United States District Court, D. Minnesota
Nathaniel W. Moore, Plaintiff,
MEnD Correctional Care, PA Longenfeld, Jane Doe, and WalGreen Phymarcy, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
Wilhelmina M. Wright United States District Judge
matter is before the Court on the February 28, 2017 Report
and Recommendation (R&R) of United States Magistrate
Judge Becky R. Thorson. (Dkt. 93.) Plaintiff Nathaniel W.
Moore, a Minnesota prisoner, alleges that Defendants violated
the Eighth Amendment to the United States Constitution by
acting with deliberate indifference to his medical needs by
mismanaging his HIV medication. Because Moore failed to
timely serve Defendants PA Longenfeld, Jane Doe, and
Walgreens Pharmacy, the R&R recommends dismissing without
prejudice Moore's complaint as to these Defendants for
failure to prosecute. The R&R also recommends granting
Defendant MEnD Correctional Care's (MEnD) motion for
summary judgment. Moore objected to the R&R on March 9,
2017. MEnD responded to Moore's objections on March 22,
2017, contending that the Court should adopt the
R&R. For the reasons addressed below, the Court
overrules Moore's objections and adopts the R&R in
district court reviews de novo any portion of a magistrate
judge's disposition of a case to which objections are
properly filed. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b)(3); LR 72.2(b)(3); United States v. Lothridge,
324 F.3d 599, 600 (8th Cir. 2003). In the absence of
objections, a district court reviews an R&R for clear
error. See Fed. R. Civ. P. 72(b) advisory
committee's note (“When no timely objection is
filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.”); Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996). Because Moore objects only to
portions of the R&R, the Court will address the
R&R's recommendations separately.
does not object to the R&R's recommendation that the
Court dismiss Defendants PA Longenfeld, Jane Doe, and
Walgreens Pharmacy for failure to prosecute. Rule 4(m), Fed.
R. Civ. P., requires that a plaintiff serve a defendant
within 90 days after the filing of a complaint. Moore not
only failed to serve Defendants PA Longenfeld, Jane Doe, and
Walgreens Pharmacy within 90 days after filing his complaint,
but each of these Defendants remains unserved. Accordingly,
the Court finds no clear error as to the R&R's
recommendation to dismiss without prejudice Moore's
complaint against these Defendants for failure to prosecute.
objections to the R&R, Moore argues that the record
demonstrates that MEnD acted with “more [than]
negligence” when it allegedly mismanaged his HIV
medication, and his complaint should survive summary judgment
for that reason. But to establish a claim of deliberate
indifference, Moore must establish that MEnD acted with a
mental state “akin to criminal recklessness.”
Thompson v. King, 730 F.3d 742, 746-47 (8th Cir.
2013) (internal quotation marks omitted); see also Estate
of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(requiring that a plaintiff show “more than negligence,
more even than gross negligence, and mere disagreement with
treatment decisions” to state a claim for deliberate
indifference). The record demonstrates that MEnD attempted to
resolve Moore's medication issues. Although Moore
questions the circumstances in which these delays occurred
and asserts his theories for MEnD's alleged
mismanagement, Moore points to no evidence in the record to
establish that MEnD acted with criminal recklessness. And
Moore cannot defeat a motion for summary judgment without
tethering his assertions to facts in the record. See
Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256-57 (1986).
also contends that Estelle v. Gamble, 429 U.S. 97
(1976), supports his objections to the R&R. Moore is
mistaken. The Estelle Court held that
“inadvertent failure” cannot sustain an
allegation of deliberate indifference. 429 U.S. at 105-06.
Without more than an assertion of negligence, Moore's
insistence that MEnD could, or should, have acted more
quickly to remedy issues involving his medication is
insufficient to support his cause of action. Id. at
107; see also Ervin v. Busby, 992 F.2d 147, 151 (8th
Cir. 1993) (concluding that, although a month-long delay in
providing medication may have been negligent behavior, it is
insufficient to support a deliberate-indifference claim).
Finally, it is uncontested that Moore has not supported his
allegation of a constitutional violation with any MEnD policy
or custom that allegedly caused the deliberately indifferent
medical care. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978) (applying 42 U.S.C.
§ 1983 to private entities providing medical care to
inmates when a specific policy or custom is a “moving
force” behind an alleged constitutional
on the R&R, the foregoing analysis and all of the files,
records and proceedings herein, IT IS HEREBY ORDERED:
Plaintiff Nathaniel W. Moore's objections to the R&R,
(Dkt. 94), are OVERRULED.
February 28, 2017 R&R, (Dkt. 93), is ADOPTED.
Moore's claims against Defendants PA Longenfeld, Jane
Doe, and Walgreens Pharmacy are DISMISSED WITHOUT PREJUDICE
for failure to prosecute.
MEnD's motion for summary judgment, (Dkt. 85), is
JUDGMENT BE ...