                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               ___________

                               No. 03-1630
                               ___________

Thomas Pellegrino,                        *
                                          *
             Appellant,                   *
                                          *
       v.                                 *
                                          *
William Janklow, SD State Governor; * Appeal from the United States
Jeff Bloomberg, SD Secretary of           * District Court for the
Corrections; Douglas Weber, Warden, * District of South Dakota
SD State Penitentiary; Elmer Miller,      *
Unit Manager, SD State Penitentiary; *        [UNPUBLISHED]
R. L. Kuemper, Unit Manager, SD           *
State Penitentiary; Al Madsen,            *
Counselor, SD State Penitentiary;         *
Mr. Szody, Corrections Officer,           *
SD State Penitentiary; South Dakota       *
State Penitentiary Health Services;       *
Sioux Valley Hospital; William A.         *
Delaney, III; Doug Clark, SD State        *
Penitentiary Unit Counselor; Dave         *
Schiefen, SD State Penitentiary           *
Policy Analyst; Block, Unit Manager; *
K. VanMeveren; Berke, Unit                *
Counselor; Eugene Regier, M.D.;           *
Mr. Zike, in their individual capacities, *
                                          *
             Appellees.                   *
                                   ___________
                                    ____________

                              Submitted: February 6, 2004

                                   Filed: March 17, 2004
                                   ____________

Before BYE, McMILLIAN, and RILEY, Circuit Judges.
                            ___________

PER CURIAM.

       Thomas Pellegrino, a South Dakota inmate, appeals from the final judgment
entered in the District Court1 for the District of South Dakota, following the adverse
grant of summary judgment and the subsequent adverse jury verdict in his 42 U.S.C.
§ 1983 action. For reversal, he generally takes issue with the grant of summary
judgment and the jury’s verdict, and he specifically argues the district court erred in
(1) denying his motion to compel additional interrogatory answers from two
defendants, (2) denying his motion to sequester two party witnesses, (3) allowing
defendants to introduce an exhibit that may have contained a misrepresentation,
(4) refusing to appoint counsel to assist him in preparing jury instructions, and (5) not
admonishing counsel during closing argument for an allegedly prejudicial remark.
He also has moved under Fed. R. App. P. 10(e) for a limited remand to the district
court to correct the trial transcript. For the reasons discussed below, we affirm the
judgment of the district court with one modification, and we deny Pellegrino’s motion
for a remand.

      Upon de novo review of the record and the parties’ submissions, we conclude
that the district court properly granted summary judgment to defendants on
Pellegrino’s First Amendment, Eighth Amendment, state law, and supervisory-

      1
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.

                                          -2-
liability claims. See Frison v. Zebro, 339 F.3d 994, 997 (8th Cir. 2003) (standard of
review).2 The district court dismissed one First Amendment claim--the religious-diet
claim--because Pellegrino had not exhausted his administrative remedies as required
by 42 U.S.C. § 1997e(a). While we agree that dismissal was appropriate, we modify
dismissal of this claim to be without prejudice. We find no plain error in the jury’s
verdict for defendants on Pellegrino’s claim that he was transferred to a fourth-tier
cell in retaliation for his litigation activities. See Cross v. Cleaver, 142 F.3d 1059,
1069-70 (8th Cir. 1998) (plain error review when party did not move for judgment as
matter of law).

      We also reject as meritless all of Pellegrino’s other arguments on appeal.
Pellegrino’s discovery requests were for irrelevant material and were overly
burdensome, see Williams v. Mensey, 785 F.2d 631, 636-37 (8th Cir. 1986) (no gross
abuse of discretion in denying motion to compel production of documents that were
nondiscoverable or irrelevant); parties cannot be excluded from the courtroom, see
Fed. R. Evid. 615; and there was no plain error in admitting the supposedly inaccurate
exhibit because the witness who explained it noted that it depicted three fans,
consistent with Pellegrino’s understanding of what the exhibit should show, see


      2
        Among other things, the evidence showed that the heat on the fourth tier
(where Pellegrino was housed) did not pose an excessive risk to Pellegrino’s health;
missing seven meals over the course of four months did not deny him life’s
necessities; defendants treated Pellegrino approximately once a month for numerous
illnesses and conditions and were not deliberately indifferent to his medical needs;
Pellegrino suffered no actual injury from the denial of paper, photocopies, or mail
privileges, from the closure of the law library, or from the assistance of contract
attorneys; and Pellegrino failed to support his conspiracy claim. Further, the evidence
failed to show that, but for his litigation activities, Pellegrino would not have been
forced to choose between recreation and library time, and his cell would not have
been searched; and his contention about a box of his legal materials being hidden was
wholly conclusory. Finally, the evidence failed to support his claims of emotional
distress and supervisory liability.

                                         -3-
Financial Holding Corp. v. Garnac Grain Co., 965 F.2d 591, 596 (8th Cir. 1992)
(plain error review). We find no abuse of discretion in the district court’s refusal to
appoint counsel for Pellegrino, see Williams v. Carter, 10 F.3d 563, 566-67 (8th Cir.
1993) (abuse of discretion review); and we find no plain error in the court’s failure
to issue a curative instruction regarding defense counsel’s closing argument
comments, see Pavlik v. Cargill, Inc., 9 F.3d 710, 714-15 (8th Cir. 1993) (plain error
review when party fails to make contemporaneous objection).

      Accordingly, we affirm, but we modify the dismissal of the religious-diet claim
to be without prejudice. We deny Pellegrino’s pending motion, as he may seek
correction of the record in the district court.
                       ______________________________




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