After examining appellant’s brief and the appellate record, this panel has *

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument. This

Order and Judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be

cited under the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

July 24, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL LEE STROPE,

Plaintiff-Appellant,

v.

KATHLEEN SEBELIUS, Governor,

State of Kansas, WILLIAM

CUMMINGS, Secretary of

Corrections, KDOC, DAVID R.

MCKUNE, Warden, Lansing

Correctional Facility, COLLEEN

WINKLEBAUER, Deputy Warden,

Lansing Correctional Facility,

Defendants-Appellees.

No. 06-3144

(D.C. No. 05-CV-3284-SAC)

(D. Kan.)

ORDER AND JUDGMENT

*

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

Michael Lee Strope, a Kansas state prisoner, filed this pro se civil rights
This is one in a series of civil rights complaints filed by Mr. Strope. See, 1

e.g., Strope v. Pettis, No. 05-CV-3059, 2006 WL 482915 (D. Kan. Feb. 28, 2006);

Strope v. McKune, No. 05-3344, 2006 WL 246138 (10th Cir. Feb. 2, 2006);

Strope v. Roper, No. 01-CV-3009, 2005 WL 1799214 (D. Kan. July 13, 2005);

Strope v. Pettis, No. 03-3383, 2004 WL 2713084 (D. Kan. Nov. 23, 2004); Strope

v. McKune, No. 03-3310, 2004 WL 1737694 (D. Kan. July 29, 2004), aff’d, 131

F. App’x 123 (10th Cir. 2005); Strope v. Gibbens, No. 01-CV-3358, 2002 WL

31898204 (D. Kan. Dec. 12, 2002); Strope v. Thomas, No. 98-CV-3354, 2000 WL

210399 (D. Kan. Feb. 16, 2000).

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lawsuit pursuant to 42 U.S.C. § 1983, alleging violations of the First, Eighth, and 

Fourteenth Amendments by Kansas state and prison officials (“Defendants”).1

The district court dismissed the complaint pursuant to 28 U.S.C. § 1915(e), and

we affirm in part and reverse in part.

I. Facts and Procedural History

In April 2003, Mr. Strope was approved for a kosher prison diet. His

lawsuit claims that on multiple occasions between March 2005 and June 2005, the

kosher meals were unacceptable. In particular, Mr. Strope asserts: that a “sour’d”

turkey sandwich “made me sick to my stomach with severe cramps till [sic] 2 in

the morning”; that the salads and oranges are routinely spoiled; and that on one

occasion the kosher meal was “burnt beyond recognition.” He alleges that these

are examples of an “everyday and on-going” practice of the prison, which he

claims “routinely” serves spoiled food to prisoners on a kosher diet. Because of

the problems with the food, Mr. Strope claims that he

continues to go to bed at night hungry from lack of proper foods, and

continues to be deprived of an adequate kosher diet, and is forced to

buy food products from the canteen to survive and balance out the
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proper calories, vitamins, irons, niacins, proteins, and other required

essentials to equal a balanced diet.

He asserts that the Defendants intentionally facilitated and were deliberately

indifferent to these problems. Additionally, he claims that the Defendants

conspired to retaliate against him for complaining about the food. Finally, Mr.

Strope complains of the removal of state-issued fans from the “excessively hot

and improperly ventilated” cell-houses. Mr. Strope seeks declaratory and

injunctive relief, as well as compensatory and punitive damages for these allege

violations of his First, Eighth, and Fourteenth Amendment rights.

The district court granted Mr. Strope’s motion to proceed in forma

pauperis, but dismissed the action under 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring

dismissal “if the court determines that . . . the action . . . fails to state a claim on

which relief may be granted”). Mr. Strope timely appealed, and the district court

granted his motion to proceed in forma pauperis on appeal.

II. Discussion

A. Standard of Review

We review § 1915(e) dismissal for failure to state a claim under a de novo

standard. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999).

Dismissal of a pro se complaint for failure to state a claim is proper

only where it is obvious that the plaintiff cannot prevail on the facts he

has alleged and it would be futile to give him an opportunity to amend.

In determining whether dismissal is proper, we must accept the

allegations of the complaint as true and we must construe those

allegations, and any reasonable inferences that might be drawn from
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them, in the light most favorable to the plaintiff. Further, we must

liberally construe the allegations of a pro se complaint.

Id. (citations omitted).

B. Analysis

1. Eighth Amendment claims

A State must provide inmates with “nutritionally adequate food that is

prepared and served under conditions which do not present an immediate danger

to the health and well being of the inmates who consume it.” Ramos v. Lamm,

639 F.2d 559, 570–71 (10th Cir. 1980). “A substantial deprivation of food may

be sufficiently serious to state a conditions of confinement claim under the Eighth

Amendment.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). To

state a claim for food deprivation, a prisoner must allege both (1) a “sufficiently

serious” deprivation of “the minimal civilized measure of life’s necessities” and

(2) “deliberate indifference” by prison officials to a “substantial risk of serious

harm to an inmate.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998)

(quotations omitted).

Although it is a close question, we conclude that Mr. Strope’s allegations

are barely sufficient at this pleading stage to require a response from the

government. See Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996)

(prisoner stated a cause of action under the Eighth Amendment by claiming “not

just ‘ransid food’ [sic], but also a ‘nutritionally deficient’ diet”). Mr. Strope
Although Mr. Strope’s complaint states that he “continues to be deprived 2

of an adequate kosher diet,” he is not appealing the district court’s conclusion that

he “does not assert that he has been denied a Kosher diet.” In any event, we

agree with the district court that Mr. Strope’s allegations do not state a claim for

denial of his First Amendment constitutional right to a diet conforming with his

sincere religious beliefs. See LaFevers v. Saffle, 936 F.2d 1117, 1118–19 (10th

Cir. 1991).

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claims that prisoners on a kosher diet are routinely served spoiled food, leaving

them with an inadequate diet, and that Defendants are deliberately indifferent to

(and that they intentionally facilitate) that problem. He also alleges facts that

provide some support for such a claim. The district court, in concluding that Mr.

Strope failed to state a claim, accepted assertions made by Defendants in replies

to Mr. Strope’s grievances, which were attached to Mr. Strope’s complaint. 

However, to the extent those replies contradict the allegations made in Mr.

Strope’s complaint, we must ignore them at this stage of the case. We therefore

reverse dismissal of Mr. Strope’s Eighth Amendment claim as it relates to his

food deprivation claim.2

It is unclear whether Mr. Strope seeks to appeal the district court’s

dismissal of his Eighth Amendment claim as to the removal of fans from the cellhouses. In any event, we affirm the dismissal of that claim. The rule is that “a

state must provide within [a prisoner’s] living space reasonably adequate

ventilation.” Ramos, 639 F.2d at 568. Mr. Strope claims that the prison lacks

adequate ventilation, and that fans are necessary to control the “excessively hot”

temperature and to provide ventilation. He further asserts that the high
Furthermore, based on the exhibits attached to the complaint, it appears 3

that fans are available for purchase in the prison canteen, and that the prison has a

policy of providing fans to indigent prisoners. Mr. Strope does not contest these

facts and does not claim that he lacks sufficient funds to purchase a fan.

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temperatures make it hard to sleep. Although these conditions are no doubt

uncomfortable, we conclude that Mr. Strope’s allegations are insufficient to state

a claim of violation of the Eighth Amendment.3

2. Retaliation claim

We also reverse the district court’s determination that Mr. Strope failed to

state a claim of retaliation. “[P]rison officials may not retaliate against or harass

an inmate because of the inmate’s exercise of his constitutional rights.” Fogle v.

Pierson, 435 F.3d 1252, 1263–64 (10th Cir. 2006) (quotation omitted). And,

“prisoners have the constitutional right to petition the Government for redress of

their grievances.” Hudson v. Palmer, 468 U.S. 517, 523 (1984); see also Penrod

v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (“[T]he jurisprudence prohibiting

retaliatory acts against prisoners for reporting grievances is well-established.”). 

We conclude that Mr. Strope has “allege[d] specific facts showing retaliation

because of the exercise of [his] constitutional rights,” Fogle, 435 F.3d at 1264. 

He claims that the kosher meals were scorched the day he filed one grievance, and

that after filing a grievance about the burnt food, he was served a spoiled turkey

sandwich that made him ill. We conclude that these allegations are substantial

enough to require a response from the government.
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III. Conclusion

Mr. Strope may very well be unable to prevail on his claims as the record is

further developed. All we are holding is that it was error to dismiss his

inadequate nutrition claim and his retaliation claim under § 1915(e). We

therefore REVERSE dismissal of Mr. Strope’s Eighth Amendment nutritionally

inadequate diet claim and his First Amendment retaliation claim and REMAND

for further proceedings. We AFFIRM dismissal of his other claims.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge