Kislyak v. York County Sheriff's Department

Filing 24

MEMORANDUM AND ORDER - This matter is dismissed in its entirety. A separate judgment will be entered in accordance with this Memorandum and Order. All pending motions are denied as moot. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVEL KISLYAK,
Plaintiff,
v.
NEBRASKA STATE, et al.,
Defendants.

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CASE NO. 4:11CV3100

MEMORANDUM
AND ORDER

Plaintiff filed his original Complaint on June 21, 2011. (Filing No. 1.) He filed
Amended Complaints on October 25 and November 30, 2011. (Filing Nos. 18 and 23.)
Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 16.) The court now
conducts an initial review of the complaints to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e).
I.

SUMMARY OF COMPLAINTS
Plaintiff filed his original Complaint in this matter on June 21, 2011. (Filing No. 1.)

He filed Amended Complaints on October 25 and November 30, 2011. (Filing Nos. 18 and
23.) Plaintiff lists a different set of defendants in each of these complaints, and his
handwriting is nearly illegible. (See Filing Nos. 1, 18, and 23.) The only allegations the
court can make out relate to Plaintiff’s dissatisfaction with his diet at the Lincoln Regional
Center (“LRC”). As best as the court can tell, Plaintiff alleges that LRC staff have placed
him on a restricted diet because he is diabetic. (Filing No. 18 at CM/ECF pp. 1-2.) Plaintiff
does not like the restricted diet because he does not get enough fruits and vegetables.
(Filing No. 23 at CM/ECF p. 1.) The court cannot decipher what relief Plaintiff seeks.

II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints seeking

relief against a governmental entity or an officer or employee of a governmental entity to
determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed” for
failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), (“A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).
Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff’s
complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff’s allegations must be
construed liberally. Burke v. North Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 104344 (8th Cir. 2002), (citations omitted).
III.

DISCUSSION OF CLAIMS
The court has carefully reviewed Plaintiff’s Complaint and two Amended Complaints.

(Filing Nos. 1, 18, and 23.) As set forth above, the complaints are nearly illegible. The

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allegations the court can decipher do not nudge Plaintiff’s claims about his diet across the
line from conceivable to plausible.
Under both the Eighth and Fourteenth Amendments, inmates must be provided
nutritionally adequate food.1 Green v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986); see
Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992), (prisoners have right to nutritionally
adequate food).

Failure to provide adequate nutrition may qualify as deliberate

indifference to a prisoner’s needs, but the prisoner must show that the food he was served
was nutritionally inadequate or prepared in a manner presenting an immediate danger to
his health, or that his health suffered as a result of the food. Heffernan v. Harris, 419
Fed.Appx. 706 (8th Cir. 2011), (citing Wishon, 978 F.2d at 449). A diet without fruits and
vegetables might violate the Eighth Amendment if it is a regular prison diet. Rust v.
Grammer, 858 F.2d 411, 414 (8th Cir. 1988).
Here, as best as the court can tell, Plaintiff does not allege that his diet is
nutritionally inadequate. Plaintiff sets forth a long list of medical ailments—“red face,
itching, rash, soar throat [sic], lost voice, constant infection in the body, cramping, shaking,
lost vision, reaction to florescent light …”—but he does not allege that his diet is the cause
of these conditions. (Filing No. 23 at CM/ECF p. 1.) Rather, Plaintiff argues that he should
receive more fruits and vegetables in his diet. (Filing No. Id. at CM/ECF p. 1.) Plaintiff
admits that he does receive at least some fruits and vegetables in his diet. (Id. (“Took
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It appears from the face of the Complaint that Plaintiff is being held at LRC
pending criminal prosecution in York County, Nebraska. (Filing No. 1 at CM/ECF pp. 310.) For the purposes of this analysis, it does not matter whether Plaintiff is an
involuntarily committed patient, a prisoner, or a pretrial detainee because Plaintiff’s
allegations fail under both Eighth Amendment and Fourteenth Amendment frameworks.

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fresh live vegetables and fruits away accept [sic] left banana for the breakfast, for lunch
and diner [sic] damage potato with sometimes banana and really like lettuce on the
plate.”).) Even under the most liberal construction, the allegations that the court can
decipher do not nudge Plaintiff’s claims across the line from conceivable to plausible. In
addition, it would be futile to order Plaintiff to file another amended complaint in this matter
because all of Plaintiff’s numerous filings have been almost entirely illegible, nonsensical,
or both. (See, e.g., aerial photograph at Filing No. 22.)
IT IS THEREFORE ORDERED that:
1.

This matter is dismissed in its entirety;

2.

A separate judgment will be entered in accordance with this Memorandum
and Order; and

3.

All pending motions are denied as moot.

DATED this 29th day of February, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend, approve,
or guarantee any third parties or the services or products they provide on their Web
sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.
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