                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 9, 2008
                             No. 07-15147                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 05-00039-CV-3-MCR-EMT

PETER HERNANDEZ,


                                                           Plaintiff-Appellant,

                                  versus

FLORIDA DEPARTMENT OF CORRECTIONS,
SANTA ROSA CORRECTIONAL INSTITUTION,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                              (June 9, 2008)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Appellant Peter Hernandez, a state prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights action challenging his

treatment and conditions at a Florida correctional facility and the denial of his

request for counsel. In his third amended complaint, he sued the Santa Rosa

Correctional Institution and the following officers at the prison: Officer Schill,

Officer Duframe, Officer Tynsdale, Officer Moses, and Sergeant Garlow. He

appeals the district court’s sua sponte dismissal1 of that complaint for failure to

state a claim and failure to exhaust administrative remedies, and the district court’s

dismissal of his related state law claims.2

       On appeal, Hernandez first argues that he stated a claim upon which relief

could be granted regarding the regular denial of certain meals in prison, his

placement in a cold cell, and prison officers’ verbal abuse and threats to him.

Second, he argues that the prison or prison officers failed to protect him from an

attack by other inmates during a hurricane evacuation. Third, he contends that he


       1
         To the extent that Hernandez challenges the sua sponte dismissal on a procedural basis,
we note that a district court may screen all complaints filed in forma pauperis and all prisoner
suits seeking redress from governmental entities or government employees. See 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b). Because Hernandez was proceeding in forma pauperis as a
prisoner and suing a state prison and prison officers, we reject his procedural challenge to the
sua sponte dismissal prior to service of process on the defendants and prior to discovery.
       2
         The district court also denied his request for counsel. To the extent that Hernandez
challenges this denial on appeal, we conclude that the district court did not abuse its discretion in
denying the request because the case did not involve any exceptional circumstances. See Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999).

                                                  2
stated a claim under the Equal Protection Clause because the alleged abuse he

suffered was due to his race or nationality. Finally, he argues that he stated a First

Amendment claim by alleging that two prison officers read his legal papers in

prison, although the district court dismissed that claim because he failed to allege

that he exhausted administrative remedies with regard to that claim.

                                           I.

      We review questions of law de novo. McCoy v. Webster, 47 F.3d 404, 406

(11th Cir. 1995). Because the language in both 18 U.S.C. §§ 1915(e)(2) and

1915A(b) mirrors the language in Fed.R.Civ.P. 12(b)(6), we review de novo

dismissals under these provisions. See Leal v. Georgia Dep’t of Corr., 254 F.3d

1276, 1278-79 (11th Cir. 2001). Accordingly, we review de novo a district court’s

sua sponte dismissal of a complaint, pursuant to § 1915(e)(2) or § 1915A(b)(1), for

failure to state a claim. Id. at 1279.

      Under that standard, we must accept the complaint’s allegations as true and

construe them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003). “Factual allegations must be enough to raise a right

to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. __, __,

127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007).

      In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that:



                                           3
(1) a person acting under color of state law; (2) deprived him of a right secured by

the Constitution. 42 U.S.C. § 1983. The Eighth Amendment forbids punishments

that are cruel and unusual in light of contemporary standards of decency. U.S.

Const. amend. VIII; Ford v. Wainwright, 477 U.S. 399, 405-06, 106 S. Ct. 2595,

2599-2600, 91 L. Ed. 2d 335 (1986). Accordingly, the Eighth Amendment

governs the conditions under which convicted prisoners are confined and the

treatment they receive in prison. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct.

1970, 1976, 128 L.Ed.2d 811 (1994). “[P]rison officials must ensure that inmates

receive adequate food, clothing, shelter, and medical care,” and must “protect

prisoners from violence at the hands of other prisoners.” Id. at 832-33, 114 S.Ct. at

1976 (internal quotation omitted).

      To state an Eighth Amendment violation, a prisoner must allege facts to

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 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.



                                           4
Restrictive or even 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.

“[D]eliberate indifference has three components: (1) subjective knowledge of a risk

of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere

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

quotation omitted).

      Under the Eighth Amendment, a prisoner only is entitled to reasonably

adequate food. See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.

1985). A prison does not violate the Eighth Amendment by feeding a prisoner a

minimal amount of food for a limited number of days. Novak v. Beto, 453 F.2d

661, 665, 668 (5th Cir. 1971) (no Eighth Amendment violation when prisoner in

solitary confinement was fed 2 slices of bread per day, unlimited water, and a full

meal every 3 days, and that restrictive diet did not extend beyond 15 days).

      An Eighth Amendment violation may arise from allegations regarding the

temperature to which a prisoner is exposed in prison, and the severity and duration

of the exposure are relevant to the analysis. Chandler, 379 F.3d at 1294-95.

However, “a prisoner’s mere discomfort, without more, does not offend the Eighth



                                          5
Amendment.” Id. at 1295. We rejected a prisoner’s Eighth Amendment claim

based on his exposure to temperatures between 80 and 86 degrees all day during

the summertime in Florida. Id. at 1297-98 (also noting that the cells were

ventilated and the prisoner was not exposed to direct sunlight).

      After reviewing the record, we conclude that the district court did not err in

finding that Hernandez failed to state a claim regarding the routine deprivation of

lunch to him five days per week for about five months. He did not allege that he

was deprived of the two other daily meals or that he suffered physical harm from

the deprivation, and under these circumstances, he did not allege a deprivation that

posed an unreasonable risk of serious damage to his health. Likewise, Hernandez

did not state a claim regarding his exposure to a cold cell for a two-month period in

the winter in northern Florida due to a window that would not fully close.

Hernandez admitted that the cell was heated for several early-morning hours each

day and he wore his uniform. Thus, these circumstances did not demonstrate an

unreasonable risk of serious damage to his health. Finally, Hernandez’s allegations

of verbal abuse and threats by the prison officers did not state a claim because the

defendants never carried out these threats and verbal abuse alone is insufficient to

state a constitutional claim. See Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th

Cir. 1989) (rejecting a claim that jailers “violated their duty of protection or



                                            6
deprived the petitioner of his constitutional rights” based on threats from adult

inmates, even if the threats were distressing). Therefore, we affirm the district

court’s dismissal of these Eighth Amendment claims.

                                          II.

      Although prison officials have a duty to protect a prisoner from violence by

other prisoners, constitutional liability does not result from every injury suffered

by a prisoner at the hands of another. Farmer, 511 U.S. at 833, 114 S. Ct. at 1976-

77. In order to be held liable for failing to prevent an attack from other inmates, a

prison official “must be both aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Id. at 837, 114 S. Ct. at 1979. Allegations of negligent conduct do not

state a constitutional claim and thus, are not actionable under § 1983. Farrow 320

F.3d at 1245.

      In a § 1983 civil rights case, “an inquiry into a governmental entity’s custom

or policy is relevant only when a constitutional deprivation has occurred.” Rooney

v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996).

      After reviewing the record, we conclude that Hernandez failed to state a

claim that prison officials failed to protect him, which resulted in two attacks on

him by other inmates during a hurricane evacuation. He alleged that these attacks



                                           7
occurred because two prison officers read his legal papers and told other inmates

that his criminal conviction was sexual in nature. However, he did not allege that

prison officials responsible for determining how the inmates would be secured

during the evacuation were aware that other inmates knew the nature of his

conviction, or that inmates would react violently based on that knowledge. Thus,

his claim must fail because he did not allege deliberate indifference. Hernandez

also failed to allege deliberate indifference on the part of the individual prison

officers that he sued who allegedly revealed the nature of his conviction to others.

Specifically, he did not allege that they were aware of the security conditions

during the evacuations or that they participated in securing the prisoners for the

evacuations. Therefore, he failed to state a constitutional claim that the prison

itself or the individual prison officers failed to protect him from an attack by other

prisoners.

                                          III.

      The Equal Protection Clause of the Fourteenth Amendment requires the

government to treat similarly situated people alike. City of Cleburne, Tex. v.

Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313

(1985). To establish such a claim, a prisoner can allege that: “(1) he is similarly

situated with other prisoners who received more favorable treatment; and (2) his



                                           8
discriminatory treatment was based on some constitutionally protected interest,

such as race.” Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) (internal

quotations omitted); Damiano v. Fla. Parole & Prob. Comm'n, 785 F.2d 929,

932-33 (11th Cir. 1986). If a suspect classification, such as race, or a fundamental

right is implicated, a court must apply strict scrutiny to that claim. See Johnson v.

California, 543 U.S. 499, 506-07, 125 S. Ct. 1141, 1147, 160 L. Ed. 2d 949 (2005)

(holding that strict scrutiny is the appropriate standard of review for racial

classifications even in the prison context). There is no fundamental right

implicated, however, when an inmate is subjected to harsh words or vulgar

language. Cf. Edwards, 867 F.2d at 1274 n.1. If the allegations do not implicate a

suspect class, then a court may evaluate only whether there was a rational basis for

how the plaintiff was treated. See Village of Willowbrook v. Olech, 528 U.S. 562,

564, 120 S. Ct. 1074, 145 L. Ed. 2d 1060 (2000).

      Here, Hernandez did not explicitly allege the basis for the denial of equal

protection, but he did set forth allegations indicating that it was based either on his

race or nationality, or on his status as a prisoner incarcerated on sex charges.

Regardless of the possible basis for the alleged denial of equal protection, however,

we conclude that Hernandez failed to state an equal protection claim because he

did not allege facts showing that any similarly situated prisoners received more



                                           9
favorable treatment. In fact, he alleged that the individual defendants subjected

other inmates to the same form of verbal abuse that he suffered, “just for kicks.”

Moreover, Hernandez, like all inmates, does not enjoy a fundamental right to be

free of verbal abuse, so that could not support a traditional equal protection claim,

either. Because Hernandez did not allege that the individual defendants treated

similarly situated prisoners more favorably than him, we conclude that the district

court properly dismissed his equal protection claim.

                                          IV.

      “[W]e may affirm the district court on any ground that appears in the record,

whether or not that ground was relied upon or even considered by the court

below.” Rowell v. BellSouth Corp., 433 F.3d 794, 797-98 (11th Cir. 2005)

(internal quotation omitted).

      The Prison Litigation Reform Act of 1995 (“PLRA”) “requires prisoners to

exhaust prison grievance procedures before filing suit.” Jones v. Bock, 549 U.S.

199, __, 127 S. Ct. 910, 914, 166 L. Ed. 2d 798 (2007). The exhaustion

requirement applies to all prisoner suits brought under § 1983 or any other federal

law regarding prison conditions. See 42 U.S.C. § 1997e(a). However, “failure to

exhaust is an affirmative defense under the PLRA, and . . . inmates are not required

to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S.



                                          10
at __, 127 S. Ct. at 921 (overruling Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.

1998)) (rejecting the Sixth Circuit’s requirement that a prisoner specifically plead

exhaustion or provide documentary proof of exhaustion).

      The First Amendment grants prisoners a limited constitutional right of

access to the courts. Bounds v. Smith, 430 U.S. 817, 821-22, 97 S. Ct. 1491, 1494-

95, 52 L. Ed. 2d 72 (1977). The First Amendment also grants prisoners the right to

receive mail from their counsel uncensored by prison officials. Lemon v. Dugger,

931 F.2d 1465, 1467 (11th Cir. 1991) (citing Wolff v. McDonell, 418 U.S. 539, 94

S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). This right promotes a prisoner’s uninhibited

communication with counsel. Id.

      We conclude from the record that the district court erroneously dismissed

Hernandez’s First Amendment claim sua sponte based on his failure to exhaust

administrative remedies. Although exhaustion was required for the claim, the

district court should not have considered the issue sua sponte because Hernandez

was not required to plead or demonstrate exhaustion in his complaint.

      Nonetheless, we affirm the district court’s dismissal of this claim because

Hernandez failed to allege facts to support a First Amendment claim. He alleged

only that two prison officers read his legal papers, not that they read his incoming

legal mail. He did not allege that the legal papers contained correspondence with



                                          11
an attorney or that the act inhibited his access to courts. Therefore, his allegations

did not make out a First Amendment claim, and his complaint was subject to

dismissal in that regard.3

       Accordingly, we affirm the district court’s dismissal of Hernandez federal

claims and his related state claims.4 However, because the district court’s

dismissal of Hernandez’s First Amendment claim was without prejudice, we vacate

the judgment in that regard and remand with instructions for the district court to

consider whether dismissal of the count for failure to state a claim should be with

or without prejudice. See Welch v. Laney, 57 F.3d 1004, 1009 (11th Cir. 1995)

(noting that dismissal for failure to state a claim may be with prejudice if plaintiff

was given an opportunity to amend the complaint).

       AFFIRMED IN PART; VACATED AND REMANDED, IN PART.




       3
         We also affirm the district court’s dismissal of Hernandez’s conspiracy count because
he did not state such a claim under 42 U.S.C § 1983 or § 1985. As noted above, he failed to state
a claim regarding any substantive violations of his federal rights, and accordingly, he did not
allege any actionable conspiracy. See Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.
1990) (addressing § 1983 conspiracies); Park v. City of Atlanta, 120 F.3d 1157, 1162 (11th Cir.
1997) (addressing § 1985 conspiracies).
       4
        Because the district court properly dismissed Hernandez’s federal claims, it properly
chose not to exercise supplemental jurisdiction over his related state law claims. See 28 U.S.C.
§ 1367(a) and (c).

                                               12
