Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ALBERTO RUIZ, JR,

Plaintiff,

v. CASE NO. 4:10-cv-00275-MP -GRJ

KATHLEEN FURNHAM, B HOWARD, WALTER MCNEIL, CHARLES D TERRELL, A

THIGPEN,

Defendants.

_____________________________/

O R D E R

This matter is before the Court on Doc. 17, Report and Recommendation regarding the

Complaint, Doc. 1. Plaintiff alleges prison officials subject him to unnecessary and wanton

infliction of pain as constitutes cruel and unusual punishment forbidden by the Eighth

Amendment. Plaintiff alleges that by serving him soy protein, prison officials subject him to

cruel and unusual punishment. The Magistrate Judge analyzes the claim, concluding that there is

no allegation that Defendants had subjective knowledge of the alleged health risks of soy

protein. Moreover, the grievances filed by Plaintiff at Mayo Food Services disclose Plaintiff

requested a vegan tray because of religious reasons, not because of any alleged health risks

related to soy. Therefore, the Magistrate Judge recommended this case be dismissed, Doc. 17. 

Plaintiff timely objected, Doc. 18. This Court reviews objected-to material de novo. 

Plaintiff objects to the recommendation this case be dismissed on several grounds. First,

Plaintiff disagrees that his case is dissimilar to two cases cited by the Magistrate that were also

dismissed, on the grounds that his allegations are more specific than those in Harris v. McNeil,

Case No. 5:10-cv-76-RS-MD (N.D. Fla. Aug. 3, 2010) and Mott v. Fuhrman, Case No. 5:10-cv-
Page 2 of 5

Case No: 4:10-cv-00275-MP -GRJ

146-SPM/AK (N.D. Fla. Aug 23, 2010). Plaintiff also notes that in other cases, service of

process has been ordered where claims were similar to those of Plaintiff. Plaintiff notes that he

is proceeding pro se, and that his pleadings should therefore be held to a less stringent standard. 

Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). 

A court may sua sponte dismiss a case proceeding in forma pauperis if the complaint

fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. The complaint's

[f]actual allegations must be enough to raise a right to relief above the speculative level. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see also Cobb v. Florida, 293 Fed. Appx. 708

(11th Cir. 2008) (applying Twombly to a prisoner’s pro se complaint brought under 42 U.S.C.

§1983 and dismissing the claim pursuant to 28 U.S.C. §1915A). “The Supreme Court's most

recent formulation of the pleading specificity standard is that ‘stating such a claim requires a

complaint with enough factual matter (taken as true) to suggest’ the required element.” Watts v.

Florida International University, 495 F.3d 1289, 1295 (11th Cir. 2007). This standard simply

calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the

required element. Twombly, at 1965. In reviewing the dismissal of a complaint under the 28

U.S.C. 1915A(b)(1), this court accepts allegations in the complaint as true, and pro se pleadings

are liberally construed. Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.2004).

Plaintiff’s claim is based upon a violation of the Eighth Amendment to the Constitution. 

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

under which he is confined.” Helling v. McKinney, 509 U.S. 25, 31 (1993). However, “[n]ot

every governmental action affecting the interests or wellbeing of a prisoner is subject to Eighth

Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319 (1986). After incarceration, “only

the ‘unnecessary and wanton infliction of pain’ . . constitutes cruel and unusual punishment
Page 3 of 5

Case No: 4:10-cv-00275-MP -GRJ

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 (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 (1981); see also Hamm v. DeKalb

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

In order to prevail on an Eighth Amendment claim for cruel and unusual punishment, a

prisoner must show three elements: (1) the infliction of unnecessary pain or suffering; (2)

deliberate indifference on the part of the defendants; and (3) causation. Shepard v. Alvarez, No.

08-10090-CIV, 2009 WL 1872016 at *4 (S.D. Fla. May 21, 2009) (citations omitted).

Where, as here, the claim is based upon the deprivation of food, such a claim can only

constitute cruel and unusual punishment if the prisoner is denied “minimal civilized measure of

life’s necessities.” Wilson v.Seiter, 501 U.S. 294, 303 (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 (4th Cir. 1985) (quoting Ramos v. Lamm, 639 F.2d 559, 571

(10th Cir.1980), cert. denied, 450 U.S. 1041 (1981)); French v. Owens, 777 F.2d 1250, 1255 (7th

Cir. 1985). The food in prison, however, need not be “tasty or aesthetically pleasing” but merely

“adequate to maintain health.” Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir.1996), amended by

135 F.3d 1318 (9th Cir. 1998); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994);

LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.1993); Green v. Ferrell, 801 F.2d 765,

770 (5th Cir. 1986) (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977)); Cunningham
Page 4 of 5

Case No: 4:10-cv-00275-MP -GRJ

v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977); see also Hamm v. DeKalb County, 774 F.2d at

1575 (prisoners must be provided “reasonably adequate food.”). Federal courts “[c]annot be

concerned with a prison menu to which prisoners believe they are entitled. These involve matters

of internal prison administration.” See Tunnel v. Robinson, 486 F. Supp. 1265, 1269 (W.D. Pa.

1980).

A viable Eight Amendment claim has both an objective and subjective component. 

Under the objective component the prisoner must not only show that a condition “pose[s] an

unreasonable risk of serious damage to his future health or safety” but also that the “risk of

which he complains is not one that today’s society chooses to tolerate.” Chandler v. Crosby, 379

F.3d 1278, 1289-90 (11th Cir. 2004). In short the challenged condition must be “extreme” and

“deprive ... [the prisoner] of the minimal civilized measures of life’s necessities.” Id. The

subjective component requires “a subjective intent by the public officials involved to use the

sufficiently serious deprivation in order to punish.” Taylor v. Adams, 221 F.3d 154, 1258 (11th

Cir. 2000). Imputed or collective knowledge, as Plaintiff alleges here, is not sufficient to

establish deliberate indifference. Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).

Plaintiff must show that the Defendants had actual knowledge of a known risk.

Here, the prisoner in question is not being deprived of the minimal civilized measure of

life’s necessities. Rather, he is being fed nutritious but unpleasant food that he claims has a

long-term health consequence. He has not pled sufficient facts plausibly to show that the

individual defendants were actually aware of an unreasonable risk of serious damage to his

health or safety through eating soy protein. Rather, he has only pled that he complained about

the food and attempted to make the prison administration aware of possible risks from long-term

ingestion of soy protein by referencing websites such as that of the Weston Price Foundation. 
Page 5 of 5

Case No: 4:10-cv-00275-MP -GRJ

Nor has Plaintiff pled that the public officials used the deprivation, i.e. feeding him soy protein,

to punish, as required under Taylor v. Adams. Rather, Plaintiff alleges Defendants feed him soy

protein to save money. 

Additionally, Plaintiff admits that Prison officials offered him an alternative diet so that

he would not have to eat any more soy protein. Plaintiff, in complaining that the bean products

contained in the alternative menu items cause him gas, has failed to plead treatment which

society chooses not to tolerate, as required by Chandler v. Crosby. Flatulence among felon

prison inmates simply is not intolerable to modern society. 

This Court finds on de novo review that Plaintiff’s Amended Complaint fails to state a

claim on which relief may be granted. Accordingly, it is

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge, Doc. 17, is ADOPTED

and incorporated herein. 

2. This case is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state

a claim. 

3. The Clerk is directed to note on the docket that this case was dismissed pursuant

to 28 U.S.C. § 1915A(b)(1). 

DONE AND ORDERED this 16th day of December, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge