                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                              APR 6 2005
                 UNITED STATES COURT OF APPEALS

                        FOR THE TENTH CIRCUIT           PATRICK FISHER
                                                                   Clerk



MICHAEL LEE STROPE, also known
as Gordon E. Strope,

         Plaintiff - Appellant,
                                              No. 04-3298
 v.                                    (D.C. No. 03-CV-3310-JAR)
                                                (D. Kan.)
DAVID R. MCKUNE, Warden,
Lansing Correctional Facility;
MARCELLE MCGOWEN,
Investigator, Lansing Correctional
Facility; (FNU) ROBERTS, CO I,
Lansing Correctional Facility; (FNU)
PEREZ, CO I, Lansing Correctional
Facility; (FNU) HENDERSON, CO II,
Lansing Correctional Facility; (FNU)
RAYEZ, Lieutenant, Lansing
Correctional Facility; (FNU)
KITRELL, Lieutenant, Lansing
Correctional Facility; MIKE
NEVE, Deputy Warden, Lansing
Correctional Facility; RUDY
STUPER, Deputy Warden, Lansing
Correctional Facility; WILLIAM L.
CUMMINGS, Secretary of Corrections
Designee, Kansas Department of
Corrections,

         Defendants - Appellees.
                            ORDER AND JUDGMENT             *




Before LUCERO , PORFILIO , and BALDOCK , 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.

       On July 30, 2003, Appellant Michael Strope, an inmate at the Lansing

Correction Facility (LCF), filed a complaint in the United States District Court

for the District of Kansas pursuant to 42 U.S.C. § 1983, alleging violations of his

civil rights by various LCF employees.   1
                                              Among other claims, Mr. Strope alleged

that the conditions at LCF constituted cruel and unusual punishment in violation

of the Eighth Amendment because: at times he was not let out of his cell to eat;

he was improperly given non-kosher food, including spoiled chicken; and he was

not allowed enough time to finish his meals. On May 13, 2004, Mr. Strope filed a



*
      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.
1
       LCF is a state prison located in Lansing, Kansas.

                                             -2-
motion for a temporary injunction in which he asked the district court to issue an

injunction ordering the defendants, among other things, to “(1) clean all tables in

the prison dining hall; (2) allow inmates adequate time to eat by preparing Kosher

meals in advance so that inmates do not have to wait in line for food; (3) serve

healthy meals that provide nutritionally adequate food, specifically that no spoiled

or undercooked food be served.” R. Doc. 51 at 1 (district court order). The

district court denied Mr. Strope’s motion on the basis that he had not shown a

substantial likelihood of success on the merits of his case.

      As to Mr. Strope’s complaints regarding not having adequate time to eat

and being forced to eat spoiled food, the district court found Mr. Strope had not

shown a substantial likelihood of being able to prove that the defendant prison

officials acted with deliberate indifference to his health or safety. The district

court found that the evidence, instead, suggested that the defendants were taking

steps to correct these conditions. The district court referenced letters to

Mr. Strope stating that action was being taken to address issues regarding the

food service operation and that the food service provider was being asked to

respond to Mr. Strope’s complaints regarding the food, and evidence that

videotapes of the dining hall had been reviewed to ensure that inmates had

sufficient time to eat and that all “shift captains” had been directed to comply




                                          -3-
with LCF’s “General Order that inmates be given twenty minutes to eat.”       Id. at 4-

5. 2

       On appeal, Mr. Strope argues the district court erred in finding he failed to

show a substantial likelihood that the defendants acted with deliberate

indifference regarding the spoiled food and the inadequate time to eat because any

actions taken to correct the situation were merely pretextual. As support, he cites

to affidavits presented to the district court alleging conditions had not changed in

the month following his receipt of the prison officials’ letters promising changes.

He states that things got better “for a day     or two [after complaints were made,]

then right back to the same problem,” Aplt. Br. at 3f (bolding omitted), and that

“the Defendants have repeatedly promised changes [but], as with everything else,

have failed to follow through,”     id. at 3f-3g.   3



       “[W]e review [a] district court’s denial of a motion for preliminary

injunction for abuse of discretion. A district court abuses its discretion where it

commits a legal error or relies on clearly erroneous factual findings, or where


2
      As to Mr. Strope’s complaint that the tables in the mess hall were not
adequately cleaned between prisoner shifts, the district court found that being
made to eat at a dirty table does not pose a substantial risk of serious harm to
inmate health or safety.
3
       Mr. Strope also makes factual allegations to this court not presented to the
court below, which will not be considered on appeal.    See Young v. United States ,
394 F.3d 858, 861 n.2 (10 th Cir. 2005) (“[The] general rule [is] that a federal
appellate court does not consider an issue not passed upon below.”).

                                              -4-
there is no rational basis in the evidence for its ruling.”       Valley Cmty. Pres.

Comm’n v. Mineta , 373 F.3d 1078, 1083 (10th Cir. 2004) (citation and quotation

omitted).

       Even if, for the sake of argument, Mr. Strope’s allegations regarding the

quality of food and the inadequate amount of time to eat are taken as true, and

even if those allegations are considered to be of sufficient seriousness to warrant

constitutional protection, we cannot say the district court abused its discretion in

finding that Mr. Strope failed to show a substantial likelihood of being able to

prove that the defendants acted with deliberate indifference.         4



       Therefore, the order of the district court dated July 29, 2004, denying

Mr. Strope’s motion for temporary injunction is AFFIRMED for substantially the

reasons set forth therein. Mr. Strope is reminded that he is obligated to continue

making partial payments toward the balance of his assessed fees and costs until

they are paid in full.

                                                              Entered for the Court



                                                              Bobby R. Baldock
                                                              Circuit Judge


4
       While prison officials may not indefinitely forestall deliberate indifference
finding by assurances of remedial action that is never taken, the evidence before
the district court did not show a sufficient pattern of negligence by prison
employees or contractors.

                                              -5-
