1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 BILLY CHANCEY, Case No. 2:24-cv-02199-RFB-NJK 8 Plaintiff, ORDER 9 v. 10 TRINITY KITCHEN, 11 Defendant. 12 13 Pro se Plaintiff Billy Chancey, who is incarcerated in the custody of the Nevada Department 14 of Corrections (“NDOC”), has submitted a civil-rights complaint under 42 U.S.C. § 1983, and he 15 has applied to proceed in forma pauperis. See ECF Nos. 1-1, 1. For the following reasons, the 16 Court finds that Chancey fails to state a colorable claim and dismisses the complaint without 17 prejudice and with leave to amend. 18 I. FACTUAL ALLEGATIONS 19 The events of the complaint happened while Chancey was incarcerated at Clark County 20 Detention Center (“CCDC”). Chancey alleges that Defendant Trinity Kitchen was responsible for 21 preparing meals at CCDC. Trinity Kitchen employees refused to provide Chancey a menu, so he 22 could not ensure that he was receiving the meals that he was supposed to receive each day. Trinity 23 Kitchen claimed that it provided inmates 2800 calories per day, but without a menu Chancey could 24 not confirm that. 25 On October 21, 2023 (at dinner), and December 6, 2023 (at breakfast), Chancey felt like 26 there was sperm biting his tongue, throat, and trachea while he was eating. Chancey could feel 27 tails wagging as he ate his food. Chancey threw up from the food. 28 Trinity Kitchen employees prepared the meals in two groups. All the even trays were the 1 same, and all the odd trays were the same, but the even and odd trays were not identical to each 2 other. Therefore, Chancey’s tray was always the same as half of the other inmates, but different 3 than the other half, and so Chancey always received “an unequal portion.” 4 II. SCREENING STANDARD 5 Federal courts must conduct a preliminary screening in any case in which an incarcerated 6 person seeks redress from a governmental entity, or an officer or employee of a governmental 7 entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and 8 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be 9 granted, or seek monetary relief from a defendant who is immune from such relief. See id. 10 § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. 11 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, 12 a plaintiff must allege two essential elements: (1) the violation of a right secured by the 13 Constitution or laws of the United States, and (2) that the alleged violation was committed by a 14 person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 15 In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act 16 requires a federal court to dismiss an incarcerated person’s claim if “the allegation of poverty is 17 untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be 18 granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 19 § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted 20 is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard 21 under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court 22 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint 23 with directions as to curing its deficiencies, unless it is clear from the face of the complaint that 24 the deficiencies could not be cured by amendment. See Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 25 1995). 26 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 27 Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is 28 proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that 1 would entitle them to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making 2 this determination, the Court takes as true all allegations of material fact stated in the complaint 3 and construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 4 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent 5 standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). 6 While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 7 must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See id. 9 A reviewing court should “begin by identifying [allegations] that, because they are no more 10 than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 11 (2009). “While legal conclusions can provide the framework of a complaint, they must be 12 supported by factual allegations.” Id. “When there are well-pleaded factual allegations, a court 13 should assume their veracity and then determine whether they plausibly give rise to an entitlement 14 to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 15 specific task that requires the reviewing court to draw on its judicial experience and common 16 sense.” Id. 17 All or part of a complaint filed by an incarcerated person may therefore be dismissed sua 18 sponte if the claims lack an arguable basis either in law or in fact. This includes claims based on 19 legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or 20 claims of infringement of a legal interest that clearly does not exist), as well as claims based on 21 fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 22 U.S. 319, 327–28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 23 III. DISCUSSION 24 Based on the allegations summarized above, Chancey sues Defendant Trinity Kitchen. He 25 seeks monetary and injunctive relief. He checks boxes stating that he was deprived of basic 26 necessities, and that there was a threat to his safety. Based on these allegations, the Court liberally 27 construes the complaint as bringing two Eighth Amendment conditions of confinement claims 28 regarding the lack of menus and the contamination of his food and an equal protection claim under 1 the Fourteenth Amendment. The Court addresses these claims below. 2 A. Lack of Menus and Sperm in Food 3 The “treatment a prisoner receives in prison and the conditions under which he is confined 4 are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 5 (1993). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. 6 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, “[p]rison officials have a duty to 7 ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and 8 personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). When determining whether 9 the conditions of confinement meet the objective prong of the Eighth Amendment analysis, the 10 Court must analyze each condition separately to determine whether that specific condition violates 11 the Eighth Amendment. See Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). As to the 12 subjective prong of the Eighth Amendment analysis, prisoners must establish prison officials’ 13 “deliberate indifference” to unconstitutional conditions of confinement to establish an Eighth 14 Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). When evaluating 15 conditions of confinement, the Court should consider the amount of time that the prisoner was 16 subjected to a condition. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). 17 “The Eighth Amendment requires only that prisoners receive food that is adequate to 18 maintain health; it need not be tasty or aesthetically pleasing.” LeMaire v. Maass, 12 F.3d 1444, 19 1456 (9th Cir. 1993). “The fact that the food occasionally contains foreign objects or sometimes 20 is served cold, while unpleasant, does not amount to a constitutional deprivation.” Id. Isolated 21 instances of food poisoning or temporary lapses in sanitary food service are not sufficiently serious 22 to constitute an Eighth Amendment violation. See, e.g., Morris v. Jennings, No. 2:13-cv-1134 AC 23 P., 2013 WL 5970444, at 2 (E.D. Cal. Nov. 8, 2013) (prisoner's allegations of unidentified foreign 24 object, hair, or sweat in food, along with stomach problems, failed to state a cognizable Eighth 25 Amendment claim); Bennett v. Misner, No. Civ.02-1662-HA, 2004 WL 2091473, at 20 (D. Or. 26 Sept. 17, 2004) (“Neither isolated instances of food poisoning, temporary lapses in sanitary food 27 service, nor service of meals contaminated with maggots are sufficiently serious to constitute an 28 Eighth Amendment violation.”). 1 “For purposes of claims brought under § 1983, a private entity . . . is treated as a 2 municipality” and is subject to Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). 3 See Denson v. Gillespie, No. 2:10-cv-00525-APG, 2015 WL 56037, at 2 (D. Nev. Jan. 5, 2015); 4 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (holding that “the requirements 5 of Monell do apply to suits against private entities under § 1983”). To make out a claim against a 6 private entity under Monell, a plaintiff must show that (1) the private entity acted under color of 7 state law, and (2) if a constitutional violation occurred, the violation was caused by an official 8 policy or custom of the private entity. See Tsao, 698 F.3d at 1139. 9 i. Lack of menus. 10 The Court finds that Chancey fails to state a colorable claim based on the allegation that 11 Trinity Kitchen failed to provide him menus. The Constitution does not require that prisons or jails 12 provide menus of meals to people in prison. It only requires that prisons and jails provide food that 13 is adequate to maintain their health. Chancey states that without a menu he was not able to confirm 14 that he was receiving the full 2,800 calories that Trinity Kitchen claimed it provided him. But 15 Chancey does not allege that he received inadequate food or that he suffered any health 16 consequence because the food was inadequate to maintain his health. The Court dismisses 17 Chancey’s claim based on the lack of menus with prejudice, as amendment would be futile. 18 However, to the extent that Chancey believes that the meals Trinity Kitchen provided were 19 inadequate to maintain his health, he may bring a claim on that basis in an amended complaint. To 20 state a colorable claim against Trinity Kitchen, he must allege specific facts that show that the 21 meals prepared by Trinity Kitchen were inadequate to maintain his health, and that the failure to 22 provide adequate meals was the result of an official policy or custom of Trinity Kitchen. 23 ii. Sperm in food. 24 The Court finds that Chancey fails to state a colorable claim based on the allegation that 25 there was sperm in his food. As an initial matter, the Court notes that sperm are microscopic. As 26 such, it would be impossible for Chancey to feel sperm biting him or wiggling as he was eating. 27 Thus, Chancey’s belief that there was sperm in his food is not supported by his claim that he felt 28 biting and wiggling. For purposes of this screening order, the Court will assume that Chancey’s 1 food was contaminated by some unknown substance. 2 However, even assuming that Chancey’s food was contaminated on two occasions, he fails 3 to state a colorable claim for two reasons. First off, isolated lapses in sanitation, even those giving 4 rise to food poisoning, are not sufficiently serious to give rise to an Eighth Amendment claim. 5 Furthermore, even if the contamination of Chancey’s food was sufficiently serious to support an 6 Eighth Amendment claim, Chancey does not allege any facts to support that the contamination 7 was the result of any official policy or custom of Trinity Kitchen. Thus, Chancey cannot support 8 a Monell claim against Trinity Kitchen on this basis. 9 The Court dismisses this claim without prejudice and with leave to amend. In order to state 10 a colorable claim against Trinity Kitchen on this basis, Chancey must allege a more serious, 11 persistent contamination of his food, and that the contamination of his food was the result of an 12 official policy or custom of Trinity Kitchen. 13 B. Equal Protection Claim 14 The Equal Protection Clause of the Fourteenth Amendment is essentially a direction that 15 all similarly situated persons be treated equally under the law. See City of Cleburne, Tex. v. 16 Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In order to state an equal protection claim, a 17 plaintiff must allege facts demonstrating that defendants acted with the intent and purpose to 18 discriminate against him based upon his membership in a protected class, or that defendants 19 purposefully treated him differently than similarly situated individuals without any rational basis 20 for the disparate treatment. See Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001); see also 21 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 22 In Olech, the Supreme Court explicitly addressed “whether the Equal Protection Clause 23 gives rise to a cause of action on behalf of a ‘class of one’ where the plaintiff did not allege 24 membership in a class or group.” Olech, 528 U.S. at 564. The Supreme Court ruled in the 25 affirmative and “recognized successful equal protection claims brought by a ‘class of one,’ where 26 the plaintiff alleges that she has been intentionally treated differently from others similarly situated 27 and that there is no rational basis for the difference in treatment.” Id. The Supreme Court held that 28 “the purpose of the equal protection clause of the Fourteenth Amendment is to secure every person 1 within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned 2 by express terms of a statute or by its improper execution through duly constituted agents.” Id. 3 A person cannot state an equal protection claim merely by dividing all persons not injured 4 into one class and alleging that they received better treatment than the plaintiff did. See Thornton 5 v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). The Fourteenth Amendment's Equal 6 Protection Clause does not require that states treat all persons within their borders identically. See 7 McGowan v. Maryland, 366 U.S. 420, 425 (1961) (“[T]he Fourteenth Amendment permits the 8 States a wide scope of discretion in enacting laws which affect some groups of citizens differently 9 than others” so long as the classification does not rest on grounds “wholly irrelevant to the 10 achievement of the State's objective.”); Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 11 1123 (9th Cir. 2013). Furthermore, to state a class-of-one equal protection claim, a plaintiff must 12 identify the group of individuals with whom she is similarly situated, identify the allegedly 13 intentional and disparate treatment, and allege that there was no rational basis for the different 14 treatment. See Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). “Similarly 15 situated” persons are those “who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 16 1, 10 (1992). 17 The Court finds that Chancey fails to state a colorable equal protection claim. Chancey 18 does not allege that he was discriminated against because of his membership in a protected class. 19 Nor does he allege that he was deliberately treated differently than similarly situated individuals 20 without any rational basis for the disparate treatment. Chancey alleges that two different sets of 21 meals were prepared, and half of the prisoners got one set of meals while the other half of prisoners 22 got the other set of meals. 23 It is not clear from the allegations whether the meals were significantly different or just 24 superficially different. It is not clear whether the meals were deliberately made differently or 25 simply ended up slightly different because they were prepared by a different group of culinary 26 employees or prepared in two separate batches. For example, if two batches of cookies are made, 27 one batch may be slightly more cooked than the other. Chancey does not allege that either batch 28 was better or worse, and he does not allege that he was deliberately given worse or smaller meals. 1 Rather, it appears from the allegations that it was completely random based on the order that 2 Chancey got in line for food. One day he might have gotten the even meal and the next day he 3 might have gotten the odd meal. 4 These allegations do not support that Chancey was deliberately treated differently than 5 similarly situated inmates. In any jail or prison, different people will have slightly different 6 circumstances, some might have an east facing window or a west facing window, or no window at 7 all. Some might be on the first floor, while others are on the second or third floors. Some might be 8 designated to eat at an earlier time while others are designated to eat at a later time. They may have 9 yard privileges or tier privileges at different times. The Constitution does not require that every 10 single circumstance be identical—a requirement that would be impossible to fulfill. Rather, the 11 Constitution only requires that individuals not be deliberately discriminated against without any 12 rational basis for the disparate treatment. 13 It is not possible to ensure that every cookie, every slice of pizza, or every piece of fruit is 14 exactly the same. The allegations in the complaint about even and odd meals being different do 15 not support a colorable equal protection claim so the Court dismisses this claim. Although it does 16 not appear that Chancey can state a colorable equal protection claim in an amended complaint, in 17 light of his pro se status, the Court will dismiss this claim without prejudice. If, after reviewing 18 this screening order, Chancey believes that he can state a colorable equal protection claim, he may 19 bring that claim in an amended complaint. 20 C. Leave to Amend 21 Because it is not clear from the face of the complaint that Chancey cannot cure the defects 22 in his claims, the Court grants him leave to file a first amended complaint to attempt to replead 23 these claims. This means Chancey has leave to correct the claims’ defects, as identified above. 24 Chancey does not have leave to add new claims. 25 If Chancey chooses to file an amended complaint, he is advised that an amended complaint 26 replaces the original complaint, so the amended complaint must be complete in of itself. See Hal 27 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989). This means 28 Chancey’s amended complaint must contain all claims, defendants, and factual allegations that he 1 wishes to pursue in this lawsuit. Chancey should file the amended complaint on this Court’s 2 approved prisoner civil-rights form, and it must be titled “First Amended Complaint.” Chancey 3 must follow the instructions on the form. He need not and should not allege very many facts in the 4 “nature of the case” section of the form. Rather, in each claim, he should allege facts sufficient to 5 show what each defendant did to violate his civil rights. 6 D. Pretrial Motion 7 Chancey filed a motion stating that he believes that an order was sent out regarding the 8 filing fee in this case. See ECF No. 3. He asks the Court to resend that order, or any other previous 9 order. This is the first order that the Court has issued in this case. As such, Chancey has not missed 10 any orders, and the Court denies his request to resend any previous orders as moot. 11 IV. CONCLUSION 12 For the foregoing reasons, IT IS HEREBY ORDERED that the application to proceed in 13 forma pauperis (ECF No. 1) is DEFERRED. 14 IT IS FURTHER ORDERED that the Clerk of Court file Chancey’s complaint (ECF No. 15 1-1) and send Chancey a courtesy copy of the complaint. 16 IT IS FURTHER ORDERED that Chancey’s Eighth Amendment claim based on not 17 being provided menus for his meals is DISMISSED with prejudice, as amendment would be futile. 18 Nevertheless, Chancey is given leave bring an Eight Amendment claim based on not being 19 provided sufficient food to maintain his health, if he believes that he can state a colorable claim on 20 that basis in an amended complaint. 21 IT IS FURTHER ORDERED that Chancey’s Eighth Amendment claim based on food 22 contamination is DISMISSED without prejudice and with leave to amend. 23 IT IS FURTHER ORDERED that Chancey’s equal protection claim is DISMISSED 24 without prejudice and with leave to amend. 25 IT IS FURTHER ORDERED that Chancey’s motion to resend any previous Court Orders 26 (ECF No. 3) is DENIED as moot. 27 IT IS FURTHER ORDERED that Chancey has until November 13, 2025, to file an 28 amended complaint. ] IT IS FURTHER ORDERED that if Chancey does not file an amended complaint by 2| November 13, 2025, this action will be subject to dismissal without prejudice for failure to state aclaim for relief. 4 The Clerk of Court is DIRECTED to send Plaintiff Billy Chancey the approved form 5 | for filing a 42 U.S.C. § 1983 complaint with instructions for the same. 6 DATED: September 29, 2025. 10 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-