                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7076


TONEY RECOE KING,

                  Plaintiff – Appellant,

             v.

ROBERT C. LEWIS; ROBERT COOPER; PATRICK CHILDRESS; NORTH
CAROLINA DEPARTMENT OF CORRECTION,

                  Defendants – Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.   Graham C. Mullen,
Senior District Judge. (1:09-cv-00165-GCM)


Submitted:    December 4, 2009              Decided:   December 31, 2009


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Toney Recoe King, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

              Toney Recoe King appeals from the district court order

dismissing, for failure to state a claim, his complaint in which

he alleged that he was provided insufficient food at the Avery

Mitchell    Correctional         Institution,   in   violation        of   42   U.S.C.

§ 1983 (2006).          We find that King’s complaint survives 28 U.S.C.

§ 1915A (2006) review and therefore vacate the district court’s

order and remand for further proceedings.

              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).

Construing the complaint liberally, see De’Lonta v. Angelone,

330 F.3d 630, 633 (4th Cir. 2003),               King alleged that the food

served     at    each     meal    was   inadequate   in        both   quantity      and

nutritional standards.            He asserted that the “vegetables served

only add up to less than two (2) teaspoonful, eggs served during

breakfast add up to even less; meats served is often less than

two (2) ounces.          Most meals would not add up to six (6) ounces

total.”         King also asserted that the prison used access to food

as a punishment by limiting canteen purchases for inmates who

violate prison rules.            Additionally, he asserts that he suffers

more   than      “fortunate      prisoners”   because     he    cannot     afford    to



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purchase       food    items    from        the    canteen     to     supplement         the

inadequate food provided at meals.

              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 King’s complaint is that the prison serves

nutritionally         inadequate      food    portions      and     that    he     suffered

“physically due to periodic pain associated with hunger” and

“mentally because [he] cannot focus on his rehabilitation he

must continue to worry about food or the lack there of.”

              We find that, liberally construing King’s complaint,

these allegations are sufficient to survive the initial review

under § 1915A.         See De’Lonta, 330 F.3d at 633; 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”);       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”); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992)

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(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).

               Liberally construing the complaint, we find that King

may be able to prove sufficient facts to support his Eighth

Amendment claim, Gordon, 574 F.2d at 1151, and thus conclude

that       dismissal   prior    to   a   response      from   the   Defendants   was

premature. *      We therefore vacate the district court’s dismissal

order 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.

                                                              VACATED AND REMANDED




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



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