Hinton v. Moore et al
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
HENRY HINTON, JR.
CIVIL ACTION NO. 5:16-cv-33-DCB-MTP
JANET MOORE and
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation (docket entry 25).
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
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.
allegedly told Hinton that the jail did not offer a low salt diet
and that she would decide what the inmates needed.
submitted several sick calls
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.
pressure was high and prescribed him medication to address the
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
numbness, and dizziness, but he claims that Nurse Moore refused to
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.
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
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
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.”).
under § 1983 because Nurse
establish a deliberate indifference to Hinton’s medical needs.
Nurse Snow was responsive to Hinton’s medical needs by providing
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.
requirement set forth in Mississippi Code 15-1-36.
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
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.
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
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
Reid v. Astrue, 2011 WL 4101277 (S.D. Miss.
Sept. 8, 2011).
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
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.
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
indifference to medical needs).
Therefore, this objection is
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
To the extent that Hinton is claiming Nurse Snow conspired
to deprive him of medical treatment, Hinton’s allegations fall
“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).
conspiracy to deprive is insufficient.” Id.
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.
violation by Nurse Snow, this objection is overruled.
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
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.
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.
IT IS HEREBY ORDERED that Plaintiff’s Objections to the
Magistrate Judge’s Report and Recommendation (docket entry 27) are
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
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