Richard Delon Day v. Larry Norris , 219 F. App'x 608 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4356
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Richard Delon Day, Jr., *
*
Appellant, *
*
v. *
*
Larry Norris, Director, Arkansas *
Department of Correction; Larry May, * Appeal from the United States
Deputy Director, Arkansas Department * District Court for the
of Correction; Ray Hobbs, Chief * Eastern District of Arkansas.
Deputy Director, Arkansas Department *
of Correction; M.D. Reed, Warden, * [UNPUBLISHED]
East Arkansas Regional Unit, ADC; *
R.G. Lay, Warden, ADC; Marvin *
Evans, Warden, ADC; David White, *
Warden ADC; Kim Luckett, Assistant *
Warden, ADC; Mike Huckabee, *
Governor of Arkansas; Arkansas Board *
of Correction, Administrative Agency; *
John Does, 1 (Food Service *
Administrator) and 2 (ADC dietician), *
*
Appellees. *
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Submitted: January 30, 2007
Filed: February 26, 2007
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
Arkansas inmate Richard Day appeals the district court’s preservice dismissal,
under 28 U.S.C. § 1915A, of his 42 U.S.C. § 1983 action in which he claimed
violations of his rights under the Full Faith and Credit Clause and the Eighth
Amendment. We grant Day leave to proceed in forma pauperis. After de novo
review, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam), we
affirm in part, and reverse and remand in part.
Dismissal was proper as to Day’s claim that certain defendants violated his
rights under the Full Faith and Credit Clause. We agree with the district court that
Day merely sought to obtain privileges enjoyed by prisoners in other state and federal
facilities, but that Arkansas, where Day committed his crime, was competent to enact
statutes and policies establishing the prison conditions for inmates who commit crimes
within its borders. Cf. Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988) (Full Faith
and Credit Clause does not compel state to substitute statutes of other states for its
own statutes dealing with subject matter concerning which it is competent to
legislate).
As to Day’s Eighth Amendment claim that he was subjected to unsafe
conditions because he was exposed to snakes and mosquitos, dismissal was also
proper: Day’s allegations were insufficient to demonstrate that any defendant knew
of and disregarded a substantial risk of serious harm to Day. See Farmer v. Brennan,
511 U.S. 825, 828, 834, 837 (1994) (Eighth Amendment violated where prison
officials are deliberately indifferent to a substantial risk of serious harm to inmate);
Stephens v. Johnson, 83 F.3d 198, 200 (8th Cir. 1996) (mere negligence or
inadvertence is insufficient to constitute deliberate indifference).
We conclude, however, that dismissal was premature with respect to Day’s
allegations that he was served a prison diet that did not provide him adequate
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nutrition. Day alleged that he was often served meals which did not meet the
standards of a 2,000-calorie diet plan; the food portions were small and the quality of
food was nutritionally inferior; milk was served only at certain units; only 4 ounces
of fruit juice was served and the vegetables were “often rotten” and “sometimes”
contained dirt or other foreign objects; he was served powdered eggs which made him
sick; and food service workers did not always wash their hands before food
preparation, sometimes dripped sweat or purposefully placed other body fluids in the
food, and were not adequately tested for communicable diseases. Day also alleged
that, as a result of the inadequate diet, he had lost weight, was fatigued, and suffered
hunger pangs and mental anguish. At this stage of the litigation, such allegations are
sufficient to state an Eighth Amendment claim. See Wishon v. Gammon, 978 F.2d
446, 449 (8th Cir. 1992) (prisoners have right to nutritionally adequate food); Divers
v. Dep’t of Corr., 921 F.2d 191, 193-94 (8th Cir. 1990) (per curiam) (finding inmate’s
allegation of insufficient amounts of cold unappetizing food prepared from restricted
menu and delivered through unsanitary food slots in cell doors not frivolous; reversing
preservice dismissal to allow inmate chance to show diet insufficient to maintain
health); Rust v. Grammar, 858 F.2d 411, 414 (8th Cir. 1988) (diet without fruits and
vegetables might violate Eighth Amendment if it were regular prison diet); Martin v.
Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (inmate’s allegations of inadequate diet
stated Eighth Amendment claim); cf. 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”).
Accepting the allegations in Day’s complaint as true, Arkansas Department of
Correction defendants Food Service Administrator John Doe #1, dietician John Doe
#2, Deputy Director Larry May, Chief Deputy Director Ray Hobbs, and Wardens
M.D. Reed, R.G. Lay, Marvin Evans, David White, and Kim Luckett were aware that
Day was receiving inadequate nutrition. See Fruit v. Norris, 905 F.2d 1147, 1151 (8th
Cir. 1990) (supervisors can be liable for personal involvement in constitutional
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violation, and may also be liable when their corrective inaction amounts to deliberate
indifference to or tacit authorization of constitutionally violative practices); Martin,
780 F.2d at 1338 (to survive dismissal, prisoner need not plead more than that warden
was directly involved in decision which created unconstitutional conditions).
Accordingly, we reverse as to Day’s inadequate-nutrition claim against these
defendants. We affirm as to the other claims and the other defendants. We remand
for further proceedings consistent with this opinion.
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