FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD P. FOSTER, No. 06-15719
Plaintiff-Appellant,
v. D.C. No.
CV-03-01113-DFL
D.L. RUNNELS,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Submitted December 12, 2008*
San Francisco, California
Filed February 5, 2009
Before: Robert E. Cowen,** Sidney R. Thomas and
Richard A. Paez, Circuit Judges.
Opinion by Judge Cowen
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
1321
1324 FOSTER v. RUNNELS
COUNSEL
Megan R. O’Carroll, Esq., and Constance L. Picciano, Esq.,
Office of the California Attorney General, Sacramento, Cali-
fornia, for the appellee.
Ronald P. Foster, SVSP, Salinas Valley State Prison, Soledad,
California, for the appellant, pro se.
OPINION
COWEN, Circuit Judge:
Ronald Foster, pro se, appeals the order of the District
Court for the Eastern District of California granting summary
judgment to Defendant Sandra Cole on Foster’s 42 U.S.C.
§ 1983 claim. Foster claims that his Eighth Amendment right
to be free from cruel and unusual punishment was violated
when Cole deprived him of 16 meals over a 23 day period.
The District Court granted summary judgment on the grounds
that Cole was entitled to qualified immunity because the con-
stitutional right was not clearly established at the time of the
alleged violation such that it would have been clear to a rea-
sonable officer that her conduct was unlawful.
For the reasons set forth below, we conclude that Cole is
not entitled to qualified immunity. On the basis of the evi-
dence presented, a jury could find that Foster suffered a suffi-
ciently serious deprivation and that Cole was deliberately
indifferent to the obvious risk of harm. In addition, it is
clearly established under the Eighth Amendment that prison
FOSTER v. RUNNELS 1325
officials are obligated to provide inmates with nutritionally
adequate meals on a regular basis. Consequently summary
judgment on Foster’s § 1983 claim is inappropriate. The Dis-
trict Court’s order will be reversed and the case remanded for
further proceedings.
I.
During the summer of 2001, while Foster was an inmate at
the High Desert State Prison (“HDSP”) in Susanville, Califor-
nia, there was a rash of inmate assaults on prison staff in
Facility C where Foster was housed. A number of the inci-
dents occurred as prison staff attempted to handcuff inmates
through the food/cuff port in the cell doors. Several handmade
weapons were also confiscated from inmates’ cells. None of
these incidents were attributed to Foster.
As a result of these incidents, Facility C was on lockdown.
When the HDSP is on lockdown, inmates are not permitted to
leave their cells, even for meals. Prison staff is responsible for
distributing meals to the inmates in their cells. The food is
received through the food/cuff ports in the cell doors.
In February 2001, HDSP Warden R. L. Runnels issued a
memorandum to prison staff in an attempt to crack down on
inmates displaying pornography in their cells. Warden Run-
nels had observed that in violation of prison security policy,
inmates were covering with paper the windows that allowed
prison staff to look into their cells. The memo stated that the
cell windows, which ensure the safety and security of prison
staff, as well as the inmates, could not be covered at any time.
On July 27, 2001, the sergeants and lieutenants in Facility
C issued a memo regarding the obstruction of the windows in
inmates’ cells in light of the recent incidents on the ward. The
memo stated that before the food/cuff port could be opened,
the bright light in the inmate’s cell must be turned on and any-
thing covering the front or rear windows of the cell must be
1326 FOSTER v. RUNNELS
removed. Any inmate who failed to comply with these rules
forfeited participation in the current activity, including receiv-
ing food at meal times.
Corrections Officer Sandra Cole was frequently responsible
for distributing meals to the inmates while Facility C was on
lockdown. On July 21, July 28, and one other occasion in July
or August, Cole did not provide Foster with either breakfast
or lunch. Foster maintains that Cole also denied him breakfast
and lunch on July 22, July 29, August 4, August 5, August 11,
and August 12.
Cole maintains that on each occasion, the windows of Fos-
ter’s cell were covered with paper. She maintains that she
instructed Foster to remove the paper from the windows, but
that Foster refused to comply. Cole claims that she was
unable to see into Foster’s cell well enough to safely open the
food/cuff port. Foster, however, maintains that there was only
paper in the back window of his cell. Foster alleges that Cole
could see into his cell and that she could have safely fed him.
No other guard required Foster to remove the paper from his
window nor refused to feed him on account of its presence.
On September 12, 2001, Warden Runnels issued a staff
memo regarding the feeding of inmates whose windows were
covered during a lockdown. The memo was intended to cor-
rect the actions of prison staff who had “taken it upon them-
selves to not feed inmates based upon the belief that any type
of window covering presents a security risk.” (ER 185.) The
warden did not expect staff to open the food/cuff port when
inmates did not have the bright light on, the front windows
were covered, or the staff member “feels that there is a sub-
stantial risk to safety.” Id. However, the warden instructed
that prison staff was not to construe the memo as “permission
to not feed the inmates.” Id. Rather, the memo instructed that
when a staff member determined that there was a substantial
risk to safety, the inmate should be instructed to remove any
covering from the window or turn on the cell lights. If the
FOSTER v. RUNNELS 1327
inmate refused to comply, the staff member should continue
feeding the rest of the inmates and then immediately notify a
supervisor. The supervisor was required to evaluate the situa-
tion and take the necessary action to ensure that inmates were
fed. The warden stressed that “inmates ARE to be fed when
it is safe to do so”; security concerns could only temporarily
suspend the feeding of an inmate. (ER 186.)
Foster maintains that even after Warden Runnels’ memo,
Cole refused to feed him on October 31, 2002, and then again
on January 2, 2003. Foster maintains that he lost 15 lbs. in
July and August of 2001. Foster’s testimony and medical
records, however, suggest that he may have actually lost 13
lbs. between June 2001 and October 2001.
On May 19, 2003, Foster filed a complaint in the District
Court for the Eastern District of California alleging violations
of his Eighth Amendment rights under 42 U.S.C. § 1983. In
an Amended Complaint, Foster alleged that Warden Runnels
and Corrections Officer Cole violated his Eighth Amendment
rights by denying him food and showers as punishment for his
failure to remove paper from his cell windows. Runnels and
Cole moved for summary judgment.
A Magistrate Judge recommended that summary judgment
be granted in favor of Warden Runnels as he had no involve-
ment in Cole’s decisions to withhold Foster’s meals. The
Magistrate Judge also recommended that summary judgment
be granted in favor of Cole on Foster’s denial of showers
claim because no Eighth Amendment violation had been
established. Finally, the Magistrate Judge found that Foster
had established an Eighth Amendment violation on his denial
of meals claim and that Cole was not entitled to qualified
immunity.
The District Court accepted the Magistrate Judge’s recom-
mendations as to Warden Runnels and Foster’s denial of
shower claim. The District Court however found that Cole
1328 FOSTER v. RUNNELS
was entitled to qualified immunity because the constitutional
right in question was not clearly established. Foster has only
appealed the District Court’s finding that Cole is entitled to
qualified immunity.
II.
This court has jurisdiction pursuant to 28 U.S.C. § 1291
and we review de novo a district court’s decision to grant
summary judgment based on qualified immunity. Galen v.
County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).
Viewing the evidence in the light most favorable to the non-
moving party, we determine whether there are any genuine
issues of material fact that must be resolved at trial, and
whether the district court correctly applied the relevant sub-
stantive law. Pardi v. Kaiser Found. Hosps., 389 F.3d 840,
848 (9th Cir. 2004). Summary judgment may be affirmed on
any ground supported by the record, even if not relied upon
by the District Court. Id.
Foster argues that the District Court erred in concluding
that Cole was entitled to qualified immunity. Qualified immu-
nity is “an entitlement not to stand trial or face the other bur-
dens of litigation,” which, in certain circumstances, shields
government officials from civil liability for actions taken in
the course of their duties. Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). For an official to be immune from suit, the court
must find that the official’s conduct has not violated any
“clearly established” constitutional right “of which a reason-
able person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
The qualified immunity analysis breaks down into a two-
part inquiry. The threshold question is whether the alleged
facts show that the official’s conduct violated a constitutional
right. Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no consti-
tutional right would have been violated were the allegations
established, there is no necessity for further inquiries concern-
FOSTER v. RUNNELS 1329
ing qualified immunity.” Id. If, however, the allegations
establish that a constitutional right has been violated, the next
question is whether the violated right was “clearly estab-
lished.” Id. This inquiry “must be undertaken in light of the
specific context of the case,” and not as a “broad general
proposition.” Id.
A. Violation of a Constitutional Right
[1] Foster maintains that Cole violated his Eighth Amend-
ment right to be free from cruel and unusual punishment by
denying him meals when Facility C was on lockdown because
he would not remove paper that was covering the rear window
of his cell. The Eighth Amendment’s prohibition against cruel
and unusual punishment imposes duties on prison officials to
“provide humane conditions of confinement.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994). “[P]rison officials must
ensure that inmates receive adequate food, clothing, shelter,
and medical care.” Id.
[2] Establishing a violation of the Eighth Amendment
requires a two-part showing. First, an inmate must objectively
show that he was deprived of something “sufficiently seri-
ous.” Farmer, 511 U.S. at 834. A deprivation is sufficiently
serious when the prison official’s act or omission results “in
the denial of ‘the minimal civilized measure of life’s necessi-
ties.’ ” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). The inmate must then make a subjective showing that
the deprivation occurred with deliberate indifference to the
inmate’s health or safety. Id. (citing Wilson v. Seiter, 501 U.S.
294, 302-03 (1991)).
(1) Sufficiently Serious Deprivation
[3] The deprivation that Foster alleges is the repeated
denial of meals over a 23-day period in July and August,
2001. It is undisputed that between July 21 and August 12,
Cole did not serve Foster breakfast or lunch on three occa-
1330 FOSTER v. RUNNELS
sions and Foster alleges that he was denied breakfast and
lunch on at least five other days. In total, Foster claims that
he was denied 16 meals in 23 days.1 This is a sufficiently seri-
ous deprivation because food is one of life’s basic necessities.
Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996)
(“Adequate food is a basic human need protected by the
Eighth Amendment.”).2
Relying on Rodriguez v. Briley, 403 F.3d 952 (7th Cir.
2005) and Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998), Cole
argues that the denial of meals is not a serious deprivation
within the meaning of the Eighth Amendment if the denials
are a result of the inmate’s personal choice not to comply with
simple prerequisites to obtaining meals. Cole asserts that
when an inmate refuses to comply with simple instructions, he
effectively controls his ability to receive the meal. Because
the inmate is in control, according to Cole, the Eighth Amend-
ment is not implicated.
In Rodriguez, the Seventh Circuit found no Eighth Amend-
ment violation where an inmate was denied meals and show-
ers for refusing to comply with a prison rule. The rule
required inmates to store certain belongings in storage boxes
and forbade them from leaving their cells unless the items
1
Foster also claims to have been denied meals by Cole on October 31,
2002, and on January 2, 2003. These relatively isolated occurrences do not
appear to rise to the level of a constitutional violation.
2
Although food is a basic human need, the Eighth Amendment “requires
only that prisoners receive food that is adequate to maintain health.”
LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). The record con-
tains no evidence of the nutritional value of the prison meals or whether
one meal could provide Foster with sufficient calories and nutrients to sus-
tain him for an entire day. Foster alleges that he lost weight during the
period in which he was denied meals and that he suffered headaches and
dizziness as a result of inadequate nutrition. Because all inferences must
be drawn in Foster’s favor, it should be presumed that the meals Foster
was provided were inadequate to maintain health and that he has suffered
a cognizable harm under the Eighth Amendment.
FOSTER v. RUNNELS 1331
were in the boxes. 403 F.3d at 952. Because the inmate
refused to put his belongings in his storage box, he was not
permitted to leave his cell for meals or showers. The Seventh
Circuit held that “deliberate noncompliance with a valid rule
does not convert the consequences that flow automatically
from that noncompliance into punishment.” Id. at 952-53.
Rather than being unjustly punished by the prison, the Sev-
enth Circuit found that the inmate “punished himself” by fail-
ing to comply with a reasonable condition, which resulted in
the inmate missing out on meals and showers. Id. at 953.
Similarly in Talib, the Fifth Circuit found no Eighth
Amendment violation where an inmate was denied meals
because he refused to comply with in-cell feeding measures.
Prison regulations required inmates to kneel facing the wall
with their hands behind their backs when meals were served
in the inmates’ cells during a lockdown. 138 F.3d at 214. The
inmate was denied approximately fifty meals over a span of
five months because he would not assume the proper position.
Id. at 212. The Fifth Circuit concluded that the prison policy
was “reasonably related” to the prison officials’ “legitimate
penological interest” in having the inmates assume a non-
threatening position during in-cell feeding. Id. at 214. The
prison guard responsible for serving the meals was justified in
requiring the inmate to assume the mandated position; the
inmate chose not to comply and consequently chose to forfeit
his meals. Id. at 215-16. As this was the inmate’s “personal
decision,” no violation of the Eighth Amendment had been
established. Id. at 216.
[4] However, in both Rodriguez and Talib, it was uncon-
tested that the inmates had violated an established prison pol-
icy. In this case, although there is no doubt that the HDSP had
an institutional policy prohibiting inmates from covering their
cell windows or that requiring an unobstructed view into an
inmate’s cell serves a legitimate penological interest, Foster
has presented evidence that his conduct did not interfere with
staff safety during in-cell feeding. Foster admits that his back
1332 FOSTER v. RUNNELS
window was covered, but he claims that nothing obstructed
the view into his cell through the front window.3 Although
there may be “a difference between using food deprivation as
a punishment and establishing a reasonable condition to the
receipt of food,” Freeman v. Berge, 441 F.3d 543, 545 (7th
Cir. 2006), Cole has not established how removing the paper
from the rear window of a cell is a reasonable condition on
the receipt of food. Nor has she explained how Foster’s fail-
ure to remove the paper from his cell’s back window jeopar-
dized her safety or security during in-cell feeding.4 Drawing
the factual inferences in Foster’s favor, Cole’s denial of food
can constitute an unjustified and unnecessarily punitive
response to a rules violation.
[5] The sustained deprivation of food can be cruel and
unusual punishment when it results in pain without any peno-
logical purpose. Phelps v. Kapnolas, 308 F.3d 180, 187 (2d
Cir. 2002). In the same way that an inmate relies on prison
officials to provide appropriate medical care, see Estelle v.
Gamble, 429 U.S. 97 (1976), and protection from assaults by
other inmates, see Farmer v. Brennan, 511 U.S. 825 (1994),
inmates rely on prison officials to provide them with adequate
sustenance on a daily basis. The repeated and unjustified fail-
ure to do so amounts to a serious depravation.
(2) Deliberate Indifference
[6] To establish a prison official’s deliberate indifference,
an inmate must show that the official was aware of a risk to
the inmate’s health or safety and that the official deliberately
3
Foster’s own statement that his front window was not covered is sup-
ported by the written declarations of two other inmates.
4
The record contains no information on the layout and configuration of
the cells in Facility C. A more detailed description of the cells may explain
why it was necessary that both the front and back windows be uncovered
in order for prison staff to safely open the food/cuff port. However, on the
current record, there is no obvious penological interest in having a cell’s
back window free from obstruction.
FOSTER v. RUNNELS 1333
disregarded the risk. Johnson v. Lewis, 217 F.3d 726, 734 (9th
Cir. 2000). Although an inmate is required to show awareness
of the risk, “a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842. “[I]f an inmate presents
evidence of very obvious and blatant circumstances indicating
that the prison official knew the risk existed, then it is proper
to infer that the official must have known [of the risk].” Sim-
mons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998) (internal
quotation marks omitted).
[7] The risk that an inmate might suffer harm as a result of
the repeated denial of meals is obvious. On the basis of Fos-
ter’s evidence that Cole refused to provide him with meals on
numerous occasions and took no alternative measures to
ensure that he was fed, a jury could infer that Cole deliber-
ately disregarded Foster’s need for adequate nutrition. See
Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002). This
risk is “sufficiently obvious” to create a question of fact as to
whether Cole displayed deliberate indifference to a substantial
risk of harm. Reed v. McBride, 178 F.3d 849, 854 (7th Cir.
1999).
[8] Accordingly, Foster has established a violation of his
Eighth Amendment rights sufficient to withstand summary
judgment. He has presented evidence that would allow a jury
to conclude that with deliberate disregard for his health and
safety, Cole repeatedly deprived him of one of life’s basic
necessities, and thereby wantonly inflicted on him unneces-
sary pain and punishment.5
5
This conclusion, that the deliberate and unnecessary withholding of
food essential to maintain normal health can violate the Eighth Amend-
ment, is well supported by case law. See Phelps v. Kapnolas, 308 F.3d
180, 187 (2d Cir. 2002) (reversing dismissal of inmate’s Eighth Amend-
ment claim because inmate had alleged that his restricted diet was nutri-
tionally inadequate and was wantonly inflicting pain without penological
justification); Reed v. McBride, 178 F.3d 849, 853-56 (7th Cir. 1999)
1334 FOSTER v. RUNNELS
B. Clearly Established Right
[9] The District Court found that Cole was entitled to quali-
fied immunity because the Eighth Amendment right to ade-
quate food was not clearly established such that it would be
clear to a reasonable corrections officer that her conduct was
unlawful. A right is “clearly established” when its contours
are sufficiently defined, such that “a reasonable official would
understand that what he is doing violates that right.” Wilson
v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). If the law does not “put
the officer on notice that his conduct would be clearly unlaw-
ful, summary judgment based on qualified immunity is appro-
priate.” Saucier v. Katz, 533 U.S. 194, 202 (2001). If,
however, the court finds that a reasonable official would have
known that the alleged conduct was in violation of a clearly
established constitutional right, then immunity is forfeited.
[10] There is no question that an inmate’s Eighth Amend-
ment right to adequate food is clearly established. See Far-
(reversing grant of summary judgment on inmate’s Eighth Amendment
claim because the alleged deprivation of food was sufficiently serious and
prison officials’ deliberate indifference was obvious); Simmons v. Cook,
154 F.3d 805, 807-09 (8th Cir. 1998) (affirming Eighth Amendment viola-
tion where inmates were deprived of four consecutive meals); Robles v.
Coughlin, 725 F.2d 12, 16 (2d Cir. 1983) (finding that allegations of depri-
vation of meals and contaminated food were sufficient to withstand dis-
missal of inmate’s Eighth Amendment claim); Cunningham v. Jones, 567
F.2d 653, 660 (6th Cir. 1977) (remanding for consideration of whether one
meal per day was adequate or whether withholding two meals a day
deprived the inmate of food sufficient to maintain normal health); Dear-
man v. Woodson, 429 F.2 1288, 1290 (10th Cir. 1970) (reversing dismissal
of inmate’s Eighth Amendment claim because inmate’s allegations of sus-
tained food deprivation were sufficient to state a cause of action); Wil-
liams v. Coughlin, 875 F. Supp. 1004, 1015 (W.D.N.Y. 1995) (denying
summary judgment to prison officials on inmate’s Eighth Amendment
claim because withholding inmate’s food was a sufficiently serious depri-
vation); Moss v. Ward, 450 F. Supp. 591, 596-97 (W.D.N.Y. 1978) (find-
ing an Eighth Amendment violation where an inmate’s food was withheld
because inmate refused to return a cup in violation of prison rules).
FOSTER v. RUNNELS 1335
mer, 511 U.S. at 832; Keenan, 83 F.3d at 1091. A reasonable
corrections officer should know that when an inmate can be
fed without risk to the prison officer’s safety—as is assumed
to be the case here—the prison official cannot arbitrarily deny
an inmate his meals. See Cal. Code Regs. tit. 15, § 3050(a)(2)
(2000) (requiring that inmates “shall be provided three meals
a day, two of which shall be served hot”). A reasonable offi-
cer should know that to do so could violate the inmate’s
Eighth Amendment rights by imposing punishment without
penological justification.
Cole nevertheless argues that her actions were reasonable
and that because there is no Ninth Circuit authority on point,
she had no way of knowing that her conduct was unlawful.
These arguments are unavailing. “[T]he law may be clearly
established even if there is no case directly on point . . . . It
is enough if ‘in the light of pre-existing law the unlawfulness
is apparent.’ ” Inouye v. Kemna, 504 F.3d 705, 715 (9th Cir.
2007) (quoting Wilson, 526 U.S. at 615). See also Morgan v.
Morgensen, 465 F.3d 1041, 1046 (9th Cir. 2006) (finding an
inmate’s Eighth Amendment right to be clearly established
despite a split in authority among the circuits).
[11] The decisions from this Circuit and others alerting
prison officials of their obligations to provide inmates with
nutritionally adequate meals on a regular basis should have
given Cole sufficient notice of the contours of the Eighth
Amendment right. Cole cannot seek shelter in the reasonable-
ness of her actions on the basis of the July 27 memo outlining
the in-cell feeding policy for Facility C. See Cooper v. Sheriff,
929 F.2d 1078, 1083 (5th Cir. 1991) (“The mere existence of
. . . a regulation is not an automatic shield against a civil
rights suit.”). Indeed, the memo issued by the HDSP warden
on September 12 suggests that forfeiture of meals or an activ-
ity for failing to remove coverings from all windows was
never an official HDSP policy, but rather a measure temporar-
ily implemented in Facility C. Furthermore, Cole’s conduct
was not reasonable because she took no other action to ensure
1336 FOSTER v. RUNNELS
that her obligation to provide Foster with meals was met.
Consequently, she is not entitled to qualified immunity.
III.
[12] For the reasons set forth above, the order of the Dis-
trict Court granting summary judgment to Cole on the
grounds of qualified immunity is REVERSED and the case
REMANDED for further proceedings.