Opinion · Court of Appeals for the Sixth Circuit

Alford Cunningham v. Russell Jones, Jailer Hershel King, Deputy Jailer Ed Luttell, Deputy Jailer

667 F.2d 565

Type: Opinion
Court: Court of Appeals for the Sixth Circuit
Jurisdiction: Federal
Date: 1982-01-08
Topic: bankruptcy

holding one meal per day for fifteen days provides sufficient nutrition to sustain normal health and does not offend the Constitution | finding that providing one meal per day for fifteen consecutive days did not violate the Eighth Amendment where the one meal provided adequate nutrition to sustain normal health for that time period | finding that providing one meal per day for fifteen consecutive days did not violate the Eighth Amendment, where the one meal provided sufficient nutrition to sustain normal health for that time period | finding that providing one meal per day for fifteen consecutive days did not violate the Eighth Amendment, where the one meal provided sufficient nutrition to sustain normal health for that time period | finding one meal a day for 15 days, where the meal contained 2,000 to 7 2,500 calories and was sufficient to maintain health, constitutionally adequate | affirming the district court’s finding that a prisoner’s constitutional rights were not violated when he was served one meal a day over fifteen days when the meal had sufficient caloric content that the prisoner could maintain normal health | Eighth Amendment rights were not violated when inmate received 1 meal per day for 15 consecutive days, since that meal sufficed to maintain normal health | no Eighth Amendment violation when prisoner served only one meal a day for fifteen consecutive days | “[T]he one meal a day furnished was sufficient to maintain normal health for the 15 days involved.” | Eighth Amendment not violated when inmate served only one meal a day for fifteen consecutive days where the one meal was sufficient to maintain normal health | Eighth Amendment not violated when inmate served only one meal a day for 15 consecutive days where the one meal was sufficient to maintain normal health. | Eighth Amendment not violated when inmate served only one meal a day for fifteen consecutive days where the one meal was sufficient to maintain normal health

Citator

Cited by: 41 opinions

CUNNINGHAM v. JONES,667 F.2d 565(6th Cir. 1982)

ALFORD CUNNINGHAM, PLAINTIFF-APPELLANT, v. RUSSELL JONES, JAILER; HERSHEL

KING, DEPUTY JAILER; ED LUTTELL, DEPUTY JAILER, DEFENDANTS-APPELLEES.

No. 80-3433.

United States Court of Appeals, Sixth Circuit.

Argued December 4, 1981.

Decided January 8, 1982.

Oliver Barber, Jr., Louisville, Ky., for plaintiff-appellant.

E. W. Rivers, Paducah, Ky., for defendants-appellees.

Appeal from the United States District Court for the Western District of Kentucky.

Before EDWARDS, Chief Circuit Judge, ENGEL, Circuit Judge, and PECK, Senior Circuit Judge.

PER CURIAM.

[1] Appellant Cunningham originally brought this § 1983 action in 1972 alleging that defendant jailers had violated his constitutional rights under the Eighth Amendment by serving him only one meal a day for 15 consecutive days during the month of April 1967.

[2] The District Court had dismissed the action, holding that the facts alleged, if true, did not constitute cruel and unusual punishment. This court vacated and remanded for the District Court to determine "whether the one meal actually provided to Cunningham was sufficient to maintain normal health." As to this issue the majority of the court placed the burden of proof on the defendants.Page 566

[3] On remand the case was heard, apparently without objection, on depositions only and without plaintiff's counsel being present at the deposition. The only actual relevant evidence provided was that of the jail cook, who apparently testified with considerable enthusiasm for her cooking and estimated the caloric content of the noon meals at between 2,000 to 2,500 calories. Newly appointed counsel for plaintiff offered no evidence, stating that his client had already said "all of the things he would say."

[4] The District Judge then dismissed the claim, finding that the one meal a day furnished was sufficient to maintain normal health for the 15 days involved.

[5] The judgment of the District Court,567 F.2d 653, is affirmed.

[6] John W. PECK, Senior Circuit Judge, concurring.

[7] In a separate concurrence to the opinion filed following this panel's first consideration of this case, by agreeing to the remand to the district court, I at least inferentially concurred in the conclusion that upon a proper showing the "burden of proof" would shift to defendants. Unfortunately, "[t]he term `burden of proof' may well be an ambiguous term connoting either the burden of going forward with the evidence, the burden of persuasion, or both."Wilson v. Omaha Indian Tribe,442 U.S. 653,669,99 S.Ct. 2529,2539,61 L.Ed.2d 153(1979). I am now of the view that use of the phrase "burden of proof" was improvident, and that the more appropriate phrase would have been the "burden of next proceeding" or the "burden of going forward." At the time this case was previously before us it was neither suggested nor contemplated that evidence of the caloric contents of the once-a-day meals simply does not exist. I am of the opinion that the depositions failed to produce any admissible relevant evidence, and with all due respect to the district judge and to the majority opinion, that the findings of fact lack support in the record. Thus, although defendants failed to sustain "the burden of proof," they did "next proceed" (or "go forward"). In such situation, where the record continues to be void of evidence of an essential element of the plaintiff's case, the plaintiff must be non-suited. I would affirm the judgment of the district court on that ground.