                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-6685


BERNARD BROWN,

                 Plaintiff – Appellant,

          v.

R. BROCK, Food Services Manager; PATRICIA SCARBERRY, Food
Services Director,

                 Defendants - Appellees.



                             No. 15-6726


BERNARD BROWN,

                 Plaintiff – Appellant,

          v.

PATRICIA SCARBERRY, Food Services Director at Red Onion
State Prison; R. BROCK, Food Services Manager at Red Onion
State Prison,

                 Defendants - Appellees.



Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:14-cv-00466-GEC; 7:14-cv-00707-GEC-RSB)


Submitted:   September 29, 2015            Decided:   December 16, 2015
Before WILKINSON, SHEDD, and DIAZ, Circuit Judges.


No. 15-6685 dismissed; No. 15-6726 affirmed in part; vacated and
remanded in part by unpublished per curiam opinion.


Bernard Brown, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Bernard Brown appeals from the dismissal without prejudice

of   two   similar   42      U.S.C.   § 1983       (2012)     complaints    under       28

U.S.C. § 1915A (2012) for failure to state a claim.                         The first

was dismissed on October 6, 2014 (No. 15-6685), and the second

was dismissed on January 26, 2015 (No. 15-6726).                     We dismiss the

appeal in No. 15-6685 as untimely; however, in No. 15-6726, we

affirm in part, and vacate and remand in part.

      Parties in a civil action in which the United States is not

a party have 30 days following the entry of the district court’s

final judgment or order to file a notice of appeal.                           Fed. R.

App. P. 4(a)(1)(A).          If a party files in the district court any

of the motions listed in Fed. R. App. P. 4(a)(4)(A), including a

motion “to alter or amend the judgment under Rule 59,” then the

30-day appeal period runs from the entry of the order disposing

of the last such motion.              Fed. R. App. P. 4(a)(4)(A).                 “[T]he

timely     filing   of   a   notice    of       appeal   in   a   civil    case    is    a

jurisdictional requirement.”            Bowles v. Russell, 551 U.S. 205,

214 (2007).

      Assuming that Brown’s post-judgment motions in No. 15-6685

could be properly construed as Rule 59(e) motions, the 30-day

appeal period ran from the entry of the court’s October 31, 2014

order denying Brown’s second motion for reconsideration.                          Thus,



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his   April    24,    2015    notice     of       appeal   was    clearly    untimely.

Accordingly, we dismiss No. 15-6685 for lack of jurisdiction.

      Turning to No. 15-6726, allegations in a pro se complaint

are to be liberally construed, and a court should not dismiss an

action for failure to state a claim “‘unless after accepting all

well-pleaded allegations in the plaintiff’s complaint as true

and drawing all reasonable factual inferences from those facts

in the plaintiff’s favor, it appears certain that the plaintiff

cannot prove any set of facts in support of his claim entitling

him to relief.’”           De’Lonta v. Angelone, 330 F.3d 630, 633 (4th

Cir. 2003) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.

2002)).       However, a prisoner’s complaint seeking redress from

the Government that is frivolous, malicious, or fails to state a

claim may be dismissed sua sponte.                       28 U.S.C. § 1915A.           We

review de novo a district court’s dismissal for failure to state

a claim pursuant to § 1915A.                 Slade v. Hampton Rds. Reg’l Jail,

407 F.3d 243, 248 (4th Cir. 2005) (citation omitted).

      Liberally       construing       the    complaint,       Brown    asserts      that

Patricia Scarberry, Food Services Director at Brown’s prison,

knowingly used a defective can opener during food preparation

and was aware that pieces of metal could end up in prisoners’

food.     Brown      bit   down   on    one       of   these   pieces   of   metal    and

permanently injured his tooth causing pain and potential loss of

the tooth.      When informed that Brown found metal in his food,

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Scarberry allegedly admitted that the metal likely came from the

kitchen but stated that she had no other choice but to use the

can opener.          Scarberry allegedly stated that she had seen metal

in various foods on different occasions.                               In addition, Brown

averred that metal had been found in his food several times in

the past.

       The Eighth Amendment prohibits the infliction of “cruel and

unusual       punishments”      on    prisoners,          including        the    “unnecessary

and wanton infliction of pain.”                          Whitley v. Albers, 475 U.S.

312,     319     (1986)    (internal           quotation           marks      and     citations

omitted).        To succeed on an Eighth Amendment claim, a prisoner

must show that “the prison official acted with a sufficiently

culpable state of mind (subjective component) and . . . [the]

injury        inflicted    on    the       inmate          was     sufficiently         serious

(objective component).”              Iko v. Shreve, 535 F.3d 225, 238 (4th

Cir. 2008).          Allegations of unsanitary food service facilities

are sufficient to state a cognizable constitutional claim, see

Bolding v. Holshouser, 575 F.2d 461, 465 (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,      297-302   (1991).             A       single    incident        of   finding    a

foreign object in food does not constitute a violation of the

constitutional         rights        of    the          prisoner       affected;       however,

evidence of frequent or regular injurious incidents of foreign

                                                   5
objects in food raises what otherwise might be merely isolated

negligent behavior to the level of a constitutional violation.

Green       v.    Atkinson,     623     F.3d         278,        280-81    (5th       Cir.       2010)

(vacating         dismissal     of    complaint            that       alleged     prisoner         was

injured by metal in his food after similar occurrences in the

past and admission by defendant that there was nothing to be

done).

       Construing        Brown’s      claims     of        Scarberry’s         prior       knowledge

and repetition of the incidents liberally, we conclude that he

has    alleged        sufficient      deliberate               indifference      to    require       a

response from Scarberry.                   However, Brown’s complaint does not

substantively mention Defendant R. Brock, Food Services Manager,

and does not allege any prior knowledge on his behalf, aside

from    the       fact   that   he    is    in       a    management      position          in    food

services         at   the    prison     and      that           he    responded       to     certain

grievances.           As the principles of respondeat superior do not

apply in § 1983 cases, Brown’s allegations are insufficient to

state    a       claim   against     Brock.              See    Monell    v.    Dep’t       of    Soc.

Servs.,      436      U.S.   658,    694    (1978)         (holding       that    defendant         in

§ 1983 action may not be sued solely for injury caused by his

employee or agent).

       Accordingly, we dismiss No. 15-6685, affirm the dismissal

of    the     complaint      against       Brock          in    No.    15-6726,       vacate       the

portion of the district court’s opinion dismissing the complaint

                                                 6
against Scarberry in No. 15-6726, and remand to the district

court for further proceedings as to this claim.            We deny Brown’s

motion to remand.        We dispense with oral argument because the

facts   and   legal    contentions    are   adequately   presented    in   the

materials     before   this   court   and   argument   would   not   aid   the

decisional process.

                                                    No. 15-6685 DISMISSED
                                            No. 15-6726 AFFIRMED IN PART;
                                             VACATED AND REMANDED IN PART




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