     Case: 11-10158     Document: 00511615770         Page: 1     Date Filed: 09/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 28, 2011
                                     No. 11-10158
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KENDRICK D. GREEN,

                                                  Plaintiff-Appellant

v.

HAROLD A. ATKINSON, Food Service MGRIV at Middleton Unit,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-276


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Kendrick D. Green, Texas prisoner # 1041383, appeals the dismissal of his
42 U.S.C. § 1983 suit against food service manager Harold Atkinson. Green
asserts that the prison system failed to screen food properly for foreign objects
and that Atkinson’s deliberate indifference to a known risk violated Green’s
right to be free from cruel and unusual punishment. Green suggests that the
prison had a duty to sift the food before preparing it. He further suggests that
the Texas Department of Criminal Justice (TDCJ) is liable because it is

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-10158    Document: 00511615770     Page: 2   Date Filed: 09/28/2011

                                  No. 11-10158

responsible for providing safety training to the inmates who prepare food.
Insofar as he argues that anyone but Atkinson is liable, we previously affirmed
the dismissal of the prison’s warden, assistant warden, and other food service
employees. The TDCJ is not a named defendant.
      Given an opportunity upon remand to cure the inadequacy of his claim
against Atkinson, Green failed to allege facts related to any other incident in
which an inmate was injured by a foreign object in the food. His sole allegation
that a security guard knew of an incident when pebbles were found in prison
beans does not support a finding that Atkinson knowingly disregarded a
substantial risk that an inmate would bite into or ingest a foreign object. The
security guard did not indicate that Atkinson was aware of the pebbles. In a
§ 1983 suit, “[a]bsent vicarious liability, each Government official . . . is only
liable for his or her own misconduct.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Because Green was unable upon remand to remedy the insufficient
factual allegations against Atkinson, the district court’s dismissal of the claim
was proper. See id.; George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (holding
single incident of food poisoning did not amount to a violation of prisoners’
constitutional rights).
      Green also addresses the merits of new claims he attempted to add to his
complaint upon remand. The district court did not abuse its discretion in
denying leave to amend. See Boyd v. United States, 861 F.2d 106, 108 (5th Cir.
1988).
      AFFIRMED.




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