Hampton v. Blanco , 299 F. App'x 460 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2008
No. 08-30048
Summary Calendar Charles R. Fulbruge III
Clerk
RUFUS HAMPTON
Plaintiff-Appellant
v.
KATHLEEN BLANCO, Governor of the State of Louisiana; RICHARD
STALDER, Secretary of the Department of Public Safety and Corrections; BURL
CAIN, Warden at Louisiana State Penitentiary; JOHN DOE, Culinary Food
Service Manager at Louisiana State Penitentiary; LIEUTENANT UNKNOWN
ARMAND
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:07-CV-617
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Rufus Hampton, Louisiana prisoner # 329245, filed a civil rights complaint
challenging the service of spoiled or contaminated food, which made Hampton
ill when it was ingested, and the failure of the defendants to provide an adequate
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-30048
substitute meal. The district court dismissed Hampton’s complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
On appeal, Hampton asserts that the district court should not have
dismissed his complaint before the defendants were served. He also contends
that because he was complying with court orders for partial payments, his case
should not have been dismissed. Under § 1915(e)(2), the district court may
dismiss a case at any time if it is frivolous or fails to state a claim upon which
relief can be granted, even if partial payment of the filing fee has been remitted.
Hampton asserts that he is being held to a heightened pleading standard. The
district court properly found that Hampton had failed to provide “a short and
plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV.
P. 8(a)(2). Hampton also contends that the court improperly dismissed his
complaint without providing him with an opportunity to amend. The proposed
amendments Hampton submitted, which were received after the district court
entered judgment, did not counter the district court’s conclusion that Hampton’s
claims were duplicative and did not establish that defendant Armand had
knowledge or intent to cause harm. Thus, any error in denying Hampton an
opportunity to amend was harmless. See Bazrowx v. Scott, 136 F.3d 1053, 1054-
55 (5th Cir. 1998).
Hampton does not challenge the district court’s conclusion that his claims
against all the defendants other than Armand were duplicative to the claims he
presented in Hampton v. Blanco, No. 3:06-CV-527 (M.D. La. Sept. 11, 2006).
When an appellant does not identify any error in the district court’s analysis, it
is the same as if the appellant did not appeal that portion of the judgment. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Hampton asserts that the district court erred in dismissing his claims
against Armand. With respect to the service of the contaminated meatloaf,
Hampton has not established that Armand was deliberately indifferent to his
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medical or dietary needs. See Harper v. Showers, 174 F.3d 716, 720 (5th Cir.
1999). Hampton does not show that Armand knew of and ignored an excessive
risk of harm. See Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). With
respect to Armand’s failure to address Hampton’s complaints about his
replacement meal, Hampton does not allege that he ate the allegedly raw food
and thus he cannot show that he suffered physical harm. See 42 U.S.C.
§ 1997e(e). Hampton’s allegation that he was deprived of a single
uncontaminated meal is insufficient to set forth an Eighth Amendment violation.
See Berry v. Brady, 192 F.3d 504, 506, 508 (5th Cir. 1999); see also George v.
King, 837 F.2d 705, 707 (5th Cir. 1988).
Hampton contends that the district court erred in dismissing his lawsuit
for failure to prosecute and failure to obey court orders. The district court
amended the judgment sua sponte to correct the clerical error and clarified that
the dismissal was under § 1915.
Hampton thus has not established that the district court abused its
discretion in dismissing his § 1983 lawsuit as frivolous. See Berry, 192 F.3d at
507. The judgment of the district court is thus affirmed. Hampton is informed
that, upon our affirmance, the district court’s dismissal counts as one strike for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1986). The district court’s dismissal of No. 3:06-CV-527 also counts as a strike
under § 1915(g). Hampton is cautioned that if he accumulates three strikes, he
will no longer be allowed to proceed in forma pauperis in any civil action or
appeal filed while he is detained or incarcerated in any facility unless he is in
imminent danger of serious physical injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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