Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
APR 27 2004
PATRICK FISHER
Clerk
JOSEPH ANTHONY MCDANIELS,

Plaintiff - Appellant,
v.
MARK MCKINNA; RANDY TATE;

CARLA CAMPBELL; BOB
DUNAGAN; RONALD RODRIGUEZ;
MCKENSIE and DANIELS,
No. 03-1231
(D.C. No. 99-RB-2035 (OES))
(D. Colo.)
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL, HENRY and HARTZ, Circuit Judges.
Plaintiff Joseph Anthony McDaniels, a prisoner of the Washington state

Department of Corrections and a former inmate at the Crowley County
Correctional Facility (CCCF), appeals from the May 9, 2003 order of the
After examining appellants brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
*
District Court for the District of Colorado granting summary judgment in favor of
the Defendants, current and former correction officials of the CCCF.
Plaintiffs suit, brought pursuant to 42 U.S.C. 1983, alleges that
Defendants violated his First, Eighth, and Fourteenth Amendment rights during
his incarceration at the CCCF between March 4, 1999 and May 11, 2000.
Specifically, he claims that he was denied adequate medical care and an
appropriate diet for his diabetes, that his conditions of confinement violated the
Eighth Amendments prohibition on cruel and unusual punishment, that the prison
officials failed to protect him from other inmates, that he was denied access to the
courts, and that his First Amendment rights of free speech and free exercise of
religion were infringed. Finding that Plaintiff had failed to demonstrate any
disputed issues of material fact, the district court granted summary judgment in
favor of all Defendants on all counts.
Plaintiff, proceeding pro se, now appeals the entry of summary judgment on
his claims alleging denial of medical care, failure to protect, cruel and unusual
conditions of confinement, and violation of his First Amendment rights. 1 We
Plaintiffs appellate brief fails to mention his claim for denial of access to
the courts, and makes no mention of his inadequate medical care claim based on
Defendants alleged failure to provide him with a diet appropriate for diabetics.
While we construe pro se pleadings liberally, we will not address issues that are
wholly absent from the briefs presented to us on appeal. Plaintiffs brief does
contain fleeting mention of his conditions of confinement claim and of his First
(continued...)
1
-2-
AFFIRM entry of summary judgment as to Plaintiffs Eighth Amendment claims,

and REVERSE and REMAND as to his First Amendment claims. 2
Applicable Law
Plaintiff argues that this court should apply Ninth Circuit precedent in
deciding his case, since he is a prisoner of the Washington Department of
Corrections. He is incorrect.
Plaintiff filed this civil case pursuant to 42 U.S.C. 1983 in the Federal
District Court for the District of Colorado, alleging that his constitutional rights
were violated during his incarceration in Colorado. Our precedents govern the
application and interpretation of federal law in cases where the alleged
constitutional violation occurred within this circuit. Plaintiffs argument that the
contract between the Washington DOC and CCCF is governed by Washington law
(...continued)
Amendment claim regarding deprivation of legal materials, and we therefore
address those issues below.
Plaintiff filed an unopposed motion for leave to file a reply to Defendants
answer brief out of time on October 24, 2003. We grant the motion and consider
Plaintiffs reply brief in reaching our decision set forth below.
1
In an order entered on June 26, 2003, the district court clarified its earlier
order granting summary judgment for all defendants and dismissing the case,
pointing out that Defendants McKensie and Daniels had been dismissed from the
case entirely, pursuant to the recommendation of the magistrate judge, because
they had never been served. Plaintiff does not challenge this ruling on appeal,
and so the Defendants McKensie and Daniels are no longer party to this case.
2
-3-
is beside the point. His 1983 suit before us does not seek to enforce this
contract; rather, he seeks redress for alleged violation of his federal constitutional
rights.
Obligation to Advise the Plaintiff re: Summary Judgment

Plaintiff relies on the Ninth Circuits fair notice rule for pro se prisoners
to argue that he was entitled to directions from the district court or from
Defendants to assist him in responding to a motion for summary judgment under
Fed. R. Civ. P. 56. There is no such requirement in this Circuit. While we
construe pleadings filed by a pro se litigant liberally, the courts do not serve as
the pro se litigants advocate, and pro se litigants are expected to follow the
Federal Rues of Civil Procedure, as all litigants must.
Appropriateness of Summary Judgment Ruling

1.
Summary Judgment Standard

We review the district courts entry of summary judgment de novo.
Summary judgment is appropriate where the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). We view the
-4-
evidence in the record in the light most favorable to the nonmoving party. The
moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Once the moving party has shown that the nonmoving
partys case is not supported by the evidence, the nonmoving party may not rest
on mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, 477
U.S. 242, 256 (1986).
2.
Plaintiffs Deprivation of Adequate Medical Treatment Claim

Plaintiff argues on appeal that the district court ignored the existence of
outstanding disputed issues of material fact and improperly entered summary

judgment for the Defendants on his inadequate medical treatment claims. Estelle
v. Gamble, 429 U.S. 97 (1976), establishes that prison officials violate the Eighth
Amendment when their conduct demonstrates deliberate indifference to the
serious medical needs of prisoners in their charge. There are two parts to the
Estelle standard. First, the prisoner must produce objective evidence that the
medical need in question was in fact serious. Second, the prisoner must
produce subjective evidence of the prison officials culpable state of mindthat
he was deliberately indifferent to the prisoners medical needs. Id. at 106. See
also Wilson v. Seiter, 501 U.S. 294, 297-98 (1991) (elaborating on the general
-5-
standard for deprivations that violate the Eighth Amendment). Deliberate

indifference in the Eighth Amendment context requires that the prison official
know[] of and disregard[] an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In addition, personal participation is an essential allegation that must be
proven before a plaintiff can recover on a 1983 claim. Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996). Simply demonstrating that the defendant
occupied a supervisory position is not sufficient to establish individual liability.
Id. Rather, a 1983 plaintiff must show that an affirmative link exists between
the constitutional deprivation and either the supervisor's personal participation,
his exercise of control or direction, or his failure to supervise. Green v.
Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks
omitted). Where deliberate indifference is alleged on the basis of a supervisors
failure to train subordinates, the plaintiff must show a complete failure to train,
or training that is so reckless or grossly negligent that future misconduct is almost
inevitable. Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988).
Plaintiffs appellate brief directs us to the affidavits attached to his motion
in opposition to summary judgment filed with the district court, but there are no
-6-
facts there that create a material factual dispute under the legal standard laid out
above. Plaintiffs fact claims boil down to two basic propositionsfirst, that
McKinna was aware of Plaintiffs many medical issues; and second, that
McKinna, in his role as Warden, had general supervisory responsibility for the
operations of the CCCF. The conclusory averments in the affidavits offered by
Plaintiffto the effect that McKinna and his deputy Tate were hands-on
managers to whom all departments of the CCCF reported directlydo not create
any dispute over whether McKinna personally participated in depriving Plaintiff
of medical treatment or whether McKinna was deliberately indifferent to
Plaintiffs medical difficulties.
Since Plaintiff has failed to carry his burden to set forth specific facts
showing the existence of a genuine and material fact issue for trial, the district
court properly granted summary judgment to Defendants on the medical care
claim. 3
Plaintiffs briefs and affidavits make no mention, in connection with this

inadequate medical care claim, of any Defendants other than McKinna and, much
more briefly, Tate. Therefore, the district court properly granted summary
judgment on this count to all Defendants.
3
-7-
3.
Plaintiffs Failure to Protect Claim

As with cases claiming inadequate medical care, an inmates 1983 claim
under the Eighth Amendment for failure to protect can only succeed if the
plaintiff shows personal involvement or participation in the incident on the part
of the defendant prison official. Supervisor status alone does not create liability.
Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). The plaintiff must also
show that he was incarcerated under conditions posing a substantial risk of
harm and that prison officials were deliberately indifferent to that risk. Farmer,
511 U.S. at 834.
The mere fact that an inmate was injured is not sufficient to demonstrate
that the inmate was subjected to conditions posing a substantial risk of harm.
Grimsley, 93 F.3d at 682. Such conditions have been found to exist where prison
officials have disregarded repeated threats or warnings predicting harm to a
specific prisoner or where adequate safety devices are not provided for those
working with an obviously dangerous piece of machinery. Id. at 681.
Plaintiffs appellate brief claims that the district court improperly made
credibility judgments about Plaintiffs factual allegation that there were no
correction officers other than Recreation Coordinator Dunagan in the yard at the
time of the fight in which Plaintiff was injured. The magistrate judges
recommendation, however, accepts the facts as narrated by Plaintiff in his
-8-
deposition, and concluded that those facts did not demonstrate deliberate
indifference on the part of Dunagan or other members of the CCCF staff.
Plaintiff presented two arguments to oppose summary judgment on his
failure to protect claim; first, that an inadequate number of prison officers were
present in the yard at the time of the incident, and second, that Dunagan
demonstrated deliberate indifference by not personally intervening to halt the
fight and by not pushing an emergency button that would have summoned
assistance from other officers. Plaintiffs first claim, that staffing the yard with
only one officer to oversee a football game created conditions that posed a
substantial risk of serious harm, is supported only by conclusory assertions that
one officer was not enough. He fails to state what staffing level would have been
appropriate, nor does he present any evidence that one officer had been
insufficient in the past to quell fights that broke out after football games.
Plaintiffs second claim, that Dunagan did not properly intervene to protect
him, is supported by evidence that might, at most, establish negligence on
Dunagans part. In Plaintiffs telling, Dunagan failed to physically intervene in
the fight until Plaintiff reached for a yard marker to use as a weapon for selfdefense. The entire incident, by Plaintiffs own admission, lasted three minutes.
Plaintiff does not claim, moreover, that Dunagan had prior knowledge of any
specific threat to Plaintiffs safety. Thus, while Dunagans slow reaction to the
-9-
fight might constitute negligence, it does not rise to the level of deliberate
indifference required to establish liability under the Eighth Amendment. The
district courts entry of summary judgment on this count was therefore proper.
4.
Plaintiffs Conditions of Confinement Claim

The general standard governing liability under the Eighth Amendment for
medical care and inmate protection also applies to claims over general conditions
of confinement. The district court granted summary judgment on Plaintiffs
claims, finding that Plaintiff had not introduced facts from which the court could
conclude the conditions of his confinement were sufficiently serious, and that
Plaintiff had not presented any evidence to show Defendants were personally
involved in keeping him in those conditions and did so with deliberate
indifference to the risk of harm. Plaintiffs appellate brief fails to discuss his
conditions of confinement claim, except for a single cursory reference to his
claims to have suffered from frostbite, and he fails to point to anything in the
record that would contradict the district courts conclusions. We therefore find
that summary judgment was properly entered on this count.
-10-
5.
Plaintiffs First Amendment Claims

Plaintiff argues that he is eligible for compensatory damages in connection
with his First Amendment claims for deprivation of various religious items and of
his legal materials. He bases his argument, however, on Ninth Circuit precedent
which, as we mentioned above, does not control our decision. As the district
court properly noted, this courts interpretation of the Prison Litigation Reform
Act of 1996 (PLRA) in Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001),
prevents him from advancing any claims for compensatory damages in the
absence of physical injury. 42 U.S.C. 1997e(e).
Nevertheless, we conclude that the district courts entry of summary
judgment on this claim was improper. The magistrate judges recommendations,
which were adopted by the district court, recognized that our decision in Searles
did not foreclose prisoners claims for First Amendment violations that only
sought nominal damages or punitive damages. In finding that this Plaintiff was
not entitled to pursue a claim for nominal damages, however, the magistrate judge
and the district court appeared to argue that the fact that Plaintiff was no longer
incarcerated at CCCF made his claims moot. The district court was correct that
Plaintiff would not have a valid declaratory judgment claim now that he is no
longer housed at that facility. The unique justiciability limits on declaratory
-11-
judgment actions, however, do not apply to actions seeking nominal damages,

even if the practical effects of both actions are similar.
In OConnor v. City and County of Denver, this court held that a claim for
nominal damages sought past damages, and was therefore not mooted by revisions
in the law that had been challenged by the plaintiffs. 894 F.2d 1210, 1215-16
(10th Cir. 1990). We relied on the same reasoning in Committee for the First
Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992), where we reversed a
grant of summary judgment on the grounds that the plaintiffs claims for nominal
damages were not mooted by a change in the challenged policy. Id. at 1526-27.
In Beyah v. Coughlin, the Second Circuit applied this principle to an inmates
Free Exercise claims, finding that, while the prisoners claims for declaratory and
injunctive relief might be mooted by his transfer to another facility, his claims for
nominal damages were not. 789 F.2d 986, 988-89 (2d Cir. 1986).
Since the district court based its entry of summary judgment on Plaintiffs
First Amendment claims on what appear to be mootness grounds, we REMAND
this case so that the district court may have the opportunity to consider whether
these claims can survive summary judgment on their merits under the standards
set forth in OLone v. Estate of Shabazz, 482 U.S. 342 (1987) , and Turner v.
Safley, 482 U.S. 78 (1987) .
-12-
We therefore AFFIRM the entry of summary judgment as to Plaintiffs

Eighth Amendment claims against all Defendants, and REVERSE and REMAND
the entry of summary judgment on Plaintiffs Free Exercise and Free Speech
claims for further consideration by the district court. 4
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
Plaintiff moved this court to allow his appeal to proceed without

prepayment of his filing fees under 28 U.S.C. 1915(b). We grant his motion,
but note that no partial payments have been received since his motion was
conditionally granted on August 15, 2003. We therefore remind Plaintiff that he
is obligated to make the partial payments required by statute and by our order of
August 15, 2003 until the entire fee has been paid.
4
-13-

Filed: Patrick Fisher

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Filed: Patrick Fisher

Uploaded by

Copyright:

Available Formats

F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

JOSEPH ANTHONY MCDANIELS,

MARK MCKINNA; RANDY TATE;

Plaintiff Joseph Anthony McDaniels, a prisoner of the Washington state

AFFIRM entry of summary judgment as to Plaintiffs Eighth Amendment claims,

Obligation to Advise the Plaintiff re: Summary Judgment

Appropriateness of Summary Judgment Ruling

Summary Judgment Standard

Summary judgment is appropriate where the pleadings, depositions, answers to

Plaintiffs Deprivation of Adequate Medical Treatment Claim

outstanding disputed issues of material fact and improperly entered summary

standard for deprivations that violate the Eighth Amendment). Deliberate

Plaintiffs briefs and affidavits make no mention, in connection with this

Plaintiffs Failure to Protect Claim

Plaintiffs Conditions of Confinement Claim

Plaintiffs First Amendment Claims

judgment actions, however, do not apply to actions seeking nominal damages,

Safley, 482 U.S. 78 (1987) .

We therefore AFFIRM the entry of summary judgment as to Plaintiffs

ENTERED FOR THE COURT

Plaintiff moved this court to allow his appeal to proceed without

You might also like