                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        July 24, 2006
                      UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                        Clerk of Court
                                  TENTH CIRCUIT



 M ICH AEL LEE STROPE,

          Plaintiff-Appellant,
 v.

 KATHLEEN SEBELIUS, Governor,
 State of K ansas, WILLIA M                             No. 06-3144
 CUM M INGS, Secretary of                        (D.C. No. 05-CV-3284-SAC)
 Corrections, KDO C, DAV ID R.                            (D . Kan.)
 M CKUNE, W arden, Lansing
 Correctional Facility, CO LLEEN
 W INKLEBAUER, Deputy W arden,
 Lansing Correctional Facility,

          Defendants-Appellees.



                             OR DER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




      M ichael Lee Strope, a Kansas state prisoner, filed this pro se civil rights


      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
lawsuit pursuant to 42 U.S.C. § 1983, alleging violations of the First, Eighth, and

Fourteenth A mendments 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 H istory

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

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

kosher meals were unacceptable. In particular, M r. 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, M r. 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

      1
        This is one in a series of civil rights complaints filed by M r. Strope. See,
e.g., Strope v. Pettis, No. 05-CV-3059, 2006 W L 482915 (D. Kan. Feb. 28, 2006);
Strope v. M cK une, No. 05-3344, 2006 W L 246138 (10th Cir. Feb. 2, 2006);
Strope v. Roper, No. 01-CV-3009, 2005 W L 1799214 (D. Kan. July 13, 2005);
Strope v. Pettis, No. 03-3383, 2004 W L 2713084 (D. Kan. Nov. 23, 2004); Strope
v. M cKune, No. 03-3310, 2004 W L 1737694 (D. Kan. July 29, 2004), aff’d, 131
F. App’x 123 (10th Cir. 2005); Strope v. Gibbens, No. 01-CV-3358, 2002 W L
31898204 (D. Kan. Dec. 12, 2002); Strope v. Thomas, No. 98-CV-3354, 2000 W L
210399 (D. Kan. Feb. 16, 2000).

                                         -2-
      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, M r.

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

and improperly ventilated” cell-houses. M r. 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 M r. 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”). M r. Strope timely appealed, and the district court

granted his motion to proceed in form a pauperis on appeal.

      II. Discussion

             A. Standard of Review

      W e 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 determ ining whether dismissal is proper, we must accept the
      allegations of the complaint as true and w e must construe those
      allegations, and any reasonable inferences that might be drawn from

                                           -3-
      them, in the light m ost favorable to the plaintiff. Further, we must
      liberally construe the allegations of a pro se complaint.

Id. (citations omitted).

             B. Analysis

                    1. E ighth A mendment 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

Am endment.” 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 M r. 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”). M r. Strope



                                          -4-
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 M r.

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

to M r. Strope’s grievances, which were attached to M r. Strope’s complaint.

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

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

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

food deprivation claim. 2

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

dismissal of his Eighth Amendment claim as to the removal of fans from the cell-

houses. 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. M r. 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

      2
       Although M r. Strope’s complaint states that he “continues to be deprived
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 M r. 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).

                                          -5-
temperatures make it hard to sleep. Although these conditions are no doubt

uncomfortable, w e conclude that M r. Strope’s allegations are insufficient to state

a claim of violation of the Eighth Amendment. 3

                   2. Retaliation claim

      W e also reverse the district court’s determination that M r. 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.”).

W e conclude that M r. 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. W e conclude that these allegations are substantial

enough to require a response from the government.



      3
        Furthermore, based on the exhibits attached to the complaint, it appears
that fans are available for purchase in the prison canteen, and that the prison has a
policy of providing fans to indigent prisoners. M r. Strope does not contest these
facts and does not claim that he lacks sufficient funds to purchase a fan.

                                         -6-
      III. Conclusion

      M r. 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). W e

therefore REVERSE dismissal of M r. Strope’s Eighth Amendment nutritionally

inadequate diet claim and his First Amendment retaliation claim and REM AND

for further proceedings. W e AFFIRM dismissal of his other claims.



                                      ENTERED FOR THE COURT


                                      David M . Ebel
                                      Circuit Judge




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