Pharaoh El-Forever Left-i Amen El, Appellant,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0606

Pharaoh El-Forever Left-i Amen El,
Appellant,

vs.

Jeff Titus, et al.,
Respondents.

Filed May 24, 2021
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NONPRECEDENTIAL OPINION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. Appellant

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
argues 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 constitutio nal
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.1

1 Appellant later moved to voluntarily dismiss the claims against respondents in their
individual capacities, leaving only the official-capacity claims.
3
Complaint, 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 C ity personnel subjected him to
retaliatory discipline, exposed him to “mentally deficient inmates,” “stage[d]
confrontations” by pla cing 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 u pon 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 state d 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.
4
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 kite 2 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 per ceived
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 i ll 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].”

2 A kite is a method by which prisoners communicate in writing with DOC staff.

5
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 t he facility
psychological services director determines w hether 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 w hile “[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, n utritiously 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 i n 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 inmate
6
stating 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 t hey 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.
7
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 m ore 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 201 9, 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 wate r-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.

3 Appellant challenged water fluoridation, or use of fluoride in the water, in another lawsuit,
so that kite correspondence is not relevant here. See T homas, No. 13 -CV-17-236.
Fluoridation is a commonly used practice to prevent tooth decay and is required under state
law. See Minn. Stat. § 144.145 (2020).
8
MCF-Rush City gets its water from the city of Rush City. C ity 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 of
radiochemicals, specifica lly radium and alpha emitters (which are naturally occurring
contaminants in groundwater) found in city water samples. The report indicates that
samples are regularly tested and that, if the annual average at any point exceeds the
maximum contaminant level (MCL), the city needs to notify the public and take corrective
action. Appellant also highlights that the city issued a public notice in April 2019 that
recent testing had shown the annual average of radium and gross alpha emitters exceeded
the MCL. The notice provides that the situation was “not an emergency” and that city
residents did not need an alternative source of water.
After the close of discovery, respondents moved for summary judgment. Following
a hearing, the district court issued an order granting respondents ’ motion for summary
judgment and entered final judgment in April 2020.
IFP expense requests
At the commencement of this action, the district court gra nted appellant’s request
to proceed IFP without paying filing fees, service and publication fees, and copy fees.
Throughout the course of the litigation, appellant submitted various supplemental requests
for additional expenses under the IFP statute, Minn. Stat. § 563.01.
In September 2018, appellant filed a supplemental affidavit for proceeding IFP that
requested expenses for an “assumed name certificate,” a typewriter, co -counsel, and an
investigator. He also submitted a motion that asked the court t o appoint standby counsel.
9
The district court did not appoint standby counsel and denied the IFP expense requests
without prejudice, as it found that the request s were “not justified” and that the signatory
was not the legal name of the requesting party.
Appellant later filed supplemental affidavits in July and August 2019, requesting
$255.85 for “assumed name certificate publishing ,” and “$17,000+” for expert witnes ses
and an investigator. The district court denied these requests as not authorized by the IFP
statute and because appellant had not set forth a sufficient basis for the court to analyze the
witness-fee request. Shortly after respondents moved for summar y judgment, appellant
again submitted a supplemental affidavit requesting expenses for witnesses and experts on
water issues, mental health, prison -reform advocacy, and for a stenographer. The district
court denied these requests as well, concluding that appellant had not presented evidence
or information to enable the court to properly determine entitlement to the requested
expenses.
Appellant now brings this appeal.
DECISION
Appellant’s brief appears to raise three primary challenges. First, he challenges the
district court’s denial of various IFP -expense requests and argues that these decisions
denied him equal access to the court. Second, he contends that his amended compl aint
stated a viable claim for “staging confrontations,” which the district court ought to have
recognized in its order granting in part and denying in part his rule 60.02 motion. Third,
he challenges the district court’s grant of summary judgment in favor of respondents. We
address each issue in turn.
10
I. The district court properly denied appellant’s requests for expenses under the
IFP statute.

Appellant argues that the district court erroneously denied his requests for expenses
under the IFP statute. His main contention, to which he devotes a subst antial portion of
his briefing, is that by denying the IFP requests, the district court denied him equal access
to the courts and otherwise discriminated against him in violation of his constitutional
rights.
Respondents counter that appellant cannot raise his constitutional challenges to the
IFP denials for the first time on appeal and that, in any event, the district court did not
abuse its discretion in denying the requests. For the following reasons, we agree with
respondents.
A. Appellant’s constitutional challenges to the IFP decisions are not
properly before this court.

On appeal, litigants are generally confined to the theory or theories “upon which the
action was actually tried below.” Annis v. Annis , 262-63, 84 N.W.2d 256, 261 ( Minn.
1957). Appellate courts do not typically consider matters not argued to and considered by
the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The rule that a new
issue cannot be raised in the first instance on appeal applies to constitutional questions.
See In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981). In addition, the appellant
generally bears the burden of providing an adequate record. Mesenbourg v. Mesenbourg,
538 N.W.2d 489, 494 (Minn. App. 1995). We decline to consider issues if the record is
not sufficient to support review. See Noltimier v. Noltimier, 157 N.W.2d 530, 531 (Minn.
1968).
11
Here, appellant argues that he was “denied equal access to the court, when the lower
court denied requests for court appointed funds for expenses related to the litigation .” He
also asserts that certain “statistical disparities imply discrimination in [the] Minnesota
judicial system, relative to equal access to the courts,” and that such discrimination and
unequal access have infringed upon his First, Fifth, and Fourteenth Amendment rights
under the United States Constitution, along with the equivalent rights under the Minnesota
Constitution.
Our review of the record confirms that appellant did not raise these constitutional
challenges to the IFP-expense denials in the district court.4 He did not ask the district court
to reconsider the expense denials on the basis of unequal access or other violations of his
rights. Accordingly, appellant forfeited appellate review of the arguments that he now
raises on appeal. See Thiele, 425 N.W.2d at 582; State v. Beaulieu, 859 N.W.2d 275, 278
n.3 (Minn. 2015) (explaining that forfeiture is the failure to make the “timely assertion of
a right”). And e ven if appellant could make these arguments now, the record does not
contain evidence sufficient to review his claims about unequal court access; the record
lacks, for example, any “statistical evidence” of discrimination. See Noltimier , 157
N.W.2d at 531 (declining to consider issue where appellate record was insufficient to
permit review). We accordingly will not consider whether the district court’s denial of

4 Appellant asserts in his reply brief that he “challenged the denial of IFP requests at the
2nd Motion 60 hearing held 2020.11.16.” The record does not contain a transcript of such
a hearing, though, nor does it contain a district court order on a rule 60 request regarding
the summary-judgment order.
12
certain IFP expenses in this matter resulted in a violation of appellant’s constitutional
rights.
B. The district court did not abuse its discretion by denying the IFP
requests.

We turn next to whether the district court abused its discretion by denying the IFP
requests, assuming without deciding that appellant preserved a more general challenge to
the denials for appellate review. “The [district] court has broad discretion in determining
whether expenses should be paid under the IFP statute.” Thompson v. St. Mary’s Hosp. of
Duluth, 306 N.W.2d 560, 563 (Minn. 1981). This court reviews a district court’s denial of
IFP requests for an abuse of discretion . See State v. Scheffler, 932 N.W.2d 57, 60 (Minn.
App. 2019). A district court abuses its discretion if its decision is “against logic and the
facts in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
While the district court authorized appellant to proceed IFP under Minn. Stat.
§ 563.01 without paying filing fees, service and publication fees, and copy fees , appellant
contends that the court should also have granted his req uests for supplemental IFP
expenses. S pecifically, he believes the district court erred by denying funds for a
“stenographer for depositions, mental health experts, physician experts, nutritionist
experts, prison experts on official misconduct, standby counsel and investigators.”
The provisions of Minn. Stat. § 563.01 applicable to appellant’s requests provide:
Subd. 5. Witness fees. If the court finds that a witness,
including an expert witness, has evidence material and
necessary to the case and is within the state of Minnesota, the
court shall direct payment of the reasonable expenses incurred
in subpoenaing the witness, if necessary, and in paying the fees
and costs of the witness.
13
Subd. 6. Deposition expenses. If the court finds that a
deposition and transcript thereof are necessary to adequately
prepare, present or decide an issue presented by the action, the
court shall direct payment of the reasonable expenses incurred
in taking the deposition and in obtaining the transcript thereof.

Appellant’s first supplemental affidavit for IFP expenses, submitted in September
2018, requested funds for an “assumed name certificate,” a typewriter, an investigator, and
co-counsel. In conjunction with his “co -counsel” re quest, appellant also submitted a
motion requesting standby counsel. He did not provide specific explanations or analysis
regarding these requests.
The district court did not abuse its discretion by denying th is set of IFP expense
requests. Nothing in s ection 563.01 permits IFP expenses for co -counsel, and appellant
has not otherwise shown that he is entitled to standby counsel in this civil action. In
criminal proceedings, a defendant may waive his or her constitutional right to counsel, and
“[t]he cou rt may appoint advisory counsel to assist a defendant who voluntarily and
intelligently waives the right to counsel.” Minn. R. Crim. P. 5.04, subd. 2. But appellant
points to no such rule, statute, constitutional or common-law authority for standby counsel
in a pro se civil action brought under 42 U.S.C. § 1983. Accordingly, he has not shown
that the district court abused its discretion by denying him standby counsel in this matter.
As to the other requests, section 563.01 does not authorize expenses for an “assumed
name certificate,” a typewriter, or an investigator. To the extent appellant’s requests could
be construed as fitting within subdivision 5 (witness fees) or subdivision 6 (deposition
expenses), appellant did not offer any explanation as to how his requested expenses were
14
reasonable or necessary. As a result, the district court properly declined to authorize the
expenses.
Appellant next requested $255.85 for “assumed name certificate publishing” and
“$17,000+” for expert witnesses and an in vestigator. As with his first set of requests ,
appellant did not provide the district court with an adequate basis to determine whether the
unnamed witnesses he sought “ha[d] evidence material and necessary to the case ,” Minn.
Stat. § 563.01, subd. 5 , and to determine whether the requested expense amount was
reasonable. The district court accordingly did not abuse its discretion by denying these
requests.
Appellant’s final supplemental affidavit —which requested expenses for witnesses
and experts on “wat er issues,” “mental health issues,” and “prison-reform,” and for a
stenographer to “record [their] testimony”—included an attached list of specific people he
wished to present as witnesses and very brief descriptions of their expertise . But he did
not request a specific amount of money for witness fees, nor did he specify how the
witnesses had evidence material and necessary to the case. See Minn. Stat. § 563.01.
Again, the district court properly declined to authorize these expenses in light of the scant
information that appellant submitted in support of his substantial requests.
In sum, we conclude that the district court did not abuse its broad discretion by
denying appellant’s supplemental requests for IFP expenses. See Thompson, 306 N.W.2d
at 563.

15
II. The district court did not abuse its discret ion when it denied appellant’s r ule
60.02 motion with respect to his claim about confrontations with other inmates.

Appellant’s next argument appears to be that the district court erred by declining to
reinstate his claim about respondents “staging confrontations” between inmates. The
district court dismissed this claim in its November 2018 order dismissing the amended
complaint. Appellant sought relief from that order under Minn. R. Civ. P. 60.02.
Rule 60.02 provides that “[o]n motion and upon such terms as are just, the court
may relieve a party . . . from a final judgment . . . order, or proceeding and may order a
new trial or grant such other relief as may be just” if any of six listed grounds for relief
apply. Minn. R. Civ. P. 60.02. One of the grounds is “ [m]istake, inadvertence, surprise,
or excusable neglect.” Id., 60.02(a). To establish excusable neglect under rule 60.02(a), a
party must show (1) a reasonable excuse; (2) that he acted with due diligence after notice
of the judgment; (3) that he has a meritorious claim; and (4) that no substantial prejudice
will result to the opposing party. Finden v. Klass , 128 N.W.2d 748, 750 (Minn. 1964).
“All four factors must be met before the district court may grant relief.” Cornell v. Ripka,
897 N.W.2d 801, 807 (Minn. App. 2017).
A party may alternatively be relieved from a final judgment under rule 60.02(f), for
“[a]ny other reason justifying relief from the operation of the judgment.” Minn. R. Civ. P.
60.02(f). Rule 60.02(f) allows for relief in “exceptional circumstances.” Kern v. Janson,
800 N.W.2d 126, 133 (Minn. 2011) (quotation omitted). A party seeking reli ef under
subpart (f) “must first establish a meritorious claim.” W. Lake Superior Sanitary Dist. v.
Interpace Corp., 454 N.W.2d 449, 452 (Minn. App. 1990).
16
An appellate court “reviews a district court’s denial of a rule 60.02 motion for an
abuse of discr etion.” In re Civil Commitment of Johnson , 931 N.W.2d 649, 655 (Minn.
App. 2019). “A district court abuses its discretion if its decision is against logic and the
facts in the record.” Scheffler, 932 N.W.2d at 60.
Appellant alleged in his amended compl aint that respondents “stage [d]
confrontations” between inmates in violation of his First Amendment, Eighth Amendment,
and equal-protection rights. Specifically, the amended complaint alleges that appellant
informed DOC staff that he did not want to be housed with an inmate, “C.T.,” but that C.T.
was nevertheless placed several cells away from him. The complaint also alleges that
another individual, J.M., offered false testimony at appellant’s criminal trial, and that
appellant told DOC staff that he was incompatible with J.M.
In his r ule 60.02 motion for relief from the district court’s order dismissing his
complaint, appellant asserted that his claims “relating to Report No. 533150, quality of
water & food and [appellant’s] housing conditions” had bee n dismissed without prejudice
in another matter. The district court “broadly construe[d]” appellant’s motion as a request
for relief under rule 60.02 subparts (a) and (f), and granted it under subpart (a) with respect
to only the housing, food, and water claims because, contrary to its prior determination,
those claims were not barred by res judicata.5

5 The district court went on to conclude that even if appellant was n ot entitled to relief
under rule 60.02(a), he would be entitled to identical relief (reinstatement of the claims)
under rule 60.02(f). The Minnesota Supreme Court has explained that “ because [r]ule
60.02(f) is a residual clause, parties can obtain relief under [r]ule 60.02(f) only where the
reason for vacating the judgment does not fall under some other part of rule 60.02.” Kern,
800 N.W.2d at 133.
17
Appellant now asserts that “[t]o the extent the [ rule 60] order implied that the
staging-confrontations [claim] was not viable, appellant disagrees.” But his brief does not
contain any argument as to why the district court should have reinstated his staging -
confrontations claim under rule 60.02. 6 He does not address the Finden factors to sh ow
entitlement to relief under subpart (a), nor does he point to any “exceptional
circumstances,” Kern, 800 N.W.2d at 133, that would justify relief under subpart (f).
A meritorious claim is a necessary prerequisite to relief under either subpart (a) or
(f) of rule 60.02. See Finden, 128 N.W.2d at 750; W. Lake Superior Sanitary Dist. , 454
N.W.2d at 452. Here, appellant asserts that he had a valid Eighth Amendment claim
regarding his allegations of respondents “staging confrontations.” The Eighth Amendment
prohibits “cruel and unusual punishment .” U.S. Const. amend. VIII. A “prison official’s
‘deliberate indifference’ to a substantial risk of serious harm to an inmate” can constitute
such punishment. Farmer, 511 U.S. at 828, 114 S. Ct. at 1974.
Our independent review of the complaint confirms that appellant did not assert a
meritorious Eighth Amendment claim based on his allegations about staging

6 Appellant simply cites two cases, Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970
(1994); and Jensen v. Clarke , 94 F.3d 1191 (8th Cir. 1996), but does not provide any
additional argument or analysis. Under Farmer, a “prison official’s ‘deliberate
indifference’ to a substantial risk of serious harm to an inmate violates the Eighth
Amendment.” 511 U.S. at 828, 114 S. Ct. at 1974. And in Jensen, the Eighth Circuit
applied Farmer and affirmed the district court’s decision —which was notably “fact
intensive”—that prison officials had exhibited delibera te indifference to a pervasive risk
of harm via a policy of “randomly assigning incoming inmates to cells without assessing
whether the new cellmates would be compatible.” 94 F.3d at 1195, 1197-98, 1204. Neither
case suggests that the district court erred by declining to reinstate appellant’s specific claim
in this matter.
18
confrontations. In regards to the inmate by the initials of C.T., the amended complaint
merely asserts that appellant did not want to be housed with C.T. and that C.T. believed he
and appellant were “incompatible,” but that C.T. was nevertheless placed several cells
away from appellant. The complaint does not explain, nor did appellant explain in his rule
60.02 motion, how being placed near C.T. created a substantial risk of serious harm to
appellant. See id. Regarding the inmate by the initials of J.M., the complaint merely asserts
that J.M. testified falsely against appellant, and that appellant accordingly informed DOC
staff that he was incompatible with J.M. Again, appellant did not explain in his complaint
or in his rule 60.02 motion how this created a substantial risk of serious harm to him, nor
did he assert any “deliberate indifference” to such risk on the part of respondents. See id.
Because appellant did not show that he had a meritorious Eighth Amendment claim
based on his staging -confrontations allegations, the district court did not abuse its
discretion by declining to reinstate this claim upon appellant’s rule 60.02 motion.
III. The district court properly granted summary judgment in favor of respondents
on appellant’s housing, food, and water claims.

Finally, appellant’s principal brief appears to challenge the merits of the district
court’s summary-judgment order, as a short section summarizes the evidence submitted in
support of his housing, food, and water claims and, in closing, appellant asks this court to
reverse the order. As respondents note, though, it seems that appellant’s primary challenge
to the summary-judgment order relies on his arguments that the district court erroneously
19
denied his IFP-expense requests.7 As we have already explained, the district court did not
err by denying the IFP expense requests. We turn, then, to a brief examination of whether
summary-judgment dismissal of appellant’s housing, food, and water claims was otherwise
erroneous.
A. The mootness doctrine does not bar review of the housing, food, an d
water claims.

As an initial matter, respondents argue that we should affirm the summary-judgment
decision because appellant’s transfer from MCF-Rush City to MCF-Stillwater rendered his
claims moot. Respondents presented the same mootness argument in the district court, and
the district court rejected it. The district court declined to apply the mootness doctrine
because it held that this case is “functionally justiciable and present[s] important questions
of statewide significance,” quoting In re Guardianship of Tschumy, 853 N.W.2d 728, 731
(Minn. 2014).
“We consider de novo whether an appeal is moot.” In re Civil Commitment of
Breault, 942 N.W.2d 368, 374 (Minn. App. 2020). “If the court is unable to grant effectual
relief, the issue raised is dee med to be moot resulting in dismissal of the appeal.” Houck
v. E. Carver Cnty. Schs. , 787 N.W.2d 227, 231 (Minn. App. 2010) (quotation omitted).
But “[m]ootness is . . . a flexible discretionary doctrine, not a mechanical rule that is
invoked automatically.” Id. (quotation omitted).

7 Appellant confirms as much in his reply brief, stating that “[r]elief from summary
judgment in the majority is contingent on finding that the [district] court was duty bound
to allot IFP funding because the funds would ultimately substantially enlarge discovery.”
20
Minnesota courts have accordingly invoked exceptions to the mootness doctrine. A
well-known exception applies where an issue before the court is “capable of repetition yet
evade[s] review.” Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015). Another applies
when an issue before the court is technically moot but “functionally justiciable and
present[s] important questions of sta tewide significance.” Tschumy, 853 N.W.2d at 731.
A case is considered to be “functionally justiciable” if the record contains enough
information or “raw material ,” as well as “effective presentation [by] both sides of the
issues raised,” for the court to make an informed decision. State v. Rud, 359 N.W.2d 573,
576 (Minn. 1984).
As the district court observed, the parties in this case “made cogent arguments about
whether ongoing Eighth Amendment violations exist at MCF -Rush City,” and
“supplemented the record with case law, affidavits and records that can only be described
as voluminous.” And appellant raised issues of statewide significance, as he claimed to
have suffered facility-wide inhumane treatment at a state correctional facility that houses
many other people from across Minnesota. Accordingly, we will not invoke the mootness
doctrine to affirm dismissal of his claims.8

8 On appeal, respondents do not specifically argue that the functionally justiciable, state -
wide significance mootness exception does not apply, but instead generally assert that
when inmates bring official-capacity claims based on treatment at one facility, transfer to
another facility “generally moots t he claims.” They cite several Eighth Circuit opinions
for support. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) ( concluding that
an inmate’s claims for declaratory and injunctive relief to improve general prison
conditions were moot when he was transferred to another facility); Smith v. Hundley, 190
F.3d 852, 854-55 (8th Cir. 1999) (same); Hickman v. Missouri, 144 F.3d 1141, 1142 (8th
Cir. 1998) (same). But those cases do not involve the exception applied by the district
court here. Indeed , the Hickman case notes that there is no “general public -interest
21
B. The district court properly granted summary judgment as to appellant’s
housing, food, and water claims.

Appellate courts “rev iew the grant of summary judgment de novo to determine
whether there are genuine issues of material fact and whether the district court erred in its
application of the law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn.
2017) (quotation omitted); see also Kenneh v. Homeward Bound, Inc. , 944 N.W.2d 222,
228 (Minn. 2020). We “view the evidence in the light most favorable to the party against
whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644
N.W.2d 72, 76-77 (Minn. 2002).
Summary judgment is proper if the movant shows, by citing to particular parts of
the record, including depositions, documents, affidavits, admissions, and interrogatory
answers, that “there is no genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Minn. R. Civ. P. 56.01, 56.03 (a). A genuine issue of
material fact exists “when reasonable persons might draw different conclusions from the
evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). While the court
views the record in the light most favorable to the nonmoving party, a party opposing
summary judgment must offer more than “general assertions” to show a genuine issue of
material fact. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn.
1995). The party “must extract specific, admissible facts from the voluminous record and

exception to mootness” in federal courts, even though “state law may save a case from
mootness based on public interest.” 144 F.3d at 1144 (quotation omitted).
22
particularize them for the [court].” Kletschka v. Abbott -Northwestern Hosp., Inc. , 417
N.W.2d 752, 754 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).
The specific claims dismissed on summary judgment were that respondents violated
appellant’s Eighth Amendment rights by (1) housing him with mentally ill inmates ;
(2) providing him with inadequate food services ; and (3) failing to provide him with safe,
potable water.
Again, the Eighth Amendment prohibits cruel and unusual punishment. U.S. Const.
amend. VIII. A “prison official’s ‘deliberate indifference’ to a substantial risk of serious
harm to an inmate” ca n rise to the level of cruel and unusual punishment. Farmer, 511
U.S. at 828, 114 S. Ct. at 1974. In order to act with “deliberate indifference,” an official
must know of and disregard an excessive risk to inmate health or safety. Id. at 836-37, 114
S. Ct. at 1978-79. The Eighth Circuit has interpreted Farmer to mean that two requirements
must be met: a prisoner must show that they were “incarcerated under conditions posing a
substantial risk of serious harm,” and that prison officials knew of such a risk, but failed to
respond in a reasonable way. Nelson v. Shuffman, 603 F. 3d 439, 446 (8th Cir. 2010)
(quotations omitted).
Regarding food, correctional facilities are constitutionally required to provide a
nutritionally adequate diet to inmates. Burgin v. Nix, 899 F.2d 733, 734 (8th Cir.1990). In
order to prevail on an Eighth Amendment claim for inadequate food, a plaintiff must show
that they were denied “the minimal civilized measure of life’s necessities” (including food),
or that they were forced to live under conditions “posing a substantial risk of serious harm,”
and that the defendant(s) acted with deliberate indifference to inmate health or safety.
23
Simmons v. Cook, 154 F.3d 805, 807 (8th Cir.1998) (quoting Farmer, 511 U.S. at 834, 114
S. Ct. at 1977). And, as with nutritious food, a sufficient quality and quantity of water for
drinking and basic personal hygiene is a minimal life necessity. See, e.g. , Scott v.
Carpenter, 24 Fed. Appx. 645, 647-48 (8th Cir. 2001).
1. The district court properly dismissed appellant’s housing claim.
Appellant claims that respondents violated his Eighth Amendment right to be free
from cruel and unusual punishment by housing him with “mentally deficient inmates.” His
primary contention appears to be a general one: that respondents should not, as a matter of
policy, house inmates with mental illness with “competent” inmates.
In support of his housing allegations, appellant offered kites th at he sent to DOC
personnel and affidavits expressing broad concerns about mentally ill inmates. These
documents, though, do not describe with specificity any actual, serious harm that appellant
has suffered, or any substantial risk of such harm. He acco rdingly has not offered facts
suggesting that respondents knew of any such risk, or that they failed to respond
appropriately. To the contrary, the kites show that to the extent appellant expressed his
concerns to DOC staff, DOC staff reasonably and promptly responded.
Respondents, on the other hand, offered substantial evidence about their policies
and procedures regarding housing and cell assignment. Appellant does not point to specific
facts or evidence that suggest the DOC’s housing policies create a substantial risk of
serious harm to him and other inmates. Accordingly, the district court properly granted
summary judgment for respondents, as appellant’s “general assertions” about the housing
24
arrangements do not give rise to a genuine issue of material fact. See Nicollet Restoration,
Inc., 533 N.W.2d at 848.
2. The district court properly dismissed appellant’s food claim.
Regarding food, appellant alleged that respondents violated his Eighth Amendment
rights by providing him with “incompatible combinations of food, nutritiously deficient
amounts of food, [and] inhumane selections of food.”
Appellant asserts that he provided evidence about nutritiously inadequate food in
the form of “menus and inmate affidavits.” But the menus in the record, submitted by
respondents, do not suggest inadequate nutrition. To the contrary, the menus and other
evidence suggest that the DOC has comprehensive policies and practices in place to ensure
that the meals provided to in mates supply adequate nutrition and comply with national
guidelines.
Appellant’s own evidence, on the other hand, again consists of general assertions
unsupported by specific facts, for instance that he has been served “unhealthy
combinations” of food s uch as cheese and bread because “acid and alkali are
incompatible.” Appellant also offers his own affidavit asserting that he saw beef marked
“not for human consumption” in the kitchen, but he does not offer evidence that he brought
this to respondents’ a ttention or that respondents exhibited indifference to the alleged
problem. Whenever appellant did submit kites to DOC staff about food, he received
appropriate and timely responses.
25
Ultimately, our review of the record confirms that there is no genuin e issue of
material fact as to appellant’s food claim, and the district court properly granted summary
judgment.
3. The district court properly dismissed appellant’s water claim.
Lastly, appellant suggests that he sufficiently supported his water claim wit h
“chemical level(s) , reports by municipal water testing source, MDH reports, kites to
officials, etc.”
As with his food concerns, appellant’s correspondence with DOC staff does not
show a deliberate indifference on the part of respondents to any water -based problems.
DOC personnel informed appellant that maintenance was servicing the facility’s softeners,
for example, when he asked about a salty taste in the water. And as to the city reports about
radiochemicals in the drinking water, these reports sh ow, at most, that the entire city of
Rush City had slightly elevated levels of certain naturally occurring contaminants in the
drinking water during limited periods . Appellant fails to provide specific facts showing
that these levels created a deprivation of “minimal civilized measures of life’s necessities.”
Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004) (quotation omitted) . Moreover,
appellant has not shown that the respondents associated with MCF -Rush City —which
relies on Rush City for its water supply —were deliberately indifferent to “excessive risk
to inmate health or safety.” Id. The district court accordingly did not err by granting
summary judgment as to appellant’s water claim.
Affirmed.