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Civil Rights Action Concerning Prison Food Service
In Green v. Atkinson, No. 09-11050, an action under 42 U.S.C. section 1983 against food service employees, the warden, and the assistant warden of the prison where plaintiff was an inmate, alleging that defendants failed to screen inmates' food for foreign objects (e.g., a metal nut in plaintiff's cornbread), the dismissal of the complaint is vacated in part where the district court erred in dismissing the suit for failure to state a nonfrivolous claim without permitting plaintiff to develop further the factual basis for it.
As the court wrote: "Kendrick D. Green, Texas prisoner #1041383, filed suit under 42 U.S.C.
§ 1983 against food service employees, the warden, and the assistant warden of the prison where he is an inmate, alleging that the defendants failed to screen inmates' food for foreign objects. The district court dismissed the suit pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). The standard of review for dismissal of a complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) is abuse of discretion. The standard of review for dismissals under 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii) is de novo. We
therefore review the case de novo, taking the facts alleged in the complaint as true and viewing them in the light most favorable to Green."
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