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UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
MICHAEL GRIFFIS,
Plaintiff-Appellant,
v.
DAVID GUNDY, Warden, et al.,
Defendants-Appellees.
No. 02-1449
47 Fed. Appx. 327
September 20, 2002, Filed
NOTICE:
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS.
PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH
CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS
NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
Before: DAUGHTREY, GILMAN, and GIBSON, * Circuit Judges.
Michael Griffis, a Michigan prisoner proceeding pro se, moves for counsel
on [*328] appeal from a district court judgment dismissing his civil rights
complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a
panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agrees that oral argument is not needed.
Fed. R. App. P. 34(a).
Seeking injunctive and monetary
relief, Griffis sued Oaks Correctional Facility Warden David Gundy, Acting
Warden Barry Panzer, Sergeant Boerema, and Corrections Officer A. Krause,
alleging that the defendants violated his rights under the Eighth and
Fourteenth Amendments when he was placed on a restriction of food loaf after he
was disciplined for a sexual misconduct for masturbating with butter. Despite Griffis's failure to
demonstrate that he had exhausted his available administrative remedies, the
district court dismissed Griffis's complaint pursuant to the provisions of 42
U.S.C. § 1997e(c)(2), upon its determination that the complaint failed to state
a claim upon which relief may be granted, as contemplated by 28 U.S.C. §§
1915(e)(2) and 1915(b). Griffis's motion for reconsideration was subsequently
denied. This appeal followed.
We
review de novo an order dismissing a suit for failure to state a claim upon
which relief may be granted under §§ 1915(e)(2) and 1915A(b). See Brown v.
Bargery, 207 F.3d 863, 867 (6th Cir. 2000). "Dismissal of a complaint for
the failure to state a claim on which relief may be granted is appropriate only
if it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief." Id.
Upon review, we conclude that
the district court properly dismissed Griffis's due process claim because being
fed food loaf does not implicate a due process liberty interest. A restraint
imposed in prison does not give rise to a protected liberty interest unless the
restriction constitutes an "atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). Under the
Sandin standard, a due process claim based upon being fed food loaf is no
longer viable. See Turnboe v.
Gundy, 2001 U.S. App. Lexis 26665, No. 01-1622, 2001 WL 1609898, at *1 (6th
Cir. Dec. 12, 2001), cert. denied, 122 S. Ct. 2303 (2002); Johnson v.
Gummerson,198 F.3d 233, 1999 WL 822523, at *1 (2d Cir. 1999). Griffis, therefore, fails to state a claim
for violation of his due process rights.
Upon further review, we conclude
that the district court properly dismissed Griffis's Eighth Amendment claim.
The facts as alleged fail to establish unnecessary and wanton infliction of
pain or deliberate indifference to Griffis's needs in prison, in order to
implicate the Eighth Amendment. Wilson v. Seiter, 501 U.S. 294, 296, 115 L. Ed.
2d 271, 111 S. Ct. 2321-303 (1991); Estelle v. Gamble, 429 U.S. 97, 104,
50 L. Ed. 2d 251, 97 S. Ct. 285-06 (1976). A diet of food loaf does not violate the prohibition
against cruel and unusual punishment, because it has been shown that these
loaves meet nutritional and caloric requirements for humans. Cunningham v. Jones, 567 F.2d 653, 656 (6th
Cir. 1977). Although
Griffis claims that healthcare personnel should not have approved the restriction
due to his stomach problems, none of the healthcare personnel is a defendant in
this action. Further, Griffis has only speculated that the temporary food loaf
diet caused his hemorrhoids to bleed more than
ten days after the food loaf restriction had elapsed. Therefore, Griffis failed to
state an Eighth Amendment claim.
Accordingly, the motion for counsel is denied, and the district court's
judgment is [*329] affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.
* The Honorable John R.
Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.