                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-7679


LEE O. WILSON, JR.,

                Plaintiff - Appellant,

          v.

GENE M. JOHNSON, Director of VDOC; J.S. GARMAN, Warden of
St. Brides C.C.; V.S. ESCALAR, Food Service Supervisor;
DAVID ROBINSON, Regional Director; GARY BASS, Supervisor
(C.C.S.); WENDELL W. PIXLEY, Warden; MS. TAYLOR, TPS;
COURTNEY SCHERER, Institutional Ombudsman; S. RIDDICK,
Institutional Ombudsman; MARK ENGELKE, Head of Food Service;
WENDY BROWN, Court and Legal Supervisor,

                Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:09-cv-00334-LMB-TRJ)


Submitted:   June 8, 2010                 Decided:   June 25, 2010


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Lee O. Wilson, Jr., Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Lee     O.    Wilson    appeals       the     district       court’s   order

dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C.

§ 1915A(b) (2006).               We have reviewed the record and, while we

find that the dismissal of Wilson’s claim that he was served

inadequate food portions was premature, we find no reversible

error       as    to   the     remainder    of       the   district       court’s    opinion.

Accordingly,           with    the     exception      of     the    claim    concerning     the

adequacy of the food, we affirm for the reasons stated by the

district court.               Wilson v. Johnson, No. 1:09-cv-00334-LMB-TRJ

(E.D. Va. Aug. 26, 2009).

                 As to the adequacy of the food claim, Wilson alleged

that    the       food    service       staff    at    the    St.    Brides     Correctional

Center was not providing food portions according to the Federal

Standards.         He contends that the “minute portions” allotted are

well below the 2750 to 3000 calories required.                               Wilson asserted

that in one month — between December 10, 2008, and January 13,

2009    —    he    lost       twelve    pounds,       reducing      his     weight   from   217

pounds to 205 pounds.

                 A pro se litigant’s complaint should not be dismissed

unless it appears beyond doubt that the litigant can prove no

set of facts in support of his claim that would entitle him to

relief.          Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

                                                 2
Allegations of inadequate food for human nutritional needs or

unsanitary food service facilities are sufficient to state a

cognizable constitutional claim, see Bolding v. Holshouser, 575

F.2d 461 (4th Cir. 1978), so long as the deprivation is serious

and   the   defendant   is   deliberately   indifferent   to   the   need.

Wilson v. Seiter, 501 U.S. 294 (1991).            Here, the basis of

Wilson’s complaint is that the prison serves inadequate food

portions and that he suffered physically by losing weight and

experiencing stress as a result of being underfed on a daily

basis.

            We find that, liberally construing Wilson’s complaint,

these allegations are sufficient to survive the initial review

under § 1915A.    See De’Lonta v. Angelone, 330 F.3d 630, 633 (4th

Cir. 2003); see also Berry v. Brady, 192 F.3d 504, 508 (5th Cir.

1999) (suggesting that, to state Eighth Amendment claim inmate

must allege “he lost weight or suffered other adverse physical

effects or was denied a nutritionally and calorically adequate

diet”); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992)

(holding that prisoners have the right to nutritionally adequate

food); Rust v. Grammer, 858 F.2d 411, 414 (8th Cir. 1988) (diet

without fruits and vegetables might violate Eighth Amendment if

it were regular prison diet).           Because Wilson may be able to

prove sufficient facts to support his Eighth Amendment claim,

                                    3
Gordon, 574 F.2d at 1151, we conclude that dismissal of this

claim prior to a response from the Defendants was premature. *

           We therefore vacate the district court’s dismissal of

Wilson’s   inadequate   food   claim   and   remand   this   case   to   the

district court for further proceedings.          We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                    AFFIRMED IN PART;
                                         VACATED AND REMANDED IN PART




     *
       We express no opinion as to the ultimate disposition of
this claim.



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