UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-40003
(Summary Calendar)
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CALVIN RAY HYDER,
Plaintiff-Appellant,
v.
PEREZ, Head Warden,
Defendant-Appellee.
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Appeal from the United States District Court for the
Southern District of Texas, Corpus Christi
(C-95-CV-608)
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April 29, 1996
Before WIENER, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Calvin Ray Hyder, a prisoner of the State of Texas, filed a
civil rights action pursuant to 28 U.S.C. § 1983 against Warden
Perez at the McConnell Unit in Beeville, Texas, asserting a
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
violation of his rights under the Eighth Amendment. Proceeding
in forma pauperis, Hyder alleged that he is being deprived of an
adequate amount of food, causing hunger pains, headaches,
decreased energy, weight loss, and emotional distress. The
district court dismissed Hyder’s claims as frivolous pursuant to
28 U.S.C. § 1915.
A petition brought by a claimant proceeding in forma
pauperis may be dismissed under Section 1915(d) if the district
court is satisfied that the case is frivolous or malicious.
Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995). On appeal we
review that determination for an abuse of discretion. Denton v.
Hernandez, 504 U.S. 25 (1992).
Hyder first contends that he is not receiving adequate food
to provide him with proper nutrition as required by the Eighth
Amendment and consent decree in Ruiz v. Estelle, 503 F.Supp. 1265
(S.D. Tex. 1980), aff’d in part and vacated in part, 679 F.2d
1115, amended in part and vacated in part, 688 F.2d 266 (5th Cir.
1982), cert. denied, 460 U.S. 1042 (1983). We agree, however,
with the trial court’s finding that Hyder’s contentions about the
quantity of food do not rise to the level of a constitutional
deprivation. The food described constituted nutritional items,
and Hyder’s claims that the quantities were inadequate lack an
arguable basis in law or fact, so dismissal under § 1915(d) was
proper.
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Hyder also argues that he was punished without a
disciplinary hearing and given food loaf, which was inadequate
and sometimes contaminated. He contends that the nonemergency
punishment, although temporary, violated due process.
"Because depriving a prisoner of adequate food is a form of
corporal punishment, the eighth amendment imposes limits on
prison officials' power to so deprive a prisoner." Cooper v.
Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1083 (5th Cir.
1991). The level of process due depends on the severity of the
sanction and the needs of the institution. Id. The district
court did not inquire concerning the circumstances of the food-
loaf restriction or address the issue in its order of dismissal.
Further, the district court did not request that Hyder
develop the facts concerning the contamination of the food loaf.
"The fact that the food occasionally contains foreign objects or
sometimes is served cold, while unpleasant, does not amount to a
constitutional deprivation." Hamm v. DeKalb County, 774 F.2d
1567, 1575 (11th Cir. 1985), cert. denied, 475 U.S. 1096 (1986).
However, Hyder alleged that the contamination consisted of grass,
plastic, or tar and that it occurred five out of 27 times.
Hyder's allegations are not "fanciful, fantastic, and
delusional." See Denton, 112 S. Ct. at 1733-34. The district
court should have provided a questionnaire or a Spears1 hearing
Spears v. McCotter, 766 F.2d 179, 182 (5th Cir. 1985).
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to assist Hyder in developing the allegations in his complaint.
The district court abused its discretion by dismissing the
complaint without any effort to allow Hyder to amend the due
process claim or the contaminated-food claim. Eason, 14 F.3d at
9.
The district court did not address Hyder's claim that the
decreased quantity of food was an act of retaliation by
officials. An inmate may not be retaliated against because he
exercises his right to access to the courts. Gibbs v. King, 779
F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117 (1986).
However, Hyder does not raise this issue on appeal, and it is
deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Accordingly, we AFFIRM the judgment of the district court
concerning the alleged Eighth Amendment deprivation of a
sufficient quantity of food and the retaliation claim. We VACATE
and REMAND for further proceedings the portion of the judgment
that dismissed as frivolous Hyder's due process claim and the
contaminated-food-loaf claim. Given this disposition, Hyder’s
motions for appointment of counsel and for production of evidence
are denied.
AFFIRMED in part; VACATED and REMANDED in part; motions
DENIED.
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