Winder v. J. et al

Filing 18

ORDER DISMISSING CASE,Adopting 15 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Anthony Winder; overruling objections to report and recommendation; CASE DISMISSED, counting as a strike.. CASE CLOSED. Signed by District Judge Debra M. Brown on 5/25/2016. (dlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ANTHONY WINDER

PLAINTIFF

V.

NO. 4:15-CV-00055-DMB-JMV

BURKE J., ET AL.

DEFENDANTS

ORDER OF DISMISSAL
Before the Court is the Report and Recommendation of United States Magistrate Judge
Jane M. Virden dated January 4, 2016, Doc. #15; and Anthony Winder’s objections filed in
response, Doc. #17.
In the Report and Recommendation, Judge Virden recommends that Winder’s denial of
medical care claim be dismissed for failure to state a claim upon which relief may be granted.
Doc. #15. In recommending dismissal, Judge Virden concluded that because Winder “has been
treated repeatedly for his condition; he simply disagrees with the diagnosis and the course of
treatment,” Winder’s claims of malpractice or negligence do not support an Eighth Amendment
violation for the denial of adequate medical care. Id. at 4.
Winder’s objections to the Report and Recommendation are either conclusory or simply
mirror the allegations in his complaint and Spears hearing testimony. It is not sufficient for
Winder merely to assert his belief that Defendants acted with deliberate indifference, as his
subjective belief regarding Defendants’ conduct does not control the constitutional inquiry. See,
e.g., Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012) (citation and internal
quotation marks omitted) (complaint containing mere “labels and conclusions, or a formulaic
recitation of the elements of a cause of action” is insufficient to state a claim). Rather, the denial
of medical care by a prison official violates the Eighth Amendment “when [the official’s]

conduct demonstrates deliberate indifference to a prisoner's serious medical needs, constituting
an ‘unnecessary and wanton infliction of pain.’” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
In this case, Winder’s allegation of deliberate mistreatment is inconsistent with the course
of treatment he has admittedly received. See, e.g., Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th
Cir. 1993) (history of medical treatment belied plaintiff’s claim of deliberate indifference to
medical needs); Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (noting inconsistency
between plaintiff’s allegations that he was denied medical treatment and statement that he was
escorted to prison infirmary). Accordingly, Winder’s objections are without merit.
It is, therefore, ORDERED that:
1.

Winder’s objections to the Report and Recommendation are OVERRULED;

2.

The Report and Recommendation [15] dated January 4, 2016, is APPROVED
AND ADOPTED as the opinion of the Court;

3.

This case is DISMISSED with prejudice for failing to state a claim upon which
relief can be granted, counting as a “strike” under 28 U.S.C. §§ 1915(e)(2)(B) and
1915(g); and

4.

This case is CLOSED.

SO ORDERED, this 25th day of May, 2016.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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