Case No. 1:01-CV-192-BGUnited States District Court, N.D. Texas, Abilene Division
October 17, 2002
ORDER OF DISMISSAL
NANCY M. KOENIG, United States Magistrate Judge
On october 12, 2001, the Plaintiff Kieron Derek Penigar filed a complaint, pursuant to 42 U.S.C. § 1983, against Danyelle Young, William McClelland, Sean Twa, Daniel Hall, and James Ramsey, correctional officers at the French Robertson Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID).
After reviewing the complaint, Penigar’s answers to the court’s questionnaire, and the authenticated records from TDCJ-ID, the court is of the opinion that this case should be and is hereby dismissed with prejudice.
Pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 1915A(b), the court is required to dismiss the complaint or any part of it if it is frivolous or malicious or fails to state a claim on which relief may be granted. A claim may be dismissed as frivolous if the claims lacks an arguable basis in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) Talib v. Gluey, 138 F.3d 211, 213 (5th Cir. 1998). Dismissals can be based on authenticated inmate records. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
In his complaint, Penigar claims that, on May 29, 2001, at meal time, Defendants Young and McClelland came with the meal trays; Young asked Penigar to turn his radio down, but, when he stepped away from the cell door, Young closed the food slot without giving Penigar his meal. Penigar states that he asked Defendant Twa to call a supervisor but Twa refused. Penigar states that he began beating on his cell door to get the attention of a supervisor; Defendants Ramsey and Hall came and Penigar told them that the officers refused his meal and that the door was jammed and would not open; and that Ramsey or Hall sprayed Penigar with chemical agents.
Authenticated records from TDCJ-ID show that Penigar was charged with destroying the table in his cell by tearing it off the wall and banging it on his door. On June 5, 2001, a hearing was conducted on the disciplinary charge, Penigar stated that the table was not destroyed, that an officer took it up front to be welded, and that he did bang on the door with the table. He was found guilty based on his admission that he banged on the door with the table.
The first notation in the authenticated clinic notes following the complained of incident is dated June 8, 2001. On that date, Penigar put in a sick call request stating he needed to use the nail clippers. There are notations on June 9 and 10, 2001, that the clinic rescheduled his appointment due to lack of security escort. On June 11, 2001, Penigar was seen in the clinic, his nails were cut, no problems were noted, and he was allowed to return to his house.
In answer to the court’s questionnaire regarding the incident on May 29, 2001, Penigar disagreed with the statement that chemical agents were used to remove him from his cell and stated that the door was jammed shut and he could not be removed even after chemical agents were used. He stated that once the door was opened, he exited the cell voluntarily. He stated that he could not see for two days and experienced a burning sensation on his back, face, and legs for about a week. He said that he was afforded a rinse off but claims that he should have been provided with an eye wash.
Missed meal
The Eighth Amendment prohibition on cruel and unusual punishment requires that prisons provide inmates with “well-balanced meals, containing sufficient nutritional value to preserve health.” Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977); see also Berry v. Brady, 192 F.3d 504, 507-08 (5th Cir. 1999). However, deprivation of food constitutes cruel and unusual punishment only if it denies a prisoner the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Wilson v. Seiter, 501 U.S. 294, 298
(1991). A deprivation of food falls below the threshold requirement of the “minimal civilized measure of life’s necessities” when it is shown to be continuous and substantial. See Talib, 138 F.3d at 214 n. 3.
Penigar’s complaint about the missed meal fails to state a claim for an Eighth Amendment violation. When an inmate is deprived of one of every nine meals, no constitutional deprivation exists, because the loss is “hardly more than that missed by many working citizens over the same period.” Id. On the other hand, depriving an inmate of all food for 12 consecutive days is a continuous and substantial deprivation sufficient to state a claim. See Cooper v. Sheriff Lubbock County, Tex., 929 F.2d 1078, 1083 (5th Cir. 1991). Penigar’s being deprived of a single meal does not state a constitutional violation.
Retaliation
Prison officials may not retaliate against a prisoner for exercising a specific constitutional right. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 516 U.S. 1084 (1996). “To prevail on a claim of retaliation, a prisoner must establish: (1) a specific constitutional right; (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that right; (3) a retaliatory adverse act; and (4) causation.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). To prove causation, the inmate must establish that “but for the retaliatory motive the complained of incident . . . would not have occurred.” Woods, 60 F.3d at 1166.
In this case, Penigar’s claims fail to meet any of the requirements above. He fails to show any specific constitutional right which he was exercising at the time the incident complained of occurred. He also does not allege or show that any of the defendants had any intent to retaliate against him. To the contrary, his allegations and his answers to the questionnaire show that when he was refused his meal, he banged on the door with the table in his cell. That he was disciplined for this conduct is not retaliation; instead, it is an appropriate response by prison authorities to restore order and discipline.
Deliberate Indifference to Serious Medical Needs
To state a cause of action for deliberate indifference to a serious medical need, a prisoner needs to show an “unnecessary and wanton infliction of pain” that is repugnant to the conscience of mankind, which is proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
[A]n inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.
Id. at 105-06. See also Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (per curiam); Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999).
A delay in medical care can only amount to an Eighth Amendment violation if there has been a deliberate indifference, resulting in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Furthermore, the plaintiff must show that the defendants had a sufficiently culpable state of mind. Id. at 193.
Penigar complains that after chemical agents were used on him, he received a rinse off but he should have been afforded an eye wash. His complaint that he was denied adequate medical care is belied by the authenticated medical records which show that when he went to the clinic less than two weeks later, he did not raise a single complaint about his eyes.
It is, therefore, ordered that this civil rights complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B) 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1)-(2); see Berry v. Brady, 192 F.3d 504, 507 509 (5th Cir. 1999).
Any pending motions are denied as moot.
This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 (g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release Penigar or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997).
A copy of this order shall be mailed to all parties appearing pro se,
to any attorney of record, to the Office of General Counsel, TDCJ-ID, Litigation Support, P. O. Box 13084, Austin, Texas 78711, and to TDCJ Local Funds Division, P. O. Box 629, Huntsville, Texas 77342-0629 by first class mail.
Judgment shall be entered accordingly.
SO ORDERED.