Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 7, 2022 _________________________________ Christopher M. Wolpert Clerk of Court RONNIE M. CHANCE,
Plaintiff - Appellant,
v. No. 22-7008 (D.C. No. 6:20-CV-00373-RAW-SPS) JARRED ROBERTS; STARLA (E.D. Okla.) PHILLIPS; SHARON MCCOY; CHERI ATKINSON,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges. _________________________________
Ronnie M. Chance, proceeding pro se, sued various Oklahoma prison officials
under 42 U.S.C. § 1983, alleging violations of his Eighth Amendment right to be free
from cruel or unusual punishment. The district court ruled against him on all of his
claims, and also made a number of procedural rulings with which he disagrees. For
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 2
the reasons explained below, we affirm in part, reverse in part, and remand for
further proceedings.
I. BACKGROUND & PROCEDURAL HISTORY
At all times relevant to this lawsuit, Chance was a prisoner in the custody of
the Oklahoma Department of Corrections (ODOC) and housed at the Jess Dunn
Correctional Center. 1 In August 2020, he filed a § 1983 lawsuit in the United States
District Court for the Western District of Oklahoma, later transferred to the Eastern
District. The latter court screened his complaint and ordered him to amend it, which
he did. The amended complaint (still the operative complaint) named four prison
officials (collectively, “defendants”):
• Jarrod Roberts, the prison’s healthcare administrator;
• Starla Phillips, head of food services at the prison;
• Sharon McCoy, the warden; and
• Cheri Atkinson, an employee at ODOC’s central office for medical
matters.
Chance accused defendants of numerous wrongs, mostly having to do with failure to
provide proper medical care. Chance attached voluminous exhibits, such as the
administrative grievances he filed about these issues.
1 After this appeal was fully briefed, Chance discharged his sentence and was released from ODOC custody. But, to the extent he could recover damages for his allegedly unconstitutional treatment in prison, his case is not moot. See, e.g., Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004). 2 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 3
The district court ordered ODOC to prepare a Martinez report concerning
Chance’s allegations. 2 About two-and-a-half months later, defendants filed the
report, which largely focused on whether Chance had exhausted his administrative
remedies. The report included numerous exhibits, most of which duplicated what
Chance had already attached to his complaint.
Defendants then filed a motion to dismiss with an alternative request for
summary judgment (MTD/MSJ). They argued, based on documents from the report,
that Chance had not exhausted his administrative remedies as to any claim. They
alternatively argued on the merits that he failed to state any viable claim, still relying
on documents from the report. Finally, they argued that they were entitled to
qualified immunity.
Chance responded in opposition. 3 Ultimately, the district court ruled:
2 A Martinez report is a procedure first approved in Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). As we later explained, the district court may “direct prison officials to respond in writing to the [prisoner’s] various allegations, supporting their response by affidavits and copies of internal disciplinary rules and reports. The purpose of the Martinez report is to ascertain whether there is a factual as well as a legal basis for the prisoner’s claims.” Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987). 3 Chance filed what he captioned as a cross-motion for summary judgment. But the document argued that there were “no grounds for dismissal or summary judgment in favor of the Defendants.” R. vol. III at 314; see also id. at 348 (“For reasons set forth in this pleading the Defendants are not entitled to summary judgment or dismissal.”). So, in substance, the document was a response, and the district court appropriately treated it as such. We accordingly reject Chance’s argument that the district court should have treated this document as a true summary judgment motion. 3 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 4
• Chance had exhausted one of his claims (regarding the need for a
medical diet), but that claim failed on the merits;
• an alleged equal protection violation was both unexhausted and failed
on the merits;
• Chance failed to plead a proper supervisory-liability claim against
McCoy or Atkinson; and
• Chance failed to exhaust all other claims.
Accordingly, the district court granted defendants’ MTD/MSJ and entered final
judgment.
Chance timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.
We will provide more details about Chance’s claims, the parties’ arguments, and the
district court’s reasoning as they become relevant to the issues addressed below.
II. STANDARD OF REVIEW
Because the district court treated one of its rulings—regarding supervisory
liability—as a pure failure to state a claim, it dismissed under Federal Rule of Civil
Procedure 12(b)(6). As to the remainder of its rulings, the district court said it was
granting summary judgment, presumably because it was relying on documents
attached to the Martinez report. We review both types of rulings de novo. See, e.g.,
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011) (summary
judgment); Janke v. Price, 43 F.3d 1390, 1391 (10th Cir. 1994) (dismissal for failure
to state a claim).
4 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 5
III. ANALYSIS
A. Medical Need for a Special Diet
Chance pleaded that Phillips, Roberts, and McCoy violated his Eighth
Amendment right to adequate food in prison between February and August 2019.
The district court found that Chance exhausted this claim but it failed on the merits.
Defendants argue on appeal, however, that Chance failed to exhaust all his claims—
which would necessarily include this one.
To sort this out, we will first describe the exhaustion procedure generally. We
will then describe how that procedure played out with respect to Chance’s medical-
diet claim, and how the district court resolved the exhaustion question. Then we will
return to defendants’ argument that he failed to exhaust the claim.
1. Exhaustion of Administrative Remedies in Oklahoma Prisons
Prisoners may not sue based on prison conditions “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). During the
timeframe relevant to this lawsuit, Oklahoma required a prisoner to take the
following steps to exhaust his or her claim:
1) talk to the appropriate staff member;
2) submit a written Request to Staff (RTS) on the approved form within
seven days;
3) submit a written grievance on the approved form no more than fifteen
days after receiving a response to the RTS; and
5 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 6
4) file an appeal on the approved form to the Administrative Review
Authority (ARA) (or, for medical complaints, to a separate entity known
as the Medical ARA) no more than fifteen days after receiving a
response to the grievance.
Also, if the prisoner has received no response to an RTS (see step 2) within
thirty days, then, no later than sixty days after submitting it, the prisoner “may file a
grievance” (see step 3) specifically about “the issue of the lack of response.” R. vol.
III at 252. 4
2. Additional Background
We now turn to Chance’s efforts to grieve the lack of a proper diet. The
record does not say whether Chance ever spoke informally with the relevant actors
about this issue, as required by step 1 of the grievance process. But defendants do
not argue that Chance failed to satisfy step 1. We will therefore focus on his efforts
to fulfill steps 2, 3, and 4. Cf. Woodford v. Ngo, 548 U.S. 81, 101 (2006) (“[T]he
PLRA exhaustion requirement is not jurisdictional . . . .”).
The events relevant to Chance’s medical-diet claim happened between January
and August 2019. In mid-January of that year, an outside physician saw Chance for
symptoms of gastroesophageal reflux disease (GERD) and recommended that he
4 The district court described this feature of the grievance policy—i.e., submitting a grievance about the lack of response to an RTS—as a mandatory step in the exhaustion process, if applicable. On appeal, Chance strenuously argues that the policy is permissive on this point, not mandatory. We need not resolve this question because we cannot find where the district court deemed any claim unexhausted for failure to file a grievance about the lack of response to an RTS. 6 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 7
adopt a “GERD diet.” R. vol. III at 193. On February 4, Chance sent an RTS to
Phillips (the prison’s food service supervisor) stating that he had been “prescribed” a
Mediterranean diet, and asking, “Do you offer this diet here?” R. vol. II at 73.
Phillips responded on February 19 that the prison “offer[ed] healthy heart or
vegetarian.” Id. 5 During this same timeframe, Chance was corresponding with the
prison chaplain, asking to change his religious preference to messianic Jew, and then
to be placed on the list for a kosher diet. 6
It is not clear what happened between February 19 and April 19. On the latter
date, however, Chance signed a “Kosher/Halal Diet Request Form.” Id. at 71. The
form required the requesting inmate to agree, among other things, not to barter the
prepackaged meals. The form also stated, “Due to ordering and shipping
requirements, it can take up to 60 days before you begin receiving the diet, depending
on the shipping and storage options available.” Id. The chaplain approved Chance’s
request form the same day (April 19).
5 In truth, it is difficult to say who responded to this RTS, or any of the other RTS’s described below, because the signatures on these responses are illegible. But the court must draw reasonable inferences from the summary judgment record in Chance’s favor. See Twigg, 659 F.3d at 997. It is a reasonable inference that the person to whom Chance directed an RTS is also the person who responded to it. Also, defendants do not claim that they were not the responders. Thus, for purposes of this order and judgment, the court will assume that the RTS addressee is also the responder. 6 Several months later, during step 3 of the grievance process, Chance explained that a prison doctor told him he should try to get a kosher diet if a Mediterranean diet was not available. 7 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 8
The next relevant event came on May 7, when Chance submitted an RTS to
“Ms. Phillips/Food Service.” Id. at 79. He claimed he
need[ed] kosher for MEDICAL reasons. I can not eat most of the food on your regular menu. . . . I know I was told by the chaplin [sic] that you have 60 days to put me on kosher but this is a medical problem not just religious. . . . Can you please fix this problem[?]
Id. at 79, 80.
While awaiting Phillips’s response, Chance submitted an RTS to Roberts (the
prison’s healthcare administrator) on May 24. Chance again claimed that he had
been prescribed a Mediterranean diet and asked, “Can you give me my Mediteranion
[sic] diet or something equivalent to that for my dietary needs[?]” Id. at 449.
That same day, Chance sent a written message to his case manager, asking her
to “verify that I have discussed with you problems with not receiving proper food for
my dietary need and that you have tried to communicate these to food service through
e-mail on two occasion[s] to Ms Phillips.” Id. at 112. Later that day, the case
manager responded, “We have spoke[n] about food issues several times. A hard copy
& e-mailed copy of kosher meal approval was sent to food service.” Id.
Chance sent another RTS to “Ms Phillips/Food Service” on June 3. Id. at 81.
Similar to his May 7 RTS, he asserted, “I know I was told by the chaplin [sic] that
you have 60 days to put me on kosher but this is a medical problem not just [a]
religious problem.” Id. at 82. He then added,
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[ODOC] has taken ever[y] penny from me for over four years[.][ 7] I can not buy my own food. I have been washing people’s stuff so I can have something to eat on most night[s]. . . . Can you please give me my kosher [diet] so I can have something to eat[?]
Id.
The next day, June 4, Roberts responded to Chance’s May 24 RTS. The
response stated that there was “[n]o order for diet in medical record” and told Chance
to discuss the issue at a medical appointment on June 11. Id. at 449.
On June 20, Chance formally grieved Phillips’s failure to respond to his May 7
and June 3 RTS’s. He asserted that he “signed for kosher [on] 4-19-19” but had not
yet received it. Id. at 83. He also asserted that his case manager and another person
(whose role is unknown) “have both sent numerous e-mail copies to Ms Phillips at
Food Service,” apparently referring to information about his dietary needs. Id. His
request for relief was: “allow me the dietary nutritions that are legally, and prescribed
to me.” Id.
The next day, June 21, Chance formally grieved Roberts’s June 4 response to
his May 24 RTS (i.e., the response telling him there was no diet prescription in his
medical record). He claimed, “I have had very little to eat for several months. . . .
I was approved for kosher on 4-19-19. I have had to find my own food.” Id. at 84.
Both of Chance’s grievances were received by the “Warden’s Office” within
four days of filing. See id. at 83, 84.
This accusation relates to Chance’s claim that he was being improperly 7
charged for medications, discussed below. 9 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 10
On July 12, Phillips responded to Chance’s May 7 and June 3 RTS’s. It is not
clear whether Chance’s June 20 grievance prompted this response. In any event,
Phillips simply wrote, “No response.” Id. at 79, 81.
On August 1, Warden McCoy responded to Chance’s June 20 grievance. She
repeated the language from the kosher request form stating that it can take up to sixty
days to begin receiving kosher meals. She also said that “[f]ood services verified on
8-1-19 that you have been receiving Kosher meals since 7-16-19.” Id. at 85.
On August 12, Chance appealed McCoy’s response to the ARA. He asserted
he had been receiving kosher meals since July 23, not July 16, and in any event,
“[t]his is after multiple staff member[s] requested that food service give me food that
I could eat. I went 97 days with out proper amounts of food to eat. I was not
supposed to . . . go more th[a]n 60 days.” Id. at 86. 8
On August 28, an ARA employee named Mark Knutson affirmed McCoy’s
response because, he said, Chance did not substantiate his appeal. Knutson then
announced that this disposition meant Chance had “satisfied the exhaustion of
administrative remedies.” Id. at 88.
As part of the Martinez report submitted in this lawsuit, ODOC included an
affidavit from Knutson. Knutson asserted that Chance exhausted his administrative
remedies as to his claim “regarding a prescribed Kosher diet.” R. vol. III at 22,
8 Chance’s claim of ninety-seven days appears to be a slightly miscalculated reference back to April 19 (ninety-five days earlier), which was the day the chaplain approved his kosher diet request. 10 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 11
¶¶ 7, 8. ODOC also submitted an affidavit from Cheri McCleave-Redpath, who is a
manager for the medical ARA. She stated that the medical ARA had not received a
grievance appeal from Chance as to any medical issue, including “a specific medical
diet.” Id. at 19, ¶ 5. Thus, Chance had “not exhausted his administrative remedy . . .
with respect to any medical issues.” Id. ¶ 7.
The district court said nothing about this apparent conflict. But it relied on
Knutson’s affidavit (without mentioning McCleave-Redpath’s) to find that the
“Administrative Review Authority agrees [Chance’s medical-diet] claim was
exhausted.” R. vol. IV at 58 n.2. The district court then ruled against Chance on the
merits.
3. Defendants’ Argument that Chance Did Not Exhaust Any Claim
As noted, defendants argue on appeal that Chance failed to exhaust all his
claims, which would necessarily include his medical-diet claim. If so, this could be
reason to affirm the district court’s disposition without reaching the merits. But
defendants do not frame this as an alternate argument for affirmance. They appear to
believe, rather, that the district court found lack of exhaustion on all claims.
See Aplee. Resp. Br. at 17 (“The District Court properly found that Appellant failed
to exhaust and, therefore . . . granted summary judgment.”). Even more oddly,
defendants support their argument that Chance “failed to exhaust his administrative
remedies as to any claim” by citing the McCleave-Redpath affidavit and the Knutson
affidavit, as if they say the same thing. Id.
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We choose not to take up defendants’ argument, even if intended as an
alternate basis on which to affirm. True, “[w]e may affirm on any ground adequately
presented to the district court,” Griffith v. Colo., Div. of Youth Servs., 17 F.3d 1323,
1328 (10th Cir. 1994), and we recognize that defendants argued complete failure of
exhaustion to the district court (including by citing the two affidavits, as if they
support each other, see R. vol. III at 235). But this argument fails on the
“adequately” part of “adequately presented.”
We simply do not know what to make of this situation: two state prison
employees giving the district court diametrically opposed opinions about whether a
prisoner exhausted his claim. We also cannot say, on this record, that Chance could
only properly exhaust his medical-diet claim through the medical ARA. McLeave-
Redpath only tells us that the claim was not exhausted through the medical ARA.
She does not say it had to be exhausted through the medical ARA. Knutson does not
say that either, and he would be the person we would expect to say so, if it were true
(e.g., “This claim could not be exhausted through the general ARA; Chance needed
to send it to the medical ARA.”).
Moreover, we do not deem it obvious that any grievance touching on a
medically needed diet must go to the medical ARA. Chance’s grievance paperwork
shows he was not asking to be prescribed a medical diet. He was asking that prison
food services provide him a medical diet that (he believed) he had already been
prescribed. We cannot say that Oklahoma’s prisoner grievance policy
12 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 13
unquestionably requires such a grievance—primarily directed at food services
personnel, not medical personnel—to be exhausted through the medical ARA.
In short, because defendants failed to develop the record, we will not further
consider the possibility of affirming the district court’s disposition of the medical-
diet claim on the alternate basis that Chance failed to exhaust that claim.
4. Merits Analysis
We now ask whether the district court properly granted summary judgment to
Phillips and Roberts on this claim, and properly dismissed for failure to state a claim
against McCoy.
The Eighth Amendment requires prison officials to “ensure that inmates
receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan,
511 U.S. 825, 832 (1994). A prisoner claiming a violation of this requirement must
show: (i) “the deprivation alleged [is], objectively, sufficiently serious”; and (ii) the
responsible official acted with “deliberate indifference to inmate health or safety.”
Id. at 834 (internal quotation marks omitted). Deliberate indifference means “the
official knows of and disregards 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.” Id.
at 837.
The district court found that Chance satisfied the first element (an objectively
sufficiently serious deprivation, i.e., starvation) but he failed to show a genuine
dispute of material fact about deliberate indifference. The court explained, “While
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there was a delay in Plaintiff’s receiving his medical diet, there is no evidence of
interference with the medical diet or that the delay was intentional.” R. vol. IV at 62.
Chance disputes this reasoning. He claims it is “not even remotely plausible”
that the prison “did not have any food that [he] could eat or no way of remedying this
issue for this extremely long period of time.” Aplt. Opening Br. at 19. In this light,
the question is if the record before the district court raised a genuine issue whether
Phillips or Roberts, or both, were deliberately indifferent to Chance’s lack of food,
and whether he plausibly pleaded McCoy’s liability in her role as warden. We will
discuss each defendant separately, beginning with Roberts. Cf. Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.”).
a. Roberts
As relevant to this claim, the only evidence Chance submitted about Roberts
was the May 24 RTS, where he asked, “Can you give me my Mediteranion [sic] diet
or something equivalent to that for my dietary needs[?]” R. vol. II at 449. There is
no hint here that Chance did not have enough to eat. Thus, Chance failed to raise a
genuine dispute about whether Roberts “kn[ew] of and disregard[ed] an excessive
risk to [Chance’s] health or safety.” Farmer, 511 U.S. at 837. We therefore affirm
the district court’s grant of summary judgment in Roberts’s favor on this claim.
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b. Phillips
Chance’s May 7 RTS to Phillips stated that a kosher diet was a medical need,
not just a religious request. In that light, Chance asked, in essence, if there was some
way the typical sixty-day lag to start receiving kosher meals could be shortened.
Then, in his June 3 RTS to Phillips, Chance repeated that his need for a kosher diet
was medical, not just religious, and he added, “I can not buy my own food. I have
been washing people’s stuff so I can have something to eat on most night[s].” R. vol.
II at 82. Phillips waited until July 12 to respond to both RTS’s, and then her
response was, “No response.” Id. at 79, 81. Finally, viewing the evidence in the
light most favorable to Chance, he started receiving kosher meals on July 23. 9
This evidence is enough to raise a genuine issue that Phillips knew Chance
was not receiving enough food for reasons beyond his control. Moreover, Phillips
has never argued that she lacked power to do anything about the situation. She
instead emphasizes a part of the record showing that Chance received supplemental
snacks.
The issue of snacks refers to documents in the Martinez report showing that
prison medical personnel had authorized Chance to receive one snack daily beginning
in June 2018 at the latest, increased to two snacks daily beginning on July 10, 2019
(shortly before he began receiving kosher meals). The district court recognized there
9 Our analysis of Phillips’s potential culpability does not turn on whether Chance started receiving kosher meals on July 23, as Chance claims, or on July 16, as reported in McCoy’s response to Chance’s grievance. 15 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 16
was a genuine dispute over the purpose of these snacks because Chance claimed they
had been authorized before his GERD diagnosis, on account of the large amount of
medication he takes.
Because the record supports Chance’s explanation, the court must accept it for
summary judgment purposes. Thus, the court must assume that Chance received
snacks for reasons other than difficulty in obtaining a kosher diet. Notably,
defendants offer no evidence that Phillips knew Chance was receiving snacks.
It is still conceivable that Chance’s snacks were enough to keep him
adequately fed, but Phillips does not argue as much and Chance’s contemporaneous
RTS’s say he was not receiving enough food. Moreover, any argument that Chance
happened to be receiving enough food from other sources would be an attack on the
district court’s finding that Chance’s need was “sufficiently serious and meets the
objective component of the deliberate indifference standard.” R. vol. IV at 62.
Phillips could have made this argument as an alternative basis to affirm, but if she
intended to, she has not supported it. Our own review of the record has not turned up
any support either (i.e., evidence from which a reasonable jury could only conclude
that the minimal amount Chance could eat from the regular prison menu, plus his
supplemental snacks, was enough to feed him properly). Accordingly, on this record,
the court must assume that Chance’s snacks were not prescribed to make up for his
limited ability to eat from the general prison menu, and, in any event, were not
enough to make up the shortfall.
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Phillips further argues that there was no evidence Chance had been prescribed
a Mediterranean diet or a kosher diet. We need not decide if we agree with Phillips’s
view of the evidence because Phillips has not explained to us why a formal
prescription would matter, at least when an inmate complains he cannot eat the food
served on the regular menu and has therefore been scrounging for food on his own.
Again, Phillips has not argued that she was powerless to act.
In sum, the record before the district court contained enough evidence to
reasonably infer that Phillips was deliberately indifferent to Chance’s lack of
adequate food. But that does not end the inquiry. Phillips also asserted (and
continues to assert) qualified immunity. This means Chance has the burden to
“demonstrate on the facts alleged both that [1] the defendant violated his
constitutional or statutory rights, and that [2] the right was clearly established at the
time of the alleged unlawful activity.” Riggins v. Goodman, 572 F.3d 1101, 1107
(10th Cir. 2009).
Chance’s allegations, if accepted by a factfinder, would be enough to show
that Phillips violated his Eighth Amendment right to adequate food in prison. The
question is whether the right was clearly established. “The law is clearly established
when a Supreme Court or Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that the right must be as
plaintiff maintains.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir.
2003). Usually, the relevant precedent “must be particularized to the facts.”
Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). But “general
17 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 18
precedents may clearly establish the law when the defendant’s conduct obviously
violates the law. Thus, a right is clearly established when a precedent involves
materially similar conduct or applies with obvious clarity to the conduct at issue.”
Id. (internal quotation marks, brackets, and citation omitted; emphasis removed).
Chance cites only general precedents about prison officials’ duty to adequately
feed prisoners (such as Farmer’s declaration that inmates must receive “adequate
food, clothing, shelter, and medical care,” 511 U.S. at 832), and he relies on the idea
of obviousness. In this circumstance, we are persuaded that he has fulfilled his
burden to show the right was clearly established. The general duty to feed prisoners
applies with obvious clarity when a prisoner complains he is not getting enough food
because his medical condition prevents him from eating almost everything on the
general prison menu. See, e.g., Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.
2002) (“A substantial deprivation of food may be sufficiently serious to state a
conditions of confinement claim under the Eighth Amendment.”). Put slightly
differently, as between allowing the prisoner to starve and finding medically suitable
food, we do not see how prison officials would have any room for doubt about their
obligation. Thus, on the limited record before the district court (i.e., the parties’
pre-discovery filings, plus the Martinez report), the district court incorrectly granted
summary judgment in Phillips’s favor on Chance’s medical-diet claim.
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c. McCoy 10
Through his grievance filed on June 21, 2019, Chance informed McCoy,
“I have had very little to eat for several months. . . . I have had to find my own
food.” R. vol. II at 84. The grievance also listed the employees from whom Chance
had sought relief, including Phillips. Chance pleaded that McCoy, in her role as
warden, had a duty to act when she received this information (no later than June 25).
But she did not address his grievance until August 1.
“Supervisors are only liable under § 1983 for their own culpable involvement
in the violation of a person’s constitutional rights.” Serna v. Colo. Dep’t of Corr.,
455 F.3d 1146, 1151 (10th Cir. 2006). As relevant here, Chance must show: (1) “the
supervisor’s subordinates violated the constitution”; and (2) “the active participation
or acquiescence of the supervisor in the constitutional violation by the subordinates.”
Chance satisfies the first element because we have concluded that his
allegations, if accepted, would be enough to demonstrate Phillips violated his Eighth
Amendment right to an adequate amount of food. As to the second element, we hold
10 As against McCoy, the district court dismissed Chance’s medical-diet claim under Rule 12(b)(6), so the question before us is whether Chance’s complaint “contain[ed] sufficient factual matter, accepted as true, to state a claim to relief [against McCoy] that is plausible on its face,” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). For these purposes, the documents Chance attached to his complaint are treated as part of the complaint. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991). 19 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 20
that Chance likewise has plausibly pleaded McCoy’s acquiescence to Phillips’s
inaction, given that McCoy waited over a month to respond.
As for qualified immunity, this strikes us as another instance of “obvious
clarity,” Apodaca, 864 F.3d at 1076 (internal quotation marks omitted; emphasis
removed), such that general precedents are enough to clearly establish the right. We
cannot see how a warden who learns that her subordinates are depriving an inmate of
adequate food could have any doubt about the need to take action. Indeed, this
circuit declared in 1976 that a supervisor may be held liable for acquiescing to a
subordinate’s constitutional violation. See Kite v. Kelley, 546 F.2d 334, 337
(10th Cir. 1976).
For these reasons, Chance stated a plausible claim to relief. The district court
therefore incorrectly dismissed Chance’s medical diet claim against McCoy.
B. Charging for Medicine
Chance pleaded that, for at least four years, prison officials wrongly charged
his inmate account for the cost of medicine prescribed to him, allegedly in violation
of prison policy. Chance characterized this as an equal protection violation. Chance
seems to have directed this claim at McCoy and perhaps Atkinson (who responded to
medical grievance appeals on behalf of ODOC).
The district court denied relief on the merits of this claim without discussing
whether Chance had exhausted it administratively. Then, after discussing a different
claim, the court returned to this claim and ruled that Chance had not exhausted it.
20 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 21
Because we agree the claim fails on the merits, we will not decide whether Chance
properly exhausted it. 11
The district court characterized Chance’s equal protection claim as a “class of
one” claim, and Chance does not dispute that. Such a claim requires the plaintiff to
demonstrate (1) “other similarly situated individuals were treated differently,” and
(2) “there is no rational basis for the different treatment.” A.M. ex rel. F.M. v.
Holmes, 830 F.3d 1123, 1167 (10th Cir. 2016) (internal quotation marks and brackets
omitted). “The requirement that a plaintiff show that similarly situated persons were
treated differently is especially important in class-of-one cases.” Jicarilla Apache
Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1212 (10th Cir. 2006) (internal quotation
marks omitted). “Accordingly, courts have imposed exacting burdens on plaintiffs to
demonstrate similarity in class-of-one cases.” Id. at 1213.
In his summary judgment briefing, Chance said his differential treatment
should be obvious by comparing his circumstances to the prison policies and
procedures that allegedly apply. But the question is not whether the prison failed to
follow its policies and procedures as to him. The question is whether it failed to
follow those policies and procedures only as to him. Chance did not offer any
relevant argument here, nor did he make a request that the district court defer
summary judgment so Chance could pursue discovery on this claim. See Fed. R. Civ.
11 We therefore do not reach Chance’s argument that Atkinson interfered with his ability to exhaust this claim when she issued him a warning for misuse of the grievance process. 21 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 22
P. 56(d). 12 Accordingly, we affirm the district court’s grant of summary judgment on
this claim. 13
C. Other Medical Claims
Chance pleaded that he did not receive adequate medical care for shoulder pain
and lymphedema. The district court ruled that Chance failed to exhaust his
administrative remedies as to these claims.
Chance’s appellate brief does not mention his claim based on shoulder pain, so
we deem him to have abandoned it. Chance’s only mention of lymphedema is a
reference to being “hospitalized for serious illness that was not properly treated.”
Aplt. Opening Br. at 27 (citing a motion filed with this court in April 2022, in which
he requested an injunction requiring defendants to treat his lymphedema). But
Chance raises this issue only to argue that the district court erred when it denied him
injunctive relief. Chance does not explain why the district court’s exhaustion
analysis was wrong. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366
(10th Cir. 2015) (“The first task of an appellant is to explain to us why the district
court’s decision was wrong. Recitation of a tale of apparent injustice may assist in
that task, but it cannot substitute for legal argument.”). Thus, we deem Chance to
Chance argued that discovery would prove lack of proper treatment for 12
many medical issues. See R. vol. III at 334. But assuming this was a proper Rule 56(d) request, it is not relevant to the question of differential treatment. 13 Given this disposition, we need not decide whether Chance adequately pleaded McCoy’s or Atkinson’s personal participation in the alleged constitutional violation. 22 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 23
have abandoned his lymphedema claim as well. We therefore affirm the district
court’s grant of summary judgment on these claims. 14
D. Interference with Legal Mail
For the first time on appeal, Chance alleges that his constitutional right of
access to the courts was interfered with because his legal mail was tampered with or
confiscated. He does not specify which of the defendants, if any, was responsible.
Regardless, Chance cannot plead a new cause of action for the first time in this court.
See, e.g., Petrini v. Howard, 918 F.2d 1482, 1483 n.4 (10th Cir. 1990) (“A federal
appellate court, as a general rule, will not reverse a judgment on the basis of issues
not presented below.”). So we will not further address this claim.
E. Procedural Rulings
Finally, we address Chance’s challenges to a number of procedural rulings.
1. Denial of Chance’s Motion for Appointment of Counsel
While defendants’ MTD/MSJ was pending, Chance moved for appointment of
counsel. The district court denied that motion because Chance showed he could
present his claims himself, and the legal issues were not complex. Chance argues
this was error.
“There is no constitutional right to appointed counsel in a civil case,” Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989), but “[t]he court may request an
14 We will not reach Chance’s arguments about injunctive relief because the issue is moot. As noted, Chance was discharged from prison in July 2022, so the district court cannot now enjoin defendants to meet his medical needs. See Wirsching, 360 F.3d at 1196. 23 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 24
attorney to represent any person unable to afford counsel,” 28 U.S.C. § 1915(e)(1).
“[T]he factors to be considered in deciding whether to appoint counsel[] includ[e] the
merits of the litigant’s claims, the nature of the factual issues raised in the claims, the
litigant’s ability to present his claims, and the complexity of the legal issues raised by
the claims.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (internal
quotation marks omitted). “We review the denial of appointment of counsel in a civil
case for an abuse of discretion,” id., although abuse of discretion in this context is
even more deferential than usual: “Only in those extreme cases where the lack of
counsel results in fundamental unfairness will the district court’s decision be
overturned,” McCarthy v. Weinberg, 753 F.2d 836, 839 (10th Cir. 1985).
The district court’s ruling did not result in fundamental unfairness, nor do we
see an abuse of discretion in any event. We therefore reject Chance’s challenge to
the district court’s ruling denying his motion for appointment of counsel. 15
2. Alleged Delay in Processing Chance’s Motion for Judgment on the Pleadings, Resulting in its Denial
Chance claims the U.S. Marshals served his complaint on defendants in mid-
January 2021 and defendants’ time to answer expired a few weeks later. So he
mailed a motion for judgment on the pleadings (which was, in substance, something
like a motion for default judgment) on February 26, 2021, but the district court did
not file it until May 20, 2021. In between those dates, defendants prepared and filed
We do not mean to foreclose the possibility of appointing counsel on 15
remand, if appropriate. 24 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 25
the Martinez report, and filed the MTD/MSJ (on May 11). Because defendants had
filed their motion by the time Chance’s motion for judgment on the pleadings was
docketed, the district court denied Chance’s motion, apparently as moot.
Chance seems to argue that the alleged delay robbed him of a chance to win
his case early, or at least to have his version of the facts deemed undisputed. But
whatever argument he means to present, the record does not support his claim that he
prepared and mailed his motion in February 2021. The law library supervisor, who
claims to have deposited the motion in the mail, says that he or she did so on May 17,
2021. See R. vol. III at 307. And in the motion itself, Chance claims he had not
received a copy of the Martinez report “as of May 17th, 2021.” Id. at 303.
Because the record contradicts Chance’s claim of a two-month delay between
the motion’s mailing and its filing, the court need not consider relief a party might be
entitled to in the alleged circumstances, if any.
3. Denial of Chance’s Motion to Supplement His Exhibits
A week after filing his response to the MTD/MSJ, Chance moved to
supplement his exhibits with a medical services request and an RTS complaining
about a recent policy change. Previously, the prison delivered his food directly to his
cell. After the policy change, however, he needed specific medical authorization for
such treatment (which he had apparently never received). Chance did not explain the
relevance of these documents.
The district court denied Chance’s motion because, in its opinion, the
documents did not relate to Chance’s existing claims (as opposed to a potential new
25 Appellate Case: 22-7008 Document: 010110778568 Date Filed: 12/07/2022 Page: 26
claim about the policy change). In this appeal, Chance argues that the documents
would have shown “a continuance of wrongs and further retaliatory acts.” Aplt.
Opening Br. at 28. We review for abuse of discretion. See Sports Racing Servs., Inc.
v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997) (noting that a
district court’s decision to admit or exclude evidence at summary judgment is
reviewed for abuse of discretion, “[l]ike other evidentiary rulings”).
As noted, Chance never explained to the district court the relevance of the
supplemental exhibits. Even if he had, the district court was well within its
discretion to conclude that the documents were not relevant to the issues raised in the
MTD/MSJ. We therefore reject Chance’s argument.
IV. CONCLUSION
We reverse the district court’s grant of summary judgment to Phillips, and its
dismissal of McCoy, on Chance’s medical-diet claim. As to all other issues, we
affirm. We remand for further proceedings consistent with this opinion. 16
Entered for the Court
Allison H. Eid Circuit Judge
16 This disposition does not foreclose the possibility that Phillips or McCoy, or both, may be entitled to summary judgment at the conclusion of discovery. 26