UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7679
LEE O. WILSON, JR.,
Plaintiff - Appellant,
v.
GENE M. JOHNSON, Director of VDOC; J.S. GARMAN, Warden of
St. Brides C.C.; V.S. ESCALAR, Food Service Supervisor;
DAVID ROBINSON, Regional Director; GARY BASS, Supervisor
(C.C.S.); WENDELL W. PIXLEY, Warden; MS. TAYLOR, TPS;
COURTNEY SCHERER, Institutional Ombudsman; S. RIDDICK,
Institutional Ombudsman; MARK ENGELKE, Head of Food Service;
WENDY BROWN, Court and Legal Supervisor,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:09-cv-00334-LMB-TRJ)
Submitted: June 8, 2010 Decided: June 25, 2010
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Lee O. Wilson, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lee O. Wilson appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C.
§ 1915A(b) (2006). We have reviewed the record and, while we
find that the dismissal of Wilson’s claim that he was served
inadequate food portions was premature, we find no reversible
error as to the remainder of the district court’s opinion.
Accordingly, with the exception of the claim concerning the
adequacy of the food, we affirm for the reasons stated by the
district court. Wilson v. Johnson, No. 1:09-cv-00334-LMB-TRJ
(E.D. Va. Aug. 26, 2009).
As to the adequacy of the food claim, Wilson alleged
that the food service staff at the St. Brides Correctional
Center was not providing food portions according to the Federal
Standards. He contends that the “minute portions” allotted are
well below the 2750 to 3000 calories required. Wilson asserted
that in one month — between December 10, 2008, and January 13,
2009 — he lost twelve pounds, reducing his weight from 217
pounds to 205 pounds.
A pro se litigant’s complaint should not be dismissed
unless it appears beyond doubt that the litigant can prove no
set of facts in support of his claim that would entitle him to
relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
2
Allegations of inadequate food for human nutritional needs or
unsanitary food service facilities are sufficient to state a
cognizable constitutional claim, see Bolding v. Holshouser, 575
F.2d 461 (4th Cir. 1978), so long as the deprivation is serious
and the defendant is deliberately indifferent to the need.
Wilson v. Seiter, 501 U.S. 294 (1991). Here, the basis of
Wilson’s complaint is that the prison serves inadequate food
portions and that he suffered physically by losing weight and
experiencing stress as a result of being underfed on a daily
basis.
We find that, liberally construing Wilson’s complaint,
these allegations are sufficient to survive the initial review
under § 1915A. See De’Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003); see also Berry v. Brady, 192 F.3d 504, 508 (5th Cir.
1999) (suggesting that, to state Eighth Amendment claim inmate
must allege “he lost weight or suffered other adverse physical
effects or was denied a nutritionally and calorically adequate
diet”); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992)
(holding that prisoners have the right to nutritionally adequate
food); Rust v. Grammer, 858 F.2d 411, 414 (8th Cir. 1988) (diet
without fruits and vegetables might violate Eighth Amendment if
it were regular prison diet). Because Wilson may be able to
prove sufficient facts to support his Eighth Amendment claim,
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Gordon, 574 F.2d at 1151, we conclude that dismissal of this
claim prior to a response from the Defendants was premature. *
We therefore vacate the district court’s dismissal of
Wilson’s inadequate food claim and remand this case to the
district court for further proceedings. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
*
We express no opinion as to the ultimate disposition of
this claim.
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