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Tony Sledge v. J. Lundy

October 31, 2012

TONY SLEDGE,
PLAINTIFF,
v.
J. LUNDY, ET AL.,
DEFENDANTS.



ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

I. Procedural History

Plaintiff Tony Sledge ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On April 9, 2012, Plaintiff filed the complaint which is presently before this Court. Doc. 1.

II. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

III. Plaintiff's Complaint

Plaintiff is currently a state prisoner at the California Correctional Institution (CCI) in Tehachapi, California. The events central to Plaintiff's complaint occurred while he was a prisoner at CCI. Doc. 1. In the complaint, Plaintiff names the following defendants: 1) J. Lundy (Facility A Captain at CCI); 2) E. Prince (Kitchen Staff at CCI); 3) M. Penn (Supervisory Cook II at CCI; and 4) S. Foster (Facility A Correctional Sergeant at CCI). Doc. 1 at 2. Plaintiff seeks injunctive relief and monetary damages. Doc. 1 at 7.

According to Plaintiff, his Eighth Amendment rights were violated because he received cold religious (Halal) meals when Title 15, section 3050 mandates that every prisoner shall have at least two hot meals daily. Doc. 1 at 3. According to Plaintiff, since November 1, 2011, Plaintiff has been served cold religious food for breakfast, lunch and dinner. Doc. 1 at 3. Plaintiff was housed in facility 4A and the meals were made in a different facility and delivered. Doc. 1 at 3. At around 2:00 p.m., the meals are placed in trays which are then placed in an insulated cart to keep the food warm to transfer to his building. Doc. 1 at 3. However, since Plaintiff is Muslim and gets a religious (Halal) meal to accommodate his religious diet, the religious diet trays are separated from the regular meals and instead of placing Plaintiff's meal in an insulated cart to keep warm, Plaintiff's meal is placed in an uninsulated cart. Doc. 1 at 3. At CCI, the winter temperatures are very cold from rain and snow from October to April, and by the time Plaintiff recieves his meal around 4:30 to 5:00 p.m, it is ice cold. Doc. 1 at 3. On November 14, 2011, Plaintiff sent Defendant Prince a CDCR form 22 stating that his food was cold. Doc. 1 at 3. However, Defendant Prince never responded. Doc. 1 at 3.

On December 13, 2011, Plaintiff filed a form 602 inmate grievance to inform the supervisor that Plaintiff's food was cold and Plaintiff informed multiple officers regarding his food. Doc. 1 at 3. On January 18, 2012, Defendants Foster and Lundy granted Plaintiff's form 602 grievance and stated that they spoked with Defendant Penn and Defendant Penn stated that he had addressed the issue of cold food with the food services department and the food services department was working to get insulated bags to ensure that Plaintiff's food remains hot. Doc. 1 at 3. From February to March 2012, Plaintiff has been suffering from diarrhea and stomach pain as a result of eating the cold food. Doc. 1 at 3.

On about December 20, 2011, right after Plaintiff filed an inmate 602 appeal regarding the cold religious food, Plaintiff found a roach in his dinner tray and showed Officer Rhoades the roach. Doc. 1 at 4. As of March 25, 2012, Plaintiff is still being given cold religious food and is still suffering stomach pain, diarrhea, stress and anxiety. Doc. 1 at 4.

IV. Legal Standards and Analysis

A. Eighth Amendment

"The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." LeMaire v. ...


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