Hinton v. Moore et al

Filing 83

ORDER adopting Report and Recommendations re 78 Report and Recommendations; denying 79 Motion for New Trial; denying 80 Motion for Default Judgment; denying 80 Motion for Contempt; denying 82 Motion for Extension of Time to File Response/Reply re 78 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Henry Hinton, Jr. Signed by Honorable David C. Bramlette, III on 3/5/18 (PKM)

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

PLAINTIFF

VS.

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

NURSE JANET MOORE

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
This

cause

is

before

the

Court

on

the

Report

and

Recommendation of United States Magistrate Judge Michael T. Parker
(docket entry 78), on the plaintiff Henry Hinton, Jr.’s Motion for
New Trial (docket entry 79), on the plaintiff’s Motion for Default
as Sanction and Contempt (docket entry 80), and on the plaintiff’s
Motion to Extend Time to File Objections (docket entry 82). Having
carefully considered the record in this case, the Report and
Recommendation, and the plaintiff’s subsequent motions, the Court
finds as follows:
This cause was originally filed by the plaintiff on May 2,
2016, against defendants Nurse Janet Moore and Nurse Kim Snow.
Following a Report and Recommendation by Magistrate Judge Parker on
November 3, 2016, this Court entered an Order dismissing with
prejudice
plaintiff’s

all

claims

failure

1915(e)(2)(B).

against
to

state

Nurse
a

Kim

claim

Snow
under

based
28

on

U.S.C.

the
§

See docket entry 32.

On February 9, 2018, Magistrate Judge Parker issued a Report
and Recommendation recommending that all claims against Nurse Janet

Moore be dismissed with prejudice.

On February 12, 2018, the

plaintiff filed a Motion for New Trial (docket entry 79), and a
Motion for Default (docket entry 80).

Because these two motions

contain Hinton’s Objections to the Report and Recommendation, they
will collectively be treated as his Objections.

His Motion to

Extend Time to File Objections (docket entry 82) does not address
any additional objections, and does not show why he could not have
included all objections in his previous filings.

Insofar as

Hinton’s Motion for Extension of Time seeks additional time to file
a third set of objections, it is denied.
When a party objects to a Report and Recommendation, this
Court is required to “make a de novo determination of those
portions

of

the

recommendations
636(b)(1).

report

to

which

or

specified

objection

is

proposed
made.”

findings
28

or

U.S.C.

§

See also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir.

1991)(a 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

conclusive or general in nature.

that

are

frivolous,

Battle v. United States Parole

Commission, 834 F.2d 419, 421 (5th Cir. 1997). No factual objection

2

is raised when a petitioner merely re-urges arguments contained in
the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir.
1993).
Hinton’s claims presently before the Court arise from events
which took place while he was incarcerated at the Pike County Jail.
According to the plaintiff, he entered the jail on June 30, 2014,
and was transferred to a Mississippi Department of Corrections
facility on November 24, 2015.

Hinton asserts a claim for denial

of adequate medical care against Defendant Nurse Janet Moore, and
seeks compensatory damages.
During his evidentiary hearing before Magistrate Judge Parker,
Hinton testified that he does not have high blood pressure, but has
“high blood pressure tendencies.”

According to the plaintiff, his

blood pressure is not high unless he eats a lot of salt.

Hinton

testified that he informed Nurse Moore that he wanted a low salt
diet.

According to the plaintiff, Nurse Moore responded by

stating, “do not tell me what you want; tell me what your symptoms
are,” and informed the plaintiff that the jail does not provide a
low salt diet.

Hinton testified that he began to feel sick, but

Nurse Moore did not provide him help.
The

plaintiff

also

stated

that

he

wrote

lieutenant at the jail and the mayor of the city.

letters

to

a

According to the

plaintiff, he was taken to the Osyka Medical Clinic in November of
2014, and he informed the nurse practitioner at the clinic, Kim

3

Snow, that he needed a low salt diet.

He stated further that Nurse

Snow did not provide him a low salt diet, but provided him blood
pressure medications.

Hinton testified that he continued to feel

sick, and Nurse Moore informed him that it would take time for the
blood pressure medication to work.
Hinton testified that after he woke up on December 19, 2014,
he had pain in his arm and was unable to move the arm well.
According to the plaintiff, he informed Nurse Moore that he had had
a stroke, but she refused to send him to the hospital and stated,
“that will teach you to stay out of jail.”

Hinton stated that he

continued to submit sick call requests, and in February of 2015, he
was placed in a “hallway” cell for better observation.
plaintiff

testified

pressure once.

that

Nurse

Moore

only

checked

his

The
blood

He also testified that he washed his food in order

to reduce the amount of salt.
Hinton also testified that he complained to Nurse Moore of
constipation and requested a high fiber diet, but Nurse Moore
denied his request and instead sent him to Osyka Medical Clinic,
where he was given a prescription for a stool softener.

He also

stated that Nurse Moore refused to send him to a dentist after he
lost a tooth and refused to refer him for surgery for a knot on his
side.
Nurse Moore also testified during the evidentiary hearing, and
her testimony paints a very different picture.

4

She submitted a

medical record demonstrating that she recommended a “no added salt”
diet for the plaintiff, but he refused to sign the form.
Defendant’s Exhibit 1.

See

Nurse Moore also testified that the food

served at the jail is not high sodium food.

According to Nurse

Moore, she checked the plaintiff’s blood pressure multiple times
during his incarceration at the Pike County Jail.

She also

submitted a medical record indicating that the plaintiff’s blood
pressure was checked twenty-seven separate times at the jail.

See

Defendant’s Exhibit 6(e).
Nurse Moore testified that although Hinton’s blood pressure
was sometimes high, it never reached dangerous levels.

According

to Nurse Moore, she referred Hinton to the Osyka Medical Clinic in
November of 2014 because he decided that he wanted medications.
See

Defendant’s

Exhibit

9(c).

She

also

stated

that

once

medications were prescribed, she provided them to the plaintiff.
Nurse Moore testified further that on December 19, 2014, the
plaintiff approached her and said he had had a stroke.

According

to Nurse Moore, she assessed the plaintiff and, after seeing no
symptoms of a stroke, decided not to send him to the hospital.
Nurse Moore stated that Plaintiff was using his arm, had no facial
drooping, had no speech difficulty, and had no difficulty with
walking.

See Defendant’s Exhibit 6(c).

She also observed Hinton

on the jail’s cameras and saw that he appeared to have full use of
his arms.

5

In response to this testimony, the plaintiff pointed out that
jail policy requires the following: “In the event of a medical
emergency, or a perceived medical emergency, jail staff on duty
will arrange for medical services without undue delay.”
Plaintiff’s Exhibit A3.

See

Nurse Moore replied that she did not

perceive a medical emergency.

She also stated that nearly all the

inmates claim they have a medical emergency, and that is why she
has to assess them to determine if there is a real emergency.
Nurse Moore testified that after Hinton was attacked by other
inmates on July 21, 2015, she assessed his injuries, provided him
ice packs, and sent him to an outside medical provider, Stat Care.
According to Nurse Moore, the plaintiff also received treatment
from an ophthalmologist and otolaryngologist.

Nurse Moore stated

that she followed the orders of these doctors.

Additionally, she

testified that the plaintiff was provided Colace and MiraLAX for
his issues with constipation, that she provided these medications,
and that she even requested that the Colace be provided as a daily
medication. See Defendant’s Exhibit 9(b). She also stated that on
July 13, 2015, after the plaintiff complained about losing a tooth,
she assessed him and found no issues, such as bleeding or swelling,
requiring referral to a dentist.

See Defendant’s Exhibit 6(a).

Finally, she stated that Nurse Practitioner Kim Snow initially
referred Plaintiff for surgery for the knot on his side, but Nurse
Snow called the jail and retracted the referral.

6

See Defendant’s

Exhibit 6(a). According to Nurse Moore, that is the reason she did
not refer the plaintiff for surgery.
As Magistrate Judge Parker points out in his Report and
Recommendation, a pretrial detainee has a due process right to
receive reasonable medical care.

See Hare v. City of Corinth, 74

F.3d 633, 650 (5th Cir. 1996).

The right is equivalent to the

Eighth Amendment right enjoyed by prisoners. Id. Thus, a pretrial
detainee seeking to recover for a denial of adequate medical care
must establish deliberate indifference to serious medical needs.
See

Varnado

v.

Lynaugh,

920

F.2d

320,

321

(5th

Cir.

1991).

Deliberate indifference “is an extremely high standard to meet.”
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)(quoting Domino
v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001)).

The test for establishing deliberate indifference is “one

of subjective recklessness as used in the criminal law.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).

A plaintiff must show that a

defendant’s “response indicate[d] that the [defendant] subjectively
intended that harm occur.”

Thompson v. Upshur County, 245 F.3d

447, 458-59 (5th Cir. 2001).
An official is not deliberately indifferent unless he “knows
of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists and he must
also draw the inference.”

Id. at 838.

7

A plaintiff must “submit

evidence that jail officials ‘refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in
any other similar conduct that would clearly evince a wanton
disregard for any serious medical needs.”

Davidson, 91 Fed. App’x

at 965 (quoting Domino, 239 F.3d at 756). “[D]elay in medical care
can only constitute an Eighth Amendment violation if there has been
deliberate

indifference,

which

results

in

substantial

harm.”

Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Negligent conduct by jail officials does not rise to the level
of a constitutional violation.
333-34 (1986).

Daniels v. Williams, 474 U.S. 327,

Nor is a plaintiff entitled to the “best” medical

treatment available.

McMahon v. Beard, 583 F.2d 172, 174 (5th Cir.

1978); Irby v. Cole, 2006 WL 2827551, at *7 (S.D. Miss. Sept. 25,
2006).

Furthermore,

an

inmate’s

“disagreement

with

medical

treatment does not state a claim for Eighth Amendment indifference
to medical needs.”

Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.

2001).
This Court has reviewed the evidence presented at the hearing,
and based on the credible testimony the Court finds that the
plaintiff failed to prove by a preponderance of the evidence that
Nurse Moore was deliberately indifferent to any serious medical
need.

The

evidence

presented

demonstrates

that

Nurse

Moore

monitored the plaintiff’s chronic conditions, assessed his acute
conditions, scheduled multiple appointments for him to see outside

8

medical professionals, and provided him multiple medications,
including blood pressure medications.

See Banuelos v. McFarland,

41 F.3d 232, 235 (5th Cir. 1995)(holding that “[m]edical records of
sick calls, examinations, diagnoses, and medication may rebut an
inmate’s allegations of deliberate indifference.”).
complains

that

Nurse

Moore

treated

his

medical

The plaintiff
issues

with

medications instead of adjustments to his diet, and also complains
that Nurse Moore did not send him to the hospital when he thought
it was necessary.

However, the plaintiff’s claims amount to only

disagreement over the course of treatment.

“Disagreement with

medical treatment does not state a claim for Eighth Amendment
indifference to medical needs.”

Norton, 122 F.3d at 292.

Because

the plaintiff was receiving constitutionally adequate medical
treatment,

his

claim

against

Defendant

Nurse

Moore

must

be

dismissed with prejudice.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s Motion for New Trial
(docket entry 79) and Motion for Default as Sanction and Contempt
(docket entry 80) are collectively treated by the Court as the
plaintiff’s Objections to Magistrate Judge Parker’s Report and
Recommendation;
FURTHER ORDERED that to the extent the plaintiff’s Motion for
New Trial (docket entry 79) and Motion for Default as Sanction and
Contempt (docket entry 80) seek a new trial and sanctions, they are
9

DENIED;
FURTHER ORDERED that to the extent the plaintiff’s Motion for
Extension of Time to File Objections (docket entry 82) seeks
additional time to file a third set of objections, said motion is
DENIED;
FURTHER ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 78) is ADOPTED in its
entirety as the findings and conclusions of this Court;
FURTHER ORDERED that the Plaintiff’s Complaint under the Civil
Rights Act, 42 U.S.C. § 1983, is DISMISSED WITH PREJUDICE.
SO ORDERED, this the 5th day of March, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

10