Laventure v. Aramark Correctional Services, Inc. , 76 F. App'x 870 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 20 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CARL G. LAVENTURE,
Plaintiff-Appellant,
and No. 02-3299
(D.C. No. 99-CV-3281-MLB)
JASON SMITH, (D. Kan.)
Plaintiff,
v.
ARAMARK CORRECTIONAL
SERVICES, INC.; JOE NEUBAUER,
CEO; DAN JAMESON, Vice
President; JOHN WANNENBURG,
Vice President; BONNY O’NEAL,
Regional Recruiter; GEORGE
VAUGHN, Regional Manager; MIKE
KROLL, Food Service Director;
M. GUSTER, Food Service Director;
GUS HARBOR, Assistant Food
Service Director; (FNU) ROGERS,
Assistant Food Service Director;
J. SIEBERT, Assistant Food Service
Director; CHARLES SIMMONS,
Secretary of Corrections; LOUIS
BRUCE, Deputy Secretary of
Corrections; WILLIAM L.
CUMMINGS, Secretary of
Corrections Designee; LEONARD L.
EWELL, Director of Administration,
Kansas Correctional Industries;
ROBERT D. HANNIGAN, Warden,
Hutchinson Correctional Facility;
STEVE DECHANT, Deputy Warden
of Programs; CARL
CUSHINBERRY, Warden’s
Assistant; CAROLYN BEIER-WIER,
Unit Team Supervisor; M.
VANHOOSE, R. RODRIGUEZ,
B. KIDD, P. JAMES,
M.D. HUGGINS, DIRK A. MOSS,
ROBERT W. GARWOOD,
T. WILLIAMS, GENE RIEMAN,
ALAN HUNGERFORD, RONALD E.
HICKS, C. E. RUDICELL, DON
MOORE, DENNIS HOWARD,
MICHELE BLACKMON, DEBRA K.
MACCONAGHY, K. I. ANDERSON,
A. (NMI) PEREZ, JEFFREY COON,
and PAUL WILSON, HCF Unit Team
Members; JON GRAVES, HCF
Attorney; and KANSAS
DEPARTMENT OF
CORRECTIONS,
Defendants-Appellees.
ORDER AND JUDGMENT
Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
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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not binding precedent, except under the doctrines of law of the case, res judicata,
or 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.
I.
Appellant Carl G. LaVenture, a Kansas inmate appearing pro se, brought
this action under 42 U.S.C. § 1983 for himself, and on behalf of inmate Jason
Smith, alleging multiple violations of the inmates’ constitutional rights stemming
from the use by defendant Aramark Correctional Services Inc. (Aramark) of
inmate labor to prepare and serve food. Aramark is a food service business that
has contracted with the Kansas Department of Corrections to provide food to
Kansas inmates. The thrust of plaintiffs’ complaint is that they were forced to
work for Aramark on several occasions, and that neither of them was paid a
minimum wage for the work that they performed. Plaintiffs requested (1) a court
order that the Internal Revenue Service, the Department of Labor, and the
Department of Justice investigate all defendants; (2) back pay; (3) compensatory
damages of $100,000.00 from each defendant; (4) punitive damages of twenty
million dollars; and (5) prosecution of each defendant under a variety of state and
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federal criminal statutes. The district court granted defendants’ motion for
summary judgment on July 19, 2002, leading to this appeal.
II.
We review the grant of summary judgment de novo, applying the same
standard the district court applied under Federal Rule 56(c). Chambers v. Colo.
Dep’t of Corr., 205 F.3d 1237, 1241 (10th Cir. 2000). Summary judgment is
warranted “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the 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). “An issue of fact is
‘material’ if under the substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
“[A]n issue of material fact is genuine only if the nonmovant presents facts such
that a reasonable jury could find in favor of the nonmovant.” Simms v. Okla.
ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326
(10th Cir. 1999). If the movant carries the initial burden of a prima facie
demonstration of the absence of a genuine issue of material fact and entitlement
to judgment as a matter of law, the nonmovant must “go beyond the pleadings and
‘set forth specific facts’ that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d
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at 671 (quoting Fed. R. Civ. P. 56(e)). As always, we construe pro se pleadings
liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III.
At the outset, we address appellees’ contention that this court should not
consider Jason Smith as a proper appellant because he did not file a notice of
appeal or opening brief in this case. See Aplee. Br. (State of Kansas) at 2 n.1.
A notice of appeal must “specify the party or parties taking the appeal by naming
each one in the caption or body of the notice” of appeal. Fed. R. App. P.
3(c)(1)(A). The notice of appeal here listed “Carl G. LaVenture, et al.” in the
caption and was signed only by LaVenture. While Rule 3(c)(1)(A) allows
attorneys representing more than one party to describe the parties by using a term
such as “et al.,” it does not make a similar allowance for pro se appellants. Rule
3(c)(4) does, however, provide that “[a]n appeal must not be dismissed
for . . . failure to name a party whose intent to appeal is otherwise clear from
the notice.”
In addition to specifying the party or parties taking the appeal, the notice of
appeal must be signed. “The governing Federal Rules direct that the notice of
appeal, like other papers filed in the district court, shall be signed by counsel or,
if the party is unrepresented, by the party himself.” Becker v. Montgomery , 532
U.S. 757, 760 (2001). Rule 3(c)(2) permits a pro se appellant to sign on his own
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behalf as well as that of his spouse and his minor children if they were parties to
the underlying action. Because Jason Smith is neither the spouse nor the minor
child of Carl LaVenture, LaVenture’s signature on the notice of appeal is not
sufficient to satisfy the requirement that the notice of appeal be signed by the
party taking the appeal. None of the documents filed in this case indicate an
intent by Jason Smith to appeal and the notice of appeal is signed only by Carl
LaVenture. Accordingly, we conclude that Jason Smith is not a party to this
appeal. 1
IV.
As to LaVenture’s appeal, we find his arguments without merit. After
review of the entire record in this case, we agree with the district court that
defendants were entitled to summary judgment because LaVenture had not shown
that his constitutional rights have been violated or that he was otherwise entitled
to minimum wage for his work with Aramark. Accordingly, for substantially the
1
In his reply brief, appellant LaVenture has also requested that fifteen of
the named defendants be dismissed from the case. That request is granted.
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same reasons set forth in the district court’s order dated July 19, 2002, the
judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
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