United States District Court, W.D. Kentucky, Owensboro Division
H. McKinley Jr., United States District Court District Judge
Xavier Reynard Boone filed a pro se, in forma
pauperis 42 U.S.C. § 1983 complaint. This matter is
before the Court for screening pursuant to 28 U.S.C. §
1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th
Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). For the following reasons,
the complaint will be dismissed.
STATEMENT OF FACTS
is incarcerated at the Daviess County Detention Center
(DCDC). He names as Defendants DCDC Captain Jack Jones and
Carewell Staff, which he identifies as DCDC's food
service provider. Plaintiff alleges that the “first day
[he] started on the kosher tray [he] found glass in [his]
breakfast tray, and at dinner everyone's cakes was half
done.” He states that he has been trying to “get
off the kosher trays but they think [he is] playin.” He
I've asked time after time to be takin off the kosher but
they keep sendin them over to me. I haven't eaten a tray
over five weeks now. . . . I'm starting to get sick from
not eatin[.] My stomach could have been cut all up because of
that glass if I didn't find it in the time I did.
also alleges that “they are still sending things on my
tray that I'm allergy like onions tomatoes and things
with dairy in it also fish.” He alleges that on
September 15, 2018, Defendant Carewell sent onions on his
tray. He alleges that “they know what I can't have
and they keep tryin to kill me with it in my food.” He
further alleges that when he told the corrections officer
that he could not eat the food tray, the corrections officer
refused to give him other food and he did not eat anything
relief, Plaintiff asks for monetary and punitive damages.
prisoner initiates a civil action seeking redress from a
governmental entity, officer, or employee, the trial court
must review the complaint and dismiss the action, if the
Court determines that it is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. See 28 U.S.C. § 1915A(b)(1) and (2). A
claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). The Court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Id. at 327. When determining
whether a plaintiff has stated a claim upon which relief can
be granted, the Court must construe the complaint in a light
most favorable to Plaintiff and accept all of the factual
allegations as true. Prater v. City of Burnside,
Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a
reviewing court must liberally construe pro se
pleadings, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam), to avoid dismissal, a complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
well established that prison officials “must provide
humane conditions of confinement; prison officials must
ensure that inmates receive adequate food, clothing, shelter,
and medical care, and must take reasonable measures to
guarantee the safety of the inmates.” Farmer v.
Brennan, 511 U.S. 825, 832, 114 (1994) (internal
the Court notes that although Plaintiff alleges that “I
haven't eaten a tray over five weeks now. . . I'm
starting to get sick from not eatin, ” the Court finds
that it is not plausible to interpret this statement as
saying that Plaintiff has not eaten any food in five weeks.
See Gibson v. Zavaras, No. 09-CV-02328WYDKLM, 2010
WL 2543584, at *3 (D. Colo. Jan. 22, 2010), report and
recommendation adopted, No. 09-CV-02328WYDKLM, 2010 WL
2543583 (D. Colo. June 22, 2010) (finding not credible that
the plaintiff had not eaten any food in over three months
because of the medical effects starvation for that period of
time would have had on his ability to litigate). Moreover,
Plaintiff undercuts the statement that he has not eaten in
over five weeks when he states that on a particular day
during this period he did not eat anything after he was
served with a tray with onions on it.
alleges that he found glass in his food on one occasion.
However, “[a] single incident of . . . finding a
foreign object in food does not constitute a violation of the
constitutional rights of the prisoner affected.”
Green v. Atkinson, 623 F.3d 278, 280-81 (5th Cir.
2010); see also Smith v. Younger, No. 98-5482, 1999
WL 623355 (6th Cir. Aug. 9, 1999) (holding that the presence
of a worm in the plaintiff's food failed to state a
conditions of confinement claim); LeMaire v. Maass,
12 F.3d 1444, 1456 (9th Cir. 1993) (“The fact that the
food occasionally contains foreign objects . . ., while
unpleasant, does not amount to a constitutional
Plaintiff's claim that he was served meals containing
foods to which he is allergic, he fails to indicate any harm
as a result. See Balcar v. Smith, No. 17-5159, 2017
WL 3613479, at *2 (6th Cir. July 17, 2017) (holding that
where the plaintiff did not indicate that the diet he was
provided and the food that he had eaten caused any reaction
or serious medical issues, he “failed to state a
constitutional claim regarding the defendants' failure to
supply him with food in accordance with a special
diet”). Without an allegation of harm, Plaintiff fails
to state a constitutional claim. Adams v. Hardin Cty.
Det. Ctr., No. 3:16-CV-P29-CRS, 2016 WL 2858911, at *7
(W.D. Ky. May 16, 2016) (“Because Plaintiff Adams
alleges no injury, the Court finds that he has not stated a
claim under the Eighth Amendment.”).