OpenJurist

48 F3d 1224 Sandlin v. Walton

Carl Ray SANDLIN, Appellant,
v.
Paul WALTON, Kitchen Supervisor, Brickeys Unit, Arkansas
Department of Correction, Appellee.

No. 94-3947.

United States Court of Appeals,
Eighth Circuit.

Submitted: Feb. 9, 1995.
Filed: Feb. 14, 1995.

48 F.3d 1224
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Before FAGG, MAGILL, and BEAM, Circuit Judges.

PER CURIAM.

1

Carl Ray Sandlin appeals the district court's1 dismissal of his 42 U.S.C. Sec. 1983 action. We affirm.

2

In his in forma pauperis complaint, Sandlin, an Arkansas inmate, stated that at lunch on March 9, 1994, he noticed very little food in the food line; that he received only two items, greens and peanuts; that when he sat at a table to eat, he noticed other inmates had beef gravy; that the gravy was not available when he initially went through the food line; and that Officer Paul Walton refused to give him beef gravy when he reapproached the food line. The district court dismissed the action pursuant to 28 U.S.C. Sec. 1915(d).

3

We conclude that the district court did not abuse its discretion in dismissing Sandlin's complaint as frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (complaint is frivolous if it lacks "an arguable basis either in law or in fact"); Robinson v. Cavanaugh, 20 F.3d 892, 894 (8th Cir. 1994) (per curiam) (standard of review for Sec. 1915(d) dismissal). Sandlin's equal protection claim based on not receiving beef gravy on one occasion is frivolous. Likewise, as Walton's alleged conduct, even if true, does not amount to the denial of a nutritionally adequate diet, Sandlin's Eighth Amendment claim is frivolous. See Divers v. Department of Corrections, 921 F.2d 191, 194 (8th Cir. 1990) (per curiam); see also Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992).

4

Accordingly, we affirm.

1

The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas