Mora v. Robinson et al
ORDER granting 38 Sealed Motion; denying 42 Motion for Discovery; denying 50 Motion for Reconsideration ; denying 52 Motion for Reconsideration ; adopting Report and Recommendations re 63 Report and Recommendations.; denying 64 Moti on to Appoint Counsel ; denying 64 Motion ; denying 65 Motion for Hearing; denying 67 Motion for Discovery; granting 83 Motion ; finding as moot 83 Motion for Extension of Time to File Response/Reply re 63 REPORT AND RECOMMENDATION S re 50 MOTION for Reconsideration re 42 MOTION for Discovery filed by Jose Mora, 52 MOTION for Reconsideration re 11 Order on Motion to Appoint Counsel, Order on Motion for Miscellaneous Relief filed by Jose Mora, 42 ; denying 86 Motion for Hearing Signed by Honorable David C. Bramlette, III on 3/4/13 (PL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JOSE MORA #81024-020
CIVIL ACTION NO. 5:11-cv-178-DCB-JMR
UNKNOWN WOODS, FOOD
UNKNOWN EVEREST ASSISTANT
FOOD SERVICE ADMINISTRATOR;
and UNKNOWN NICHOLSON, FOOD
OPINION AND ORDER
Recommendation of the Magistrate Judge [docket no. 63] that the
Defendants’ Motion to Dismiss or in the Alterative for Summary
Judgment [docket no. 38] be granted. The Plaintiff also has number
of Motions pending before the Court [docket nos. 42, 50, 52, 64,
65, 67, 83, 86], each of which, with one exception,1 pertain to his
In a letter Motion [docket no. 83], the Plaintiff states
that he never received the Defendants’ responses to a number of his
motions, and he requests copies of docket entry nos. 73, 74, 75,
76, and 77. The Government has not opposed this Motion. Because the
Court cannot confirm or deny whether the Plaintiff has received
these documents and because the Plaintiff is proceeding IFP in the
present cause, see Jan. 11, 2012 Order, docket no. 10, the Court
will order the Clerk of Court to provide the Plaintiff with these
documents. However, the Court will proceed to rule on the
Plaintiff’s Motions. The Court notes that the content of docket
entries 73-77 raise no new arguments and address matters that have
been throughly briefed by the Plaintiff, i.e., whether he is
entitled to discovery, a hearing, and an attorney. In fact, the
Plaintiff has filed a subsequent Motion, see docket entry no. 86,
that reasserts these arguments.
request that he be appointed counsel and afforded additional
discovery. Having carefully considered these Motions, the Report
and Recommendation, the Defendant’s objections thereto, applicable
statutory and case law, and being otherwise fully advised in the
premises, the Court adopts the Report and Recommendation in full
and denies Plaintiff’s other Motions.
ANALYSIS OF THE PLAINTIFF’S OBJECTIONS
The question before the Court is whether the Defendants are
individually liable for violating the Plaintiff’s Eight Amendment
rights by denying him food essential to his normal health. The
Plaintiff alleges that he needs protein supplements in order to
maintain his normal health as a result of undergoing gastric bypass
surgery prior to his incarceration but the Defendants denied him
these supplements. After considering the Plaintiff’s Complaint and
the Defendants’ Motion, Chief Magistrate Judge Roper found that the
Defendants are entitled to summary judgment because the Plaintiff
failed to prove that the Defendants committed a constitutional
violation and he failed to overcome the Defendants’ claim of
qualified immunity. See R & R at 7-10.2
Chief Magistrate Judge Roper also found that the Plaintiff
failed to exhaust his administrative remedies but recommended that
the Court adjudicate the Plaintiff’s claims on the merits rather
than dismiss the case without prejudice. The Plaintiff objected to
the assertion that he has failed to exhaust. The Court accepts
Judge Roper’s recommendation and therefore makes no finding on
whether the Plaintiff exhausted his administrative remedies.
Additionally, Judge Roper also found that Bivens liability does not
extend to the Defendants in their official capacities and that
As far as the Court can tell, the Plaintiff’s objections to
these findings are twofold. First, the Plaintiff claims that the
Defendants “conspired” against him by refusing to provide him with
members with an Order from his sentencing district court directing
the BOP to address his dietary needs. Second, the Plaintiff argues
that the Defendants acted with “deliberate indifference” by not
providing him with the type of protein supplements he wants.
Neither of these allegations amounts to a constitutional violation,
First, regardless of the effect of the district court’s March
27, 2008 Order,3 the kitchen staff members–as they stated to the
Plaintiff—could not respond directly to the Plaintiff’s production
of a copy of an Order or any other second-hand information provided
to them by the Plaintiff. See Decl. of Wood ¶ 4, Ex. 19; Decl. of
Nicholson ¶ 5, Ex. 22; Guidelines for Medical Diet ¶ 3, Ex. 20.
Moreover, even if the kitchen staff members had the authority to
Defendant Robinson could not be liable strictly as a supervisor.
The Plaintiff did not object to these findings, and the Court does
adopt these findings. See R & R at 7, 11.
The Court need not consider the effect of this Order in the
present suit. See United States v. Mora, No. 2:07-cr-62 (E.D. Va
Mar. 27, 08) (stating that “The [BOP] may follow the most recent
diet requirements established by Drs. Moor and Shah.”). Even if the
Order could be construed as binding the BOP to the Plaintiff’s
previous doctor’s orders instead of Dr. Chambers’s, the decision of
the BOP to follow its local heath professional staff’s attempt to
address the Plaintiff’s health concerns would not constitute an
Eight Amendment violation.
accept the Plaintiff’s documents—an allegation that the Court does
not accept—failure to do so on the ground that they believed they
were following proper protocol would not amount to deliberate
indifference. Sama v. Hannigan, 669 F.3d 585, 590 (5th Cir. 2012);
Norton v. Dimazana, 122 F.3d 286, 921 (5th Cir. 1997).
As for the Plaintiff’s complaint about the type of protein
supplement he is receiving, it obviously has no merit. The majority
of the Plaintiff’s frustration appears grounded in the fact that he
prefers a protein snack of tuna and sardines to the snack currently
being provided to him.4 See Decl. of Wood ¶ 6, Ex. 19; Decl. of
Everest ¶ 6, Ex. 21. The Defendants’ failure to provide the
Plaintiff with his preferred protein snack is, of course, not cruel
and unusual punishment. And, here again, even if the Court were to
assume that tuna and sardines were necessary to the Plaintiff’s
health—a fact which the evidence contradicts—the Defendants did not
act with deliberate indifference in failing to heed the Plaintiff’s
dietary demands without clear instruction from the medical staff
that tuna and sardines were essential to his medical needs. See
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).
Although neither Party says so, the current dispute appears
to stem from the discontinuation of the tuna and sardine snack when
the Plaintiff arrived at the Federal Correctional Complex in Yazoo
City, Mississippi. It appears that the Plaintiff’s previous place
of incarceration in Coleman, Florida, provided him with a tuna and
sardine snack. See BOP Diet Report, docket no. 66-1 at 2. The diet,
however, was discontinued upon his arrival in Yazoo City, and the
local BOP doctor, Dr. Chambers, determined that a different protein
supplement would suffice to meet the Plaintiff’s health needs.
In sum, the record indicates that the BOP staff diligently
provided the Plaintiff the protein supplements that its medical
staff believed to be necessary to his health. See generally, Decl.
of Dr. Chambers, Ex. 5; Decl. of Wood, Ex. 19. There is no
objective evidence that the Plaintiff’s failure to receive the type
of protein supplements he wants puts him at risk of serious harm.
See Decl. of Woods ¶ 6. At best, Dr. Chambers is equivocal as to
whether the Plaintiff needs protein supplements at all. See Decl.
of Dr. Chambers ¶¶ 8-9, Ex. 5.5 Therefore, despite the Plaintiff’s
allegations, protests, and requests for discovery,6 the Defendants
could not have been subjectively aware of the risk of harm to the
According to Dr. Chambers, even though he believes the
Plaintiff questionably claimed to be lactose intolerant and to have
a peanut allergy because FCC video footage showed the Plaintiff
buying ice cream and peanut butter from the commissary, he
prescribed protein supplements that were without dairy or nuts. See
id. ¶ 8 n.1.
In his most recent Motions to the Court, the Plaintiff
reiterates his desire to see the Defendants’ emails, suggesting
that there was a conspiracy among the kitchen staff to deny his
requests. E.g. Motion for Omnibus Hearing, docket no. 86; Motion
for Discovery, docket no. 67. The record, however, indicates that
the Defendants have been up-front about the reasons for their
denial of the Plaintiff’s requests. The Plaintiff even possesses
recent emails from the Food Services Administrator instructing his
staff to deny the Plaintiff’s request because he is not entitled to
the type of protein snacks he requests. See June 26, 2012 Email,
docket no. 66-1. Even if there were conspiratorial emails, there is
no evidence that denying the Plaintiff tuna and sardines caused him
Plaintiff resulting from their denial of these protein supplements.
Easter, 467 F.3d at 463 (citing Farmer v. Brennan, 511 U.S. 825,
829 (1994)). The Plaintiff has not shown how the Defendants’
actions rise to the level of deliberate indifference, and therefore
the Court agrees with the Report and Recommendation that the
Defendants are entitled to qualified immunity on the Plaintiff’s
claims. Sama, 669 F.3d at 590.
Accordingly, IT IS HEREBY ORDERED THAT Plaintiff’s Report and
Recommendation of the Magistrate Judge [docket no. 63] is ADOPTED.
IT IS FURTHER ORDERED THAT the Defendants’ Motion to Dismiss or in
the Alterative for Summary Judgment [docket no. 38] is GRANTED. A
separate document will issue forthwith dismissing the Plaintiff’s
claims against all Defendants with prejudice. IT IS FURTHER ORDERED
THAT Plaintiff’s Letter Motion for Copies of the Defendants’
Plaintiff with copies of docket entry nos. 73, 74, 75, 76, and 77.
IT IS FURTHER ORDERED THAT Plaintiff’s Motions for Discovery
[docket nos. 42, 50, 67], Motions to Appoint Counsel [docket nos.
52, 64], and Motions for a Hearing [docket nos. 65, 86] are DENIED.
So ORDERED, this the 4th day of March 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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