SKELTON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

RAYMOND SKELTON on behalf of

himself and all similarly situated

persons,

Civil No. 19-18597 (RMB-SAK)

Plaintiff,

OPINION

v.

JONATHAN BRANGANZA, et al.,

Defendants.

APPEARANCES

Solomon M. Radner, Esq.

Keith Altman, Esq. (pro hac vice)

THE LAW OFFICE OF KEITH ALTMAN

33228 West 12 Mile Road, Suite 375

Farmington Hills, MI 48334

On behalf of Plaintiff

Mathew J. Platkin

Attorney General of New Jersey

Daniel Shehata

Deputy Attorney General

NEW JERSEY OFFICE OF THE ATTORNEY GENERAL

Richard J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, New Jersey 08625-0112

On behalf of Defendants

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon the Second Motion to Dismiss the

Third Amended Complaint filed by Defendants pursuant to Federal Rule of Civil

Procedure 12(b)(6). [Docket No. 85 (“Defs.’ Br.”).] Plaintiff Raymond Skelton

(“Plaintiff”) opposes the Motion. [Docket No. 87.] Defendants submitted a Reply in

further support for their Motion to Dismiss on December 15, 2023. [Docket No. 89.]

On February 20, 2024, the Court heard oral argument on Defendants’ Second Motion

to Dismiss. [Docket No. 97.] For the reasons expressed herein, the Court GRANTS,

IN PART, and DENIES, IN PART, Defendants’ Second Motion to Dismiss.

I. FACTUAL BACKGROUND

This is a proposed class action lawsuit accusing the New Jersey Department of

Corrections (“NJDOC”) of failing to provide prisoners with an adequate diet sufficient

to sustain normal health or to meet the serious medical needs of certain prisoners. [See

Docket 75 ¶ 48, Third Amended Complaint (“TAC”).] Plaintiff, a prisoner

incarcerated at South Woods State Prison seeks injunctive, declaratory, and monetary

relief against NJDOC Dieticians (“Dietician Defendants”)1 and their managers

(“Dietician Manager Defendants”) and Food Service Directors and their Managers

(“Food Service Defendants”) (collectively, “Defendants”) for designing, preparing,

and serving a diet to prisoners that Plaintiff alleges violates the Eighth Amendment of

1 The Dietician Defendants are Patricia Esch who created the diet from 2016–21 and

Alexandra Davanzio who designed the current diet. [TAC ¶¶ 29–30.]

the Constitution, the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

(“ADA”) and Section 504 of the Rehabilitation Act of 1973, as amended, at 29 U.S.C.

§ 794 (the “Rehabilitation Act”). Plaintiff seeks to represent a class of “[a]ll inmates

incarcerated in prisons under the direction of the NJDOC who were provided a diet

which failed to meet the American Dietetic Association and United States Department

of Agriculture (“USDA”) standards in accordance with NJDOC policies.” [TAC ¶ 3.]

Additionally, Plaintiff proposes a subclass of inmates “who were not provided a diet

commensurate with medically documented special needs.” [Id.]

On the books, it is allegedly NJDOC’s policy to serve prisoners a diet adhering

to “qualifying dietary standards established by [USDA] and the Recommended

Dietary Guidelines of Food and Nutrition Board, Institute of Medicine, National

Academy of Science [and] National Research Council.” [Id. ¶ 7.] That diet is supposed

to feed prisoners “a variety of required foods” including proteins, fruits, and

vegetables. [See id. ¶¶ 17–20, 51, 59, 61, 62, 67.]

Plaintiff alleges, however, that NJDOC’s practice is apparently quite different

off the books. At some point in 2010, Plaintiff alleges that Defendants conspired to

design and serve a diet “inadequate to sustain normal health in accordance with the

USDA’s Dietary Guidelines” and have “fail[ed] to provide medically necessary diets

to prisoners suffering from various medical conditions such as diabetes, heart disease,

and food allergies.” [TAC ¶¶ 68–70.] Plaintiff alleges that Defendants have “virtually

eliminated” healthy options such as fruits and vegetables and unprocessed proteins

from the prison diet. [Id. ¶¶ 18–20, 60, 64.] Instead, NJDOC now serves a diet that is

allegedly deficient in a variety of essential vitamins, minerals, and nutrients which

prisoners cannot get through the empty starches, potatoes, highly processed meats,

fake cheese products, cookies, cakes, and desserts that NJDOC serves instead. [Id. ¶¶

55–64.] Additionally, Plaintiff alleges that the Food Service Defendants regularly

“short” the diet, that is, water down foods or load meal products with bread scraps

and “fillers.” [Id. ¶ 75.] To maintain appearances that the diet is proper, Plaintiff

alleges that the Food Service Defendants prepare false menus which, on their face,

appear to advertise a healthy diet but, in reality, do not accurately represent the

unhealthy meal products actually served to prisoners. [Id. ¶¶ 80, 88.]

Plaintiff alleges that the diet has caused significant health consequences and

exacerbated pre-existing health problems for himself and other prisoners. Plaintiff

(who himself suffers from diabetes, high blood pressure and high cholesterol) alleges

that there has been an “explosion in diabetes among the prison population as well as

the significant progression of those with diabetes when entering the prison system”

caused by the prison diet. [Id. ¶ 91.] Plaintiff additionally notes increases in cancer,

high blood pressure, heart disease, obesity, and mental disorders which he also

attributes to the diet. [Id. ¶ 92.]

II. PROCEDURAL BACKGROUND

Plaintiff filed this action in October 2019. [Docket No. 1.] Defendants—which

consisted of NJDOC, the NJDOC Acting Commissioner, Marcus Hicks, South

Woods State Prison Administrator, John Powell, and the Dietician Defendants,

Dietician Manager Defendants and Food Service Defendants, all named as John

Does—moved to dismiss. [Docket No. 14.] The Court granted the motion to dismiss.

As to NJDOC, the Court found Plaintiff’s claimed barred by Eleventh Amendment

immunity since NJDOC is a state agency. [See Docket No. 21 at 12 (“Op.”) (citing

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 (1984)).] As to

Defendants Hicks and Powell, the Court found that Plaintiff failed to state a claim for

relief under the Eighth Amendment, ADA or Rehabilitation Act. The Court held that

although the failure to provide prisoners with a nutritionally adequate diet could be an

objectively serious violation of the Eighth Amendment, Plaintiff had not sufficiently

alleged deliberate indifference on the part of Hicks and Powell because there were no

facts alleging any personal involvement by Hicks and Powell in designing, preparing,

or serving the allegedly unlawful diet. [Op. at 17–24.] The Court also dismissed the

supervisory liability claims against Hicks and Powell because the alleged practices of

shorting food, substituting non-nutritional food, and serving rotten food were not

practices so well known to pose a substantial risk to inmate health that it was obvious

to prison officials that training and supervision must be deficient. [Op. at 25.]2 As to

the ADA and Rehabilitation Act claims, the Court also dismissed the claims as to

Hicks and Powell because Plaintiff failed to allege that his diabetes substantially limits

a major life activity. [Op. at 29–33.] The Court permitted Plaintiff to file an amended

complaint within 45 days. [Docket No. 22.]

2 The Court also dismissed Plaintiff’s Section 1983 conspiracy claim because Plaintiff

failed to state an underlying Eighth Amendment violation. [Op. at 28–29.]

After nearly eight months of inactivity, the Court directed Plaintiff to show

cause as to why the case should not be dismissed for failure to prosecute. [Docket No.

23.] Counsel for Plaintiffs responded, and the Court directed Plaintiff to file an

amended complaint within 30 days. [Docket No. 27.] Plaintiff did so, but continued

to name the Dietician, Dietician Manager, and Food Service Defendants as John and

Jane Does. [Docket No. 33.] On June 14, 2022, after Plaintiff failed to take any action

to identify the Doe Defendants and amend the complaint, this Court filed a Notice of

Call for Dismissal pursuant to Federal Rule of Civil Procedure 4(m), explaining that

Plaintiff must identify the unnamed defendants prior to filing and serving a second

amended complaint. [Docket No. 34.] On June 24, 2022, Plaintiff filed a response to

the Notice of Call for Dismissal. [Docket No. 35.] The Court vacated the Notice of

Call for Dismissal and directed Plaintiff to immediately take steps to identify the Doe

Defendants. [Docket No. 37.]

Plaintiff filed his Second Amended Complaint on December 15, 2022 naming

the Dietician and Food Service Defendants as well as various NJDOC commissioners.

[Docket No. 44 ¶¶ 26–47.] The Court held a pre-motion conference on Defendants’

proposed motion to dismiss the Second Amended Complaint pursuant to its

Individual Rules and Practices. At the pre-motion conference, the Court noted its

concerns over the broad-brush allegations made against a kitchen sink of defendants

and directed Plaintiff to amend the complaint once more.

Plaintiff filed the operative Third Amended Complaint on August 4, 2023. The

Third Amended Complaint dropped the NJDOC commissioner defendants named in

the Second Amended Complaint and only named the Dietician Defendants, the

Dietician Manager Defendants, and Food Service Defendants in their individual and

official capacities. All are charged with violations of (i) the Eighth Amendment,

including a conspiracy to violate the Eighth Amendment and a failure to train,

supervise, or discipline related to violations of the Eighth Amendment; (ii) the ADA;

and (iii) the Rehabilitation Act. Plaintiff seeks monetary damages as well as

declaratory and injunctive relief declaring that Defendants’ actions unlawful and

enjoining Defendants’ alleged failure to provide prisoners with a diet sufficient to

maintain normal health. Defendants have again moved to dismiss under Federal Rule

of Civil Procedure 12(b)(6).

III. LEGAL STANDARD

When considering a motion to dismiss for failure to state a claim upon which

relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), a district

court must “accept as true all allegations in the complaint and all reasonable inferences

that can be drawn therefrom, and view them in the light most favorable to the

plaintiff.” Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well-settled that a

pleading is sufficient if it contains “a short and plain statement of the claim showing

that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (first citing Conley v. Gibson, 355 U.S. 41, 47 (1957); then citing

Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); and

then citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alterations in original). Further,

“to determine the sufficiency of a complaint,” the Court must follow a three-step

process:

First, the court must “tak[e] note of the elements a plaintiff must plead to

state a claim.” Second, the court should identify allegations that,

“because they are no more than conclusions, are not entitled to the

assumption of truth.” Third, “whe[n] there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.”

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 664, 675, 679 (2009) (alterations in original)).

A district court, in weighing a motion to dismiss, asks “not whether a plaintiff

will ultimately prevail but whether the claimant is entitled to offer evidence to support

the claim.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

(1974)); see also Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the

pleading standard for ‘all civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in the coffin for the ‘no set of facts’

standard that applied to federal complaints before Twombly.”). Thus, “[a] motion to

dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a

claim to relief that is plausible on its face.’” Malleus, 641 F.3d at 563 (quoting Twombly,

550 U.S. at 570).

IV. ANALYSIS

A. Eighth Amendment Claims

Plaintiff, on behalf of a putative class of NJDOC prisoners, alleges that

Defendants violated the Eighth Amendment by failing to provide him with a

nutritionally adequate diet, and by failing to provide him and a proposed subclass of

prisoners with serious medical needs such as diabetes with a diet adequate for his

serious medical needs. As the Court previously explained, there are two distinct Eighth

Amendment analyses applicable to these claims, the first involves a failure to protect

an inmate’s health, and the second involves adequacy of treatment for a prisoner’s

serious medical needs. [See Op. at 15.]

1. Failure to Protect Inmate Health

The Eighth Amendment prohibits the infliction of cruel and unusual

punishment by the government. U.S. CONST. AMEND. VIII. To successfully plead an

Eighth Amendment claim based on conditions of confinement, a prisoner must allege

facts that meet both an objective and a subjective standard. First, under the objective

standard, a prisoner-plaintiff must show that prison conditions resulted in an

“extreme” deprivation of “the minimal civilized measure of life’s necessities” such as

“adequate food, clothing, shelter, [or] medical care.” Hudson v. McMillian, 503 U.S. 1,

9 (1992); Farmer v. Brennan, 511 U.S. 825, 832 (1994). Second, under the subjective

prong, a prisoner-plaintiff must show that the defendant prison officials acted with

deliberate indifference, meaning that “the official kn[ew] of and disregard[ed] an

excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. “[P]rison officials

who actually knew of a substantial risk to inmate health or safety may be found free

from liability … even if the harm ultimately was not averted.” Id. at 844. But their

response to that substantial risk must be reasonable. Id.

a. Objective Violation of the Eighth Amendment

Under the Eighth Amendment, prisoners are entitled to “the minimal civilized

measure of life’s necessities,” which, in the context of providing “adequate food,”

courts have defined as “nutritionally adequate food that is prepared and served under

conditions which do not present an immediate danger to the health and well being of

the inmates who consume it.” Ramos v. Lamm, 639 F.2d 559, 570–71 (10th Cir. 1980)

(citations omitted); accord Preacher v. Overmyer, 2023 WL 3562982 at 2 (3d Cir. 2023);

Laufgas v. Speziale, 263 F.App’x 192, 198 (3d Cir. 2008) (same); Eason v. Thaler, 73 F.3d

1322, 1327 (5th Cir. 1996) per curiam (“To comply with the Constitution, inmates must

receive “reasonably adequate food.”). “In determining when prison conditions pass

beyond legitimate punishment and become cruel and unusual, the touchstone is the

effect upon the imprisoned.” Rhodes v. Chapman, 452 U.S. 337, 364 (1981) (references

omitted).

This standard, then, begs the question—what exactly is a “nutritionally

adequate diet”? To be sure, there are some easy cases. On one end of the spectrum, a

prison diet that lacks variety or is simply unappetizing does not violate the Eighth

Amendment’s objective prong. See Burgin v. Nix, 899 F.2d 733, 734–35 (8th Cir. 1990)

(inmates do not have a constitutional right to be served any particular type of food);

see also Hunter v. Passaic Cnty. Jail, 2018 WL 5980447, at *3 (D.N.J. Nov. 14, 2018). On

the other end, “a prison that deprives prisoners of basic sustenance, . . . is incompatible

with the concept of human dignity and has no place in civilized society.” Brown v.

Plata, 563 U.S. 493, 511 (2011).

A good portion of Plaintiff’s Third Amended Complaint seems to allege a

theory that Defendants violated the Eighth Amendment’s objective prong by

designing, preparing, and serving a diet “which is inadequate to sustain normal health

in accordance with the USDA’s Dietary Guidelines.” [TAC ¶¶ 68, 121, 134, 155, 165.]

In other words, Plaintiff alleges the prison diet violates the Eighth Amendment

because it fails to meet USDA guidelines. This ignores the touchstone of the Eighth

Amendment that requires consideration of the effect the alleged deprivation had on

the prisoner. It is not plausible that a diet, because it is not in accordance with USDA

guidelines, without more, caused prisoners to develop diabetes, heart disease or

cancer. Courts have thus consistently refused to equate a failure to meet national

nutritional guidelines with an objective violation of the Eighth Amendment. See Florer

v. Bales-Johnson, 752 F. Supp. 2d 1185, 1200 (W.D. Wash. 2010), aff’d, 473 F. App’x

651 (9th Cir. 2012) (“USDA guidelines and recommendations are not constitutional

requirements.”); Gonsalves v. DeVeau, 2012 WL 6104788, at *2 (D. Conn. Dec. 7, 2012)

(“The Constitution does not, however, require adherence to any particular nutritional

guidelines.”); Ingram v. Atl. Cnty. Just. Fac., 2011 WL 3684806, at *5 (D.N.J. Aug. 23,

2011) (dismissing complaint where Plaintiff alleged that diet did not satisfy the

recommended daily allowance of the National Academy of Sciences). Insofar as

Plaintiff’s Third Amended Complaint is predicated on Defendants’ failure to adhere

to nutritional guidelines, that Eighth Amendment claim is dismissed. Courts cannot

become nutritionists and wade into the business of determining whether a prison diet

contains too little Vitamin B1, co-enzyme Q10, proanthocyanidins, conjugated

linoleic acid, N-acetyl cysteine, or selenium, some of the many vitamins, minerals,

chemicals, and nutrients Plaintiff alleges that the diet lacks. [TAC ¶¶ 56–58.] The

relevant question is whether the prison diet meets an objective—relatively low—

constitutional floor, not whether it meets an aspirational ceiling imposed by a body

like the USDA.

In light of the appropriate constitutional standard, taking the allegations as true

and construing them in the light most favorable to Plaintiff, the Third Amended

Complaint does barely enough to allege that the food provided to prisoners was not

nutritionally adequate to sustain normal health. Plaintiff alleges that the diet consists

entirely or almost entirely of empty starches, highly processed meats, and foods high

in fat and sugar for over a decade with “virtually” no fruits, vegetables, or real protein

offered. [TAC ¶¶ 17–20, 23, 60–64; Rust v. Grammer, 858 F.2d 411, 414 (8th Cir. 1988)

(diet without fruits and vegetables might violate Eighth Amendment if it were the

regular prison diet).] The allegations are more than simply that the food served to

prisoners is unappetizing, cold, or bland. Briggs v. Heidlebaugh, 1997 WL 318081, at *3

(E.D. Pa. May 20, 1997) (“An unappetizing diet ... does not support a constitutional

claim.”). Plaintiff has alleged serious medical consequences caused by the regular diet,

including an “explosion in diabetes among the prison population” and “increases in

cancer, high blood pressure, heart disease, obesity and mental disorders.” [TAC ¶¶ 91–

92 (describing effects of the diet on prisoner population); id. ¶¶ 97–108 (describing

effects of the diet on Plaintiff specifically); compare also Richmond v. Settles, 450 F. App’x

448, 456 (6th Cir. 2011) (affirming dismissal of claim based on inadequate nutrition

where the plaintiff failed to allege that his health suffered).]

Not all allegations of objective Eighth Amendment violations pleaded in the

Third Amended Complaint are sufficient, however. Plaintiff’s allegations of the Food

Service Defendants “shorting” the diet by diluting foods with water or loading meal

products with bread scrap fillers and preparing false menus are insufficient. Courts in

this District have recognized as much. See Simmons v. Kelsey, 2020 WL 5793568, at *2

(D.N.J. Sept. 28, 2020) (allegations that Defendant “water[ed] down” food was not an

objective violation of Fourteenth Amendment); Hunter v. Passaic Cty. Jail, 2018 WL

5980447, at *4 (D.N.J. Nov. 14, 2018) (plaintiff failed to show under Fourteenth

Amendment that a “false menu” violated his right to adequate nutrition). Plaintiff fails

to sufficiently allege these practices caused injury to his health. Because the allegations

of shorting and creating false menus are the only allegations in the Third Amended

Complaint specifically brought against the Food Service Defendants, after multiple

opportunities to amend, they will be dismissed from this case.

The Court is highly skeptical that discovery will bear out Plaintiff’s somewhat

conclusory allegations of widespread medical harm caused by the diet. [See, e.g., TAC

¶¶ 9, 16, 122, 130, 134.] But even before Plaintiff has an opportunity to discover what

the effects of the diet have been, he will have to show that the diet served is the diet

alleged. Plaintiff alleges that the diet served consists almost entirely of processed

meats, carbs, and desserts. If during discovery Defendants produce evidence that the

diet, consistent with NJDOC internal policy, follows USDA guidelines or offers

minimally sufficient balance of fruits, vegetables, and protein, then there is no

objective violation of the Eighth Amendment or, at the very least, Defendants would

be entitled to qualified immunity. [See infra at IV.A.1.c.]

b. Subjective Violation of the Eighth Amendment

To meet the subjective component of the Eighth Amendment, Plaintiff must

show that Defendants acted with deliberate indifference in designing, maintaining,

and serving the allegedly unconstitutional diet. A prison official is deliberately

indifferent if he recklessly disregards an excessive risk to inmate health or safety.

Farmer, 511 U.S. at 837; Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d

Cir. 2003) (defining deliberate indifference as a “subjective standard of liability

consistent with recklessness as that term is defined by criminal law”). Deliberate

indifference under the subjective prong of the Eighth Amendment requires a showing

of personal involvement, usually through allegations of actual knowledge or

acquiescence made with appropriate particularity. See Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). But

it can also be established through circumstantial evidence. Farmer, 511 U.S. at 837.

Defendants argue that the allegations of deliberate indifference in the Third

Amended Complaint are insufficient to put them on notice of the claims against them.

[Defs.’ Br. at 13–14.] More specifically, Defendants argue that Plaintiff has improperly

made broad and conclusory “group pleading” allegations “against unspecified Food

Managers, Directors, [and] Dietitians” and thus, has failed to allege that Defendants

had a sufficiently culpable state of mind to give rise to an Eighth Amendment claim.

[Id.]

“Courts in this district generally agree that … ‘group pleading’ does not satisfy

[Federal Rule of Civil Procedure] 8, because it does not place Defendants on notice of

the claims against each of them.” Sheeran v. Blyth Shipholding S.A., 2015 WL 9048979,

at *3 (D.N.J. Dec. 16, 2015) (Simandle, J.); Ingris v. Borough of Caldwell, 2015 WL

3613499, at *5 (D.N.J. June 9, 2015) (“[T]o the extent Plaintiff seeks to lump several

defendants together without setting forth what each particular defendant is alleged to

have done, he has engaged in impermissibly vague group pleading.”). “Even under the

most liberal notice pleading requirements of Rule 8(a), a plaintiff must differentiate

between defendants.” Shaw v. Housing Auth. of Camden, 2012 WL 3283402, at *2

(D.N.J. Aug. 10, 2012).

The Third Amended Complaint barely distinguishes between the acts of the

Dietician Defendants and the now-dismissed Food Service Defendants, routinely

lumping both groups together. The Court, however, finds the allegations sufficient to

at least put the Dietician Defendants on notice of the claims against them. H2O Plus,

LLC v. Arch Personal Care Prods., L.P., 2011 WL 2038775, at *2 (D.N.J. May 22, 2011)

(holding that complaint did not violate Rule 8 because while plaintiff “did lump the []

Defendants together in the description of facts, looking to the Complaint … shows

which claims are made against [each group of Defendants]”).3

Plaintiff’s theory of deliberate indifference as to the Dietician Defendants seems

to go like this: the food served throughout NJDOC appears to be objectively

unhealthy—the diet mostly consists of starches, sweets, and processed proteins with

virtually no fruits, vegetables, or real protein. [TAC ¶ 23.] That food has caused or

exacerbated health problems including diabetes, heart disease, and high blood

pressure. [Id. ¶ 24.] The Dietician Defendants are the individuals who decide what

food the prisoners eat, which must be adequate to sustain normal health. [Id. ¶¶ 27–

30.] As dieticians, they were “commissioned to use their knowledge, training, and

expertise to design an adequate diet” and “knew or should have known that the diet

created failed to provide adequate nutrition which would result in injury to

Plaintiff….” [TAC ¶ 131.] In other words, the obviousness of serving an objectively

unhealthy diet to prisoners is sufficient to put the Dietician Defendants on notice of

the risk. See Farmer, 511 U.S. at 842–43 (explaining that knowledge of a substantial

risk of harm may be proved through obviousness of the risk). The Court finds this

circumstantial evidence of deliberate indifference sufficient at this stage. If Plaintiff’s

3 The Court finds that Plaintiff’s Third Amended Complaint only makes allegations of

supervisory liability against the Dietician Manager Defendants rather than a free-

standing Eighth Amendment claim against them. That supervisory liability claim

(Count III) is addressed infra at § IV.A.3. Even if he did, however, that claim would

fail as the Third Amended Complaint is devoid of any allegations that the Dietician

Manager Defendants, with deliberate indifference, for example, approved the diet

knowing that it was constitutionally insufficient and would cause harm.

allegations are true, which the Court must assume at this stage, then the Dietician

Defendants designed a diet that they knew would result in diabetes and other health

conditions manifesting in NJDOC prisoners over the course of many years.

c. Qualified Immunity

Qualified immunity “shields government agents from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Thomas v. Indep. Twp., 463

F.3d 285, 291 (3d Cir. 2006). Because qualified immunity bestows immunity from suit,

the Supreme Court “repeatedly ha[s] stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,

227 (1991). To determine whether an officer is entitled to qualified immunity from

suit, courts ask two questions: “(1) whether the officer violated a constitutional right,”

and “(2) whether the right was clearly established, such that it would have been clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir. 2011) (quoting Saucier v. Katz, 533

U.S. 194, 201–02, (2001) (internal quotations and brackets omitted)).

The Court will not reach the issue of qualified immunity absent further factual

development. Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (cautioning

that “it is generally unwise to venture into a qualified immunity analysis at the

pleading stage as it is necessary to develop the factual record in the vast majority of

cases”). Limited discovery is required to determine the contents of the prison diet. If

the contents of the prison diet are what Plaintiff alleges, then, as the Court explained,

that is an objectively serious violation of the Eighth Amendment because feeding

prisoners a diet almost entirely consisting of cakes and carbs for over a decade is plainly

not nutritionally adequate. But if the prison diet, for example, follows USDA

guidelines according to NJDOC’s own internal dietary policy, there is no

constitutional violation at all because aspirational standards for a healthy diet are

clearly more than what the Eighth Amendment requires. If the diet does not follow

USDA guidelines but is not so obviously deficient that a reasonable dietician would

have known it would cause harm to inmates’ health, then qualified immunity applies.4

To put it more simply, the Court can easily determine whether the diet is well above

or well below the Eighth Amendment constitutional floor, but determining whether

the diet is just above, just below, or equivalent to the Eighth Amendment

constitutional floor involves swimming in murky water. It is in that murky water where

qualified immunity will most certainly apply.

2. Deliberate Indifference to a Serious Medical Need

Plaintiff alleges a second type of Eighth Amendment violation on behalf of the

putative class—that he was prescribed a special diet to treat his diabetes and

Defendants failed to provide the diet as prescribed. The analysis for such a claim

diverges from that of an Eighth Amendment failure to protect inmate health.

“[D]eliberate indifference to serious medical needs of prisoners constitutes the

4 To be clear, the qualified immunity issue in this case turns solely on issues of fact.

Plaintiff will have to show that the diet served in fact violates clearly established law

that prison diets must be nutritionally adequate. See Laufgas, 263 F.App’x at 198 (citing

Ramos, 639 F.2d at 571); Eason, 73 F.3d at 1327.

unnecessary and wanton infliction of pain … proscribed by the Eighth Amendment.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation omitted). This includes

intentional interference with prescribed treatment. Id. Failing to provide prisoners with

a medically prescribed diet can constitute cruel and unusual punishment if undertaken

with deliberate indifference. See Rush v. Fischer, 923 F. Supp. 2d 545, 555 (S.D.N.Y.

2013), aff’d sub nom. Rush v. Canfield, 649 F. App’x 70 (2d Cir. 2016) (holding that

“continued failure to provide a diabetic inmate with a medically appropriate diet,

resulting in a decline in his health” is constitutionally impermissible).

Plaintiff alleges that prisoners, like himself, with serious medical needs such as

diabetes, “are not provided with required meals and nutrition” despite being

“prescribed diabetic meals.” [TAC ¶¶ 48, 97, 98.] He alleges that there are “virtually”

no low-sodium options for those with high blood pressure. [TAC ¶ 54.] Prisoners who

have dairy allergies are not provided alternatives to milk. [TAC ¶ 62]. Healthy foods

are provided in miniscule portions, and the majority of the diet comes from empty

starches, and low or no-protein processed meats. [TAC ¶¶ 59–65.] No alternative food

options are offered. [TAC ¶ 66.] As a result of the prison diet, Plaintiff has suffered

from unacceptable blood sugar levels, hypoglycemic episodes, and other physical

ailments. [TAC ¶ 105-07.] It is plausible that the Dietician Defendants were aware that

the diets they designed, as alleged in the TAC, did not comply with medically

prescribed diets for prisoners with diabetes and other conditions. Plaintiff’s claims of

deliberate indifference to a serious medical need can proceed against the Dietician

Defendants.5

Plaintiff, however, has not alleged sufficient facts that the Food Service

Defendants knew that by “shorting” the menu, watering down foods or loading meal

products with fillers, they were not providing Plaintiff and others similarly situated

with their medically prescribed diets.

3. Failure to Train or Supervise

Plaintiff also asserts a supervisory liability claim alleging that the Dietician

Manager Defendants and the managers of the Food Service Defendants were aware

that the diet being provided to the prisoners was inadequate to meet the needs of

normal health and did not take disciplinary action. [TAC ¶ 145.] The only supervisor-

level defendants relevant here are the Dietician Manager Defendants, Jonathan

Branganza and James Frank. [See id. ¶¶ 27–28.]6

There are two primary ways in which a supervisor may be liable for

unconstitutional acts undertaken by subordinates. Barkes v. First Corr. Med., Inc., 766

F.3d 307, 316 (3d Cir. 2014), judgment rev’d sub nom. on other grounds Taylor v. Barkes,

5 It can not proceed, however, against the Dietician Manager Defendants or the

Food Service Defendants. It is the design of the diet that allegedly does not comply

medically prescribed diets. [TAC ¶ 5.] Plaintiff does not allege that the diet, for

example, is designed to include medically prescribed meals but that the Food Service

Defendants refuse to prepare those medically prescribed meals. And again, the only

allegations that seem to be made against the Dietician Manager Defendants are for

supervisory liability of the Dietician Defendants.

6 The manager-level Food Service Defendants cannot be liable as supervisors because,

as the Court explained above, Plaintiff fails to state an Eighth Amendment claim

against the Food Service Defendants. See supra at 13.

575 U.S. 822 (2015). First, a Plaintiff may show that a supervisor, “with deliberate

indifference to the consequences, established and maintained a policy, practice or

custom which directly caused the constitutional harm.” Id. (quoting A.M. ex rel. J.M.K.

v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004)). Second, “a

supervisor may be personally liable under § 1983 if he or she participated in violating

the plaintiff’s rights, directed others to violate them, or, as the person in charge, had

knowledge of and acquiesced in the subordinate’s unconstitutional conduct.” Barkes,

766 F.3d at 316 (citations and quotation marks omitted).

Plaintiff cannot point to a policy, practice, or custom which caused a

constitutional harm. In fact, NJDOC’s on-the-books dietary policy is constitutionally

sufficient. [TAC ¶ 67 (“Per NJDOC policy, the meals provided to inmates are to []

contain a variety of required foods that meet the American Dietetic Association and

United States Department of Agriculture (USDA) standards.”).] Plaintiff has failed to

allege how the Dietician Manager Defendants had knowledge of and acquiesced to

the Dietician Defendants designing a diet that is allegedly inadequate to sustain

normal health. Plaintiff’s sole allegation is that the Dietician Manager Defendants

managed the Dietician Defendants. [TAC ¶¶ 27–28.] There are no allegations that the

Dietician Manager Defendants approved the diet knowing that it was constitutionally

insufficient and would cause harm. Thus, Plaintiff’s supervisory liability claim is

dismissed.

4. Eighth Amendment Conspiracy

Finally, the Court dismisses Plaintiff’s Eighth Amendment conspiracy claim

brought under 42 U.S.C. § 1983. The elements of a claim of conspiracy to violate

federal civil rights are that “(1) two or more persons conspire to deprive any person of

[constitutional rights]; (2) one or more of the conspirators performs ... any overt act in

furtherance of the conspiracy; and (3) that overt act injures the plaintiff in his person

or property or deprives the plaintiff of any right or privilege of a citizen of the United

States,” with the added gloss under § 1983 that “the conspirators act ‘under the color

of state law.’” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 n.15 (3d Cir. 2018)

(quoting Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 162 (3d Cir.

2001)). The Third Circuit in Jutrowski further explained that:

After a plaintiff establishes that the object of the conspiracy was the

deprivation of a federally protected right, “the rule is clear that” the

plaintiff “must provide some factual basis to support the existence of the

elements of a conspiracy: agreement and concerted action.” Capogrosso v.

Supreme Court of N.J., 588 F.3d 180, 184–85 (3d Cir. 2009) (citing Crabtree

v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)). To show agreement,

he must demonstrate that “the state actors named as defendants in the[ ]

complaint somehow reached an understanding to deny [the plaintiff] his

rights,” Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993), and in the

absence of direct proof, that “meeting of the minds” or “understanding

or agreement to conspire” can be “infer[red]” from circumstantial

evidence, Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008).

Such circumstantial evidence may include that the alleged conspirators

“did or said something ... to create an understanding,” “the approximate

time when the agreement was made, the specific parties to the

agreement[,] the period of the conspiracy, or the object of the

conspiracy.” Great W. Mining, 615 F.3d at 178–79 (citations omitted).

904 F.3d at 295.

Plaintiff’s conspiracy claim is hopelessly conclusory. Plaintiff alleges only that

Defendants conspired to “deny Plaintiff and the members of the class … their right to

not be subject to cruel and unusual punishment in violation of the Eighth

Amendment” and to “alter the diet provided to Plaintiffs and Class members in such

a way that the diet was not adequate to sustain normal health.” [TAC ¶ 152.] Plaintiff

does not allege any factual basis to support the existence of an agreement and

concerted action other than his say-so. The claim will be dismissed.

B. ADA and Rehabilitation Act Claims

Plaintiff fails to allege a violation of the ADA or Rehabilitation Act because he

does not sufficiently allege that his diabetes or any of his other medical conditions

substantially limit a major life activity. See Johnson v. Amtrak, 390 F. App’x 109, 113

(3d Cir. 2010). He (again) alleges that failure of Defendants to provide him with

adequate diabetic meals has resulted in him having a blood sugar level outside

acceptable medical ranges; that he has suffered from hypoglycemic episodes as a result

of prison staff failing to provide him with diabetic meals; and has further suffered from

hypoglycemic unawareness, chronic nausea, hypertension, constant weakness, nerve

damage and other physical ailments as a result of Defendants’ failure to provide him

with adequate diabetic meals. [See TAC ¶¶ 97–108.]

That is not good enough. Plaintiff must “recit[e] activities found in the [ADA]

that [he] could not perform “adequately.” Dancause v. Mount Morris Cent. Sch. Dist., 590

F. App’x 27, 28 (2d Cir. 2014); Amaker v. Annucci, 2016 WL 5720798, at *7 n.10

(S.D.N.Y. Sept. 30, 2016), aff’d, 721 F. App’x 82 (2d Cir. 2018) (plaintiff failed to

adequately allege that she suffered from a disability under the ADA because she failed

to plead facts tending to show that her diabetes substantially limited a major life

activity). Plaintiff merely alleges that he has certain medical conditions and that he has

relevant symptoms associated with those diseases. Montalvo v. Lamy, 139 F. Supp. 3d

597, 611 (W.D.N.Y. 2015) (“Numerous federal courts have held that diabetes, even

when accompanied by the use of medication and dietary restrictions, is not necessarily

a disability under the ADA.”). The ADA and Rehabilitation Act claims are dismissed.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS, IN PART and DENIES, IN

PART, Defendants’ Motion to Dismiss the Third Amended Complaint. The Court

DISMISSES the Dietician Manager Defendants and Food Service Defendants from

this case as to each count. It additionally DISMISSES, in total, Plaintiff’s claims for

supervisory liability (Count III), conspiracy liability (Count IV), ADA liability (Count

V) and Rehabilitation Act liability (Count VI). All dismissals are WITH PREJUDICE

considering the many opportunities the Court has provided to Plaintiff to establish his

case over the course of four years. Defendants’ Motion to Dismiss is otherwise

DENIED. An accompanying Order shall issue.

March 4, 2024 __ Renée Marie Bumb

Date RENÉE MARIE BUMB

Chief United States District Judge