addition, the

magistrate judge found Ms. Humphrey intentionally ate the other inmates’ food,

and did not controvert the fact she manipulated her blood sugar level by eating

candy given to her from other inmates in order to make herself sick. Accordingly,

the magistrate judge determined Mr. Glass was entitled to qualified immunity

because no violation of a constitutional right occurred.



      On appeal, Ms. Humphrey presents the following issue:

      [W]hether there is a genuine issue of material fact as to whether [Mr.
      Glass], acting under color of state law, violated the “cruel and
      unusual punishment” clause of the Eighth Amendment to the United
      States Constitution, by failing to ensure that [Ms. Humphrey] was
      consistently and timely provided with her physician-prescribed diet,
      insulin, and blood-sugar testing materials. 2

We note Ms. Humphrey, for the first time on appeal, indicates Mr. Glass’ actions

violated the “cruel and unusual punishment” clause of the Eighth Amendment. In

support of her appeal, Ms. Humphrey contends that while dietitians prepared her


      2
          While Ms. Humphrey did not formally present this issue until her reply brief on
appeal, it is essentially the same issue informally presented and argued in her brief-in-
chief.


                                           -3-
meal plans, other jail inmates actually prepared her meals, which she described as

inedible. She contends Mr. Glass is culpable under § 1983 because he knew of

her diabetes prior to her hospitalization for high blood sugar, and admitted the jail

lacked employees or inmate-trustees adequately trained in food preparation. 3



       We review the grant of summary judgment de novo, examining the record

and the reasonable inferences to be drawn therefrom in the light most favorable to

the nonmoving party. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

Summary judgment is appropriate if there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law. 4 Id.



       Applying this standard, we agree with the magistrate judge that no material

issues of fact exist indicating a violation of Ms. Humphrey’s constitutional rights.

A careful review of the record clearly shows jail personnel monitored Ms.

       3
          Ms. Humphrey also contends Mr. Glass’ reference to “murderer or murderess,”
in a memorandum referred to her. We find this allegation irrelevant to the determination
of the issues concerning the treatment of Ms. Humphrey’s diabetes, and decline to address
it.

       4
          Ms. Humphrey relies extensively on Taylor v. Anderson, 868 F. Supp. 1024
(N.D. Ill. 1994), for the proposition the allegations of her complaint must be taken as true.
We note this case provides the standard for motions to dismiss, not summary judgment,
and as such is inapposite. In addition, Taylor constitutes nonbinding, nonprecedential
authority.


                                             -4-
Humphrey’s insulin and sugar levels on a daily basis, and provided her insulin

often twice a day during her jail stay. In addition, after her hospitalization, Mr.

Glass withdrew commissary privileges to all inmates, to avoid their providing Ms.

Humphrey candy, and required Ms. Humphrey to eat in her cell so she could not

eat other inmates’ food.



      While Ms. Humphrey claims the food prepared for her was inedible,

nothing in the record shows the food was inedible or even unpalatable, other than

one grievance filed by Ms. Humphrey with jail officials complaining primarily

about not getting cake or any treats. 5 In fact, Mr. Glass testified he investigated

all of her grievances and found them groundless. The jail meal records show a

dietitian prepared a meal plan which Ms. Humphrey reviewed and approved. The

current administrator, Ms. Wilkinson, who previously acted as a jailer, testified




      5
          Ms. Humphrey’s only complaint in the record concerning her food during her
stay in the jail consisted of the following statement:

      I want to know why my diet is followed so damn close and can’t be
      changed when the food is cold [and] raw, but is always changed when it
      comes to fresh fruit, cake, or something which might be considered a treat.
      It seems anytime I might have a treat that menu is skipped.... I was
      suppose[d] to have had cake with dinner tonite [sic] – I will expect it on
      tomorrow’s tray.


                                          -5-
Ms. Humphrey received a special diet at each meal. 6 While some of the jail meal

logs are missing, those provided corroborate Ms. Wilkinson’s testimony that Ms.

Humphrey received special diabetic meals different than the general jail

population. Under these circumstances, we find no material issue of fact exists

showing a violation of Ms. Humphrey’s constitutional rights.



         For these, and substantially the same reasons set forth in the magistrate

judge’s Order filed July 3, 1999, we AFFIRM summary judgment in favor of Mr.

Glass.



                                          Entered by the Court:

                                          WADE BRORBY
                                          United States Circuit Judge




         6
          Even though inmates prepared her meals, Ms. Humphrey provides no proof the
inmates did not prepare the meals planned by the dietitians. As to Mr. Glass’ statement
the jail did not have adequately trained personnel in food preparation, Mr. Glass clarified,
and Ms. Wilkinson corroborated, that licensed dietitians did in fact prepare Ms.
Humphrey’s menu. Mr. Glass also stated the inmates preparing the food were partially
supervised by jailers.


                                            -6-
