United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, District Judge.
Jacori Andre Carter, a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that defendants are denying him adequate medical care and subjecting him to cruel and unusual punishment. On March 7, 2014, defendants Dr. Benjamin Ulep and Nurse Marjorie Woodruff submitted a joint Motion to Dismiss with a supporting memorandum of law and provided plaintiff with the notice required by Local Rule 7(K) and Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975). Plaintiff filed a "counter-affidavit" opposing the Motion to Dismiss. Docket No. 25. On April 28, 2014, defendants Lt. William, Officer Wells, Officer Gainey and Officer Hull filed a joint Motion for Summary Judgment with a supporting memorandum of law and provided plaintiff with the notice required by Local Rule 7(K) and Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975). On May 20, 2014, the Court granted plaintiffs Motion for an Extension of Time to respond to defendants Lt. William, Officer Wells, Officer Gainey and Officer Hull's joint Motion for Summary Judgment, and on June 25, 2014, plaintiff filed a "counter-affidavit" in response. For the reasons that follow defendants Dr. Benjamin Ulep and Nurse Marjorie Woodruff's joint Motion to Dismiss will be granted in part and denied in part and defendants Lt. William, Officer Wells, Officer Gainey and Officer Hull's joint Motion for Summary Judgment will be granted.
II. Motion to Dismiss
A. Plaintiff's Allegations
Plaintiff alleges that on August 5, 2013, defendant William stated that plaintiff was being non-responsive and that she was "going to utilize O.C. Spray Gas... though... [plaintiff is] a known chronic patient (asythmatic)." Am. Compl. 4. Defendant William then sprayed the gas into plaintiff's cell. Id . Plaintiff alleges that an extraction team consisting of defendants Wells, Hull, Reece, and Gainey came into his cell, though he was "not resistant" and sitting on his bed. Id . Plaintiff alleges defendant Reece shocked him with an electric shield, defendant Gainey punched him, and defendant Hull picked him up in the air and "slammed" him to the ground per defendant William's instruction. Id . Plaintiff also alleges that he was injured during the cell extraction after he was beaten by defendants Gainey, Wells, Curry, and Hulls. Id . Defendant Gainey, allegedly, twisted plaintiff's left foot until "a cracking sound was made." Compl. ¶ 1
Plaintiff alleges that he was then taken to the medical ward where defendant Woodruff assessed plaintiff and ordered an X-Ray be taken. Compl. ¶ 2; Am. Compl 5. Defendant Ulep looked at the X-Ray, determined the foot was not broken, and sent plaintiff back to the main building. Compl. 2. Plaintiff alleges that defendant Ulep, however, never personally examined him. Id . He goes on to allege that he was not given any pain medication though he was in excruciating pain. Id . ¶¶ 2, 3.
On August 8, 2013, plaintiff submitted an emergency grievance complaining of knee problems. Id. at ¶ 5. Defendant Treier, a nurse, responded to the request stating it did not qualify as an emergency and directed plaintiff to submit a sick call request. Id . Plaintiff alleges that defendant Treier was deliberately indifferent to plaintiff's medical needs by responding to the request without first examining plaintiff. Id . Plaintiff makes similar allegations against defendants O'Neal, id. ¶ 6, Edwards, id. I 7, and Austin, id.118. In his Motion to Amend his complaint, plaintiff states that "as of the filing [of his] Motion to Amend... [he] had [knee] surgery on 12/12/13." Mot. Am. 3 of 3.
B. Standard of Review
The standard of review for a motion to dismiss under Fed.R.Civ.P. 12(b)(6) requires the Court to assume the facts alleged in the complaint are true and draw all reasonable inferences in the plaintiff's favor. Burbach Broadcasting Co. of Del. v. Elkins Radio Corp. , 278 F.3d 401, 406 § (4th Cir. 2002). "Judgment should be entered when the pleadings, construing the facts in the light most favorable to the non-moving party, fail to state any cognizable claim for relief, and the matter can, therefore, be decided as a matter of law." O'Rvan v. Dehler Mfg. Co. , 99 F.Supp.2d 714, 718 (E.D. Va. 2000). "Factual allegations must be enough to raise a right to relief above the speculative level.... on the assumption that all the allegations in the complaint are true." Bell Atl. Corp. v. Twomblv , 550 U.S. 544, 555 (2007). Accordingly, a party must "nudge[ ] their claims across the line from conceivable to plausible" to survive a Rule 12(b)(6) motion to dismiss. Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). In addition, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
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 relief can be granted. First he must allege a sufficiently serious medical need. See, e.g., Cooper v. Dyke , 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). 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). Significantly, a prisoner's disagreement with medical personnel over the course of his treatment does not make out a cause of action. Wright v. Collins , 766 F.2d 841, 849 (4th Cir. 1985); Russell v. Sheffer , 528 F.2d 318, 319 (4th Cir. 1975) (per curiam).
Defendants Dr. Ulep and Nurse Woodruff's Motion to Dismiss will be granted, in part, and denied, in part. Plaintiff alleges that he was denied medical care from Dr. Ulep's treatment of his knee problem and from being denied any pain medication. Am. Compl. 5 (treatment); Am. Compl. 6 (pain medication). Assuming without deciding that plaintiffs knee pain meets the first element of having a "sufficiently serious medical need, " see Cooper , 814 F.2d at 945, plaintiff's allegations against Dr. Ulep and Nurse Woodruff regarding their treatment of his knee fail to meet the second prong of showing that these defendants acted with deliberate indifference to his medical need. According to plaintiffs own allegations, defendant Woodruff assessed his medical needs and ordered an X-ray be taken. Am. Compl. 5. Similarly, Dr. Ulep examined the X-ray and eventually ordered plaintiff to have surgery on his knee. See id. at 5; Mot. Am. 4 of 4. Thus, rather than showing that defendants Ulep and Woodruff's actions were "[s]o grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness, " see Estelle , 429 U.S. at 106, plaintiffs allegations regarding the treatment of his knee show that these defendants responded to his medical need. While plaintiffs allegations may show that he disagreed with the treatment he received from Dr. Ulep and Nurse Woodruff, this is insufficient to state a claim under the Eighth Amendment. Wright , 766 F.2d at 849.
Plaintiff's allegations regarding not receiving any pain medication for the "excruciating pain" in his knee can amount to deliberate indifference. See DeBoer v. Luy, 70 F.App'x 880, 883 (7th Cir. 2003) ("It is true that the refusal to give an inmate any prescribed pain medication can amount to deliberate indifference."). While defendants Dr. Ulep and Nurse Woodruff argue that "disagreement over whether, and to what extent, to provide pain medication is not actionable under 42 U.S.C. § 1983" the cases they cite support the argument that being provided inadequate pain medication fails to state a denial of medical care claim but the cases do not directly address whether being denied any pain medication can amount to deliberate indifference. Thus, defendant Dr. Ulep and Nurse Woodruff's joint ...