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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ERIC DAVID HARRIS,

a/k/a DAVID JOSEPH NORTHRUP,1

Plaintiff,,

vs. Case No.: 5:10cv76/RS/MD

WALTER A. MCNEIL, et al.,

Defendants.

_____________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se, has filed a second amended civil rights

complaint under 42 U.S.C. §1983. (Doc. 30). The filing fee has been paid. (Doc. 21). 

Also pending are plaintiff’s motion for leave to proceed in forma pauperis (doc. 2),

motion for leave to proceed as class-action status (doc. 4), motion for appointment

of class counsel (doc. 8), two motions for preliminary inunction and temporary

restraining order (docs. 9, 28), motion to consolidate cases (doc. 26), and motion

requesting an order to write prisoner John M. Paulk (doc. 27). 

The second amended complaint has been reviewed pursuant to 28 U.S.C. §

1915A. For the reasons stated herein, the court concludes that plaintiff has not

presented an actionable claim and that dismissal of this case is warranted.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the Florida penal system currently confined at

Plaintiff is incarcerated under the name of David Joseph Northrup, DC#V13733. According

1

to court documents submitted with one of his pleadings, he legally changed his name on September

26, 2007 to Eric David Harris. (Doc. 12, p. 5).
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Apalachee Correctional Institution (“Apalachee CI”). Plaintiff’s second amended

complaint names five defendants in their individual and official capacities, namely:

Walter A. McNeil, Secretary of the Florida Department of Corrections (“DOC”);

Kathleen L. Fuhrman, Public Health and Nutrition Manager of the DOC; Charles D.

Terrell, an officer responsible for approving the DOC’s menu; C. Dunn, Correctional

Officer at the Northwest Florida Reception Center; and S. Lavins, Food Service

Director of the DOC. (Doc. 30, pp. 1-2). Plaintiff claims the defendants have

subjected him to cruel and unusual punishment in violation of the Eighth

Amendment by serving meals containing levels of soy protein and TVP (textured

vegetable protein) that exceed the Food and Drug Administration’s (FDA)

“recommended intake.” Plaintiff further contends the level of soy protein renders

the food “nutritionallyinadequate” and causes him to suffer “severe gastrointestinal

problems and abdominal cramps.” (Doc. 30, p. 8). As relief, he seeks declaratory

and injunctive relief, as well as monetary damages.

DISCUSSION

Since plaintiff is a prisoner, the court is required to review the second

amended complaint as soon as practicable after docketing, and dismiss the action

if the complaint is frivolous, malicious, or fails to state a claim upon which relief may

be granted. 28 U.S.C. §1915A(b)(1). The court must read plaintiff’s pro se

allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30

L.Ed.2d 652 (1972). A complaint is frivolous under section 1915(e) “where it lacks

an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109

S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this ground should only be

ordered when the legal theories are “indisputably meritless,” Id. at 327, 109 S.Ct. at

1833, or when the claims rely on factual allegations that are “clearly baseless.”

Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). 

Dismissals for failure to state a claim are governed by the same standard as Federal

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Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11 Cir. th

1997). In determining whether the complaint states a claim upon which relief may

be granted, the court accepts a complaint’s well pleaded factual allegations as true

and evaluates all inferences derived from those facts in the light most favorable to

the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. 1994). There are th

a few exceptions to this rule, however, such as where the facts alleged are internally

inconsistent or where they run counter to facts of which the court can take judicial

notice. 5B CHARLES A. WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1357 (2008). Furthermore, only well pleaded factual allegations are

taken as true and only reasonable inferences are drawn in plaintiff’s favor. See

Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11 Cir. 1992); Marrero v. City th

of Hialeah, 625 F.2d 499, 502 (5 Cir. 1980); see also Associated Builders, Inc. v. th 2

Ala. Power Co., 505 F.2d 97, 100 (5 Cir. 1974) (“unwarranted deductions of fact are th

not admitted as true”). “[A]ny conclusory allegations, unwarranted deductions of

fact or legal conclusions masquerading as facts do not prevent dismissal.” 

Weissman v. Nat'l Ass'n of Sec. Dealers, 500 F.3d 1293, 1305 (11 Cir. 2007) (en

th

banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99).

The complaint must include “[f]actual allegations . . . [sufficient] to raise a

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations and internal quotations

omitted). If the facts as pleaded do not state a claim to relief that is plausible on its

face, the complaint may be dismissed. See id., 550 U.S. 544, 127 S.Ct. at 1968-69,

1974 (retiring the negatively-glossed “no set of facts” language previously used to

describe the motion to dismiss standard and determining that because plaintiffs had

“not nudged their claims across the line from conceivable to plausible, their

complaint must be dismissed” for failure to state a claim). 

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11 Cir. 1981) (en banc), the Eleventh

2 th

Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

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Eighth Amendment Standard

The Eighth Amendment governs “the treatment a prisoner receives in prison

and the conditions under which he is confined.” Hellig v. McKinney, 509 U.S. 25, 31,

113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). However, “[n]ot every governmental action

affecting the interests or well-being of a prisoner is subject to Eighth Amendment

scrutiny.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). 

After incarceration, “only the ‘unnecessary and wanton infliction of pain’ . . .

constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” 

Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (quoting

Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations

omitted)). Claims challenging conditions of confinement under the Eighth

Amendment must demonstrate an infliction of pain “without any penological

purpose” or an “unquestioned and serious deprivation of basic human needs” such

as medical care, exercise, food, warmth, clothing, shelter, or safety. Rhodes v.

Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); see also

Hamm v. DeKalb County, 774 F.2d 1567, 1571-72 (11 Cir. 1985). th

The deprivation of food constitutes cruel and unusual punishment only if it

denies a prisoner the “minimal civilized measure of life’s necessities.” Wilson v.

Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). It is

well-established that inmates must be provided nutritionally adequate food,

“prepared and served under conditions which do not present an immediate danger

to the health and well being of the inmates who consume it.” Shrader v. White, 761

F.2d 975 (4 Cir. 1985) (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10 Cir.1980), th th

cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981)); French v. Owens,

777 F.2d 1250, 1255 (7 Cir. 1985). The food need not be “tasty or aesthetically th

pleasing” but merely “adequate to maintain health.” Keenan v. Hall, 83 F.3d 1083,

1091 (9 Cir.1996), amended by 135 F.3d 1318 (9 Cir. 1998); Lunsford v. Bennett, 17 th th

F.3d 1574, 1580 (7 Cir. 1994); LeMaire v. Maass, 12 F.3d 1444, 1456 (9 Cir.1993); th th

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Green v. Ferrell, 801 F.2d 765, 770 (5 Cir. 1986) (quoting Smith v. Sullivan, 553 F.2d th

373, 380 (5 Cir. 1977)); Cunningham v. Jones, 567 F.2d 653, 659-60 (6 Cir. 1977); th th

see also Hamm v. DeKalb County, 774 F.2d at 1575 (“The Constitution requires that

prisoners be provided “reasonably adequate food.”)

A viable Eighth Amendment claim has both an objective and subjective

component. The first requirement, the objective component, has been described as

follows:

[U]nder the “objective component,” a prisoner must prove that the

condition he complains of is sufficiently serious to violate the Eighth

Amendment. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117

L.Ed.2d 156 (1992). The challenged condition must be “extreme.” Id.

at 9, 112 S.Ct. at 1000. While an inmate “need not await a tragic event”

before seeking relief, Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct.

2475, 2481, 125 L.Ed.2d 22 (1993), he must at the very least show that

a condition of his confinement “pose[s] an unreasonable risk of serious

damage to his future health” or safety, id. at 35, 113 S.Ct. at 2481. 

Moreover, “the Eighth Amendment requires more than a scientific and

statistical inquiry into the seriousness of the potential harm and the

likelihood that such injury to health will actuallybe caused by exposure

to [the challenged condition of confinement]. It also requires a court

to assess whether society considers the risk that the prisoner

complains of to be so grave that it violates contemporary standards of

decency to expose anyone unwillingly to such a risk. In other words,

the prisoner must show that the risk of which he complains is not one

that today’s society chooses to tolerate.” Id. at 36, 113 S.Ct. at 2482. 

The Eighth Amendment thus guarantees that prisoners will not be

“deprive [d] ... of the minimal civilized measure of life's necessities.” 

Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399.

Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11 Cir. 2004). th

The second requirement, the subjective component, requires “a subjective

intent by the public officials involved to use the sufficiently serious deprivation in

order to punish.” Taylor v. v. Adams, 221 F.3d 1254, 1258 (11 Cir. 2000) (citing th

Wilson v. Seiter, 501 U.S. at 300, 111 S.Ct. at 2325) (“The source of the intent

requirement is not the predilections of this Court, but in the Eighth Amendment

itself, which bans only cruel and unusual punishment. If the pain inflicted is not

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formally meted out as punishment by the statute or the sentencing judge, some

mental element must be attributed to the inflicting officer before it can qualify.” 

(emphasis in original)). “To show the required subjective intent to punish, a plaintiff

must demonstrate that the public official acted with an attitude of ‘deliberate

indifference.’” Taylor at 1258 (quoting Estelle, 429 U.S. at 105, 97 S.Ct. at 291).

Deliberate indifference is not established “unless the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be

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.” Farmer v. Brennan, 511

U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). To sustain a claim,

plaintiff must show that the challenged conduct was “very unreasonable in light of

a known risk” of harm or suffering. Hardin v. Hayes, 52 F.3d 934, 939 (11 Cir. th

1995)(citing Farmer, 114 S.Ct. at 1978-79). 

Application of the Foregoing to Plaintiff’s Second Amended Complaint

Plaintiff claims the defendants “have caused the plaintiff injuryor placed him

at increased risk of serious injury by forcing him to eat a soy-based diet, and has

caused him to suffer painful to severe gastrointestinal problems and abdominal

cramps.” (Doc. 30, p. 8 ¶ 10). As support for his contention that the level of soy in

the DOC’s food presents an objectively serious deprivation, plaintiff states that

since October of 1999, the DOC has served inmates up to 100 grams of soy protein

per day, which “exceeds the FDA recommended intake.” (Id., ¶¶ 11, 13). According

to plaintiff, the “FDA recommended intake” is 25 grams. (See doc. 1, pp. 3-4; doc.

10, p. 6; doc. 28, Harris Aff.).

Plaintiff’s reference to the “FDA recommended intake” is apparently drawn

from an FDA regulation, 21 C.F.R. § 101.82. On October 26, 1999, the FDA issued

a regulation on a proposed health claim associating diets low in saturated fat and

cholesterol and that include soy protein, with a reduced risk of heart disease. The

FDA determined that 25 grams of soy protein per day, as part of a diet low in

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saturated fat and cholesterol, may reduce the risk of heart disease by reducing

blood cholesterol levels. 21 C.F.R. § 101.82(a)-(b). In connection with this finding,

the FDA approved the following (or similar) health claim for use in food labeling:

“25 grams of soy protein a day, as part of a diet low in saturated fat and cholesterol,

may reduce the risk of heart disease.” 21 C.F.R. § 101.82(e)(1). 

3

Even assuming the truth of plaintiff’s allegation that the level of soy protein

served by the DOC exceeds 25 grams (or is as high as 100 grams) per day,

plaintiff’s allegations fail to show it is plausible (not merely conceivable) that this

level poses an unreasonable risk of serious damage to inmates’ health. Plaintiff

merely speculates that it does. The FDA’s regulation does not warrant that

deduction or reasonably infer it. It merely establishes the daily dietary intake level

of soyprotein that hasbeenassociated with reduced risk of coronaryheart disease. 

See 21 C.F.R. § 101.82(c)(2)(i)(G). Plaintiff offers no other basis for finding the soy

protein substitution an objectively serious deprivation. Thus, to the extent he 4

challenges the DOC’s incorporation of 100 grams of soy protein into its daily food

service to the inmate population, his claim must fail, because he has not alleged or

shown that that exposes inmates to a condition “so grave that it violates

contemporary standards of decency to expose anyone unwillingly to such a risk.” 

Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475; see, e.g., Martin v. Scott, 156

F.3d 578, 580 (5 Cir. 1998) (dismissing as frivolous Eighth Amendment claim based

th

on prison’s use of soy substitute: “[The prisoner’s] contention that he was

subjected to cruel and unusual punishment when he became ill after being fed

Vita-Pro – a soy-based meat substitute – simply do[es] not rise to the level of cruel

and unusual punishment.”).

This is the FDA’s “model” health claim.

3

He states, in conclusory terms, that the use of soy protein renders the food “nutritionally

4

inadequate,” but provides no facts to support this assertion.

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Nor has plaintiff stated a plausible claim of deliberate indifference. Plaintiff’s

claim is grounded on his contention that defendants have substituted soy protein

for meat protein in an effort to cut costs, and that they have “approved, enforce[d],

and/or serve[d]” the menu despite the FDA’s regulation. But the fact that conduct

is motivated by cutting costs does not make it per se unconstitutional. Further, as

discussed above, the FDA’s regulation cannot plausibly be said to have put

defendants on notice that serving 100 grams of soy protein per day exposes

inmates to an excessive health risk. Thus, plaintiff’s claim that defendants are

violating inmates’ Eighth Amendment rights by serving them 100 grams or more of

soy protein per day should be dismissed. 

To the extent plaintiff claims an Eighth Amendment violation based on the

specific effects of soy protein on his own health (i.e., an individual soy intolerance),

he fails to state a plausible claim of deliberate indifference. Assuming, without

deciding, that plaintiff’s allegations of “severe gastrointestinal issues and

abdominal cramps” are sufficient to state an objectively serious condition, plaintiff

neither claims, nor alleges facts to suggest that any named defendant was

subjectively aware of plaintiff’s condition and disregarded it. The mere fact that a 

defendant mayhave superviseda subordinate whoexhibiteddeliberate indifference

to plaintiff’s condition is insufficient to impose § 1983 liability on the defendant. 

Hartley v. Parnell, 193 F.3d 1263, 1269 (11 Cir. 1999) (“It is well established in this th

Circuit that supervisory officials are not liable under § 1983 for the unconstitutional

acts of their subordinates on the basis of respondeat superior or vicarious

liability.”) (internal quotation marks and citation omitted); Polk County v. Dodson,

454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Cottone v. Jenne, 326 F.3d 1352,

1360 (11 Cir. 2003). Thus, this aspect of plaintiff’s Eighth Amendment claim is also

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due to be dismissed.

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Accordingly, it is respectfully RECOMMENDED:

1. That this cause be DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915A

for plaintiff’s failure to state a claim upon which relief can be granted.

2. That all pending motions be DENIED as moot.

3. That the clerk be directed to close the file.

At Pensacola, Florida, this 1 day of July, 2010. st

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does

not control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 5:10cv76/RS/MD