Opinion
No. 7:02-CV-234-R
October 17, 2002
ORDER OF DISMISSAL
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Plaintiff claims that, on June 19, 2002, he was served sour milk with a meal. Complaint ¶ V. He seeks 19 million dollars in monetary damages. Id.
To satisfy constitutional requirements in the area of food service, a state must furnish its prison inmates with reasonably adequate food. George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (holding one incident of food poisoning insufficient to state a claim under § 1983). The deprivation of food constitutes cruel and unusual punishment in violation of the Eighth Amendment if it denies an inmate the "minimal civilized measure of life's necessities," Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399)). In determining whether a deprivation of food falls below this threshold, the Court looks to the amount and duration of the deprivation. Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998).
It the case at bar Plaintiff complains that he was served sour milk with one meal. While the Court does not condone the serving of sour milk to inmates, such a deprivation does not rise to the level of a constitutional violation. See id. (expressing doubt as to any constitutional violation where the plaintiff claimed that he missed "about fifty meals in five months and lost about fifteen pounds."). Plaintiff's remedy, if any, lies not with the federal courts, but with the prison grievance system and/or the Texas Commission on Jail Standards. See e.g., Tex. Gov. Code Ann. § 511.0071 (West 2002); Valles v. Texas Comm'n on Jail Standards, 845 S.W.2d 284, 290 (Tex.App. ¶ Austin 1992, writ denied); Starks v. Bowles, 682 F. Supp. 891, 893 (N.D. Tex.), aff'd, 851 F.2d 1419 (5th Cir. 1988); Taylor v. Sterrett, 600 F.2d 1135, 1141-45 (5th Cir. 1979).
IT IS THEREFORE ORDERED that Plaintiff's complaint is hereby used with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).