Shelby v. Woodall et al
Filing
84
ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Michael T. Parker dismissing case with prejudice. This dismissal shall be counted as a strike pursuant to the provision of the prison Litigation Reform Act. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on December 18, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DELMAR EARL SHELBY
VS.
CIVIL ACTION NO. 1:13cv504-KS-MTP
DR. RONALD WOODALL, ET AL
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Motion for Summary Judgment [52] filed by
Defendants Mike Hatten, Ronald King, and Gloria Perry; and Motion for Summary
Judgment [59] filed by Defendants Sophia Hamm, Bobby Lane, April Meggs, Dr. Ronald
Woodall and Gwen Woodland; and Motion for Summary Judgment Denial [71] filed by
Plaintiff. Before the Court also is the Report and Recommendation of Magistrate Judge
Michael T. Parker [78], and the Court having considered the pleadings above described,
the submissions of the parties and the record herein, finds that the Motions for
Summary Judgment [52, 59] should be granted and that the Plaintiff’s Motion for
Summary Judgment Denial [71] should be denied. The Court further finds that
Plaintiff’s claims are frivolous and this dismissal should be counted as a strike against
Plaintiff pursuant to the provision of the Prison Litigation Reform Act.
I. PROCEDURAL HISTORY
On November 16, 2012, Plaintiff Delmar Shelby, proceeding pro se and in forma
pauperis, filed his Complaint [1] pursuant to 42 U.S.C. § 1983. This lawsuit arises from
events which took place while Plaintiff was a post-conviction inmate at South Mississippi
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Correctional Institution (“SMCI”) in Leakesville, Mississippi, where he is currently
incarcerated. Through his Complaint, and as clarified during his Spears1 hearing,
Plaintiff asserts claims against Defendants for the denial and/or delay of adequate
medical treatment, retaliation, and failure to adequately respond to his grievances.
Plaintiff alleges that in 2010, while he was incarcerated at Central Mississippi
Correctional Facility, doctors prescribed him the medication clonidine to treat his
hypertension. Thereafter, Plaintiff was transferred to SMCI, and on March 26, 2012,
Defendant Gwen Woodland, a nurse practitioner, examined Plaintiff. According to
Plaintiff, Woodland informed him that Defendant April Meggs, the medical supervisor,
had instructed her to discontinue Plaintiff’s clonidine prescription. Woodland allegedly
recommended to Defendant Dr. Ronald Woodall that Plaintiff be taken off clonidine.
Thereafter, Dr. Woodall took Plaintiff off clonidine and prescribed him other medications
for his hypertension. Plaintiff alleges that the new medications cause him to suffer from
headaches, nausea, dizziness, chest pains, and spikes in his blood pressure. See
Omnibus Order [42].
Plaintiff also claims that Dr. Woodall harassed and threatened him. Specifically,
Plaintiff alleges that Dr. Woodall asked Plaintiff “what’s your bitch today?” during an
examination and informed Plaintiff that the Dixie Mafia knew of him. Additionally,
Plaintiff alleges that Dr. Woodall refused to treat him on occasion. Plaintiff also alleges
that Defendant Sophia Hamm, a screening nurse, on numerous occasions failed to
properly process his requests to be seen by a doctor. Id.
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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Plaintiff’s Spears hearing
took place on November 25, 2013.
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Plaintiff claims that his medications were not ordered or delivered to him in a
timely manner. Specifically, Plaintiff alleges that Defendant Bobby Lane, who
dispensed medications at SMCI, failed to timely order his medications, and as a result,
his medications were routinely delivered two weeks late. In addition to asserting a claim
against Lane, Plaintiff claims that Defendant April Meggs, as the medical supervisor,
failed to ensure that Plaintiff received his medications in a timely manner. According to
Plaintiff, the delays in receiving his medications caused him to suffer from headaches,
nausea, dizziness, chest pains, and spikes in his blood pressure. Id.
Finally, Plaintiff claims that Defendants Ronald King (Warden), Mike Hatten
(Health Administrator), and Gloria Perry (Mississippi Department of Corrections Medical
Director) failed to adequately respond to his grievances and failed to properly control
their subordinates. Id. All Defendants have moved for summary judgment, and Plaintiff
has responded to these motions.
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to
“make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See
also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made.”) Such
review means that this Court will examine the entire record and will make an
independent assessment of the law. The Court is not required, however, to reiterate the
findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37,
40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general
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in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997).
No factual objection is raised when a petitioner merely reurges arguments contained in
the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER’S OBJECTIONS AND ANALYSIS
The Report and Recommendation of Magistrate Judge Michael Parker addresses
the complaints of Plaintiff against all of the Defendants. Basic to Plaintiff’s § 1983
Complaint, is that prior to a finding of liability he must establish the deprivation of a right
secured by the Constitution and laws of the United States. The Defendants admit that
they were acting under color of state law.
Establishing a constitutional violation in this case necessitates proof that one or
more of the Defendants were deliberately indifferent to Plaintiff’s serious medical needs.
In other words, one or more of the Defendants would have to know and disregard a
serious health need of the Defendant. This is a heavy burden to establish.
As stated above, the Report and Recommendation goes through each Defendant
and sets forth the reasons why he or she should be granted summary judgment in this
case. The Court has reviewed the reasoning of Judge Parker and concurs with it.
The Plaintiff has filed an extensive objection [71] and the Court has gone through
the document. The Plaintiff does not specifically address any of the findings of Judge
Parker, but he does rehash in great detail the allegations set forth in his Complaint. He
also attaches affidavits and medical records to his response. The extensive medical
records demonstrate that Plaintiff was receiving numerous and varied medical
treatments during the period reported. The attached affidavits indicate that the factual
allegations of Plaintiff are misplaced. In the substantive part of the response, Plaintiff
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does not address any of the specific objections. There is a rambling statement of some
of the pleadings and some boiler plate case authorities are cited. The Court finds that
the statements of the Plaintiff are conclusory, lack factual backup and in no way rebut
the reasoning of Judge Parker. In each instance and each finding made by Judge
Parker, this Court has reviewed the factual issues, legal issues and arguments and
finds that summary judgment should be granted as to the Defendants and the
Complaint filed herein should be dismissed with prejudice.
.
IV. CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent
review of the entire record and a de novo review of the matters raised by the objection.
For the reasons set forth above, this Court concludes that Shelby’s objections lack
merit and should be overruled. The Court further concludes that the Report and
Recommendation is an accurate statement of the facts and the correct analysis of the
law in all regards. Therefore, the Court accepts, approves and adopts the Magistrate
Judge’s factual findings and legal conclusions contained in the Report and
Recommendation. Accordingly, it is ordered that the United States Magistrate Judge
Michael T. Parker’s Report and Recommendation is accepted pursuant to 28 U.S.C.
§ 636 (b)(1) and that Delmar Earl Shelby’s claim is dismissed with prejudice. All other
pending motions are denied as moot.
SO ORDERED this, the 18th day of December, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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