Hinton v. Moore et al

Filing 32

ORDER adopting Report and Recommendations 25 . Signed by Honorable David C. Bramlette, III on 2/13/2017 (EB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.

PLAINTIFF

v.

CIVIL ACTION NO. 5:16-cv-33-DCB-MTP

JANET MOORE and
KIM SNOW

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation (docket entry 25).

Therein,

Judge Parker recommends that Plaintiff’s claims against defendant
Kim Snow be dismissed with prejudice for failure to state a claim
under 28 U.S.C. § 1915(e)(2)(B).

Having reviewed the Report and

Recommendation, Plaintiff’s objections thereto, and applicable
statutory and case law, the Court finds as follows:
I. Factual and Procedural Background
Plaintiff Henry Hinton is currently in the custody of the
Mississippi Department of Corrections (“MDOC”).

This case arises

from events that occurred while the plaintiff was incarcerated at
the Pike County Jail.

Hinton was housed in the jail as a pretrial

detainee from June 30, 2014 until October 6, 2015, when he was
convicted of multiple felonies.

Hinton remained at the jail as a

post-conviction inmate until November 24, 2015.
During his second day at Pike County Jail, Hinton claims that
defendant

Nurse

Janet

Moore

performed

1

his

intake

evaluation.

During this evaluation, Hinton told Nurse Moore that he did not
have high blood pressure but that he needed to be provided a low
salt diet due to his high blood pressure tendencies.

Nurse Moore

allegedly told Hinton that the jail did not offer a low salt diet
and that she would decide what the inmates needed.
he

submitted several sick calls

Hinton claims

in the months following his

evaluation, but Nurse Moore allegedly refused to see him.
On November 16, 2014, Hinton was taken to the Osyka Medical
Center, where he was examined by defendant Nurse Kim Snow.
this

examination,

Nurse

Snow

determined

that

Hinton’s

During
blood

pressure was high and prescribed him medication to address the
problem.

Hinton requested that Nurse Snow provide him with an

order requiring a low salt diet, but Nurse Snow allegedly denied
Hinton’s request and stated that she was informed the jail did not
provide low salt diets.
On December 19, 2014 after returning to the jail, Hinton
informed Nurse Moore that he thought he had suffered a stroke after
his right arm “locked up.”

Allegedly, Nurse Moore responded that

it would teach Hinton to stay out of jail. Hinton continued to
submit

sick

calls

after

experiencing

continued

headaches,

numbness, and dizziness, but he claims that Nurse Moore refused to
see him.

Hinton alleges that after he was transferred to MDOC

custody in November 2015, he was taken off high blood pressure
medication and placed on a low salt diet.
2

Hinton also alleges

that he spoke with the kitchen supervisor at the Pike County jail,
who informed him that low salt meals could be provided if ordered
by the medical staff.
Hinton filed his pro se complaint on May 2, 2016, alleging
claims against Nurse Moore and Nurse Snow under 42 U.S.C. § 1983
and medical malpractice against Nurse Snow under state law.1

On

November 3, 2016, Magistrate Judge Parker entered his Report and
Recommendation sua sponte to dismiss all claims against Nurse Snow
for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B).2
Hinton timely filed an Objection to Judge Parker’s recommendation
on November 19, 2016.3
II. Magistrate Judge’s Findings
In his Report and Recommendation, Judge Parker found that
Hinton failed to state any cognizable claim against defendant Snow

1 On October 26, 2016, the parties participated in a Spears hearing before
Magistrate Judge Parker, and Plaintiff’s claims and desired relief were amended
and clarified by his sworn testimony during that hearing. See Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985); Flores v. Livingston, 405 Fed. App’x
931, 932 (5th Cir. 2010); Riley v. Collins, 828 F.2d 306, 307 (5th Cir. 1987)
(noting that allegations made at a Spears hearing supersede claims alleged in
the complaint).
2 Under 28 U.S.C. § 1915(e)(2)(B) the Court may dismiss a proceeding in
forma pauperis at any time if the action is “(i) 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.”
3 Objections to the Report and Recommendation of a magistrate judge must
be filed within fourteen days. 28 U.S.C. § 636(b)(1). But when service is made
by regular mail as in this case, three days are added to the filing deadline.
Fed. R. Civ. P. 6(d). Objections to the Report and Recommendation were therefore
due on November 21, 2016. The envelope in which Hinton’s objections were mailed
is postmarked November 19, 2016. See Doc. 27-1. Thus, the Court accepts the
plaintiff’s objections as timely. See Thompson v. Rasberry, 993 F.2d 513, 515
(5th Cir. 1993) (“A pro se prisoner’s written objections to a magistrate’s
report and recommendations must be deemed filed and served at the moment they
are forwarded to prison officials for delivery to the district court.”).

3

under § 1983 because Nurse

Snow’s

alleged

conduct

failed to

establish a deliberate indifference to Hinton’s medical needs.
Nurse Snow was responsive to Hinton’s medical needs by providing
him

with

high

blood

pressure

medication;

therefore,

Hinton’s

allegations were insufficient to show that Nurse Snow “knew of and
disregarded a substantial risk of harm to the plaintiff’s health.”
Report & Recommendation, p. 5. Absent any constitutional violation
by Nurse Snow, Judge Parker concluded that Hinton’s § 1983 claims
must be dismissed.
Judge
malpractice

Parker
claim

also
be

recommended

dismissed

based

that
on

the

Hinton’s
pre-suit

requirement set forth in Mississippi Code 15-1-36.

medical
notice

Because Hinton

failed to provide Nurse Snow with 60 days’ written notice prior to
filing suit, Judge Parker concluded that Hinton’s state law claim
should also be dismissed.
III. Plaintiff’s Objections
When a party objects to the Magistrate’s proposed findings
and recommendations under 28 U.S.C. § 636(b)(1), the Court conducts
a de novo review of those recommendations to which an objection is
made.

See Fed. R. Civ. P. 72(b)(3); Shelby v. Kind, 2012 WL

1455988 (S.D. Miss. April 27, 2012).

However, merely reurging the

allegations in the petition or attacking the underlying conviction
is insufficient to receive de novo review, and those portions of
the report not objected to are reviewed only for plain error.
4

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).

The Court is not required to reiterate the

findings and conclusions of the magistrate judge, nor is it
required to consider objections which are frivolous, conclusive or
general in nature. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir.
1993); Battle v. U.S. Parole Commission, 834 F.2d 419, 421 (5th
Cir. 1997).

After its review, the Court may accept, reject, or

modify the recommendation of the magistrate judge, receive further
evidence in the case, or return the matter to the magistrate with
further instructions.

Reid v. Astrue, 2011 WL 4101277 (S.D. Miss.

Sept. 8, 2011).
Hinton

timely

filed

an

objection

to

the

Report

and

Recommendation, arguing that Judge Parker erred in finding that:
(1) Nurse Snow was not deliberately indifferent to Hinton’s medical
needs; (2) his claims against Nurse Snow should be dismissed while
allowing the § 1983 conspiracy claim against Nurse Moore to move
forward; and (3) Hinton failed to comply with the pre-suit notice
requirement for his medical malpractice claim. Objection, pp. 59.
In his first objection, Hinton argues that the allegations
set forth in his complaint are sufficient to demonstrate that Nurse
Snow acted with deliberate indifference towards his medical needs.
Specifically, Hinton argues that Nurse Snow ignored his complaints
5

and failed to treat him when she exited the exam room after denying
his request for a low salt diet.

To assert a constitutional claim

for the denial of adequate medical care, the plaintiff must allege
facts showing that “the official had subjective knowledge of a
substantial risk of serious harm to a pretrial detainee but
responded with deliberate indifference.” Hare v. City of Corinth,
74 F.3d 633, 650 (5th Cir. 1996); Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (deliberate indifference “is an extremely
high standard to meet”).

Here, Nurse Snow examined Hinton at the

Osyka Medical Center, identified his high blood pressure problem,
and prescribed him with medication to address his needs.

Based on

these facts, the Court is unpersuaded that Nurse Snow’s alleged
conduct is sufficient to give rise to a constitutional violation.
See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 2001) (finding
that

an

inmate’s

insufficient

to

disagreement
state

a

with

viable

indifference to medical needs).

medical

treatment

constitutional

claim

is
for

Therefore, this objection is

overruled.
In his second objection, Hinton appears to argue that Nurse
Snow and Nurse Moore conspired to deprive him of a low salt diet,
and that some constitutional claim against Nurse Snow must survive
since the Court has not yet dismissed any claims against Nurse
Moore.

To the extent that Hinton is claiming Nurse Snow conspired

to deprive him of medical treatment, Hinton’s allegations fall
6

short.

“To prevail on a § 1983 conspiracy claim, a prisoner must

show the existence of a conspiracy and a deprivation of civil
rights in furtherance of that conspiracy.” Lunsford v. Tingle,
2011 WL 4388634, *6 (S.D. Miss. Sept. 20, 2011) (citing Thompson
v. Johnson, 348 Fed. App’x 919, 922 (5th Cir. 2009)); see Anderson
v. King, 2008 WL 624911, *7 (S.D. Miss. Mar. 4, 2008) (conclusory
allegations of conspiracy are insufficient).
“prove

an

actual

deprivation

of

a

Plaintiffs must

constitutional

conspiracy to deprive is insufficient.” Id.

right;

a

As discussed above,

Hinton has failed to allege any facts supporting his contention
that Nurse Snow conspired to deprive him of medical treatment.
Even if Nurse Snow agreed not to order Hinton a low salt diet at
the direction of Nurse Moore, this conduct alone does not amount
to a constitutional violation.

Nurse Snow adequately treated

Hinton by providing medication to remedy his high blood pressure.
Because

Hinton’s

complaint

fails

to

state

any

constitutional

violation by Nurse Snow, this objection is overruled.
In

his

third

objection,

Hinton

argues

that

his

medical

malpractice claim against Nurse Snow should survive because he
submitted notice before the Court accepted jurisdiction over his
state law claim.

Hinton, however, misinterprets the pre-suit

notice provision governing his claim.

Mississippi Code Section

15-1-36(15) provides that “no action based upon [a] health care
provider’s

professional

negligence
7

may

be

begun

unless

the

defendant has been given at least sixty (60) days’ prior written
notice of the intention to begin the action.”

Hinton filed this

action on May 2, 2016, and he allegedly mailed written notice to
Nurse Snow on May 3, 2016. Objection, p. 7.

Because Hinton failed

to provide Nurse Snow with notice of this action until after it
was filed, Hinton’s third objection is overruled.
IV. Order
Having conducted a de novo review of the portions of the
Report and Recommendation objected to, and having reviewed the
remainder for plain error, the Court is satisfied that Judge Parker
has issued a thorough opinion.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Objections to the
Magistrate Judge’s Report and Recommendation (docket entry 27) are
OVERRULED;
FURTHER

ORDERED

that

the

Magistrate

Judge’s

Report

and

Recommendation (docket entry 25) is hereby ADOPTED;
FURTHER ORDERED that Plaintiff’s claims against defendant Kim
Snow are DISMISSED WITH PREJUDICE.
SO ORDERED this the 13th day of February, 2017.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

8