Myles v. Barlow et al
Filing
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MEMORANDUM OPINION AND ORDER ADOPTING 5 REPORT AND RECOMMENDATIONS. Signed by District Judge Thad Heartfield on 4/7/22. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
TONY ORLANDO MYLES
§
VS.
§
YOLANDA BARLOW, et al.,
§
CIVIL ACTION NO. 9:20-CV-252
MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS
AND ADOPTING REPORT AND RECOMMENDATION
Plaintiff, Tony Orlando Myles, an inmate formerly confined at the Gib Lewis Unit with the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in
forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants
Lieutenant Yolanda Barlow, Sergeant Kiyo J. Moye, Captain Michael P. Moriarity, Captain Matthew
J. Davidson, and Sergeant Marcus D. Preston.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Lufkin, Texas, for consideration pursuant to applicable laws and orders of this court. The
magistrate judge recommends the complaint be dismissed as frivolous and for failure to state a claim
(Doc. # 6).
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Plaintiff filed
Objections to the Report and Recommendation of United States Magistrate Judge (Doc. # 6).
Plaintiff also filed an Amended Complaint (Doc. # 8). This requires a de novo review of the
objections in relation to the pleadings and applicable law. See FED. R. CIV. P. 72(b).
After a careful review, the court finds plaintiff’s Objections lacking in merit. While Plaintiff
attempts to plead more specifically the personal involvement of each supervisory Defendant, Plaintiff
still fails to put forth sufficient facts alleging the Defendants were deliberately indifferent. Plaintiff’s
chief complaint is that the food he is served is cold and full of roaches. In his Objections, Plaintiff
concedes that each Defendant in response to his complaints either arranged for Plaintiff to get an
alternate meal (“food loaf”), a sack lunch, or provided him a hot pot to heat his food or sent the food
cart back. While Plaintiff later alleges Defendant Davidson told him another time to “tell Donald
Trump” in response to Plaintiff’s repeated complaints, this statement alone does not evince the
wanton disregard for Plaintiff’s health and safety necessary to plead a claim for deliberate
indifference. Deliberate indifference is more than mere negligence. Farmer v. Brennan, 511 U.S.
825, 835 (1994). To act with deliberate indifference, a prison official must both know of and
disregard an excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference. Id. at 837.
With respect to food, the prison system is not required to provide inmates with three meals
a day. Green v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986). “The constitution requires only that
inmates be provided with well-balanced meals, containing sufficient nutritional value to preserve
health.” Davis v. Stephens, No. 2:15-CV-211, 2015 WL 4887577, at *8 (S.D. Tex. Aug. 17, 2015)
(citing Green, 801 F.2d at 770-71). Furthermore, “[w]ithout an allegation of resulting harm,
complaints regarding food service practices simply are not of constitutional dimension.” See
Billizone v. Jefferson Parish Correctional Center, No. 14-1263, 2015 WL 1897683, at *5 (E.D. La.
Apr. 27, 2015) (internal quotations and citations omitted). Here, Plaintiff concedes that every time
he creates a disturbance about the food, a supervisor (one of the Defendants) comes and fixes the
problem and he “didn’t suffer as much.” Plaintiff does not allege he has gone without food for any
extended period of time. As to these Defendants, Plaintiff has simply failed to plead deliberate
indifference.
Finally, in his Amended Complaint, Plaintiff alleges Defendant Moye threatened to inflict
harm on him if Plaintiff did not “drop” his civil suit (Doc. # 8). Plaintiff contends specifically that
on February 6, 2021, Defendant Moye “beat” on his cell door at breakfast time and refused to feed
him breakfast. Plaintiff alleges further that Defendant Moye told him he would never give Plaintiff
cold food or food with roaches on it but then refused to get him a “Johnny.” Defendant Moye
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allegedly also said, “I will never give you nothing to eat whenever I have to work the wing when we
are short of staff.” Plaintiff does not allege he went without food for any period of time, however,
let alone an extended period of time. As before, these statements alone do not evince the wanton
disregard for Plaintiff’s health and safety necessary to plead a claim for deliberate indifference.
Farmer v. Brennan, 511 U.S. 825, 835 (1994). Plaintiff has not pleaded facts to allege Defendant
Moye knew of and disregarded an excessive risk to Plaintiff’s health or safety and then drew the
inference. Id. at 837.
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A
Final Judgment will be entered in accordance with the recommendations of the magistrate judge.
SIGNED this the 7 day of April, 2022.
____________________________
Thad Heartfield
United States District Judge
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