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Hinton v. Moore

United States District Court, S.D. Mississippi, Western Division

February 13, 2017

HENRY HINTON, JR. PLAINTIFF
v.
JANET MOORE and KIM SNOW DEFENDANTS

          ORDER ADOPTING REPORT AND RECOMMENDATION

          David Bramlette, UNITED STATES DISTRICT JUDGE

         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 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. Hinton claims he 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. During this examination, Nurse Snow determined that Hinton's 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. 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 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 Parker also recommended that Hinton's medical malpractice claim be dismissed based on the pre-suit notice requirement set forth in Mississippi Code 15-1-36. 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.

         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 ...


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