Meyers v. Thomas, et al.
Filing
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ORDER DISMISSING 1 Complaint as Frivolous signed by Magistrate Judge Gerald B. Cohn on 6/6/2011. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EVERETT MEYERS,
1:10-cv-01338-GBC (PC)
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Plaintiff,
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ORDER DISMISSING COMPLAINT AS
FRIVOLOUS
v.
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THOMAS, et. al.,
(Doc. 1)
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Defendants.
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/
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I.
SCREENING ORDER
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Everett Meyers (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on July 26,
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2010 which is before the Court at this time.
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A.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
Screening Requirement
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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon
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which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in
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support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467
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U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt
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Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this
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standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg.
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Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most
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favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395
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U.S. 411, 421 (1969).
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B.
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While as a prisoner at Kern Valley State Prison in Delano, California, Plaintiff’s sole
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complaint is that “Defendants Thomas, Junious, Davega and Smith have intentionally and
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maliciously instituted an out-dated system in serving inmate meals which has caused Plaintiff to eat
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“cold” breakfast and dinner meals [thus] violating [Plaintiff’s Eighth and Fourteenth] constitutional
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rights.” (Doc. 1 at 3). Plaintiff seeks $1,500,000.00 in punitive and compensatory damages.
Plaintiff’s Complaint and Analysis
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“The Eighth Amendment requires only that prisoners receive food that is adequate to
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maintain health; it need not be tasty or aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444,
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1456 (9th Cir. 1993). The Court finds that Plaintiff’s claim regarding the prison serving cold food
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does not rise to the level of constitutional proportions, fails to state a claim and is frivolous. See
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LeMaire v. Maass, 12 F.3d 1444, 1456 (“The fact that the food occasionally contains foreign objects
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or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.” );
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see also Brown-El v. Delo, 969 F.2d 644, 649 (8th Cir. 1992) (“[Plaintiff’s] claim that his
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constitutional rights were violated when he was served cold food is frivolous”); Ramos v. Lamm, 639
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F.2d 559, 571 (10th Cir. 1980) (finding that there is no constitutional right to hot meals).
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II.
CONCLUSION
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For the reasons set forth above, Plaintiff’s amended complaint is dismissed with prejudice
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as frivolous and for failure to state a claim. Based on the foregoing, it is HEREBY ORDERED that:
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1.
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Plaintiff’s complaint is dismissed WITH PREJUDICE for failure to state a claim and
as frivolous;
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2.
The Clerk’s Office shall close the case.
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IT IS SO ORDERED.
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Dated:
0jh02o
June 6, 2011
UNITED STATES MAGISTRATE JUDGE
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