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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, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff is an inmate at Mayo Correctional Institution (“Mayo CI”) proceeding pro

se. The Court has before it for review, Plaintiff’s First Amended Complaint. For the

reasons discussed below, Plaintiff has failed to state a claim for relief and therefore the

Complaint should be dismissed. 

I. The First Amended Complaint

In his First Amended Complaint, doc 7, Plaintiff brings a claim pursuant to 42

U.S.C. §1983 alleging that he has incurred health issues from eating food with high

levels of soy protein resulting from the implementation of a policy by Defendants

authorizing the use of soy-laden food items in an effort to reduce costs throughout the

Florida Department of Corrections. Plaintiff suggests that because he has been 1

provided with food having high levels of soy protein he is at a higher risk of cancer and

faces the possibility of increased sterility. Further, although the institution has provided

the Plaintiff with alternative menu items, Plaintiff complains that because these items 

Plaintiff complains of pain in his abdomen, chronic constipation alternating with diarrhea, acne,

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and joint pain.
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all contain bean products, the alternative menu causes “an extreme amount of human

gas” every 15 minutes which disrupts his sleep. 

Plaintiff claims he became suspicious that he was suffering from soy poisoning

after reading articles from the Weston Price Foundation. Plaintiff alleges he sought

medical treatment for his symptoms in April 2010. The medical staff, however, did not

confirm that Plaintiff was suffering from soy poisoning nor was Plaintiff placed on a

special diet. According to Plaintiff, even though he was not advised by medical staff that

he was suffering from soy poisoning, he, nonetheless, stopped eating the soy products2

and his symptoms improved thus convincing him that his problems were related to soy. 

Plaintiff claims that “upon information and belief” the Defendants – Walter McNeil

(Secretary of the FDOC), Charles Terrell (Bureau Chief of Institutional Support

Services), Kathleen Furnham (Nutrition Program Manager), A. Thigpen (Food Service

Administrator), and B. Howard (Food Services Director at Mayo Correctional Institution)

– knew or reasonably should have known that use of soy protein exposed inmates to

serious health risks. Citing a case pending in the United States District Court for the

Central District of Illinois raising similar issues, Harris, et al v. Brown, et al, No. 3:07-cv03225-HAB-CHE (C.D. Ill. filed Aug. 15, 2007), Plaintiff alleges that Defendants knew

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of the adverse effects of soy protein because they were well documented. Plaintiff also

points to the website of Weston Price Foundation, which contains numerous articles

about soy poisoning, as further evidence that the adverse effects of soy protein are well

 The items identified by the FDOC containing soy protein, as alleged by Plaintiff, are imitation

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milk, dinner stew, BBQ, veggie chicken salad, turkey meat, and tuna salad.

 This case is still pending. Motions for summary judgment have been filed based on an alleged

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failure to exhaust administrative remedies by the plaintiffs. (Filed January 27, 2010).

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documented. Plaintiff also claims the Defendants knew or should have known about

the adverse effects of soy because the Federal Food and Drug Administration lists over

200 studies on their website showing toxicity levels of soy in its poisonous plant

database and the FDA has never approved soy protein isolate as “generally recognized

as safe” because of toxins and carcinogens present in its processed form.

Plaintiff claims that the Defendants knew specifically about his health problems

related to soy protein because he informed them by filing grievances. Plaintiff alleges

that despite this knowledge the Defendants implemented menus which included the use

of soy protein state-wide. According to Plaintiff, Defendant Howard – the Food Service

Director at Mayo CI – specifically knew about Plaintiff’s health problems related to use

of soy protein because Defendant Howard denied Plaintiff’s request for a soy-free food

tray. Plaintiff claims that Howard has the authority to change the menu at Mayo CI, but

chose not to do so to save money.

Plaintiff seeks declaratory and injunctive relief, specifically an order directing the

DOC to cease serving soy protein and to implement a new, healthy diet. Plaintiff also

requests nominal, compensatory, and punitive damages, including “all medical, holistic

and/or herbal measures to overcome any and all future cancer or the propensity of

cancer...sterility... [and] dental care.”

II. Standard of Review

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.

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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).

III. Analysis

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 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

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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 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.”). 

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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). 

The Court is not operating on a blank slate with regard to Plaintiff’s claim. On two

occasions judges in this District have dismissed almost identical cases for failure to

state a claim for relief where the inmate brought a claim alleging the DOC violated the

inmate’s Eight Amendment right to nutritionally adequate food by serving the inmate

soy–protein meals, which caused gastrointestinal symptoms. See Harris v. McNeil, No.

5:10cv76-RS/MD (N.D. Fla. Aug. 3, 2010)( order adopting report and

recommendation); and Mott v. Fuhrman, No. 5:10cv146-SPM/AK (N.D. Fla. Aug. 23, 4

2010)(order dismissing case). 

Courts in other districts similarly have dismissed cases brought by inmates 

alleging that the use of soy protein in their food had caused similar health issues as

those described by the Plaintiff here. The Southern District of Illinois dismissed a suit

for failure to meet the Twombly threshold because the inmate failed to allege facts

sufficient to show that the Defendants (the warden, the governor, and prison staff) knew

that soy protein posed a serious risk of harm to the inmate’s health. Thomas v. Davis,

No. 10-cv-288-DRH, 2010 WL 4225821 (S.D. Ill. Oct. 20, 2010). Similarly, the Court In

Richardson v. Zimmerman, No. 06-3196, 2008 WL 4491952 (C.D. Ill. Sept. 29, 2008),

entered summary judgment for the defendants after finding that “[s]oy protein is a

healthy alternative to meat, poultry, and other animal-based products.” Id., at *6.

 Plaintiff referenced this case as still pending on July 2, 2010, the date the complaint was filed.

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However, the case was dismissed on August 3, 2010. (See Docs. 31 and 34 in Case No. 5:10cv76).

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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 (11 Cir. 2004). In th

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 (11 Cir. 2000). Thus, a prisoner must allege facts that th

demonstrate the defendants had “subjective knowledge,” i.e. actual knowledge of a risk

of serious harm and disregarded that risk. Id., at 83. To establish subjective

knowledge, a prisoner must show that the defendants were aware of facts from which

they could infer that a substantial risk of serious harm existed and facts that show the

inference was indeed drawn. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Harper

v. Lawrence County, Ala., 592 F.3d 1227 (11th Cir. 2010); Bozeman v. Orum, 422 F.3d

1265, 1272 (11th Cir. 2005). 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. 

Plaintiff has failed to do so. Liberally construing the allegations in the First

Amended Complaint, the most that Plaintiff alleges is that the Secretary and prison

officials responsible for implementing food policy should have known that soy protein

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was associated with health issues simply because there was “information available.” 

The First Amended Complaint is devoid of any facts alleging that Defendants were

advised by any person or governmental agency that soy protein is harmful, other than

by Plaintiff that he believed soy protein was harmful. Failure to adequately allege facts

establishing subjective knowledge by the defendants warrants dismissal under 28

U.S.C. §1915A and fails to meet the pleading standard established in Twombly. See

Granda v. Schulman, 372 Fed. Appx. 79 (11th Cir. 2010) (discussing deliberate

indifference in the context of denial of medical care). 

Moreover, even if the Court accepted Plaintiff’s position that Defendants should

have been aware of issues relating to soy protein based upon information available on

the internet or from the Weston Price Foundation website, that still fails to demonstrate

subjective knowledge to establish deliberate indifference. The issue is not whether the

Defendants knew of this information but rather if they had known would the Defendants

have deduced from that information that soy protein is an actual or serious health risk. 

There are no allegations in the complaint which suggest that it was even plausible the

Defendants should have known that soy protein causes a health risk. Indeed, Plaintiff

alleges he was examined by medical staff and that staff did not associate his

gastrointestinal issues with his diet and did not even suggest or prescribe a diet

change. The only facts offered to support Plaintiff’s theory is that after he stopped

eating soy his symptoms abated. Even if Defendants were aware of this information,

there simply is nothing in these facts from which Defendants should necessarily infer a

serious health risk. 

Plaintiff also contends that Defendants should have known about the health risks

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associated with soy because similar allegations have been made in a lawsuit in Illinois

and in another case filed in this district. The case in Illinois – Harris, et al v. Brown, et

al, No. 3:07-cv-03225-HAB-CHE (C.D. Ill. filed Aug. 15, 2007) – concerns prisoner

issues in another state and appears likely to be decided on a jurisdictional issue, and

thus has little to do with the merits of whether soy protein is harmful. The other case

referenced by Plaintiff, pending in this district – Harris v. McNeil, No. 5:10cv76-RS/MD

(N.D. Fla. Aug. 3, 2010) – was dismissed prior to being served so the defendants

named in that suit likely would not have known it was filed. Regardless, the Harris court

rejected the notion asserted by Plaintiff here – i.e that serving inmates food with soy

protein violates the Eight Amendment.

Lastly, with regard to subjective knowledge, Plaintiff alleges that Defendants

should have known about the health risks of soy protein because he informed them by

filing grievances and when he requested a soy free diet from Warden Howard at Mayo

CI. This allegation has little to do with subjective knowledge. The fact that Plaintiff told

the Defendant about the health risks of soy protein misses the point. The issue is not

whether the Defendants were told but rather whether the Defendants subjectively knew

that soy protein caused health risks. Simply because Plaintiff filed a grievance does not

mean that the DOC knew there were health risks from soy protein. Moreover,

the grievances filed by Plaintiff with Defendant Howard at Mayo Food Services (copies

of which are attached to Plaintiff’s original complaint) disclose that Plaintiff requested a 5

vegan tray because of religious reasons and not because of health issues related to

soy protein. 

Doc. 1, Ex. P3-C.

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Accordingly, because Plaintiff has failed to allege in the First Amended

Complaint any facts which plausibly could demonstrate that the Defendants subjectively

knew that soy protein caused serious health risks and with such knowledge deliberately

served the soy based menu with an intent to punish, the First Amended Complaint is

due to be dismissed.6

In light of the foregoing, it is respectfully RECOMMENDED that: 

The complaint should be DISMISSED for failure to state a claim for relief.

At Gainesville, Florida, this 2 day of December 2010.

nd

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

There is also another even more fundamental problem with Plaintiff’s claim. Plaintiff alleges that

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when he stopped eating the foods with soy protein his symptoms abated. Plaintiff further admits that he

was offered an alternative menu but the alternative menu caused him gas because it contained beans.

W hile frequent gas understandably might not be desirable, the fact that Plaintiff experiences gas cannot

be considered sufficient to establish an Eighth Amendment claim for cruel and unusual punishment. If that

was the case the Court likely would be flooded with thousands of cases by prisoners claiming cruel and

unusual punishment every time an inmate experienced flatulence. Certainly, the fact that an inmate

experiences flatulence fails to rise to the level of a “risk that today’s society chooses not to tolerate.”

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