Toney Recoe King v. Robert C. Lewis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7076
TONEY RECOE KING,
Plaintiff – Appellant,
v.
ROBERT C. LEWIS; ROBERT COOPER; PATRICK CHILDRESS; NORTH
CAROLINA DEPARTMENT OF CORRECTION,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen,
Senior District Judge. (1:09-cv-00165-GCM)
Submitted: December 4, 2009 Decided: December 31, 2009
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Toney Recoe King, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Toney Recoe King appeals from the district court order
dismissing, for failure to state a claim, his complaint in which
he alleged that he was provided insufficient food at the Avery
Mitchell Correctional Institution, in violation of 42 U.S.C.
§ 1983 (2006). We find that King’s complaint survives 28 U.S.C.
§ 1915A (2006) review and therefore vacate the district court’s
order and remand for further proceedings.
A pro se litigant’s complaint should not be dismissed
unless it appears beyond doubt that the litigant can prove no
set of facts in support of his claim that would entitle him to
relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Construing the complaint liberally, see De’Lonta v. Angelone,
330 F.3d 630, 633 (4th Cir. 2003), King alleged that the food
served at each meal was inadequate in both quantity and
nutritional standards. He asserted that the “vegetables served
only add up to less than two (2) teaspoonful, eggs served during
breakfast add up to even less; meats served is often less than
two (2) ounces. Most meals would not add up to six (6) ounces
total.” King also asserted that the prison used access to food
as a punishment by limiting canteen purchases for inmates who
violate prison rules. Additionally, he asserts that he suffers
more than “fortunate prisoners” because he cannot afford to
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purchase food items from the canteen to supplement the
inadequate food provided at meals.
Allegations of inadequate food for human nutritional
needs or unsanitary food service facilities are sufficient to
state a cognizable constitutional claim, see Bolding v.
Holshouser, 575 F.2d 461 (4th Cir. 1978), so long as the
deprivation is serious and the defendant is deliberately
indifferent to the need. Wilson v. Seiter, 501 U.S. 294 (1991).
Here, the basis of King’s complaint is that the prison serves
nutritionally inadequate food portions and that he suffered
“physically due to periodic pain associated with hunger” and
“mentally because [he] cannot focus on his rehabilitation he
must continue to worry about food or the lack there of.”
We find that, liberally construing King’s complaint,
these allegations are sufficient to survive the initial review
under § 1915A. See De’Lonta, 330 F.3d at 633; see also Berry v.
Brady, 192 F.3d 504, 508 (5th Cir. 1999) (suggesting that to
state Eighth Amendment claim inmate must allege “he lost weight
or suffered other adverse physical effects or was denied a
nutritionally and calorically adequate diet”); Antonelli v.
Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (prisoner stated a
cause of action under the Eighth Amendment by claiming “not just
‘ransid food’ [sic], but also a ‘nutritionally deficient’
diet”); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992)
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(holding that prisoners have the right to nutritionally adequate
food); Rust v. Grammer, 858 F.2d 411, 414 (8th Cir. 1988) (diet
without fruits and vegetables might violate Eighth Amendment if
it were regular prison diet).
Liberally construing the complaint, we find that King
may be able to prove sufficient facts to support his Eighth
Amendment claim, Gordon, 574 F.2d at 1151, and thus conclude
that dismissal prior to a response from the Defendants was
premature.* We therefore vacate the district court’s dismissal
order and remand this case to the district court for further
proceedings. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
* We express no opinion as to the ultimate disposition of
this claim.

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