UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-6685

BERNARD BROWN,

Plaintiff – Appellant,

v.

R. BROCK, Food Services Manager; PATRICIA SCARBERRY, Food 

Services Director,

Defendants - Appellees.

No. 15-6726

BERNARD BROWN,

Plaintiff – Appellant,

v.

PATRICIA SCARBERRY, Food Services Director at Red Onion 

State Prison; R. BROCK, Food Services Manager at Red Onion 

State Prison,

Defendants - Appellees.

Appeals from the United States District Court for the Western 

District of Virginia, at Roanoke. Glen E. Conrad, Chief

District Judge. (7:14-cv-00466-GEC; 7:14-cv-00707-GEC-RSB)

Submitted: September 29, 2015 Decided: December 16, 2015
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Before WILKINSON, SHEDD, and DIAZ, Circuit Judges.

No. 15-6685 dismissed; No. 15-6726 affirmed in part; vacated and 

remanded in part by unpublished per curiam opinion.

Bernard Brown, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Bernard Brown appeals from the dismissal without prejudice 

of two similar 42 U.S.C. § 1983 (2012) complaints under 28 

U.S.C. § 1915A (2012) for failure to state a claim. The first 

was dismissed on October 6, 2014 (No. 15-6685), and the second 

was dismissed on January 26, 2015 (No. 15-6726). We dismiss the 

appeal in No. 15-6685 as untimely; however, in No. 15-6726, we 

affirm in part, and vacate and remand in part.

Parties in a civil action in which the United States is not 

a party have 30 days following the entry of the district court’s 

final judgment or order to file a notice of appeal. Fed. R. 

App. P. 4(a)(1)(A). If a party files in the district court any 

of the motions listed in Fed. R. App. P. 4(a)(4)(A), including a 

motion “to alter or amend the judgment under Rule 59,” then the 

30-day appeal period runs from the entry of the order disposing 

of the last such motion. Fed. R. App. P. 4(a)(4)(A). “[T]he 

timely filing of a notice of appeal in a civil case is a 

jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 

214 (2007).

Assuming that Brown’s post-judgment motions in No. 15-6685 

could be properly construed as Rule 59(e) motions, the 30-day 

appeal period ran from the entry of the court’s October 31, 2014 

order denying Brown’s second motion for reconsideration. Thus, 
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his April 24, 2015 notice of appeal was clearly untimely. 

Accordingly, we dismiss No. 15-6685 for lack of jurisdiction.

Turning to No. 15-6726, allegations in a pro se complaint 

are to be liberally construed, and a court should not dismiss an 

action for failure to state a claim “‘unless after accepting all 

well-pleaded allegations in the plaintiff’s complaint as true 

and drawing all reasonable factual inferences from those facts 

in the plaintiff’s favor, it appears certain that the plaintiff 

cannot prove any set of facts in support of his claim entitling 

him to relief.’” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th 

Cir. 2003) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 

2002)). However, a prisoner’s complaint seeking redress from 

the Government that is frivolous, malicious, or fails to state a 

claim may be dismissed sua sponte. 28 U.S.C. § 1915A. We

review de novo a district court’s dismissal for failure to state 

a claim pursuant to § 1915A. Slade v. Hampton Rds. Reg’l Jail, 

407 F.3d 243, 248 (4th Cir. 2005) (citation omitted). 

Liberally construing the complaint, Brown asserts that 

Patricia Scarberry, Food Services Director at Brown’s prison,

knowingly used a defective can opener during food preparation 

and was aware that pieces of metal could end up in prisoners’ 

food. Brown bit down on one of these pieces of metal and 

permanently injured his tooth causing pain and potential loss of 

the tooth. When informed that Brown found metal in his food, 
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Scarberry allegedly admitted that the metal likely came from the 

kitchen but stated that she had no other choice but to use the 

can opener. Scarberry allegedly stated that she had seen metal 

in various foods on different occasions. In addition, Brown 

averred that metal had been found in his food several times in 

the past.

The Eighth Amendment prohibits the infliction of “cruel and 

unusual punishments” on prisoners, including the “unnecessary 

and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 

312, 319 (1986) (internal quotation marks and citations 

omitted). To succeed on an Eighth Amendment claim, a prisoner 

must show that “the prison official acted with a sufficiently 

culpable state of mind (subjective component) and . . . [the] 

injury inflicted on the inmate was sufficiently serious 

(objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th 

Cir. 2008). Allegations of unsanitary food service facilities 

are sufficient to state a cognizable constitutional claim, see

Bolding v. Holshouser, 575 F.2d 461, 465 (4th Cir. 1978), so 

long as the deprivation is serious and the defendant is 

deliberately indifferent to the need. Wilson v. Seiter, 501 

U.S. 294, 297-302 (1991). A single incident of finding a 

foreign object in food does not constitute a violation of the 

constitutional rights of the prisoner affected; however, 

evidence of frequent or regular injurious incidents of foreign 
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objects in food raises what otherwise might be merely isolated 

negligent behavior to the level of a constitutional violation. 

Green v. Atkinson, 623 F.3d 278, 280-81 (5th Cir. 2010) 

(vacating dismissal of complaint that alleged prisoner was 

injured by metal in his food after similar occurrences in the 

past and admission by defendant that there was nothing to be 

done).

Construing Brown’s claims of Scarberry’s prior knowledge 

and repetition of the incidents liberally, we conclude that he

has alleged sufficient deliberate indifference to require a 

response from Scarberry. However, Brown’s complaint does not 

substantively mention Defendant R. Brock, Food Services Manager,

and does not allege any prior knowledge on his behalf, aside 

from the fact that he is in a management position in food 

services at the prison and that he responded to certain 

grievances. As the principles of respondeat superior do not 

apply in § 1983 cases, Brown’s allegations are insufficient to 

state a claim against Brock. See Monell v. Dep’t of Soc. 

Servs., 436 U.S. 658, 694 (1978) (holding that defendant in 

§ 1983 action may not be sued solely for injury caused by his 

employee or agent).

Accordingly, we dismiss No. 15-6685, affirm the dismissal 

of the complaint against Brock in No. 15-6726, vacate the 

portion of the district court’s opinion dismissing the complaint 
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against Scarberry in No. 15-6726, and remand to the district 

court for further proceedings as to this claim. We deny Brown’s 

motion to remand. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

No. 15-6685 DISMISSED

No. 15-6726 AFFIRMED IN PART;

VACATED AND REMANDED IN PART