Pharaoh El-Forever Left-i Amen El v. Titus

Pharaoh El-Forever Left-i Amen El, Appellant, v. Jeff Titus, et al., Respondents.

A20-0606

STATE OF MINNESOTA IN COURT OF APPEALS

May 24, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Cleary, Judge^*

Chisago County District Court

File No. 13-CV-18-441

Pharaoh El-Forever Left-i Amen El, Bayport, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Janine Kimble, Assistant Attorney General, St. Paul, Minnesota (for respondents)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and Cleary, Judge.

NONPRECEDENTIAL OPINION

CLEARY, Judge

This appeal is taken from a judgment dismissing appellant's claims alleging various civil rights violations during his confinement at a state correctional facility. Appellantargues that the district court erred by (1) denying his requests for payment of certain expenses under the in forma pauperis (IFP) statute, Minn. Stat. § 563.01 (2020); (2) declining to reinstate his claim regarding confrontations with other inmates upon his rule 60.02 motion for relief; and (3) granting summary judgment in favor of respondents as to his claims regarding food, water, and housing. We affirm.

FACTS

Pro se appellant, Pharaoh El-Forever Left-i Amen El, a/k/a Desean Lamont Thomas, is an inmate of the Minnesota Department of Corrections (DOC). He was formerly housed at Minnesota Correctional Facility (MCF)-Rush City before being transferred to his current placement at MCF-Stillwater. During his time at MCF-Rush City, appellant initiated several lawsuits against prison administration and staff, alleging various constitutional violations. See, e.g., Thomas v. Rancourt, No.13-CV-17-563 (Minn. Dist. Ct. Aug. 16, 2017); Thomas v. Dep't of Corrs. Comm'r, No. 13-CV-17-236 (Minn. Dist. Ct. Apr. 6, 2017). He brought this lawsuit in May 2018, suing 16 individuals (respondents) associated with MCF-Rush City in their official and individual capacities.¹Complaint, initial dismissal, and partial reinstatement of claims

Appellant's complaint asserts a host of claims under 42 U.S.C. § 1983 (2018) that allegedly implicate his First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The alleged bases for his claims include that MCF-Rush City personnel subjected him to retaliatory discipline, exposed him to "mentally deficient inmates," "stage[d] confrontations" by placing incompatible inmates together, provided inadequate food services, provided inadequate drinking water, and confiscated Uniform Commercial Code (U.C.C.) documents.

Respondents moved to dismiss the complaint on several grounds, including failure to state a claim upon which relief may be granted and res judicata. After a hearing, the district court granted respondents' motion in November 2018. The district court dismissed several of appellant's claims for failure to state a claim upon which relief may be granted, and dismissed the remainder as barred by res judicata.

Appellant filed a motion for relief from and reconsideration of the order dismissing the complaint under Minn. R. Civ. P. 60.02. The district court granted appellant's rule 60.02 motion in part. It concluded that the complaint stated a viable claim, not barred by res judicata, for Eighth Amendment violations regarding appellant's housing, food, and water allegations. Accordingly, the district court reinstated that claim but concluded that the remainder of the claims had been properly dismissed.

Housing, food, and water claims dismissed on summary judgment

The parties proceeded to discovery on the reinstated housing, food, and water claims. The facts in the record, briefly summarized, are as follows.

Housing

Appellant's complaint alleges that respondents "housed [him] with mentally deficient inmates that posed a threat to [appellant], the facility, and themselves." Specifically, he asserts that he was housed with "a mentally invalid elder" sometime in 2017. He also asserts that he was housed with an individual, "P.K.," in June 2018, and that he reported to DOC personnel that P.K. was "a threat."

To support the housing claim, appellant offered a kite² that he sent to DOC staff in May 2017 that expressed that his cellmate was "extremely mentally ill" and smelled "horrific" due to poor hygiene. The kite shows that DOC personnel wrote appellant back in June and explained that his cellmate had been confused about when he could leave the cell, that the cellmate was properly placed with appellant, and that staff would continue to monitor him. As to P.K., appellant does not point to any specific kite correspondence, but DOC records indicate that P.K. was housed with appellant from June 4, 2018, and June 19, 2018.

Appellant also submitted affidavits from two other inmates regarding perceived problems with "mentally ill inmates" housed within the general prison population. One asserted that he had been "exposed to mentally incompetent inmates" and that the exposure caused him "mental irritations," and the other asserted that "mentally ill inmates" in his cell block would "scream" at night and cause tension. Appellant later submitted his own affidavit stating that that a "mentally ill cellmate made sexual advances on [him]."

Respondents, for their part, submitted a body of information on DOC policies related to housing and cell assignments. DOC policy provides that "[a]ll general population offenders at level two through four facilities are presumed eligible for assignment to multiple occupancy cells/rooms, unless they have been assigned a single cell restriction consistent with this policy." The policy further indicates that the facility psychological services director determines whether an offender has a mental-health condition that requires assignment to a single cell.

Offenders are assigned to multiple occupancy cells based on a variety of enumerated considerations, but may request placement changes based on "legitimate, verifiable security concerns." Policy further provides that while "[o]ffenders must immediately notify staff of legitimate threats to their safety," they "are not permitted to manipulate the cell/room assignment process."

Food

As to food, appellant's complaint alleges that from 2016 to 2018, he was "provided with incompatible combinations of food, nutritiously deficient amounts of food, [and] inhumane selections of food." Later in his summary-judgment briefing, appellant asserted that he was served beef marked "not for human consumption" and that he received insufficient calcium.

The record shows that in March 2018, appellant sent a kite stating that the DOC should remedy the following "unhealthy combinations": "1) cheese and bread; 2) milk and cold cereal; 3) fish and rice." The kite stated the meals are not compatible because "[a]cid and alkali are incompatible." Appellant also obtained an affidavit from a fellow inmatestating that the food "does not seem nutritious," and another stating that it does not satisfy hunger.

Respondents disclosed a significant amount of material regarding the food services at MCF-Rush City. DOC policy provides that "[a]n experienced full-time Minnesota state-certified food service supervisor manages food services at each facility." All sites utilize menu software to ensure compliance with nutritional policies. A licensed dietitian must review and approve menus to ensure they meet "nationally recommended allowance for basic nutrition and established menus goals." Sample MCF-Rush City menus from 2018 state that they provide "an average of 2600-2800 calories daily." Respondents also submitted a DOC assessment chart for the fall and winter of 2018-2019 that compares a MCF-Rush City general menu analysis with dietary guidelines for Americans. The chart shows that DOC menus for male inmates generally fall within national guidelines; in the underperforming categories, it notes barriers and potential ways to improve.

Water

As to water, appellant's complaint asserts that from 2016 to 2018, MCF-Rush City "failed to provide safe potable drinking and bathing water." He has since more specifically asserted that he and other inmates were provided with water that was "excessively contaminated w[ith] radium[,] amongst other contaminants" from 2016 to 2019; that, at times, the water he was provided had a metallic or salty taste; and that the water caused eczema on his skin.

Appellant sent several kites to DOC personnel expressing concerns about water. Relevant here,³ he sent one in September 2017 stating that inmates had been told not to consume water but were not provided an alternative. DOC personnel responded to the kite stating they were unaware of any directives not to consume water and suggested that appellant contact the safety officer or talk with unit staff for more information. In November 2017, appellant asked why the water had been salty at 4:00 a.m., and was told that if this reoccurred again, he should bring it to staff's attention so that maintenance could look into it.

Almost two years later, in July 2019, appellant again sent kites to maintenance expressing that the water was salty. Maintenance responded that they were aware of the issue and that the facility's water softeners were being serviced. At the end of that month, maintenance informed appellant that the water-softener issue had been resolved. Appellant similarly asked about salty water in August and September 2019, and also asked why the water was cold one day in September.

In addition to the kite correspondence, appellant supports his water-quality allegations with affidavits from other inmates expressing that the water seemed to contain "excessive chemicals" and caused them skin irritation and other problems. He also points to city records regarding water testing.

MCF-Rush City gets its water from the city of Rush City. City records reflect that the city regularly tests its water through a third party. Appellant highlights an October 2017 quarterly water report to the Rush City Council regarding the levels...