* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 96-40003

(Summary Calendar)

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CALVIN RAY HYDER,

Plaintiff-Appellant,

v.

PEREZ, Head Warden,

Defendant-Appellee.

___________________

Appeal from the United States District Court for the

Southern District of Texas, Corpus Christi

(C-95-CV-608)

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April 29, 1996

Before WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

 Calvin Ray Hyder, a prisoner of the State of Texas, filed a

civil rights action pursuant to 28 U.S.C. § 1983 against Warden

Perez at the McConnell Unit in Beeville, Texas, asserting a
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violation of his rights under the Eighth Amendment. Proceeding

in forma pauperis, Hyder alleged that he is being deprived of an

adequate amount of food, causing hunger pains, headaches,

decreased energy, weight loss, and emotional distress. The

district court dismissed Hyder’s claims as frivolous pursuant to

28 U.S.C. § 1915. 

A petition brought by a claimant proceeding in forma

pauperis may be dismissed under Section 1915(d) if the district

court is satisfied that the case is frivolous or malicious. 

Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995). On appeal we

review that determination for an abuse of discretion. Denton v.

Hernandez, 504 U.S. 25 (1992). 

Hyder first contends that he is not receiving adequate food

to provide him with proper nutrition as required by the Eighth

Amendment and consent decree in Ruiz v. Estelle, 503 F.Supp. 1265

(S.D. Tex. 1980), aff’d in part and vacated in part, 679 F.2d

1115, amended in part and vacated in part, 688 F.2d 266 (5th Cir.

1982), cert. denied, 460 U.S. 1042 (1983). We agree, however,

with the trial court’s finding that Hyder’s contentions about the

quantity of food do not rise to the level of a constitutional

deprivation. The food described constituted nutritional items,

and Hyder’s claims that the quantities were inadequate lack an

arguable basis in law or fact, so dismissal under § 1915(d) was

proper.
 Spears v. McCotter, 766 F.2d 179, 182 (5th Cir. 1985).

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Hyder also argues that he was punished without a

disciplinary hearing and given food loaf, which was inadequate

and sometimes contaminated. He contends that the nonemergency

punishment, although temporary, violated due process. 

 "Because depriving a prisoner of adequate food is a form of

corporal punishment, the eighth amendment imposes limits on

prison officials' power to so deprive a prisoner." Cooper v.

Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1083 (5th Cir.

1991). The level of process due depends on the severity of the

sanction and the needs of the institution. Id. The district

court did not inquire concerning the circumstances of the foodloaf restriction or address the issue in its order of dismissal. 

 Further, the district court did not request that Hyder

develop the facts concerning the contamination of the food loaf. 

"The fact that the food occasionally contains foreign objects or

sometimes is served cold, while unpleasant, does not amount to a

constitutional deprivation." Hamm v. DeKalb County, 774 F.2d

1567, 1575 (11th Cir. 1985), cert. denied, 475 U.S. 1096 (1986). 

However, Hyder alleged that the contamination consisted of grass,

plastic, or tar and that it occurred five out of 27 times.

 Hyder's allegations are not "fanciful, fantastic, and

delusional." See Denton, 112 S. Ct. at 1733-34. The district

court should have provided a questionnaire or a Spears1 hearing
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to assist Hyder in developing the allegations in his complaint. 

The district court abused its discretion by dismissing the

complaint without any effort to allow Hyder to amend the due

process claim or the contaminated-food claim. Eason, 14 F.3d at

9.

 The district court did not address Hyder's claim that the

decreased quantity of food was an act of retaliation by

officials. An inmate may not be retaliated against because he

exercises his right to access to the courts. Gibbs v. King, 779

F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117 (1986). 

However, Hyder does not raise this issue on appeal, and it is

deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987).

 Accordingly, we AFFIRM the judgment of the district court

concerning the alleged Eighth Amendment deprivation of a

sufficient quantity of food and the retaliation claim. We VACATE

and REMAND for further proceedings the portion of the judgment

that dismissed as frivolous Hyder's due process claim and the

contaminated-food-loaf claim. Given this disposition, Hyder’s

motions for appointment of counsel and for production of evidence

are denied.

AFFIRMED in part; VACATED and REMANDED in part; motions

DENIED. 
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