                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-16398
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:16-cv-22053-UU

WARREN OLIVER,

                                                           Plaintiff-Appellant,

                                       versus

KATHLEEN FUHRMAN,
Public Health Nutrition Program
Manager,
SHANE PHILLIPS,
Operation Manager,
CRAIG MCCORMICK,
Public Health Nutrition Program
Manager,
FLORIDA DEPARTMENT OF
CORRECTIONS,
JOHN DOE,
Food Director at Martin Correctional
Institution, et al.,

                                                         Defendants-Appellees.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (May 30, 2017)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Warren Oliver, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his civil rights complaint, filed against various prison officials

pursuant to 42 U.S.C. § 1983, for failure to state a claim, pursuant to 28 U.S.C. §

1915(e). On appeal, Oliver argues that: (1) his complaint sufficiently stated an

Eighth Amendment claim, where he alleged that prison officials served prisoners

“toxic meat,” and that prison officials failed to ensure that the dishes were properly

cleaned; and (2) the district court should have allowed him the opportunity to

amend his complaint. After careful review, we vacate and remand.

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

a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), using the same standards that

govern Fed. R. Civ. P. 12(b)(6) dismissals. Mitchell v. Farcass, 112 F.3d 1483,

1490 (11th Cir. 1997). Section 1915(e) provides, inter alia, that an IFP action shall

be dismissed at any time if the court determines that it fails to state a claim for

which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). However, the district


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court may not dismiss an IFP complaint pursuant to § 1915(e)(2)(B)(ii) without

allowing leave to amend when required by Fed. R. Civ. P. 15. Brown v. Johnson,

387 F.3d 1344, 1348-49 (11th Cir. 2004). Under Rule 15(a), a party may amend a

complaint once as a matter of course within either 21 days after serving it, or 21

days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f),

whichever is earlier. Fed. R. Civ. P. 15(a).

      To avoid dismissal, the complaint must state a claim for relief that is

plausible on its face.   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).         Pro se

pleadings, however, are held to less stringent standards than those drafted by

lawyers and are liberally construed by this Court. Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir. 2008).

      The Eighth Amendment governs the conditions under which prisoners are

confined and the treatment they receive in prison. Farmer v. Brennan, 511 U.S.

825, 832 (1994). Accordingly, it imposes duties on prison officials, who “must

ensure that inmates receive adequate food, clothing, shelter, and medical care.” Id.

To establish an Eighth Amendment violation, a prisoner must satisfy both an

objective and subjective inquiry regarding a prison official’s conduct. Chandler v.

Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). Under the objective component, a

prisoner must allege a condition that is sufficiently serious to violate the Eighth

Amendment. Id. The challenged condition must be extreme and must pose an


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unreasonable risk of serious damage to the prisoner’s future health or safety. Id.

The Eighth Amendment only guarantees that prisoners are provided with a

minimal civilized level of life’s basic necessities.      Id.   Restrictive or harsh

conditions alone do not rise to the level of an Eighth Amendment violation. Id.

      Second, the prisoner must allege that the prison official, at a minimum, acted

with a state of mind that constituted deliberate indifference. Id. This means the

prisoner must show that the prison officials: (1) had subjective knowledge of a risk

of serious harm; (2) disregarded that risk; and (3) through conduct that is more

than mere negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003).

      A prisoner is entitled to reasonably adequate food. See Hamm v. DeKalb

Cty., 774 F.2d 1567, 1575 (11th Cir. 1985). This requires only that he receives a

well-balanced meal with sufficient nutritional value to preserve health. Id. “The

fact that the food occasionally contains foreign objects or sometimes is served

cold, while unpleasant, does not amount to a constitutional deprivation.” Id.

      For starters, the district court did not err in dismissing the instant complaint

for failure to state an Eighth Amendment claim. As for Oliver’s complaints about

the food, Oliver did not allege a condition sufficiently severe to establish an Eighth

Amendment objection. See Chandler, 379 F.3d at 1289. Oliver alleged that the

meat is “toxic,” contains soy and rodent meat, and has long-term medical

consequences for the inmates, including kidney stones, chronic acne, digestive


                                          4
problems, and lowered cognitive functioning.          However, he did not say he

personally has suffered from any of these issues, or even that he personally knows

prisoners who have suffered from these issues. The only medical issue Oliver

personally alleged he has suffered based on his exposure to the soy-laden products

is H. pylori -- a bacteria in his stomach -- but he provided no details about the

severity of his H. pylori symptoms. Thus, Oliver did not adequately allege that he

was being deprived of constitutional rights based on poor nutrition. See Hamm,

774 F.3d at 1575.

        Moreover, Oliver failed to allege facts showing that the prison officials acted

with deliberate indifference to any serious medical need. See Farrow, 320 F.3d at

1245.     Oliver claimed the defendants knew the meats were toxic based on

complaints from sickened inmates and their families, but he did not allege any

facts to suggest that any of the inmates presented evidence to the prison officials

establishing that their illnesses stemmed from soy-based protein. Nor did he allege

that any governmental agency, such as the U.S. Department of Agriculture or the

U.S. Food and Drug Administration, has determined that soy protein is not safe for

human consumption, much less that any of the prison officials were aware of any

determination like that.

        In addition, Oliver’s complaints about the cleanliness of the dishes at the

prison do not state an Eighth Amendment claim. Oliver has not alleged that the


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dishes are not cleaned at all; he alleges only that they were not cleaned properly.

And his prison grievances state that grease remained on the dishes after they had

been washed. But this allegation is not sufficiently serious to show an Eighth

Amendment violation because spots left on washed dishes simply do not show that

Oliver has been deprived of a minimal civilized level of life’s basic necessities.

See Chandler, 379 F.3d at 1289.       In short, the district court did not err in

dismissing Oliver’s complaint for failure to state an Eighth Amendment claim.

      Nonetheless, the district court did err in dismissing Oliver’s complaint

without permitting him leave to amend.        The record indicates that Oliver’s

complaint had not yet been served on any of the defendants, and none of the

defendants had filed any responsive pleadings. As a result, Oliver was still able to

amend his complaint as of right, and the district court could not dismiss his

complaint without permitting him to amend it. See Brown , 387 F.3d at 1348-49.

Oliver objected to the magistrate judge’s report and recommendation (“R&R”),

asserting, in part, that he should be allowed to amend his complaint to fix any

deficiency. The district court provided no reason about why Oliver could not

amend his complaint; rather, it summarily adopted the reasoning in the R&R.

Accordingly, we vacate and remand to the district court for proceedings consistent

with this opinion.

      VACATED AND REMANDED.


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