United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. VIRDEN UNITED STATES MAGISTRATE JUDGE.
December 18, 2018, Jon Jeffrey Ables, an inmate housed at the
Mississippi State Penitentiary (“MSP”), appeared
before the Court for a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), to determine
whether there exists a justiciable basis for his claim filed
under 42 U.S.C. § 1983. A plaintiff's claim will be
dismissed if “it lacks an arguable basis in law or
fact, such as when a prisoner alleges the violation of a
legal interest that does not exist.” Martin v.
Scott, 156 F.3d 578 (5th Cir. 1998) (citations omitted).
The Prison Litigation Reform Act applies to this case because
the plaintiff was incarcerated when he filed this lawsuit.
Plaintiff having consented to U.S. Magistrate Judge
jurisdiction in this case in accordance with 28 U.S.C. §
636(c), the undersigned has the authority to enter this
Ables alleges that in 2015, free-world physician Dr. Bradley
ordered that Ables, an insulin-dependent diabetic, receive
four daily Accu-Check readings and “sliding
scale” insulin therapy, along with meals and
snacks appropriate for his condition. Ables states that MSP
personnel refuse to follow Dr. Bradley's orders, claiming
that they do not have the staff to perform the prescribed
protocol. Instead, he alleges, the nurses draw a fixed
insulin shot at MSP hospital and transport it to his unit for
administration. He also maintains that, although he has been
scheduled to receive a diabetic-friendly meal tray, he
receives the same high-starch and high-sugar food as the
other inmates. As a result, he claims, his blood sugar varies
wildly throughout the day, causing problems with vision and
numbness and pain in his lower extremities.
also asserts that the nurses at MSP fail to follow a regular
schedule, and that as a result of having to wait in his cell
on nurses to arrive to administer his twice-daily shots, he
has had to withdraw from seminary school due to excessive
tardiness. Aggrieved, he filed the instant lawsuit, claiming
that Defendants have violated his rights to adequate medical
care and to the free exercise of his religion. Named as
Defendants in this lawsuit are Commissioner Pelicia Hall, Dr.
Gloria Perry, and MSP hospital manager, Willie Knighten.
the Eighth Amendment, prison officials have a duty to
“ensure that inmates receive adequate . . . medical
care.” Easter v. Powell, 467 F.3d 459, 463
(5th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S.
825, 832 (1994)). Here, the Court finds that Ables cannot
sustain a constitutional claim by demonstrating that MSP
officials are failing to follow Dr. Bradley's orders, as
a “doctor's failure to follow the advice of another
doctor suggests nothing more than a difference in medical
opinion” that will not support the finding of a
constitutional violation. See Stewart v. Murphy, 174
F.3d 530, 535 (5th Cir. 1999) (noting prison doctor did not
follow local surgeon's recommendation that prisoner be
transferred to another facility to receive physical therapy).
However, Ables has alleged that he is an insulin-dependent
diabetic who has been denied an appropriate diet, medicated
with a fixed dose of insulin regardless of his blood-sugar
readings, and medicated on a wildly-fluctuating schedule with
unrefrigerated insulin. Accordingly, while MSP's failure
to follow Dr. Bradley's ordered protocol does not itself
state a constitutional violation, Ables has alleged that the
Defendants know of and are disregarding excessive risks to
his health by following their current procedures. See,
e.g., Farmer, 511 U.S. at 839 (holding officials violate
Eighth Amendment by a knowing disregard of an excessive risk
to inmate health or safety). Accordingly, the Court finds
that process should issue against all Defendants for the
alleged denial of adequate medical care.
Court finds, however, that Ables has failed to state a claim
for the violation of his First Amendment rights because he
had to withdraw from seminary school. The Free Exercise
Clause requires prisoners be afforded a “reasonable
opportunity” to practice their religion. See, e.g.,
Pedraza v. Meyers, 919 F.2d 317, 320 (5th Cir. 1990).
This does not include a right to an education, however, be it
religious or secular. See Burnette v. Phelps, 621
F.Supp. 1157, 1159 (M.D. La. 1985) (holding prisons are not
educational institutions; there is no federal constitutional
right to participate in a prison educational program).
Accordingly, this claim will be dismissed.
reasons set forth above, process will issue against Pelicia
Hall, Dr. Gloria Perry, and Willie Knighten for Ables'
claim that he has been denied constitutionally adequate
medical care. Plaintiff's First Amendment claim is
 From Ables' allegations, it
appears that a “sliding scale” refers to an
insulin dose based on blood sugar levels rather ...