United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS AND REMANDING CASE
DAVID BRAMLETTE, District Judge.
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 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 sponte to dismiss Howard's claims for failure to state a claim. The Report and Recommendations address Howard's medical claims 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.Appx. 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 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)). 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 ...