1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LOUIS DIGGS, Case No. 22-cv-03244-JST

8 Plaintiff,

ORDER OF DISMISSAL

v. 9

10 CONTRA COSTA COUNTY JAIL FOOD

SERVICES, WEST COUNTY JAIL,

11 Defendants.

12 13 Plaintiff, an inmate housed at West County Jail in Richmond, California, filed this pro se 14 civil rights action pursuant to 42 U.S.C. § 1983. His complaint (ECF No. 10) is now before the 15 Court for review under 28 U.S.C. § 1915A. His request for leave to proceed in forma pauperis 16 has been granted in a separate order. ECF No. 13. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must engage in a preliminary screening of any case in which a prisoner 20 seeks redress from a governmental entity, or from an officer or an employee of a governmental 21 entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and 22 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be 23 granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. 24 § 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 3 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 4 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.” 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 6 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 8 right secured by the Constitution or laws of the United States was violated; and (2) that the 9 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 10 42, 48 (1988). 11 B. Dismissal with Prejudice 12 Plaintiff has named as defendants Contra Costa County Jail and West County Jail Food 13 Services. Plaintiff alleges that on May 18, 2022, County Jail Food Services served him moldy 14 food. See ECF No. 10 at 2. Plaintiff requests $205,000 for being served moldy food, and an 15 additional $150,000 for having consumed half the moldy food because noticing. ECF No. 10 at 3. 16 The instant action is DISMISSED with prejudice for failure to state a claim. While 17 Plaintiff has rights arising under either the Eighth Amendment or the Fourteenth Amendment’s 18 Due Process Clause,1 a single instance of being denied consecutive meals is not “cruel and unusual 19 punishment. The constitutional prohibition of “cruel and unusual” punishments necessarily 20 excludes from constitutional recognition de minimis violations. Hudson v. McMillian, 503 U.S. 1, 21 9–10 (1992) (applying Eighth Amendment in context of excessive force claim); Anderson v. 22 County of Kern, 45 F.3d 1310, 1314–15 (9th Cir.) (temporary placement in safety cell that was 23 dirty and smelled bad did not constitute infliction of pain), amended 75 F.3d 448 (9th Cir. 1995); 24 Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988) (allegation that inmate slept without 25 mattress for one night insufficient to state 8th Amendment violation and no amendment can alter 26 1 It is unclear if Plaintiff is a pre-trial detainee or incarcerated pursuant to a conviction. A pretrial 27 detainee’s claim regarding the food (s)he is served is governed by the Fourteenth Amendment, 1 that deficiency), judgment vacated on other grounds, 493 U.S. 801 (1989); DeMallory v. Cullen, 2 855 F.2d 442, 444 (7th Cir. 1988) (correctional officer spitting upon prisoner does not rise to level 3 of constitutional violation); Holloway v. Gunnell, 685 F.2d 150 (Sth Cir. 1982) (no claim stated 4 || where prisoner forced to spend two days in hot dirty cell with no water for hours); Curry v. 5 || Morring, No. C 09-3751 MHP (pr), 2010 WL 3490238, at *2 (N.D. Cal. 2010) (no Eighth 6 || Amendment claim stated by inmate who defecated on himself after correctional officers refused to 7 || let inmate leave exercise yard and return to his cell to use a toilet with toilet paper). The Eighth 8 || Amendment only requires that inmates receive food that it is adequate to maintain health. “‘The 9 fact that the food occasionally contains foreign objects or sometimes is served cold, while 10 || unpleasant, does not amount to a constitutional deprivation.’” See LeMaire v. Maass, 12 F.3d 11 1444, 1456 (9th Cir. 1993) (citing Hamm vy. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 12 1985), cert. denied, 475 U.S. 1096 (1986)). 5 13 Accordingly, this action will be DISMISSED for failure to state a claim. The dismissal is 14 || with prejudice because amendment would be futile. Leadsinger, Inc. v. BMG Music Pub., 512 3 15 F.3d 522, 532 (9th Cir. 2008) (futility of amendment is basis for denial of leave to amend). 16 CONCLUSION 3 17 For the foregoing reasons, this action is DISMISSED with prejudice for failure to state a 18 claim upon which relief may be granted. The Clerk of the Court shall issue judgment and close 19 || the file. 20 IT IS SO ORDERED. 21 Dated: March 15, 2023 .

22 JON S. TIGAR 23 ited States District Judge 24 25 26 27 28