IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10083

_____________________

HARUN NASSOR TALIB,

Plaintiff-Appellant,

versus

GILLEY, Sgt.; LESLIE WOODS, Warden;

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE - INSTITUTIONAL DIVISION,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

_________________________________________________________________ April 15, 1998

Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Harum Nassor Talib is a former Texas state prisoner. He

appeals the dismissal of his section 1983 civil rights claim as

frivolous. Talib argues that the defendants subjected him to cruel

and unusual punishment in violation of his Eighth Amendment rights

by withholding his meals on app roximately fifty occasions over a

five-month span while he was confined to his cell during lockdown

periods as a result of gang-related violence. Sergeant Gilley, a

female prison guard, would not serve Talib these meals in his cell

when he refused to kneel down with his hands behind his back before

being served--a measure to assure the guard ’s safety. Talib1 Talib argues that he was not proceeding IFP because he paid

the full filing fee. The record, however, reveals that, although

he paid the full fee on appeal, he did not do so in the action

below.

2 Although it is highly doubt f ul that Talib raised any

arguable, non-frivolous issues regarding Vita-Pro, the claim has in

any event been abandoned on this appeal. S ee Yohey v. Collins

, 985

2 alleges that, as a result of missing these meals, he lost fifteen

pounds. He sued Sergeant Gilley, Warden Leslie Woods, and the

Texas Department of Criminal Justice

- I n stitutional Division

(“TDCJ-ID”) under 42 U.S.C. § 198 3, seeking $1.25 million in

compensatory damages. The district court determined that Sergeant

Gilley’s instructions were consistent with prison regulations that,

in turn, were reasonably related to a legitimate penological

interest. The district court accordingly dismissed Talib’s

complaint as frivolous. We affirm.

I

Talib obtained permission from the district court to proceed

in forma pauperis (“IFP”). 1 The case was assigned to a magistrate

judge to conduct a Spears inquiry into the facts underlying Talib’s

complaint. See Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985).

The magistrate judge issued Talib a questionnaire to clarify the

basis of Talib’s claim. On the questionnaire, Talib stated that

his diet on lockdown was inadequate because some meals were

withheld and because the sandwiches he was served contained “VitaPro” (a soy-based food supplement used occasionally as a meat

substitute in Texas prisons), which he refused to eat

. 2 TalibF .2d 222, 224-25 (5th Cir. 1993). Thus, we need not examine

whether the district court abused its discretion in dismissing

Talib’s Vita-Pro claims.

3 further conceded that the non-Vita-Pro meals he received were

nutritionally and calorically adequate. The magistrate judge found

that Talib failed to allege facts showing that his diet was

nutritionally or c a lorically deficient and concluded that the

regulation requiring prisoners to kneel facing the wall with their

hands behind their backs before feeding was reasonably related to

a legitimate penological interest. He thus recommended dismissing

the complaint as frivolous under 28 U.S.C. § 1915. After an

independent review of the record, the district court adopted the

magistrate judge’s report.

II

An IFP complaint may be dismissed as frivolous if it lacks an

arguable basis in law or fact. See 28 U.S.C. § 1915(e)(2)(B)(i);

Eason v. Thaler , 14 F.3d 8, 9 (5th Cir. 1994). A complaint lacks

an arguable basis in law if it is based on an indisputably

meritless legal theory. S ee Siglar v. Hightower

, 112 F.3d 191, 193

(5th Cir. 1997). A complaint lacks an arguable basis in fact if,

after providing the plaintiff the opportunity to present additional

facts when necessary, the facts alleged are clearly baseless. S ee

Denton v. Hernandez

, 504 U.S. 25, 32-33 (1992). This Court reviews

dismissals as frivolous for an abuse of discretion. Id.4

To aid in the determination of whether an IFP complaint is

frivolous, this court has approved the use of questionnaires or an

evidentiary hearing. S ee Spears

, 766 F.2d at 181-82. Responses to

such an inquiry become part of the plaintiff’s pleadings. S ee

Eason v. Holt

, 73 F.3d 600, 602 (5th Cir. 1996). “This inquiry

perforce involves focusing precisely on a prisoner’s factual

allegations, puncturing the conclusion balloon in which they may at

first be lodged.” S pears

, 766 F.2d at 181. We must therefore

consider Talib’s responses to the Spears inquiry in evaluating his

claim under section 1915.

III

As a preliminary matter, we may quickly dispose of Talib’s

claims against TDCJ-ID. As an instrumentality of the state, the

TDCJ-ID is immune from a suit for money damages under the Eleventh

Amendment. S ee Harris v. Angelina County, Texas

, 31 F.3d 331, 337-

38 n.7 (5th Cir. 1994). Therefore, Talib’s claims against the

TDCJ-ID are barred by the Eleventh Amendment. The district court

did not abuse its discretion in dismissing Talib’s claims against

the TDCJ

- ID. We thus turn to the merits of Talib’s Eighth

Amendment claim.

IV

A

We begin by recognizing that “[p]rison walls do not form a

barrier separating prison inmates from the protections of the

Constitution.” T urner v. Safley , 482 U.S. 78, 84 (1987). These3 We assume, but not without some hesitation, that Talib has

alleged a harm cognizable u nder the Eighth Amendment. The

deprivation of food constitutes cruel and unusual punishment only

if it denies a prisoner the “‘minimal civilized measure of life’s

necessities.’” S ee Wilson v. Seiter

, 501 U.S. 294, 298 (1991)

(quoting Rhodes

, 452 U.S. at 347). Whether the deprivation of food

falls below this threshhold depends on the amount and duration of

the deprivation. Talib alleges that he missed about fifty meals in

five months and lost about fifteen pounds. Missing a mere one out

of every nine meals is hardly more than t hat missed by many

working citizens over the same period. We are therefore doubtful

that Talib was denied anything close to a minimal measure of life’s

necessities.

Our decision in Cooper v. Sheriff, Lubbock County, Texas

, 929

F.2d 1078 (1991), requires no less. There, Cooper, a prisoner,

alleged that prison officials refused to feed him any food for

twelve consecutive days. Given the clearly substantial nature of

this deprivation, the court held that “Cooper’s assertion that he

was continuously deprived of food presents a set of facts that may

entitle him to relief.” Id. at 1083 (emphasis added). Talib, on

the other hand, has not alleged a continuous and substantial denial

of food, nor does the record support such an inference. Thus, the

unique circumstances controlling the Cooper case--the complete

deprivation of food over an extended period of time--are simply not

present in this case.

5 protections specifically include the Eighth Amendment’s prohibition

against cruel and unusual punishment. See Whitley v. Albers , 475

U.S. 312, 318 (1986). Punishment rises to the level of cruel and

unusual only if it involves an “‘unnecessary and wanton infliction

of pain.’” E stelle v. Ga mble , 429 U.S. 97, 104 (1976) (quoting

Gregg v. Georgia

, 428 U.S. 153, 173 (1976)). No static test exists

that measures whether conditions of confinement are cruel and

unusual, for the Eighth Amendment draws its meaning from the

“evolving standards of decency that mark the progress of a maturing

society.” R hodes v. Chapman

, 452 U.S. 337, 346 (1981) (quotations

omitted). 36

At the same time, however, “[t]he legitimacy, and the

necessity, of considering the State’s interests in prison safety

and security are well established.” W ashington v. Harper

, 494 U.S.

210, 223 (1990). Experience has shown that “courts are ill

equipped to deal with the increasingly urgent problems of prison

administration and reform.” Procunier v. Martinez , 416 U.S. 396,

405 (1974). “Prison administrators are responsible for maintaining

internal order and discipline, for securing their institutions

against unauthorized access or escape, and for rehabilitating, to

t he extent that human nature and inadequate resources allow, the

inmates placed in their custody.” Id. at 404. In recognition of

these interests, courts will uphold a prison regulation claimed to

infringe a prisoner’s constitutional righ ts if it is “reasonably

related to le gitimate penological interests.” T urner v. Safley

,

482 U.S. 78, 89 (1987).

B

The prison regulation at issue here requires prisoners being

served meals in their cells w hile on lockdown status to face the

w all and get on their knees with their hands behind their backs.

The district court concluded that the regulation was reasonably

related to legitimate penological interests. We agree. Talib and

other prisoners placed on lockdown typically include the most

dangerous and violent prisoners in the prison system. See, e.g.

,

Lewis v. Casey

, 116 S.Ct. 2174, 2185 (1996). Indeed, the record4 Of course, prison officials are not requir ed to adopt the

policy “least restrictive” of priso ners’ rights, so long as the

policy adopted is itself reasonable. See Turner , 482 U.S. at 90.

In this regard, Cooper v. Sheriff, Lubbock County, Texas

, 929

7 suggests that Talib and other prisoners were on lockdown because of

gang-related violence.

Whether getting down and sliding the meals under a closed

doo r, or setting them in the cell through an open door, prison

officials have a legitimate penological interest in having these

prisoners assume a non-threatening position. In either case,

prison officials could be vulnera ble to assault by prisoners

incited by extended confinement during lockdown. General security

and the safety of prison officials is, of course, a legitimate if

not elementary penological interest. Washington , 494 U.S. at 225

(“There are few cases in which the State’s interest in combating

the danger posed by a person to himself and others is greater than

in a prison environment, which, ‘by definition,’ is made up of

persons with ‘a demonstrated proclivity for antisocial criminal,

and often violent, conduct.’”). We will not hamper the ability of

prison officials “to anti cipate security problems and to adopt

innovative solutions to the intractable problems of prison

administration” by subjecting the day-to-day judgments of prison

o fficials to intrusive second-guessing. S ee Turner

, 482 U.S. at

89. Sergeant Gilley, a female prison guard responsible for serving

meals to prisoners on lockdown, was justified in requiring Talib to

kneel with his hands behind his back before serving him his meal. 4F.2d 1078 (5th Cir. 1 991), is again inapposite. It involved a

prison regulation r equiring inmates to be “fully dressed” before

their meals could be served. See id. at 1082. Inmate Cooper was

denied food when he refused to comply with the prison p olicy and

sued prison officials alleging a violation of the Eighth Amendment.

The district court dismissed the complaint for failure to state a

claim. It found that Cooper’s deprivation of needed food was not

the intention of prison officials, but a result of his “voluntary”

rejection of thos e meals. S ee id. Rejecting this position, we

held that the validity of an Eighth Amendment claim did not depend

on whether prison officials specifically intended the alleged harm.

See id. at 1083; accord Farmer v. Brennen , 114 S.Ct. 1970, 1981

(1994) (establishing deliberate indifference standard). Thus, the

Cooper case mer ely reaffirmed the “traditional eighth amendment

standard” that “unnecessary and wanton” infliction of punishment is

enough to state a claim. C ooper

, 929 F.2d at 1083. Because the

district court failed to consider “whether the [prison] officials

acted within the scope of the regulation and whether the regulation

was valid,” and no evidence of the regulation appeared in the

record, we concluded that “summary dismissal of Cooper’s claim was

premature.” I d. at 1084. C ooper never addressed (indeed, it

refused to addr ess) whether the regulation in question was

reasonably related to a legitimat e penological interest, but

obviously e xpected the district court to consider the matter on

remand. Had the district court done so in the first place, the

result in Cooper may well have been different. Here, by contrast,

Talib challenges a prison policy that is, on its face, reasonably

related to a legitimate penological interest. Cooper , therefore,

has no application to this case.

8 C

Talib argues that no such policy exists because the prison has

not provided him with any written regulation requiring prisoners to

assume the kneeled position for feeding. Talib’s argument has no

merit inasmuch as the validity of prison policies is not dependent

on whether they are written or verbal. A policy is a policy--the

question is simply whether the record supports a finding that a

policy exists. Here, the record contains many grievances filed by

Talib complaining about his meals being withhel d. Nearly every9

grievance, representing complaints made throughout the five-month

period in question, contains a typed response, signed by the warden

or her authorized agent, affirming the existence of the prison

policy. The warden’s responses further explained that the policy

was enacted pursuant to TDCJ-ID Administrative Directive 3.31

(March 7, 1991), which is also part of the record and gives the

warden discretion to establish meal restrictions during lockdowns.

The grievance responses and AD 3.31 are sufficient evidence of a

valid policy.

Finally, even if the policy were not clearly established, such

a requirment is unnecessary in this case. Whether dealing with the

actions of an individual prison official or a regulation with

prison-wide applicability, we employ the same standard to determine

whether a prisoner’s constitutional rights have been violated. S ee

Jackson v. Cain

, 864 F.2d 1235, 1248 (5th Cir. 19 89). Thus, for

the same reasons that we believe a policy requiring prisoners on

lockdown to kneel facing the wall with their hands behind their

backs when serv ed meals is reasonably related to a legitimate

penological interest, the action of an individual guard requiring

such conduct is likewise constitutionally permissible.

V

Courts repeatedly remind prisoners that the Constitution does

not mandate prisons with comfortable surroundings or commodious

conditions. S ee Rhodes

, 452 U.S. at 349. We do so again today.

Given the ease with which Talib could have complied with reasonable10

prison regulations, he in a very real sense “carrie[d] the keys” to

the kitchen cupboard. S ee Uphaus v. Wyman

, 360 U.S. 72, 81 (1959).

He chose not to unlock it, and it is not for the federal courts to

intervene in his personal decision. For the reasons stated above,

the judgment of the district court is

A F F I R M E D.