Moore v. Richerson et al, No. 2:2019cv00156 - Document 18 (N.D. Tex. 2022)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING CIVIL-RIGHTS COMPLAINT: For the reasons set forth above and pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2) and 42 U.S.C. § 1997e(a), the Court ORDERS Plaintiff's Complaint filed pursuant to 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE. (Ordered by Judge Matthew J. Kacsmaryk on 6/21/2022) (nht)

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Moore v. Richerson et al Doc. 18 Case 2:19-cv-00156-Z-BR Document 18 Filed 06/21/22 Page 1 of 3 PageID 70 U.S. DISTRICT COURT NORTHERN DISTRICT OF TEXAS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION RALPH EDWARD MOORE, Plaintiff, V. KENDALL RICHERSON, et al., Defendants. § § § § § § § § § l FILED JUN 2 1 20'l2 ] CLERK, U.S. DISTRICT COURT By,-,,,~~~--- 2: 19-CV-156-Z-BR MEMORANDUM OPINION AND ORDER DISMISSING CIVIL-RIGHTS COMPLAINT Before the Court is Plaintiff's civil-rights Complaint (ECF No. 3) brought under 42 U.S.C. § 1983, filed on July 25, 2019. Plaintiff filed suit prose while incarcerated in the Texas Department of Criminal Justice ("TDCJ"), Correctional Institutions Division. The Court granted Plaintiff permission to proceed in forma pauperis. ECF No. 8. For the reasons discussed herein, the Court DISMISSES Plaintiff's Complaint WITH PREJUDICE. FACTUAL BACKGROUND Plaintiff asserts that on February 9, 2019, Defendant Hart was distributing food. See ECF No. 3 at 4. Plaintiff claims Defendants Tovar and Richerson gave Defendant Hart permission to "smash" Plaintiff's sandwich with his foot/boot to allow Plaintiff's food to pass through the cell door, thereby contaminating the food. Id. Plaintiff argues his smashed sandwich gave him food poisoning. Id. Plaintiff claims his TDCJ unit was on lockdown at the time of the incident. Id. LEGAL STANDARD When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is Dockets.Justia.com Case 2:19-cv-00156-Z-BR Document 18 Filed 06/21/22 Page 2 of 3 PageID 71 frivolous, 1 malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A, 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(l). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480,483 n.4 (5th Cir. 1991). 2 ANALYSIS To satisfy food service-related constitutional requirements, a State must furnish prison inmates with reasonably adequate food. George v. King, 837 F.2d 705, 706--07 (5th Cir. 1988). When determining whether a deprivation of reasonably adequate food falls below the constitutional threshold, the Court examines "the amount and duration of the deprivation." Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998). One episode of unintended food poisoning is insufficient to state a claim under Section 1983. /d. In George, the Fifth Circuit likened the prison food-poisoning incident to a single, mass incident of food poisoning that would occasionally be experienced in the military, other institutional settings and in the course of routine, daily life. Id. Constitutional violations are not established by pleading only discomforts associated with incarceration - such as those Plaintiff complains of here. See Hyder v. Perez, 85 F.3d 624, 624 (5th Cir. 1996) (per curiam). Plaintiff thus fails to state a colorable Section 1983 claim. Accordingly, the Court DISMISSES Plaintiff's Complaint WITH PREJUDICE. 1 A claim is frivolous ifit lacks an arguable basis in law or in fact. Bookerv. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). 2 Green vs. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.") 2 Case 2:19-cv-00156-Z-BR Document 18 Filed 06/21/22 Page 3 of 3 PageID 72 CONCLUSION For the reasons set forth above and pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2) and 42 U.S.C. § 1997e(a), the Court ORDERS Plaintiff's Complaint filed pursuant to 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE. SO ORDERED. June 1/_, 2022 SMARYK !STRICT JUDGE 3

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