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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

SHERMAN SOLOMON,

Plaintiff,

vs. Case No. 5:11cv208/MCR/CJK

DEPT OF FINANCIAL SERVICES, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a civil rights

complaint under 42 U.S.C. § 1983. (Doc. 1). The Court has reviewed the complaint

and concludes that this case should be dismissed because plaintiff is barred from

recovering the relief he seeks, and because plaintiff has not presented and cannot

present an actionable claim under § 1983.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida Department of Corrections confined at

Apalachee CorrectionalInstitution (“Apalachee CI”). (Doc. 1). Plaintiff’s complaint

names four defendants: “Dept. of Financial Services,” and three prison officials at

Apalachee CI (Assistant Warden Atkins, Food Service Dietician Ms. Leavins, and

Food Service Employee Mr. Mercer). Plaintiff alleges that on February 17, 2011, he

received his vegan lunch tray and noticed there was meat mixed in with the noodles. 

When plaintiff complained to defendant Mercer, Mercer responded, “You act like you

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never ate meat before. I can’t do nothing for you.” Plaintiff grieved the incident to

defendants Leavins and Atkins. Leavins denied plaintiff’s grievance, noting that

Mercer told her he cooked “plain” noodles for the vegan meal that day. (Doc. 1, Ex.

A). Plaintiff appealed Leavins’ response. Assistant Warden Atkins denied the

grievance, explaining: “Vegan meal pattern is neither a religious nor a medical diet. 

Ms. Leavins spoke with staff and they stated that ‘plain’ (non-meat) noodles were

cooked on the day in question.” (Id., Ex. B). The Secretary’s Office of the DOC

denied plaintiff’s appeal from Atkins’ response. (Id., Ex. C). Plaintiff asserts that

this single incident concerning his lunch meal injured him “spiritually and

psychologically,” because since then he has “developed a severe paranoia about the

food I eat here, how they are forcing me to violate the principals pertinent to my

worship and the spiritual consequences I may be subject to.” (Doc. 1, pp. 8-9). 

Plaintiff claims the defendants’ conduct violated the Eighth and Fourteenth

Amendments, because it denied plaintiff “the right to participate and practice my

religion.” (Id., p. 10). As relief, plaintiffseeks $150,000 in punitive damages for the

mental injury he suffered, i.e., having “developed a severe paranoia about the food

I eat. . . .” (Id.). 

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the Court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S. Ct. 594, 30 L. Ed. 2d 652 (1972). Dismissals for failure to state a claim are

governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell

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v. Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). The Court accepts all factual

tth

allegations in the complaint as true and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

29 F.3d 1480, 1483 (11th Cir. 1994). The complaint may be dismissed if the facts as

pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (retiring

the negatively-glossed “no set of facts” language previously used to describe the

motion to dismiss standard and determining that because plaintiffs had “not nudged

their claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). A complaint is also subject to dismissal for

failure to state a claim when its allegations, on their face, show that an affirmative

defense barsrecovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022

(11th Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920-21,

166 L. Ed. 2d 798 (2007) (reiterating that principle).

Taking the allegations of the complaint astrue and construing them in the light

most favorable to plaintiff, they show that plaintiff’s claims are barred by 42 U.S.C.

§ 1997e(e). The Prison Litigation Reform Act (“PLRA”) provides, “No Federal civil

action may be brought by a prisoner confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while in custody without a prior

showing of physical injury.” 42 U.S.C. § 1997e(e). “[T]he phrase ‘Federal civil

action’ means all federal claims, including constitutional claims.” Napier v.

Preslicka, 314 F.3d 528, 532 (11th Cir. 2002). This action, brought by plaintiff under

42 U.S.C. § 1983, is a “Federal civil action” under this definition. It is evident from

the face of plaintiff’s complaint that plaintiff was a prisoner at the time he filed this

action, and that the harm complained of occurred while plaintiff was in custody. 

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Plaintiff’s punitive damages claims, which cannot be liberallyconstrued as requesting

nominal damages, are based on the mental injury plaintiff suffered as a result of the

defendants’ conduct. The complaint identifies no physical injury arising from

defendants’ conduct, much less injury that is more than de minimis. See Harris v.

Garner, 190 F.3d 1279, 1286 (11th Cir. 1999) (“Harris I”) (concluding that in order

to satisfy § 1997e(e) “the physical injury must be more than de minimis, but need not

be significant.”), reh’g en banc granted and opinion vacated, 197 F.3d 1059 (11th

Cir. 1999), opinion reinstated in relevant part, 216 F.3d 970 (11th Cir. 2000)

(“Harris II”). As plaintiff’s damages claims are barred as a matter of law, this suit

should be dismissed. Harris I, 190 F.3d at 1287-88 (affirming district court’s

dismissal of claims for compensatory and punitive damages as barred by § 1997e(e)),

reinstated on reh’g, Harris II, 216 F.3d at 972; see also Al-Amin v. Smith, 637 F.3d

1192 (11th Cir. 2011) (holding that “the overall tenor of Harris and its progeny, when

taken together, unmistakably supports” the conclusion that § 1997e(e) applies to

constitutional claims and precludes the recovery of compensatory and punitive

damages in the absence of the requisite physical injury). 

Even if plaintiff modified his demand for relief to seek only nominal damages,

this suit would still be subject to dismissal for failure to state a claim. An Eighth

Amendment claim challenging a prisoner’s confinement conditions requires a twoprong showing: “an objective showing of a deprivation or injury that is ‘sufficiently

serious’ to constitute a denial of the ‘minimal civilized measure of life’s necessities’

and a subjective showing that the official had a ‘sufficiently culpable state of mind.’” 

Thomas v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010) (quoting Farmer v. Brennan,

511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994)). 

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Being deprived of food does not per se constitute an objectively serious

deprivation in violation of the Constitution. Reed v. McBride, 178 F.3d 849, 853 (7th

Cir. 1999). The circumstances, nature, and duration of the deprivation must be

considered in determining whether a constitutional violation has occurred. “In

general, the severity and duration of deprivations necessary to state a constitutional

violation are inversely proportional, so that minor deprivations suffered for short

periods would not rise to an Eighth Amendment violation, while ‘substantial

deprivations of shelter, food, drinking water, and sanitation’ may meet the standard

despite a shorter duration.” Deapain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)

(quoting Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 1999)); see also Whitnack v.

Douglas Cnty., 16 F.3d 954, 958 (8th Cir. 1994). The plaintiff in this case alleges

that he was deprived of one meal for one day. Under no set of facts can this

constitute a significant deprivation, especially where there is no suggestion that

plaintiff suffered any adverse physical effects or that his health was jeopardized as

a result of the single deprivation. Courts that have considered more significant

deprivations of food have declined to find the existence of a constitutional violation. 

See, e.g., Gardner v. Beale, 780 F.Supp. 1073 (E.D. Va.1991), aff’d 998 F.2d 1008

(4th Cir. 1993) (providing prisoner with only two meals per day, with an 18-hour

interval between dinner and brunch, did not satisfy objective component of Eighth

Amendment standard); Green v. Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986) (even

on a regular, permanent basis, two meals per day may be adequate); see also Talib v.

Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) (finding it “doubtful” that prisoner

missing fifty meals in five months “was denied anything close to a minimal measure

of life’s necessities,” and commenting that “[m]issing a mere one out of every nine

meals is hardly more than that missed by many working citizens over the same

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period.”); Berry v. Brady, 192 F.3d 504, 506-08 (5th Cir. 1999) (finding that denying

an inmate eight meals over seven months because of the inmate’s failure to shave did

not meet the objective component, and noting that the prisoner had not alleged any

specific physical harm, nor had he claimed that he lost weight or suffered other

adverse physical effects or had his health put at risk); Adair v. Okaloosa Cnty. Jail,

No. 3:07cv425/MCR/EMT, 2008 WL 564616 (N.D. Fla. Feb. 17, 2008) (concluding

that deprivation of one meal does not satisfy Eighth Amendment standard). Because

plaintiff’s allegations fail to state a plausible Eighth Amendment claim, this claim

should be dismissed.

Plaintiff’s attempt to state a Fourteenth Amendment claim based on his right

to practice his religion also fails. The First Amendment’s Free Exercise Clause is

applicable to the states through the Fourteenth Amendment. See Cantwell v. Conn.,

310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). To state a First Amendment

claim, a prisoner must be able to show that his ability to practice his faith was

substantially burdened. See Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L.

Ed. 2d 64 (1987); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995). A

“substantial burden” is defined as a burden that either compels a person to engage in

conduct that is forbidden by his religion, or conduct that prohibits a person from

engaging in conduct required by his religion. Cheffner, 55 F.3d at 1522. Here, even

assuming (without deciding) that plaintiff’s choice of a vegan meal was related to a

sincerely held religious belief, plaintiff admits that he did not eat the offending meal. 

Plaintiff’s self-described “paranoia” that the meals he eats may not be purely vegan,

is not enough to nudge plaintiff’s First/Fourteenth Amendment claim “acrossthe line

from conceivable to plausible.” Twombly, 550 U.S. at 570. 

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“Ordinarily, a party must be given at least one opportunity to amend before the

district court dismisses the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008,

1014 (11th Cir. 2005). “A district court need not, however, allow an amendment (1)

where there has been undue delay, bad faith, dilatory motive, or repeated failure to

cure deficiencies by amendments previously allowed; (2) where allowing amendment

would cause undue prejudice to the opposing party; or (3) where amendment would

be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). In this case

amendment would be futile, so the Court may dismiss this action without allowing

amendment.

Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii), for

plaintiff’s failure to state a claim upon which relief may be granted.

2. That plaintiff’s “Emergency Petition For Temporary Injunction” (doc. 15)

be DENIED.

3. That the Clerk be directed to close the file.

At Pensacola, Florida this 9th day of April, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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