* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-10106

(Summary Calendar)

_______________

JULIAN ARTHUR RANDALL, JR.,

Plaintiff-Appellant,

versus

RANDY McLEOD, Warden, Clements Unit,

TDCJ, ET AL.,

Defendants-Appellees,

_______________________________________________

Appeal from the United States District Court

For the Northern District of Texas

2:92 CV 259

_______________________________________________

September 15, 1995

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM: *

Julian Randall, Jr., an inmate of the Texas Department of

Criminal Justice's Institutional Division ("TDCJ-ID"), appeals the

district court's dismis sal, under 28 U.S.C. § 1915(d) (1988), of

his pro se, in forma pauperis civil rights suit. We affirm the

district court's dismissal.

I1 Randall claims that his religious beliefs prohibit him from contact

with pork.

-2- Randall filed a civil rights complaint under 42 U.S.C. § 1983

(1988), alleging that various prison off icials had violated his

constitutional rights. In his complaint, Randall alleged that

after several inmates fought with prison guards in the mess hall,

the prison officials placed the population of his buildin g in

lockdown. Randall claimed that the lockdown was punitive and,

therefore, that he should have received notice and a hearing before

being placed in lockdown. Randall also alleged in his complaint

that prison officials delivered sack lunches to the prisoners

during the lockdown, and that on two occasions the officials

refused to provide Randall with a "pork-free" m eal. 1 Randall

contends that the officials' failure to provide him with pork-free

meals constituted cruel and unusual punishment and violated his

First Amendment right to exercise his religious beliefs. A

magistrate judge dismissed both claims as frivolous under

§ 1915(d), and Randall appeals from the dismissal.

II

A district court may dismiss an in forma pauperis complaint

under § 1915(d) if it determines that the complaint is frivolous.

Thompson v. Patteson

, 985 F.2d 202, 205 (5th Cir. 199 3). "[A]

complaint is not frivolous for the purposes of § 1915(d) merely

because it fails to stat e a claim according to the standards of

Fed. R. Civ. P. 12(b)(6)." T hompson

, 985 F.2d at 205. A complaint

is frivolous if "it lacks an arguable basis either in law or in-3-

fact." N

eitzke v. Williams

, 490 U.S. 319, 325, 109 S. Ct . 1827,

1831-32, 104 L. Ed. 2d 33 8 (1989). "A complaint is legally

frivolous if i t is premised on an `indisputably meritless legal

theory,'" B oyd v. Biggers

, 31 F.3d 279, 281-82 (5t h Cir. 1994)

(quoting Neitzke

, 490 U.S. at 327, 109 S. Ct. at 1833), and

factually frivolous "if the facts alleged are `clearly baseless,'

a category encompassing allegations that are `fanciful,'

`fantastic,' and `delusional.'" D enton v. Hernandez

, 504 U.S. 25,

32, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340 (1992) ( quoting

Neitzke , 490 U.S. at 325-28, 109 S. Ct. at 1831-33). We review a

district cour t's § 1915(d) dismissal of an in forma pauperis

complaint for abuse of discretion. S ee Denton

, 504 U.S. at 34, 112

S. Ct. at 1734; Boyd , 31 F.3d at 282.

A

Randa ll contends on appeal that the magistrate judge

erroneously dismissed as frivolous his claim that prison officials

should have given him notice and a hearing before placing him in

lockdown. The magistrate judge held that Randall's claim is

legally frivolous because Randall was placed in lockdown for

administrative rather than punitive reasons.

"In the context of prisoners placed in more rest rictive

confinement, a protected liberty interest can arise in one of two

ways: when the restriction is imposed for punitive (as opposed to

an administrative) purpose, and when a state regulation creates a

liberty interest." G iova nni v. Lynn , 48 F.3d 908, 911 (5th Cir.

1995), petition for cert. filed

,

___ U.S.L.W.

___ (U.S. June 13,2 Randall argues in his brief on appeal that the administrative

directive pursuant to which the prison officials placed his building in lockdown

c r eates a liberty interest in "not [being] placed on lockdown unless there is

a majo r or mess [sic] disruption," and that "[t]hree inmates in a isolated

incident clearly does not justify major or mess, as the [directive] specifies

that particular sanction as involved in this case not be imposed." However, in

his complaint, as the magistrate judge noted, Randall "pointed to no statutes or regulations which create a liberty interest in plaintiff' s retaining the same

level of restrictions while the rest of the general population in his building

was placed in administrative lockdown," nor did he allege "any violation of the

institutional regulations which govern this kind of administrative lockdown."

-4- 1995) (No. 94-9846). 2 "[T]he Supreme Court has long recognized

that prison officials have the authority to transfer an inmate to

more restrictive quarters for non-punitive reasons." Mitchell v.

Sheriff Dep't, Lubbock County, Tex.

, 995 F.2d 60, 63 (5th Cir.

1993); see also Hewitt v. Helms

, 459 U.S. 460, 468, 103 S. Ct. 864,

869, 74 L. Ed. 2d 675 (1983) (holdi ng that Due Process Clause

subjects an inmat e's treatment by prison authorities to judicial

oversight only if such treatment falls outside the terms of the

inmate's sentence, and holding that "[i]t is plain that the

transfer of an inmate to less amenable and more restrictive

quarters for nonpunitive reasons is well within the terms of

confinement ordinarily contemplated by a prison sentence").

Howeve r, "[t]he use of punitive isolation without affording due

process is unacceptable and violates the 14th Amendment." P embroke

v. Wood County, Tex. , 981 F.2d 225, 229 (5th Cir.), cert. denied

,

___ U.S. ___, 113 S. Ct. 2965, 125 L. Ed. 2d 665 (1993).

In his complaint, Randall alleged that his entire building was

placed under lockdown because of the misconduct of three of the3 In his complaint, Randall stated that he "was in the dining hall on

July 10, 1992, when three prisoners and two or more officers got into a fight in

eight building where [Randall] is housed as close custody status and was punished

for infraction committed by them."

-5- building's in mates, and that he was not one of the three. 3 We

addressed claims similar to Randall's in two recent cases, and in

both we held that the district court abused its discretion in

dismissing as frivolous a due process claim from an inmate who had

been placed in lockdown because of an incident in which the inmate

was not involved. In Eason v. Thaler , 14 F.3d 8 (5th Cir. 1994),

we held that "[e]ven though a lockdown rarely will require more

than informal review, some process arguably was due [the inmate.]"

Id. at 9. However, we based our holding on the fact that we had

"limited information" as to the reasons for the lockdown. I d. We

cited as support our decision in Mitchell

, which also involved a

due process claim that was factually very similar to Randall's. We

held in Mitchell that because the inmate had alleged that the

lockdown was punitive in nature, and because the record was not

sufficiently developed as to the reasons for the lockdown, the

district court had abused its discretion in dismissing the inmate's

claim as frivolous. M itchell

, 995 F.2d at 63 ("Mitchell raises the

non-frivolous contention )) and from the record before us we cannot

tell whether there is a basis for the contention )) that the prison

officials placed Mitchell in isolation for punitive reasons and not

that he was segregated for administrative reasons.").

The present case differs from Eason an d Mitchell in one

important respect. In his complaint, Randall alleged that he was-6-

placed in lockdown "pursuant to" TDCJ-ID's Administrative Directive

3.31 (March 7, 1991), which gives prison officials the power to

order lockdowns "where necessary to suppress a major threat to the

institution's safety or security." J ones v. Cockrell

, No. 94-40188

(5th Cir. Feb. 6, 1995) (unpublished opinion). Thus, unlike the

inmate in Mitchell , Randall has not alleged that he was placed in

lockdown for punitive rather than administrative reasons. Instead,

Randall contends that he was placed in lockdown for administrative

reasons, but that the result was that he was punished for a fight

that other inmates had with the prison guards. Thus, the

confinement that Randall suffered, albeit more restrictive than

confi nement in the general prison population, does not implicate

the Due Process Clause. S ee Hewitt

, 459 U.S. at 468, 103 S. Ct. at

869 ("It is plain that the transfer of an inmate to less amenable

and more restrictive quarters for nonpunitive reasons is well

within the terms of confinement ordinarily contemplated by a prison

sentence."). We therefore hold that the magistrate judge did not

abuse its discretion in dismissing Randall's due process claim as

frivolous under § 1915(d).

B

Randall also contends on appeal that prison officials violated

his first and eighth amendment rights by refusing him a "pork-free"

meal on two occasions during the lockdown. The magistrate judge

held that Randall's claim was frivolous, reasoning th at: (1)

"[Randall's] claim concerning a failure to provide pork-free meals

alleges two isolated incidents not sufficient to . . . constitute-7-

a constitutional violation;" (2) "[Randall] has not alleged facts

to show that any substantial burden was placed on his exercise of

religion;" (3) "[Randall] has also alleged he had no reason to

think that the guard served him the two meals with the pork in them

on purpose;" and (4) "At no point has plaintiff alleged any harm to

indicate that the meals were not sufficient to preserve health."

In his complaint, Randall claimed that he twice refused sack

lunches brought to him during the lockdown because he believed the

lunches were not pork-free. According to Randall, he informed each

official that he needed a pork-free meal, but neither provided him

with one. Randall contended that the officials knew or should have

known that eating pork is against Randall's religious belie fs.

Randall alleges in his complaint th at he did not eat the meals

offered him on the two occasions and, as a result, suffered hunger

pains and weight loss.

Randall contends on appe al that the officials' failure to

provide him w ith adequate food constituted cruel and unusual

punishment. S ee Cooper v. Sheriff, Lubbock County, Tex.

, 929 F.2d

1078, 1083 (5th Cir. 1991) ("Beca use depriving a prisoner of

adequate food is a form of corporal pun ishment, the eighth

amendment imposes limits on prison officials' power to so deprive

a prisoner.").

"Certainly, the Constitution does not tolerate the

administrative transformance of a sentence of several years'

imprisonm ent to one of a gulag-type death by incremental

starvation." G eorge v. King

, 837 F.2d 705, 707 (5th Cir. 198 8).-8-

However, Randall was not starved. Even if we assume that Randall

was deprived of one of his three meals on two separate days,

Randall's Eighth Amendment claim is frivolous because we have held

that providing inmates with only two meals a day is not necessarily

unconstitutional. S ee Green v. Ferrell

, 801 F.2d 765, 770-771 (5th

Cir. 1986) (holding that jail could constitutionally continue

serving inmates only two meals a day, given jail physician's

testimony that inmates had no medical problems caused by inadequate

diet, because Eighth Amendment only requires that inmates receive

"`well-balanced meal[s], containing sufficient nutritional value to

preserve health'" (quoting S mith v. Sullivan

, 553 F.2d 373 , 380

(5th Cir. 1977)).

Randall contended in his complaint that he suffered hunger

pains and weight loss as a result of missing lunch on two days of

the lockdown, not that the nutritional value from the meals he did

receive was insufficient to preserve his health. S ee Woods v.

Edwards

, 51 F.3d 577, 581 (5th Cir. 1995) (holding that prison

officials violate inmates' Eighth Amendment rights on ly when

officials deny inmates the minimal civilized measure of life's

necessities). Thus, we hold that the magistrate judge did not

abuse his discretion in dismissing Randall's Eighth Amendment claim

as frivolous under § 1915(d).

C

Randall also contends on appeal t hat the prison officials'

failure to provide him with a pork-free meal on two separate

occasions violated his First Amendment right to freely exercise his4 In fact, Randall contended in his complaint that the prison official

who refused to give him a pork-free meal on the first occasion was not the same

official who refused on the second occasion. While Randall did state in his

complaint that one of the officials told him that the meal Randall refused did

not have pork in it, Randall did allege that the other official told him that

there were no pork-free meals left.

-9- religious beliefs. The district court dismissed Randall's first

amendment claim as frivolous on the grounds that (1) "[Randall] has

not alleged facts to show that any substantial burden was placed on

his exercise of religion," and (2) "[Randall] has also alleged he

has no reason to think that the guard served him the two meals with

pork in them on purpose." 4

Restrictions on inmates' right to exercise their religious

beliefs must be reasonably related to legitimate penological

interests. M uhammad v. Lynaugh

, 966 F.2d 901, 902 (5th Cir. 1992).

Thus, because "[p]rison officials have a constitutional obligation

to provide reasonably adequate food and, absent some legit imate

penological interest preventing the accommodation of a prisoner's

religious restrictions, food which is anathema to an inmate because

of his religion is at least arguably inadequate." Eason

, 14 F.3d at

10 (footnotes omitted).

We addressed a claim similar to Randall's in Eason , in which

an inmate complained that he received only three non-pork meals

during a twenty-five-day lockdown. We held in E ason that the

district court abused its discretion in dismissing the inmate's

claim as frivolous. The present case is distinguishable from

Eason

, however, because Randall was refused a pork -free meal on

only two occasions during the lockdown, and not during the same5 Our reasoning parallels that of the Sixth Circuit in Barnes v. Mann

,

12 F.3d 211, 211 (6th Cir. 1993), in which an inmate claimed "that his First

Amendment right to worship the Muslim religion was violated because the defendant

failed to adequately provide food substitutes for pork when pork, pork-items, or pork derivatives were served." The Sixth Circuit held that the district court

did not abuse its discretion in dismissing the claim as frivolous, stating:

[The inmate] asserts a legal interest which does not exist. He is

not constitu tionally entitled to a pork-free diet. Defendant is

only required to prepare a diet sufficient to keep prisoners in good

health, or in the case of Muslims, a diet which provides them with

adequate nourishment without the consumption of pork. To the extent

plaintiff may be asserting he is malnou rished, he has failed to

properly plead such a claim.

Id.

-10- day. While Randall may have received only two "adequate" meals on

two days of the lockdown, he contended i n his complaint that he

suffered hunge r pains and weight loss as a result, not that the

nutritional value from the meals he did receive was insufficient to

preserve his health. S ee Green

, 801 F.2d 765, 770-71 (holding that

jail could constitutionally continue serving inmates only two meals

a day, given jail physician's testimony that inmates had no medical

problems caus ed by inadequate diet, because Eighth Amendment

requires only that inmates receive "`well-balanced meal[s],

containing sufficient nutritional value to preserve health.'"

(quoting Smith v. Sullivan

, 553 F.2d 373, 380 (5th Cir. 1977)).

Thus, Randall cannot show that t he prison officials' failure to

provide him with a pork-free meal on two separate occasions

burdened his right to freely exercise his religious beliefs. The

district court did not abuse its discretion in dismissing Randall's

Eighth Amendment claim as frivolous. 5

III

For the foregoing reasons, we AFFIRM the district cou rt's

dismissal of Randall's complaint.