IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10083
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HARUN NASSOR TALIB,
Plaintiff-Appellant,
versus
GILLEY, Sgt.; LESLIE WOODS, Warden;
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE - INSTITUTIONAL DIVISION,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Texas
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April 15, 1998
Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Harum Nassor Talib is a former Texas state prisoner. He
appeals the dismissal of his section 1983 civil rights claim as
frivolous. Talib argues that the defendants subjected him to cruel
and unusual punishment in violation of his Eighth Amendment rights
by withholding his meals on approximately fifty occasions over a
five-month span while he was confined to his cell during lockdown
periods as a result of gang-related violence. Sergeant Gilley, a
female prison guard, would not serve Talib these meals in his cell
when he refused to kneel down with his hands behind his back before
being served--a measure to assure the guard’s safety. Talib
alleges that, as a result of missing these meals, he lost fifteen
pounds. He sued Sergeant Gilley, Warden Leslie Woods, and the
Texas Department of Criminal Justice - Institutional Division
(“TDCJ-ID”) under 42 U.S.C. § 1983, seeking $1.25 million in
compensatory damages. The district court determined that Sergeant
Gilley’s instructions were consistent with prison regulations that,
in turn, were reasonably related to a legitimate penological
interest. The district court accordingly dismissed Talib’s
complaint as frivolous. We affirm.
I
Talib obtained permission from the district court to proceed
in forma pauperis (“IFP”).1 The case was assigned to a magistrate
judge to conduct a Spears inquiry into the facts underlying Talib’s
complaint. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
The magistrate judge issued Talib a questionnaire to clarify the
basis of Talib’s claim. On the questionnaire, Talib stated that
his diet on lockdown was inadequate because some meals were
withheld and because the sandwiches he was served contained “Vita-
Pro” (a soy-based food supplement used occasionally as a meat
substitute in Texas prisons), which he refused to eat.2 Talib
1
Talib argues that he was not proceeding IFP because he paid
the full filing fee. The record, however, reveals that, although
he paid the full fee on appeal, he did not do so in the action
below.
2
Although it is highly doubtful that Talib raised any
arguable, non-frivolous issues regarding Vita-Pro, the claim has in
any event been abandoned on this appeal. See Yohey v. Collins, 985
2
further conceded that the non-Vita-Pro meals he received were
nutritionally and calorically adequate. The magistrate judge found
that Talib failed to allege facts showing that his diet was
nutritionally or calorically deficient and concluded that the
regulation requiring prisoners to kneel facing the wall with their
hands behind their backs before feeding was reasonably related to
a legitimate penological interest. He thus recommended dismissing
the complaint as frivolous under 28 U.S.C. § 1915. After an
independent review of the record, the district court adopted the
magistrate judge’s report.
II
An IFP complaint may be dismissed as frivolous if it lacks an
arguable basis in law or fact. See 28 U.S.C. § 1915(e)(2)(B)(i);
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). A complaint lacks
an arguable basis in law if it is based on an indisputably
meritless legal theory. See Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997). A complaint lacks an arguable basis in fact if,
after providing the plaintiff the opportunity to present additional
facts when necessary, the facts alleged are clearly baseless. See
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). This Court reviews
dismissals as frivolous for an abuse of discretion. Id.
F.2d 222, 224-25 (5th Cir. 1993). Thus, we need not examine
whether the district court abused its discretion in dismissing
Talib’s Vita-Pro claims.
3
To aid in the determination of whether an IFP complaint is
frivolous, this court has approved the use of questionnaires or an
evidentiary hearing. See Spears, 766 F.2d at 181-82. Responses to
such an inquiry become part of the plaintiff’s pleadings. See
Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). “This inquiry
perforce involves focusing precisely on a prisoner’s factual
allegations, puncturing the conclusion balloon in which they may at
first be lodged.” Spears, 766 F.2d at 181. We must therefore
consider Talib’s responses to the Spears inquiry in evaluating his
claim under section 1915.
III
As a preliminary matter, we may quickly dispose of Talib’s
claims against TDCJ-ID. As an instrumentality of the state, the
TDCJ-ID is immune from a suit for money damages under the Eleventh
Amendment. See Harris v. Angelina County, Texas, 31 F.3d 331, 337-
38 n.7 (5th Cir. 1994). Therefore, Talib’s claims against the
TDCJ-ID are barred by the Eleventh Amendment. The district court
did not abuse its discretion in dismissing Talib’s claims against
the TDCJ-ID. We thus turn to the merits of Talib’s Eighth
Amendment claim.
IV
A
We begin by recognizing that “[p]rison walls do not form a
barrier separating prison inmates from the protections of the
Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). These
4
protections specifically include the Eighth Amendment’s prohibition
against cruel and unusual punishment. See Whitley v. Albers, 475
U.S. 312, 318 (1986). Punishment rises to the level of cruel and
unusual only if it involves an “‘unnecessary and wanton infliction
of pain.’” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)). No static test exists
that measures whether conditions of confinement are cruel and
unusual, for the Eighth Amendment draws its meaning from the
“evolving standards of decency that mark the progress of a maturing
society.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quotations
omitted).3
3
We assume, but not without some hesitation, that Talib has
alleged a harm cognizable under the Eighth Amendment. The
deprivation of food constitutes cruel and unusual punishment only
if it denies a prisoner the “‘minimal civilized measure of life’s
necessities.’” See Wilson v. Seiter, 501 U.S. 294, 298 (1991)
(quoting Rhodes, 452 U.S. at 347). Whether the deprivation of food
falls below this threshhold depends on the amount and duration of
the deprivation. Talib alleges that he missed about fifty meals in
five months and lost about fifteen pounds. Missing a mere one out
of every nine meals is hardly more than that missed by many
working citizens over the same period. We are therefore doubtful
that Talib was denied anything close to a minimal measure of life’s
necessities.
Our decision in Cooper v. Sheriff, Lubbock County, Texas, 929
F.2d 1078 (1991), requires no less. There, Cooper, a prisoner,
alleged that prison officials refused to feed him any food for
twelve consecutive days. Given the clearly substantial nature of
this deprivation, the court held that “Cooper’s assertion that he
was continuously deprived of food presents a set of facts that may
entitle him to relief.” Id. at 1083 (emphasis added). Talib, on
the other hand, has not alleged a continuous and substantial denial
of food, nor does the record support such an inference. Thus, the
unique circumstances controlling the Cooper case--the complete
deprivation of food over an extended period of time--are simply not
present in this case.
5
At the same time, however, “[t]he legitimacy, and the
necessity, of considering the State’s interests in prison safety
and security are well established.” Washington v. Harper, 494 U.S.
210, 223 (1990). Experience has shown that “courts are ill
equipped to deal with the increasingly urgent problems of prison
administration and reform.” Procunier v. Martinez, 416 U.S. 396,
405 (1974). “Prison administrators are responsible for maintaining
internal order and discipline, for securing their institutions
against unauthorized access or escape, and for rehabilitating, to
the extent that human nature and inadequate resources allow, the
inmates placed in their custody.” Id. at 404. In recognition of
these interests, courts will uphold a prison regulation claimed to
infringe a prisoner’s constitutional rights if it is “reasonably
related to legitimate penological interests.” Turner v. Safley,
482 U.S. 78, 89 (1987).
B
The prison regulation at issue here requires prisoners being
served meals in their cells while on lockdown status to face the
wall and get on their knees with their hands behind their backs.
The district court concluded that the regulation was reasonably
related to legitimate penological interests. We agree. Talib and
other prisoners placed on lockdown typically include the most
dangerous and violent prisoners in the prison system. See, e.g.,
Lewis v. Casey, 116 S.Ct. 2174, 2185 (1996). Indeed, the record
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suggests that Talib and other prisoners were on lockdown because of
gang-related violence.
Whether getting down and sliding the meals under a closed
door, or setting them in the cell through an open door, prison
officials have a legitimate penological interest in having these
prisoners assume a non-threatening position. In either case,
prison officials could be vulnerable to assault by prisoners
incited by extended confinement during lockdown. General security
and the safety of prison officials is, of course, a legitimate if
not elementary penological interest. Washington, 494 U.S. at 225
(“There are few cases in which the State’s interest in combating
the danger posed by a person to himself and others is greater than
in a prison environment, which, ‘by definition,’ is made up of
persons with ‘a demonstrated proclivity for antisocial criminal,
and often violent, conduct.’”). We will not hamper the ability of
prison officials “to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
administration” by subjecting the day-to-day judgments of prison
officials to intrusive second-guessing. See Turner, 482 U.S. at
89. Sergeant Gilley, a female prison guard responsible for serving
meals to prisoners on lockdown, was justified in requiring Talib to
kneel with his hands behind his back before serving him his meal.4
4
Of course, prison officials are not required to adopt the
policy “least restrictive” of prisoners’ rights, so long as the
policy adopted is itself reasonable. See Turner, 482 U.S. at 90.
In this regard, Cooper v. Sheriff, Lubbock County, Texas, 929
7
C
Talib argues that no such policy exists because the prison has
not provided him with any written regulation requiring prisoners to
assume the kneeled position for feeding. Talib’s argument has no
merit inasmuch as the validity of prison policies is not dependent
on whether they are written or verbal. A policy is a policy--the
question is simply whether the record supports a finding that a
policy exists. Here, the record contains many grievances filed by
Talib complaining about his meals being withheld. Nearly every
F.2d 1078 (5th Cir. 1991), is again inapposite. It involved a
prison regulation requiring inmates to be “fully dressed” before
their meals could be served. See id. at 1082. Inmate Cooper was
denied food when he refused to comply with the prison policy and
sued prison officials alleging a violation of the Eighth Amendment.
The district court dismissed the complaint for failure to state a
claim. It found that Cooper’s deprivation of needed food was not
the intention of prison officials, but a result of his “voluntary”
rejection of those meals. See id. Rejecting this position, we
held that the validity of an Eighth Amendment claim did not depend
on whether prison officials specifically intended the alleged harm.
See id. at 1083; accord Farmer v. Brennen, 114 S.Ct. 1970, 1981
(1994) (establishing deliberate indifference standard). Thus, the
Cooper case merely reaffirmed the “traditional eighth amendment
standard” that “unnecessary and wanton” infliction of punishment is
enough to state a claim. Cooper, 929 F.2d at 1083. Because the
district court failed to consider “whether the [prison] officials
acted within the scope of the regulation and whether the regulation
was valid,” and no evidence of the regulation appeared in the
record, we concluded that “summary dismissal of Cooper’s claim was
premature.” Id. at 1084. Cooper never addressed (indeed, it
refused to address) whether the regulation in question was
reasonably related to a legitimate penological interest, but
obviously expected the district court to consider the matter on
remand. Had the district court done so in the first place, the
result in Cooper may well have been different. Here, by contrast,
Talib challenges a prison policy that is, on its face, reasonably
related to a legitimate penological interest. Cooper, therefore,
has no application to this case.
8
grievance, representing complaints made throughout the five-month
period in question, contains a typed response, signed by the warden
or her authorized agent, affirming the existence of the prison
policy. The warden’s responses further explained that the policy
was enacted pursuant to TDCJ-ID Administrative Directive 3.31
(March 7, 1991), which is also part of the record and gives the
warden discretion to establish meal restrictions during lockdowns.
The grievance responses and AD 3.31 are sufficient evidence of a
valid policy.
Finally, even if the policy were not clearly established, such
a requirment is unnecessary in this case. Whether dealing with the
actions of an individual prison official or a regulation with
prison-wide applicability, we employ the same standard to determine
whether a prisoner’s constitutional rights have been violated. See
Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989). Thus, for
the same reasons that we believe a policy requiring prisoners on
lockdown to kneel facing the wall with their hands behind their
backs when served meals is reasonably related to a legitimate
penological interest, the action of an individual guard requiring
such conduct is likewise constitutionally permissible.
V
Courts repeatedly remind prisoners that the Constitution does
not mandate prisons with comfortable surroundings or commodious
conditions. See Rhodes, 452 U.S. at 349. We do so again today.
Given the ease with which Talib could have complied with reasonable
9
prison regulations, he in a very real sense “carrie[d] the keys” to
the kitchen cupboard. See Uphaus v. Wyman, 360 U.S. 72, 81 (1959).
He chose not to unlock it, and it is not for the federal courts to
intervene in his personal decision. For the reasons stated above,
the judgment of the district court is
A F F I R M E D.
10