Zuck v. Peart et al

Filing 13

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff has failed to state a claim upon which relief may be granted with respect to his First Amendment, RLUIPA, and equal protection claims. However, on the court's own motion, he shall have 30 days from the date of this Memorandum and Order to file an amended complaint in accordance with this Memorandum and Order. Any amended complaint must restate the allegations of the current complaint and any new allegations. Failure to cons olidate all claims into one document may result in the abandonment of claims. If Plaintiff fails to file an amended complaint, this matter will proceed only as to Plaintiff's inadequate-nutrition claims. The clerk's office is directed t o set a pro se case management deadline in this case using the following text: Check for amended complaint on June 27, 2013, and allow only inadequate-nutrition claims to proceed to service if none filed. Plaintiff's monetary damages claims aga inst Defendants in their official capacities are dismissed. Plaintiff's Motion to Appoint Counsel (Filing No. 4 ) is denied. Plaintiff's Motion for Discovery (Filing No. 10 ) is denied. Defendant's Motion for Preliminary Injunction (Filing No. 5 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM ZUCK,
Plaintiff,
v.
MARIO PEART, et al.,
Defendants.

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4:12CV3252

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on December 19, 2012. (Filing No.
1.) The court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 9.)
The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A. The
court will also address Plaintiff’s Motion to Appoint Counsel, Motion for Discovery,
and Motion for Preliminary Injunction.
I. SUMMARY OF COMPLAINT
Plaintiff is currently incarcerated at the Lincoln Correctional Center (“LCC”).
(See Docket Sheet.) He filed his Complaint against numerous current and former
employees of the LCC and the Nebraska Department of Correctional Services
(“NDCS”). (Filing No. 1 at CM/ECF p. 1.) He has also sued four companies that
supply food products to the LCC, including Keefe Group, H.J. Heinz Co., L.P.,
Carriage House Companies, Inc., and Portion Pac, Inc. (Id. at CM/ECF p. 4.)
Plaintiff’s Complaint and its attached documentation totals 308 pages. Condensed and
summarized, Plaintiff alleges that Defendants have violated his religious rights in
violation of the First and Fourteenth Amendments, and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). (Id. at CM/ECF pp. 23-28.) He also
alleges that Defendants have violated his Eighth Amendment right to be free from
cruel and unusual punishment. (Id.)

A.

Plaintiff’s Sincerely Held Religious Beliefs

Plaintiff is a member of The Church of Jesus Christ of Latter-day Saints.
Plaintiff states that his religious dietary requirements are set forth in a document
attached to his Complaint entitled “Word of Wisdom Religious Diet Needs”
(hereinafter referred to as “the Word of Wisdom”). (See Filing No. 1-1 at CM/ECF
p. 14.) Plaintiff states that the Word of Wisdom is his interpretation of his religion’s
dietary guidelines. (Filing No. 1-4 at CM/ECF p. 130.) As set forth in the Word of
Wisdom, Plaintiff is forbidden from consuming alcohol, tobacco, tea, and coffee.
(Filing No. 1-1 at CM/ECF p. 14.) The Word of Wisdom also states that “[a]nything
harmful that people purposefully take into their bodies is not in harmony with the
Word of Wisdom.” (Id.) Though not specifically set forth in the Word of Wisdom
document, Plaintiff states in the body of his Complaint that foods that make him “feel
sick and/or drugged” violate the Word of Wisdom. (See generally Filing No. 1.)
Plaintiff determines whether a food contains something “harmful,” in violation of the
Word of Wisdom, by using his past experiences and his senses of smell, taste, and
sight. (Filing No. 1-4 at CM/ECF p. 131.)
Plaintiff also alleges that fasting is one of his religious dietary requirements.
(Filing No. 1 at CM/ECF p. 7.) Plaintiff states he must fast one Sunday per month for
two consecutive meals. (Id.)
B.

Factual Allegations
1.

Fasting Meal

Plaintiff alleges he has filed numerous grievances asking to be provided
additional food on the evening of the one Sunday per month. He also submitted a
proposal to the prison’s religious study committee asking for the additional food. The
response from prison officials was that the NDCS legal department determined that
Plaintiff would not be provided additional food on the one day per month he chooses
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to fast. (Filing No. 1 at CM/ECF pp. 1-9.) Plaintiff alleges that these actions violate
his rights under RLUIPA and the First and Fourteenth Amendments. (Id. at CM/ECF
pp. 24-28.)
2.

Canteen Items

Plaintiff alleges that he initiated numerous grievances asking prison officials
to inform him of which canteen items he may consume in accordance with the Word
of Wisdom. (Id. at CM/ECF p. 9.) Prison officials have refused. Rather, they have
instructed him to (1) review the canteen list and decide what he may eat, (2) work with
the religious coordinator, and (3) exercise his judgment in deciding which foods he
can eat “because interpretations of the foods allowed or prohibited by Word of
Wisdom vary.” (Id. at CM/ECF pp. 9-11; see also Filing No. 1-4 at CM/ECF pp. 2125.)
Plaintiff alleges that Keefe Group and other food companies supply food to the
prison’s canteen, and some of the food’s ingredients violate the Word of Wisdom.
(Filing No. 1 at CM/ECF p. 10.) He also alleges that food he purchases from the
canteen has the tendency to make him feel “sick and/or drugged” in violation of the
Word of Wisdom. (Id.) Plaintiff alleges that Defendants’ actions violate his rights
under RLUIPA and the First and Fourteenth Amendments. (Id. at CM/ECF pp. 2428.)
3.

LCC Menu Items

Plaintiff alleges that he has initiated numerous grievances asking to be notified
in advance of what menu items violate the Word of Wisdom. Defendants have
refused to give him this information. Instead, they have instructed him to review the
posted menus to determine which foods meet his religious diet restrictions. (Id. at
CM/ECF p. 11.) Plaintiff alleges that many of the menu items make him feel “sick
and/or drugged” in violation of the Word of Wisdom. In addition, he alleges that he
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is not receiving adequate nutrition and, as a result, he has lost in excess of 60 pounds
in the last five years. (Id. at CM/ECF pp. 20-21.) Plaintiff alleges that Defendants’
actions violate his rights under the First, Eighth, and Fourteenth Amendments, and
RLUIPA.
4.

Religious Diet Proposal

Plaintiff alleges that he submitted a Word of Wisdom religious diet proposal to
the prison’s religious study committee. (Id. at CM/ECF p. 12; proposal at Filing No.
1-4 at CM/ECF p. 34.) The committee rejected his proposal because, according to the
prison’s religious coordinator, Plaintiff is able to comply with his religion’s diet by
simply refraining from drinking tea and coffee, and he is able to meet his daily
nutritional needs even if he avoids drinking tea and coffee. (See id. at CM/ECF p. 35.)
Plaintiff alleges that Defendants’ actions violate his rights under RLUIPA and the
First and Fourteenth Amendments. (Id. at CM/ECF pp. 24-28.)
C.

Demand for Relief

As relief, Plaintiff seeks an unspecified amount of monetary damages. In
addition, he asks the court to order prison officials to: (1) serve him only alternative
foods from companies that provide “food storage meals” that do not violate the Word
of Wisdom; (2) never sell him products from the canteen that violate the Word of
Wisdom; (3) label all food items that comply with the Word of Wisdom; (4) create an
official Word of Wisdom religious diet; and (5) provide him with additional food at
the evening meal on the one Sunday per month he chooses to fast. (Filing No. 1 at
CM/ECF pp. 28-32.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
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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, 70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (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, 1043-44 (8th Cir. 2002) (citations omitted).
III. DISCUSSION OF CLAIMS
A.

Claims for Monetary Relief and Official Capacity Claims

The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995). Any award of retroactive monetary relief payable by the state, including
for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver
of immunity by the state or an override of immunity by Congress. See, e.g., id.;
Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does
not bar damages claims against state officials acting in their personal capacities, nor
does it bar claims brought pursuant to 42 U.S.C. §1983 which seek equitable relief
from state employee defendants acting in their official capacity.
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Plaintiff has sued numerous state employees in their official and individual
capacities. As set forth above, the Eleventh Amendment bars claims for damages by
private parties against employees of a state sued in their official capacities.
Accordingly, Plaintiff’s monetary damages claims against Defendants in their official
capacities are barred by the Eleventh Amendment and will be dismissed.
B.

Religious Diet

When faced with both First Amendment and RLUIPA claims, the threshold
inquiry is whether the prison has substantially burdened a prisoner’s ability to practice
religion. Morris v. Morrison, 486 Fed.Appx. 615 (8th Cir. 2012) (citing Gladson v.
Iowa Dep’t of Corr., 551 F.3d 825, 832-33 (8th Cir. 2009)). To constitute a
substantial burden, a government policy or action must significantly inhibit or
constrain religious conduct or expression, meaningfully curtail a person’s ability to
express adherence to his faith, or deny him reasonable opportunities to engage in
activities fundamental to his religion. Id.
Plaintiff’s claim that he has been denied a religious diet has four components:
(1) Defendants denied his request for a diet that complies with the Word of Wisdom;
(2) Defendants refuse to inform him of which canteen items comply with the Word
of Wisdom; (3) Defendants refuse to give him advance notice of what menu items
comply with the Word of Wisdom; and (4) Defendants refuse to provide him with
extra food on the evening of the one day per month he chooses to fast. (Filing No. 1
at CM/ECF p. 24.) With respect to the first three components, Plaintiff does not
clearly allege how Defendants are failing to provide him with a diet that meets his
religious diet needs. The Word of Wisdom states that Plaintiff may not consume
alcohol, tobacco, tea, or coffee, and that he should avoid “anything harmful.”
(See Filing No. 1-1 at CM/ECF p. 14.) Plaintiff does not allege that Defendants force
him to consume alcohol, tobacco, tea, or coffee. Rather, he alleges that, at times,
some of the food he receives from the cafeteria and canteen makes him feel “sick
and/or drugged,” in violation of the Word of Wisdom. (Filing No. 1-4 at CM/ECF pp.
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131-132.) In addition, a specific food item may make him feel sick one day, but not
another day. (See Filing No. 1-4 at CM/ECF p. 132 (“At times I can eat a specific
food item without incident, while at other times I will feel sick and/or drugged
afterwards in violation of my Word of Wisdom Religious Diet Needs [] [a]fter eating
the exact same food item served on a different food tray[] on different days of the
Menu cycle”).) Finally, Plaintiff states that he must rely on his own senses in order
to determine which foods violate the Word of Wisdom. (“All I can do is try to
determine based on past experiences and smell, taste, feel, and sight if a food item
served to me violates my Word of Wisdom Religious Diet Needs and will cause me
to feel sick and/or drugged.”) (Filing No. 1-4 at CM/ECF p. 131.)
Here, it appears that whether or not a food violates Plaintiff’s religious diet
depends on how the food makes him feel after he eats it. Thus, with respect to this
issue, the court finds that Plaintiff has failed to state a claim upon which relief may
be granted. Defendants cannot possibly be expected to craft a religious diet based on
Plaintiff’s subjective impression of how some foods make him feel some of the time.
With respect to Plaintiff’s claim regarding his ability to fast, Plaintiff alleges
that fasting is a religious dietary requirement of his faith. (Filing No. 1 at CM/ECF
p. 25.) In order to accommodate Plaintiff’s observance of “fast Sunday,” Plaintiff
asked prison officials to provide him with additional food at dinner on the Sunday he
chooses to fast so that he can “maintain[] his daily nutritional needs for the fast day.”
(Filing No. 1 at CM/ECF p. 8.) However, Plaintiff fails to allege how Defendants’
refusal to provide him extra food on “fast Sunday,” which occurs only one day per
month, substantially burdens his ability to practice his religion. It is clear from
Plaintiff’s allegations that Defendants are not stopping him from fasting; he is free to
fast whenever he wishes. Rather, Plaintiff’s complaint is that Defendants will not
provide him with extra food on the Sunday he chooses to fast. Plaintiff has failed to
explain how this denial of extra food significantly inhibits or constrains his religious
conduct or expression or meaningfully curtails his ability to express adherence to his
faith.
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On the court’s own motion, Plaintiff shall have an opportunity to file an
amended complaint that states a claim upon which relief may be granted. Plaintiff’s
amended complaint must allege that Defendants have substantially burdened
Plaintiff’s ability to practice his religion, and must allege specific facts sufficient to
state a claim.
C.

Equal Protection

In order to establish an equal protection claim, a prisoner must show that he is
treated differently from similarly-situated inmates and that the different treatment is
based upon either a suspect classification or a “fundamental right.” Patel v. United
States Bureau of Prisons, 515 F.3d 807, 815 (8th Cir. 2008). Religion is a suspect
classification. Id. at 816.
Here, Plaintiff alleges that his religious diet requests are treated differently than
other inmate’s religious diet requests. (Filing No. 1 at CM/ECF p. 26.) However, his
allegations are wholly conclusory and do not set forth any specific facts about how his
requests are treated differently. In addition, Plaintiff does not identify similarlysituated inmates who receive more favorable treatment. For example, Plaintiff does
not allege that inmates of another religion are provided a fasting meal, and he is not.
On the court’s own motion, Plaintiff shall have an opportunity to file an amended
complaint that states an equal protection claim upon which relief may be granted.
Plaintiff’s amended complaint must clearly allege that Defendants have treated
Plaintiff differently than similarly-situated inmates, and must allege specific facts
sufficient to state a claim.
D.

Adequate Nutrition

Prisoners have a right to adequate nutrition and the failure to provide adequate
nutrition may qualify as a deliberate indifference that violates the Eighth Amendment.
Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992). A prisoner must show that
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“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.” Id.
Plaintiff alleges that the food he receives at LCC makes him feel “sick” and
“drugged,” that he is not receiving adequate nutrition, and as a result he has lost in
excess of 60 pounds in the last five years. (Filing No. 1 at CM/ECF pp. 20-21.)
Plaintiff alleges that the following individuals have deprived him of nutritionally
adequate food: Mario Peart, Diane Sabatka-Rine, Robert Houston, Janet Boyer,
Charles Glenn, Unkown Dana, Unknown Dorton, Salvador Cruz, Robert Madsen, and
Frank Hopkins. Liberally construed, the court finds that Plaintiff’s allegations are
sufficient to nudge his Eighth Amendment claim across the line from conceivable to
plausible. The court cautions Plaintiff that this is only a preliminary determination
based on the allegations of the Complaint and is not a determination of the merits of
Plaintiff’s claims or the potential defenses thereto.
IV. Motion to Appoint Counsel
Plaintiff has filed a Motion to Appoint Counsel (Filing No. 4.) However, the
court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447
(8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to appointed counsel. . . . The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel . . . .” Id. (quotation and citation omitted). No
such benefit is apparent here. Thus, the request for the appointment of counsel is denied
without prejudice to reassertion.
V. Motion for Discovery
Plaintiff has filed a Motion for Discovery (Filing No. 10). Shortly after Plaintiff filed
this action, the clerk’s office delivered to him a copy of the court’s General Order Number

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2007-12, which states that “[n]o discovery in pro se civil cases assigned to a district judge
shall take place until . . . a progression order is entered unless permitted by the court.”
(Filing No. 8.) Here, the court has not entered a progression order, and Plaintiff has not
convinced the court that allowing the parties to engage in discovery prior to the issuance of
a progression order is necessary. Therefore, Plaintiff’s discovery request will be denied.

VI. Motion for Preliminary Injunction
Plaintiff seeks a preliminary injunction requiring Defendants to (1) provide him
only with alternative foods from companies that provide “food storage meals” that do
not violate the Word of Wisdom; (2) never serve him food that comes from DCS, and
(3) never sell him products from the LCC canteen that violate the Word of Wisdom.
(Filing No. 5 at CM/ECF p. 4.) The standards set forth by Dataphase Sys., Inc. v. C.L.
Sys., Inc., 640 F.2d 109 (8th Cir. 1981), apply to Plaintiff’s Motion. In Dataphase,
the court, sitting en banc, clarified the factors district courts should consider when
determining whether to grant a motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.
Id. at 114; see also Planned Parenthood v. Rounds, 530 F.3d 724, 732-33 (8th Cir.
2008) (reiterating Dataphase factors and finding that unless implementation of state
statute is at issue, “district courts should still apply the familiar ‘fair chance of
prevailing’ test”). “No single factor in itself is dispositive; rather, each factor must be
considered to determine whether the balance of equities weighs toward granting the
injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
“At base, the question is whether the balance of equities so favors the movant that
justice requires the court to intervene to preserve the status quo until the merits are
determined. . . .” Dataphase, 640 F.2d at 113.

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As set forth above, Plaintiff has not alleged a plausible cause of action related
to his “Word of Wisdom” religious diet needs. In light of this, and in balancing all of
the factors, it is apparent that Plaintiff has not alleged, or submitted any evidence
showing, that there is a fair chance that he will succeed on the merits of his claims.
As such, at this point in the proceedings and in consideration of all of the factors, the
court sees no reason to “intervene . . . until the merits are determined . . . ”
Dataphase, 640 F.2d at 113.
IT IS THEREFORE ORDERED that:
1.
Plaintiff has failed to state a claim upon which relief may be granted with
respect to his First Amendment, RLUIPA, and equal protection claims. However, on
the court’s own motion, he shall have 30 days from the date of this Memorandum and
Order to file an amended complaint in accordance with this Memorandum and Order.
Any amended complaint must restate the allegations of the current complaint and any
new allegations. Failure to consolidate all claims into one document may result in the
abandonment of claims.
2.
If Plaintiff fails to file an amended complaint, this matter will proceed
only as to Plaintiff’s inadequate-nutrition claims.
3.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: Check for amended complaint on June 27, 2013,
and allow only inadequate-nutrition claims to proceed to service if none filed.
4.
Plaintiff’s monetary damages claims against Defendants in their official
capacities are dismissed.
5.

Plaintiff’s Motion to Appoint Counsel (Filing No. 4) is denied.

6.

Plaintiff’s Motion for Discovery (Filing No. 10) is denied.
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7.

Defendant’s Motion for Preliminary Injunction (Filing No. 5) is denied.

DATED this 28th day of May, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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