Woodberry v. Bruce, 10th Cir. (2004)
Woodberry v. Bruce, 10th Cir. (2004)
SEP 22 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
THOMAS WOODBERRY,
Plaintiff - Appellant,
v.
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.
No. 04-3100
(D. Kansas)
(D.C. No. 00-CV-3209-GTV)
Defendants - Appellees.
ORDER AND JUDGMENT
Before SEYMOUR, LUCERO, OBRIEN
, Circuit Judges.
district courts 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 courts 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 courts
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 prisoners 42 U.S.C. 1983 action is to be
reviewed de novo by the appellate court. Perkins v. Kan. Dept 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
The district court also denied defendant Sundown Vitamins Companys
motion to dismiss as moot. As we affirm the district courts order we do not
address the statute of limitation issue raised by Sundown.
1
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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 Woodberrys 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 Woodberrys appeal liberally, we read his pro se submission as
appealing the district courts dismissal of the supplemental state-law claims. The
district court declined to exercise supplemental jurisdiction under 28 U.S.C. 1367
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Carlos F. Lucero
Circuit Judge
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