IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41179
WILLIE BERRY, JR.,
Plaintiff-Appellant,
versus
JOSEPH BRADY, Individually and in his
Official Capacity as a Correctional Officer,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Texas
October 8, 1999
Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Willie Berry, Jr. (Berry), a prisoner
incarcerated at the Stiles Unit of the Texas Department of Criminal
Justice, Institutional Division, filed this pro se, in forma
pauperis (IFP) action under 42 U.S.C. § 1983 against defendant-
appellee Joseph Brady (Brady), a correctional officer at the Stiles
Unit. Berry alleged that Brady subjected him to cruel and unusual
punishment in violation of the Eighth Amendment by denying him
eight meals over a seven-month period and denying him visitation
privileges with his mother on one occasion, violated his Fourteenth
Amendment due process rights by improperly punishing him for
refusing to shave, and subjected him to unconstitutional
retaliation for exercising his First Amendment rights by writing
letters to an assistant warden and a judge about his punishment.
The magistrate judge dismissed Berry’s section 1983 claims as
frivolous and for failing to state a claim upon which relief may be
granted. Berry now appeals. We affirm.
Factual and Procedural History
Pursuant to 28 U.S.C. § 636(c), Berry consented to have his
case proceed before a magistrate judge who conducted a Spears
inquiry into the facts underlying Berry’s complaint. See Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985). The magistrate judge
interviewed Berry to clarify the bases of his claims. In the
Spears interview, Berry stated Brady denied Berry entry into the
dining hall on eight occasions1 for refusing to shave and, then,
denied him a substitute sack meal. Berry’s Spears hearing
testimony reflects that he did not suffer weight loss or any other
physical harm or adverse health effects from missing the meals,
although he did assert having had “hunger spells” until breakfast
the next morning. Berry further contends that he was denied
visitation privileges with his mother on October 13, 1996, again,
for not being clean-shaven.
Berry argues that Brady subjected him to cruel and unusual
punishment in violation of his Eighth Amendment rights by refusing
1
Berry claimed that these incidents occurred on June 1, 1996,
August 20-25, 1996, and December 27, 1996.
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to permit him admittance to the dining hall for the evening meal on
eight occasions over a seven-month span. Brady would not permit
Berry to attend these meals because on each occasion Berry had
refused to shave—a requirement of all inmates at the Stiles Unit.
Berry also alleges that Brady violated Berry’s Fourteenth Amendment
due process rights by punishing him when he was in fact exempted
from the clean-shaven requirement for medical reasons. Berry
stated that the true reason for Brady’s not permitting him to
attend the evening meals and to visit his mother was retaliation
for Berry’s having—some time after October 6, 1996—written letters
to Assistant Warden Williams and Judge Don Floyd, complaining of
Brady’s treatment.2
Following the Spears hearing, the magistrate judge dismissed
Berry’s complaint as frivolous and for failing to state a claim.
In the alternative, the magistrate judge ruled that even if Berry
had presented cognizable constitutional claims, he was barred from
recovery under 42 U.S.C. § 1997e(e), which requires proof of a
physical injury for the recovery of emotional or mental damages.
In response, Berry filed a combined “objection to the memorandum
opinion and a request for reconsideration.” The magistrate judge
treated Berry’s objection as a Rule 59(e) motion to alter or amend
judgment. See Fed R. Civ. P. 59(e). The magistrate judge denied
2
Although it is, at best, highly doubtful that Berry raised an
arguable, non-frivolous retaliation claim, that claim has not been
briefed on appeal and, therefore, has been abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Therefore, we need
not examine whether the magistrate judge properly dismissed Berry’s
retaliation claim.
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the motion, because it failed to allege any new facts or assert any
different legal argument.
Discussion
A prisoner’s complaint against a governmental entity or an
officer or employee of a governmental entity may be dismissed as
frivolous, malicious, or for failing to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915A(b). Dismissal of an
IFP complaint on similar grounds is likewise authorized by 28
U.S.C. § 1915(e)(2)(B)(i) & (ii). A complaint is frivolous “if it
lacks an arguable basis in law or fact.” Talib v. Gilley, 138 F.3d
211, 213 (5th Cir. 1998). “A complaint lacks an arguable basis in
law if it is based on an indisputably meritless legal theory, such
as if the complaint alleges the violation of a legal interest which
clearly does not exist.” Harpers v. Showers, 174 F.3d 716, 718
(5th Cir. 1999). “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.”
Talib, 138 F.3d at 213. This Court reviews dismissals as frivolous
for an abuse of discretion. See id. However, a dismissal for
failure to state a claim upon which relief may be granted is
reviewed de novo. See Black v. Warren, 134 F.3d 732, 734 (5th Cir.
1998). This Court may affirm on any basis supported by the record.
See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
To aid in the determination of whether an IFP complaint is
frivolous or fails to state a claim, this Court has approved the
use of an evidentiary hearing or questionnaires. See Spears, 766
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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). We must consider Berry’s response to the Spears
inquiry in evaluating his claims under section 1915.
I. Eighth Amendment Claims
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, 107 S.Ct. 2254,
2259, 96 L.Ed.2d 64 (1987). “These protections specifically
include the Eighth Amendment’s prohibition against cruel and
unusual punishment.” Talib, 138 F.3d at 213. “Punishment rises
to the level of cruel and unusual only if it involves an
‘unnecessary and wanton infliction of pain.’” Id. at 214 (quoting
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 50 L.Ed.2d
251 (1976) (internal quotations omitted)). To establish an Eighth
Amendment claim, the prisoner must demonstrate, inter alia, an
objective component of conditions so serious as to deprive him of
the minimal measure of life’s necessities, as when denied some
basic human need. Harper, 174 F.3d at 720. Berry’s Eighth
Amendment claims fail to meet this requirement.
A. The Eighth Amendment requires that inmates be provided
“‘well-balanced meal[s], containing sufficient nutritional value to
preserve health.’” Green v. Ferrell, 801 F.2d 765, 770 (5th Cir.
1986) (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.
1977)) (footnote omitted); see also Eason v. Thaler, 73 F.3d 1322,
1327 (5th Cir. 1996) (per curiam) (“To comply with the
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Constitution, inmates must receive ‘reasonably adequate’ food.”).
“The deprivation of food constitutes cruel and unusual punishment
only if it denies a prisoner the ‘minimal civilized measure of
life’s necessities.’” Talib, 138 F.3d at 214 n.3 (quoting Wilson
v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271
(1991)) (internal quotations omitted). “Whether the deprivation of
food falls below this threshold depends on the amount and duration
of the deprivation.” Id. Even on a regular, permanent basis, two
meals a day may be adequate. Green, 801 F.2d at 770-71.
In Talib, we held doubts that Talib, who “missed about fifty
meals in five months and lost about fifteen pounds,” met this
threshold. Talib, 138 F.3d at 214 n.3. We do not hesitate in
concluding that Berry was not denied anything close to a “minimal
measure of life’s necessities.” Id. Berry has not alleged any
specific physical harm, other than hunger pains. Neither has Berry
claimed that he lost weight or suffered other adverse physical
effects or was denied a nutritionally and calorically adequate
diet, nor has he alleged having his health put at risk. Therefore,
his allegations do not rise to the level of an Eighth Amendment
violation. The magistrate judge properly dismissed Berry’s section
1983 claim for missing eight meals as frivolous and for failure to
state a claim upon which relief may be granted.
B. Berry also alleged that prohibiting him from visiting with
his mother on one occasion amounts to cruel and unusual punishment
in violation of the Eighth Amendment. We conclude that Berry has
failed to present a cognizable claim on the denial of a visitation
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session. This Court has repeatedly held that for convicted
prisoners “[v]isitation privileges are a matter subject to the
discretion of prison officials.” McCray v. Sullivan, 509 F.2d
1332, 1334 (5th Cir. 1975); see also Thorne v. James, 765 F.2d
1270, 1273 (5th Cir. 1985). Berry has no constitutional right to
visitation privileges. See McCray, 509 F.2d at 1334. Accordingly,
the magistrate judge properly dismissed Berry’s section 1983 claim
based on the denial of a visit with his mother as both frivolous
and for failure to state a claim upon which relief may be granted.
III. Due Process Claim
Berry alleged that Brady violated his rights to due process
under the Fourteenth Amendment by punishing him without adhering to
relevant prison policies and procedures. The magistrate judge
properly dismissed Berry’s due process claim.
The application of the Fourteenth Amendment’s due process
clause has been narrowed considerably in the prison context. As
this Court has noted, “[a]fter Sandin v. Connner, [515] U.S. [472],
115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), prisoners may no longer
peruse state statutes and prison regulations searching for the
grail of limited discretion.” Orellana v. Kyle, 65 F.3d 29, 31
(5th Cir. 1995) (per curiam). In Sandin, the Court noted:
“that States may under certain circumstances create
liberty interests which are protected by the Due Process
Clause. But these interests will be generally limited to
freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of
prison life.” Sandin, 515 U.S. at 483-84, 115 S.Ct. at
2300 (internal citations omitted).
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Sandin itself involved a thirty-day period of disciplinary
segregation, “a severe form of prison discipline,” yet ruled that
such discipline did not rise to the level required to support a due
process claim. Orellana, 65 F.3d at 31. “Few other incident of
prison life involve such a level of deprivation as disciplinary
segregation.” Id. The asserted “punishments” endured by Berry do
not rise to the level of “atypical and significant hardship[s] . .
. in relation to the ordinary incidents of prison life.” Sandin,
515 U.S. at 484, 115 S.Ct. at 2300. The denial of one visitation
session and eight meals over a seven-month period without an
allegation that he did not receive a minimally nutritionally
adequate diet are insufficient to implicate a liberty interest.
The magistrate judge properly dismissed Berry’s due process claims
as frivolous and for failing to state a claim upon which relief may
be granted.
Conclusion
As Berry’s allegations were frivolous and failed to state a
claim upon which relief may be granted, we need not address whether
42 U.S.C. § 1997e(e) barred his claims. For the reasons stated,
the judgment below is
AFFIRMED.
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