Frazier v. Department of Correc

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 1 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk

ALPHONSO DWANE FRAZIER, SR.,

Plaintiff-Appellant,
v. No. 97-2086
DEPARTMENT OF CORRECTIONS; (D.C. No. 96-CV-1499)
JOE WILLIAMS, Warden; (D. N.M.)
CORRECTIONS MEDICAL SERVICES;
TERRY DUKES, Administration;
CATHY RUTIN, Acting D.O.N; SCOTT
GRETCHEN, Dietician,

Defendants-Appellants.

ORDER AND JUDGMENT*

Before BALDOCK, McKAY, and LUCERO, Circuit Judges.**

*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. 34.1.9. The cause is
therefore ordered submitted without oral argument.
 Plaintiff Alphonso Dwane Frazier, Sr., proceeding pro se and in forma pauperis,

appeals the district court’s dismissal of his civil rights action pursuant to 28 U.S.C. §

1915(e)(2) and Fed. R. Civ. P. 12(b)(6). In his brief, Plaintiff argues that officials at

the Central New Mexico Correctional Facility violated his Eighth Amendment rights by

not providing him with a special diabetic diet. Our jurisdiction arises under 28 U.S.C. §

1291. We affirm.

The Eighth Amendment requires that inmates be allowed access to necessary

medical care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The amendment’s mandate

requires officials to provide inmates with a special diet if such an accommodation is

medically necessary. See Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983). However,

“[I]nmates have no constitutional right to have their food selected and placed on a tray for

them.” Gonzales v. Story, 83 F.3d 431, 1996 WL 194741, at *2 (10th Cir. 1996)

(unpublished). Plaintiff does not contend that he is unable to eat any of the food provided

by the correctional facility. Indeed, Plaintiff admits that he is able to eat certain items on

the facility’s menu. Plaintiff’s actual complaint appears to be that the prison menu does

not provide him with a variety of foods to choose from.

“The [E]ighth [A]mendment assures prisoners a medically and nutritionally sound

diet; it does not guarantee a pleasant culinary experience.” Jackson v. Hanlon, 923 F.2d

856, 1991 WL 3056, at *1 (7th Cir. 1991) (unpublished). Plaintiff’s dissatisfaction with

the menu at the Central New Mexico Correctional Facility is not sufficient to support his

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Eighth Amendment claim. Accordingly, the judgment of the district court is

AFFIRMED.

Entered for the Court,

Bobby R. Baldock
Circuit Judge

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