Case: 09-11050 Document: 00511259205 Page: 1 Date Filed: 10/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 11, 2010
No. 09-11050 Lyle W. Cayce
Clerk
KENDRICK D. GREEN,
Plaintiff–Appellant,
v.
HAROLD A. ATKINSON, Food Service MGR IV at Middleton Unit; HENRY
A. SCOTT, Food Service MGR III at Middleton Unit; WANDA G. GLADDEN,
Food Service MGR III at Middleton Unit; WARDEN T. A. MOYA, Middleton
Unit; ASSISTANT WARDEN J. S. PRINGLE, Middleton Unit,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:
Kendrick D. Green, Texas prisoner #1041383, filed suit under 42 U.S.C.
§ 1983 against food service employees, the warden, and the assistant warden of
the prison where he is an inmate, alleging that the defendants failed to screen
inmates’ food for foreign objects. The district court dismissed the suit pursuant
to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). The standard
of review for dismissal of a complaint as frivolous under 28 U.S.C.
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§ 1915(e)(2)(B)(i) is abuse of discretion.1 The standard of review for dismissals
under 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii) is de novo.2 We
therefore review the case de novo,3 taking the facts alleged in the complaint as
true and viewing them in the light most favorable to Green.4
While chewing cornbread in the prison cafeteria, Green “felt a loud crunch
in [his] mouth followed by excruciating pain.” Green had broken a tooth on a
metal nut in the cornbread, and his mouth filled with blood. While Green was
waiting to be treated by the prison dentist, defendant Food Service Captain
Atkinson placed blame for the foreign object in the cornbread on the producers
of the cornbread mix. Atkinson also admitted that “it[’]s happened before” and
that there was “nothing they [could] do about it.” Despite his placing blame on
“production,” Atkinson instructed another guard to check all the kitchen
equipment to “be sure nothing was missing” from it. The prison dentist, who
repaired the tooth with a permanent filling the next day, told Green that he was
lucky because the damage could have been greater.
Green alleged that the defendants were deliberately indifferent to his and
the other inmates’ health and safety in the preparation of food. He alleged that
this deliberate indifference caused Green’s painful injury and thereby violated
the Eighth Amendment’s prohibition against cruel and unusual punishment.5
Green’s deliberate indifference claim relied solely upon Atkinson’s statement
that such incidents had “happened before,” and that “they”—viewed in a light
most favorable to Green, the prison officials—could not do anything about it.
1
Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003) (per curiam).
2
Id.; Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998) (per curiam).
3
Velasquez, 329 F.3d at 421.
4
See Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per curiam).
5
See Farmer v. Brennan, 511 U.S. 825, 834-37 (1994).
2
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No. 09-11050
Because the complaint did not detail any other instances of foreign objects in the
prison’s food or of foreign objects in food harming any other inmate, the district
court determined that Green failed to state a claim on which relief could be
granted. The district court did not conduct a Spears6 hearing or otherwise grant
Green the opportunity to develop further the facts of his claim.
Green argues on appeal that his complaint stated a claim for relief because
it alleged a history of similar occurrences at the prison. As he did in the district
court, he claims here that the prison officials had a constitutional responsibility
to screen the food before serving it. His claims rely solely upon Atkinson’s
admission that foreign objects had been found before in the food mixes and that
nothing could be done about it.
The district court erred in dismissing the suit for failure to state a
nonfrivolous claim without permitting Green to develop further the factual basis
for it. Green’s allegations, “if developed by a questionnaire or in a Spears dialog,
might have presented a nonfrivolous section 1983 claim.”7 To establish an
Eighth Amendment violation of cruel and unusual punishment, a
prisoner–plaintiff must show that a state actor acted with deliberate
indifference—knowing disregard—to a substantial risk of serious harm to an
inmate.8 A single incident of food poisoning or finding a foreign object in food
does not constitute a violation of the constitutional rights of the prisoner
affected.9 Evidence of frequent or regular injurious incidents of foreign objects
in food, on the other hand, raises what otherwise might be merely isolated
6
Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), abrogated on other grounds
by Neitzke v. Williams, 490 U.S. 319, 324 (1989).
7
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
8
Farmer, 511 U.S. at 834-37.
9
Hyder v. Perez, No. 96-40003, 1996 WL 255243, at *1 (5th Cir. April 29, 1996)
(unpublished) (per curiam); George v. King, 837 F.2d 705, 707 (5th Cir. 1988).
3
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negligent behavior to the level of a constitutional violation.10 Green’s allegation
concerning Atkinson’s statement suggests that a questionnaire or Spears
hearing would “bring into focus the factual and legal bases of [the prisoner’s]
claims.” 11
With respect to the other defendants, however, Green’s complaint included
no facts to show a plausible claim that they knowingly disregarded a substantial
risk that an inmate could be injured by a foreign object in his food. Nothing in
the complaint suggested that anyone but Atkinson was aware that objects were
found previously in the prison’s food. Nor did anything in the complaint suggest
that the insufficient allegations against the remaining defendants might be
remedied by a Spears hearing or the filing of a more definite statement.12
* * *
Accordingly, the judgment dismissing Green’s claim against Atkinson is
VACATED and REMANDED. The judgment dismissing the remaining
defendants is AFFIRMED.
10
See George, 837 F.2d at 707.
11
Eason, 14 F.3d at 9 (quoting Spears, 766 F.2d at 181).
12
Id. at 9, 10 (distinguishing nonfrivolous claims, which should have been further
developed in a Spears hearing, from those that are “pure fantasy or based upon a legally
inarguable proposition,” which may be dismissed without giving the plaintiff an opportunity
to further develop the factual allegations).
4