United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
CLAUDE M. HILTON, District Judge.
Brandon Jerod Smith, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that defendants are violating his Eighth Amendment right to be free from cruel and unusual punishment by being deliberately indifferent to his serious medical needs. By Order dated October 31, 2013, plaintiff was instructed to particularize and amend his allegations. After careful review of plaintiff's amended complaint, it is clear that the complaint must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim.
Plaintiff alleges he has suffered from excruciating migraines since May 2013 Am Compl. 2. Plaintiff alleges that his migraines are the result of a head injury but that Dr. Ulep refuses to order an X-Ray to discover "what type." Id . Plaintiff then lists the many sick call requests and grievances he filed. On several occasions, defendant Webb gave plaintiff pain medication "to assist with the excruciating migraines." Id . at 3. Plaintiff then states that Dr. Ulep reviewed all of his sick call requests but"refused to order a test"to determine the source of the pain. Id . Plaintiff states that he has written defendant Ray but that she "refused to answer [his] request but hands them off to someone else." Plaintiff alleges that on May 4, 2013, defendant Tweet "vindictively and with impunity denied [him] medical attention and falsified information to the Charge nurse." Id . He then states that on August 5, 2013, defendant "Jane Doe" refused [him his] medication vindictively and with impunity and falsified information in [his] medical record." Id.
He then states that he was assessed "by [defendant] Webb over six (6) times to be tested for herpes and [defendant] Webb deliberately refused to examine [his] groin area to make an adequate report of her observations." Id . at 4, He then states that Dr. Ulep refused to order testing to "help alleviate the excruciating symptoms." Plaintiff concludes by arguing that he "has been and continues [sic] to be irreparably injured by the conduct of the defendants." Id . at 4.
II. Standard of Review
In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1). Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Sumner v. Tucker , 9 F.Supp.2d 641, 642 (E.D. Va. 1998). Thus, the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Soalding , 467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678; Twombly, 555 U.S. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice[, ]" however, to meet this standard, and a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level... Twombly , 550 U.S. at 555. Moreover, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678.
To state a cognizable Eighth Amendment claim for denial of medical care, plaintiff must allege facts sufficient to show that jail officials were deliberately indifferent to a serious medical need. Estelle v. Gamble , 429 U.S. 97, 105 (1976); Staples v. Va. Dep't of Corr. , 904 F.Supp. 487, 492 (E.D.Va. 1995). Thus, plaintiff must allege two distinct elements to state a claim upon which reliefcan be granted. First, he must allege a sufficiently serious medical need. See, e.g., Cooper v. Dvke , 814 F.2d 941, 945 (4th Cir. 1987) (determining that intense pain from an untreated bullet wound is sufficiently serious); Loe v. Armistead , 582 F.2d 1291 (4th Cir. 1978) (concluding that the "excruciating pain" of an untreated broken arm is sufficiently serious). Second, he must allege deliberate indifference to that serious medical need. Under this second prong, an assertion of mere negligence or even malpractice is not enough to state an Eighth Amendment violation; instead, plaintiff must allege deliberate indifference "by either actual intent or reckless disregard." Estelle , 429 U.S. at 106; Daniels v. Williams , 474 U.S. 327, 328 (1986); Miltier v. Beom , 896 F.2d 848, 851 (4th Cir. 1990). The prisoner must demonstrate that defendant's actions were "[s]o grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Id, (citations omitted). A prisoner's disagreement with medical personnel over the course of his treatment will not support an Eighth Amendmentcause of action. Wright v. Collins , 766 F.2d 841, 849 (4th Cir. 1985). Thus, "a medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment." Estelle , 429 U.S. at 107.
In total, plaintiff's allegations against defendant Ray state that plaintiff has written defendant Ray but that she "refused to answer [his] request but hands them off to someone else." Compl. 3. These allegations are nothing more than "mere conclusory statements" and do not state facts upon which relief can be granted. See Twombly , 550 U.S. at 555. As such, plaintiff has failed to state a claim against defendant Ray.
Plaintiff's allegations against defendant Ulep center around defendant Ulep's alleged refusal to order an x-ray to determine the source of plaintiff's migraines and refusal to order a test to see if plaintiff has herpes. Am. Compl. 1, 3. These allegations fail to state a claim as it has been held that "a medical decision not to order an X-ray, or like measures, does not represent cruel and unusual ...