Dixon v. Fox , 893 F.2d 1556 ( 1990 )

WOLLMAN, Circuit Judge.

Eight Nebraska prisoners appeal from the district court’s¹ order dismissing prior to service of process, for failure to state a claim, their amended complaint brought under 42 U.S.C. § 1983 against various prison officials. Appellants alleged that their due process rights were violated when they were removed, without a hearing, from the prison “diet line” for thirty days on the basis of unsubstantiated incident reports that they had violated diet-line rules by missing a diet-line meal.

The district court, adopting the magistrate’s report and recommendation, concluded that the Nebraska statute and prison regulations cited by appellants, to the effect that food restriction was not to be used as a disciplinary measure, did not create a liberty interest in remaining on the diet line. We agree. Although appellants alleged that they had been placed on the diet line for medical reasons, they did not allege any facts as to how their removal compromised any serious medical needs in violation of the eighth amendment.² We decline to address the assertion, raised for the first time on appeal, that as a result of removal from the diet line “many appellants became ill and [needed] medical treatment.”

The order of dismissal is affirmed.

1 . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska.

2 . One plaintiff did allege in the complaint that removal from the diet line interfered with his medical needs. His claim was dismissed without prejudice for improper joinder, and he is not a party to this appeal.