Howard v. Saucier et al

Filing 34

ORDER adopting in part Report and Recommendations re 31 Report and Recommendations and Remanding Case. Signed by Honorable David C. Bramlette, III on April 7, 2015. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DWIGHT ANTONIO HOWARD
VS.

PLAINTIFF
CIVIL ACTION NO: 5:14-cv-66-DCB-MTP

RUTH SAUCIER and DR. JAMES BURKE

DEFENDANTS

ORDER ADOPTING IN PART REPORT AND
RECOMMENDATIONS AND REMANDING CASE
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendations of February 11, 2015 [docket
entry no. 31]. Therein, Judge Parker recommends that the Complaint
be dismissed with prejudice for failure to state a claim pursuant
to 28 U.S.C. Section 1915(e)(2)(B) and that the dismissal count as
a “strike” pursuant to 28 U.S.C. Section 1915(g). Having reviewed
the Report and Recommendations, the plaintiff’s objections thereto,
and applicable statutory and case law, the Court finds and orders
as follows:
I. Factual and Procedural Background
Plaintiff Dwight Antonio Howard is currently incarcerated in
the Marshall County Correctional Facility, but his claims arise
from

events

that

occurred

while

he

was

incarcerated

at

the

Wilkinson County Correctional Facility (“WCCF”). He originally
filed his complaint on July 28, 2014, seeking $10,000.00 in damages
for

claims

against

Defendant

James
1

Burke

and

Defendant

Ruth

Saucier. Burke is the doctor at WCCF, and Saucier is the head
nurse. Howard also successfully moved to proceed in forma pauperis.
At an omnibus hearing held on February 9, 2015, before Judge
Parker, Howard amended and clarified his claims. According to the
Report and Recommendations, Howard now seeks $5,000.00 in damages
for claims arising from his medical treatment while incarcerated.
Specifically, Howard alleges that Burke did not advise Howard
of all of the potential side effects for medication that Burke
prescribed him for back problems. Howard alleges that he suffered
from mood swings and aggressive behavior, leading to several fights
with other inmates, as a result of taking the medication. Howard
further alleges that Burke did not observe his reaction to the
medication. As to Saucier, Howard alleges that he complained about
these side effects to her and she encouraged him to continue taking
the

medication.

Before

this

suit,

Howard

had

initiated

an

Administrative Remedy Procedure grievance against Burke because of
the problems he perceived in his treatment. Howard alleges that
Saucier directed him to drop the grievance, which he did not do.
Judge Parker entered this Report and Recommendations sua
sponte1 to dismiss Howard’s claims for failure to state a claim.
The Report and Recommendations address Howard’s medical claims

1

Under 28 U.S.C. § 1915(e) the Court may dismiss a
proceeding in forma pauperis if the action “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.”
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under the Eighth Amendment and his claims related to the grievance
procedure. Howard filed objections to the Report and Recommendation
[docket entry no. 33], and the defendants filed no response to
them.
II. Magistrate Judge’s Findings
Judge Parker found that Howard did not state a claim related
to his medical treatment. The deliberate indifference required to
state a claim of improper or inadequate attention to medical needs
is difficult to establish. See Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006). “Unsuccessful medical treatment, acts of
negligence, or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with his medical
treatment.” Id. Judge Parker found that Howard’s claims that Burke
failed to observe his adverse reaction to the medication and that
Saucier instructed him to continue taking the medication despite
the side effects did not rise above this level.
Further, Judge Parker found that Howard’s claims related to
the grievance procedure were insufficiently stated. A prisoner
“does not have a constitutional right to a grievance procedure at
all, and he has no due process liberty interest in having his
grievances resolved to his satisfaction.” Staples v. Keffer, 419 F.
App’x 461, 453 (5th Cir. 2011). Howard alleged no relevant actual
injury resulting from Saucier’s order that he drop the grievance
against Burke, because Howard did not drop it. Therefore, Judge

3

Parker found he had not stated a denial of access to courts claim.
See Lewis v. Casey, 518 U.S. 343, 351 (1996).
III. Plaintiff’s Objections
“[P]arties filing objections must specifically identify those
findings objected to. Frivolous, conclusive or general objections
need not be considered by the district court.” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles
v. Wainwright, 667 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)).
Meritorious objections mandate a de novo review of the Report and
Recommendations. 28 U.S.C. § 636(b)(1) (2009). Merely reurging the
allegations in the petition or attacking the underlying conviction
is insufficient to receive de novo review, however. Those portions
of the report not objected to are reviewed only for plain error.
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996) (en banc), superseded by statute on other grounds, 28
U.S.C. § 636(b)(1).
In his objections, Howard merely reurges the allegations of
his

complaint.

Therefore,

the

Report

and

Recommendations

are

subject only to review for plain error.
IV. The Report and Recommendations Do Not
Address a Potential Claim
The Fifth Circuit has recognized that “a competent person has
a liberty interest in refusing unwanted medical treatment.” Sama v.
Hannigan, 669 F.3d 585 (2012) (citing Cruzan v. Dir., Mo. Dep’t of
Health, 497

U.S.

261, 278

(1990)).
4

Other

circuits

that

have

addressed this right include the “right to such information as is
reasonably necessary to make an informed decision to accept or
reject proposed treatment, as well as a reasonable explanation of
the viable alternative treatments that can be made available in a
prison setting.” White v. Napoleon, 897 F.2d 103, 113 (3rd Cir.
1990) (“A prisoner’s right to refuse treatment is useless without
knowledge of the proposed treatment.”); see also Pabon v. White,
459 F.3d 241, 249 (2nd Cir. 2006); Benson v. Terhune, 304 F.3d 874,
884 (9th Cir. 2002). But the right of a prisoner to refuse
treatment is not unlimited and must be balanced against relevant
state interests. “In the prison context, such countervailing state
interests

include

providing

appropriate,

necessary

medical

treatment to inmates as well as prison safety and security.” Sama,
669 F.3d at 592. Because Howard alleges that Burke did not fully
inform him of all of the potential side effects, the case will be
remanded to the Magistrate Judge to determine whether this failure
to warn is sufficient to state a claim. The law related to this
issue in this circuit and others is indefinite. The Fifth Circuit
has stated that “the law governing Fourteenth Amendment claims
involving unwanted medical treatment in the prison context is far
from certain.” Sama, 669 F.3d at 595. Further, no court in this
circuit has cited to Sama for a prisoner’s right to refuse medical
treatment, and no court in this circuit, including the circuit
court itself, has delved into the contours of a prisoner’s right to

5

medical information related to treatment. It is noteworthy that no
circuit court that has considered the question has rejected the
related right to medical information. Thus, out of an abundance of
caution in this sua sponte dismissal, the Court finds it necessary
that the possibility of this claim be explored further.
Although there is no direct guidance from the Fifth Circuit,
other circuits have circumscribed the right to medical information
in different ways. In the Third Circuit,
[a] prison doctor’s decision to refuse to answer an
inmate’s questions about treatment will be presumed valid
unless it is such a substantial departure from
professional judgment, practice or standards as to
demonstrate that the doctor did not base the decision on
such a judgment. In exercising judgement, however, the
doctor must consider a prisoner’s reasonable need to make
an informed decision to accept or reject treatment, as
well as his need to know any viable alternatives that can
be made available in prison.
White, 897 F.2d at 113 (holding that complaint was sufficient to
survive motion to dismiss where it did not contain any reason why
the information about treatment was withheld). In the Second
Circuit, “[t]o establish a violation of the constitutional right to
medical

information,

a

prisoner

must

satisfy

an

objective

reasonableness standard, must demonstrate that the defendant acted
with the requisite state of mind, and must make a showing that the
lack of information impaired his right to refuse treatment.” Pabon,
459 F.3d at 250. Although the Seventh Circuit has not formally
joined its sister circuits in recognizing this right, Cox v.
Brubaker, 558 F. App’x 677, 678-79 (7th Cir. 2014), in a prior
6

unpublished opinion, it held that the side effects a prisoner
alleges he was not informed of must be substantial, Phillips v.
Wexford Health Sources, Inc., 522 F. App’x 364, 367 (7th Cir.
2013).
V. Conclusion
Having conducted a de novo review of the portions of the
Report and Recommendations objected to and reviewed the remainder
for plain error, the Court is satisfied that Judge Parker has
issued a thorough opinion as to Howard’s Eighth Amendment medical
claims and his due process access claims. Howard’s objections are
overruled and these claims dismissed with prejudice. However, the
case is remanded for the limited purpose of determining whether
Howard has adequately stated a claim for a violation of his right
to refuse medical treatment or to receive medical information
related to his treatment.
VI. Order
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendations is hereby ADOPTED IN PART.
FURTHER

ORDERED

that

the

Plaintiff’s

Objections

to

the

Magistrate Judge’s Report and Recommendations are OVERRULED.
FURTHER ORDERED that the Plaintiff’s claims for inadequate
medical treatment arising under the Eighth Amendment are DISMISSED
WITH PREJUDICE.
FURTHER

ORDERED

that

the

Plaintiff’s

7

due

process

claims

related to the grievance procedure and for denial of access to
courts are DISMISSED WITH PREJUDICE.
FURTHER ORDERED that the case is REMANDED to Judge Parker to
determine whether Plaintiff has stated a Fourteenth Amendment claim
for violation of his right to refuse medical treatment.

SO ORDERED this the 7th day of April 2015.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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