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

                                                                              SEP 22 2004

                       UNITED STATES COURT OF APPEALS                    PATRICK FISHER
                                                                                  Clerk
                                     TENTH CIRCUIT



 THOMAS WOODBERRY,

           Plaintiff - Appellant,
                                                            No. 04-3100
 v.                                                         (D. Kansas)
                                                    (D.C. No. 00-CV-3209-GTV)
 LOUIS E. BRUCE, Warden,
 Hutchinson Kansas; EARLENE DICK,
 Business Manager of Operations from
 Prison Health Services of Hutchinson
 Correctional Facility; SUNDOWN
 VITAMINS CO., Distributor
 Company, Boca Raton, Florida.

           Defendants - Appellees.


                              ORDER AND JUDGMENT             *




Before SEYMOUR, LUCERO, O’BRIEN                 , Circuit Judges.



          Thomas Woodberry, a state prisoner proceeding pro se,     appeals from the



      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
district court’s dismissal of his civil rights complaint under 42 U.S.C. §1983 and

of his supplemental state-law claims. For substantially the same reasons stated in

the district court’s Order dated February 24, 2004, we conclude that Woodberry

has not asserted facts to support an arguable claim. We exercise jurisdiction

pursuant to 28 U.S.C. §1291 and AFFIRM.

      On June 6, 2000, Woodberry filed his complaint in the federal district court

alleging the defendant state correctional employees subjected him to cruel and

unusual punishment in violation of the Eighth Amendment by marketing an amino

acid vitamin manufactured by defendant Sundown Vitamin Company

(“Sundown”) in the prison canteen. Woodberry also asserted state law claims of

negligence and violations of the Kansas Product Liabilities Act against the prison

officials and Sundown.

      Woodberry alleged that his liver was injured after ingesting amino acid

vitamins manufactured by Sundown, and that the company had pulled its product

from the market due to serious concerns of liver damage to consumers. The

district court ordered the Hutchinson Correctional Facility to review the subject

matter of the complaint, interview all witnesses having knowledge of the facts,

including Woodberry, and prepare a Martinez report. See Martinez v. Aaron, 570

F.2d 317 (10th Cir. 1978). The Hutchinson Correctional Facility complied. On

February 5, 2004, the district court issued an order to Woodberry to show cause


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why dismissal was not appropriate. Woodberry responded to the district court’s

order to show cause and filed exhibits which consisted mainly of diary entries

concerning his medical conditions and internet summaries concerning dietary

supplements. After reviewing the entire record, the district court dismissed the

civil rights action ab initio pursuant to 28 U.S.C. § 1915(e)(2)(B) based on its

conclusion that the complaint did not state a claim upon which relief could be

granted, and, pursuant to 28 U.S.C. §1367, declined to exercise supplemental

jurisdiction for the state court claims. 1

       An ab initio dismissal of a prisoner’s 42 U.S.C. §1983 action is to be

reviewed de novo by the appellate court. Perkins v. Kan. Dep’t of Corr., 165 F.3d

803, 806 (10th Cir. 1999). Dismissal of a pro se complaint for failure to state a

claim is proper only where it is obvious that the plaintiff cannot prevail on the

facts he has alleged and it would be futile to give him the opportunity to amend.

Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001), cert. denied, 534 U.S. 922

(2001); Perkins, 165 F.3d at 806. In determining whether a dismissal is proper,

the court must accept the allegations of the complaint as true and construe those

allegations, and any reasonable inferences that might be drawn from them, in the

light most favorable to the plaintiff. Perkins, 165 F.3d at 806. Although we


   1
    The district court also denied defendant Sundown Vitamins Company’s
motion to dismiss as moot. As we affirm the district court’s order we do not
address the statute of limitation issue raised by Sundown.

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construe pro se petitioners’ complaints liberally, Cummings v. Evans, 161 F.3d

610, 613 (10th Cir. 1998), we agree that Woodberry cannot prevail on the facts he

has alleged, and to give him an opportunity to amend would be futile.

       In order to prevail on his Eighth Amendment claim Woodberry must satisfy

two core requirements. First, he must demonstrate the objective component that

the deprivation was “sufficiently serious.” Perkins, 165 F.3d at 809. Next,

Woodberry, when challenging prison conditions, must show that the defendant

prison officials acted with “deliberate indifference” to inmate health and safety.

Perkins, 165 F.3d at 809. A finding of “deliberate indifference” under the Eighth

Amendment requires the official to know of and disregard an excessive risk to

inmate health or safety; the official must be aware of facts from which the

inference could be drawn that a substantial risk of harm exists, and he must draw

the inference. Id. at 809 (emphasis added).

      Woodberry’s submission fails to establish either a serious deprivation or the

required state of mind on the part of the correctional officials at the Hutchinson

Correctional Facility. The records noted in the Martinez report indicate that

Woodberry made a single 30-day purchase of the amino acid vitamins from the

prison canteen in March 2000. The record is uncontroverted that Woodberry had a

long-term skin condition, that his liver function was abnormal as early as 1995,

and that he tested positive for Hepatitis C in June 2001. The record also shows



                                          -4-
that Sundown did not remove its amino acid vitamins from the market due to their

adverse effects; rather, defendant Bruce decided in June 2001 that prison canteens

in the Kansas Department of Corrections would sell only multi-vitamins. Not

only did the amino acid vitamins remain on the market, but the record shows that

the other prisoners who purchased the amino acid vitamins suffered no adverse

effects.

      The district court concluded that the record did not establish that making

amino acid vitamins available for purchase by prisoners created conditions that

posed a serious risk of harm, or that prison officials acted with deliberate

indifference. The district court also found that there was no evidence, nor any

reason to expect that Woodberry could produce evidence, that the vitamins in

question posed a serious risk of harm or that prison officials acted with deliberate

indifference.

      After reviewing the record, we agree with the district court and conclude

that Woodberry’s claim fails to allege both a serious deprivation and the requisite

culpable state of mind on part of the corrections employees, and that it would be

futile to give him the opportunity to amend.

      Construing Woodberry’s appeal liberally, we read his pro se submission as

appealing the district court’s dismissal of the supplemental state-law claims. The

district court declined to exercise supplemental jurisdiction under 28 U.S.C. §1367



                                          -5-
after dismissing Woodberry’s Eighth Amendment claim. The statute allows

district courts to decline if “[t]he district court has dismissed all claims over which

it has original jurisdiction.” 28 U.S.C. §1367(c)(3). The exercise of supplemental

jurisdiction is therefore discretionary. Gold v. Local 7 United Food and

Commercial Workers Union, 159 F.3d 1307, 1310 (10th Cir. 1998) (overruled on

other grounds). Review of the discretionary dismissal of supplemental claims

under 28 U.S.C. §1367 is reviewed for abuse of discretion only. Id. Section 1367

“reflects the understanding that, when deciding whether to exercise supplemental

jurisdiction, a federal court should consider and weigh in each case, and at every

stage of the litigation, the values of judicial economy, convenience, fairness, and

comity.” Id. at 1310. Here, the district court properly dismissed the 42 U.S.C.

§1983 civil rights claim, and §1367(c)(3) authorized the court to dismiss

Woodberry’s supplemental claims. Based on the discussion above, we find no

abuse of discretion. Accordingly, we AFFIRM the district court’s dismissal of

Woodberry’s civil rights and supplemental state-law claims, and the dismissal of

Woodberry’s complaint. We remind Woodberry that he is obligated to make

partial payments until the entire appellate filing fee has been paid.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge

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