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Bristow v. Dulaney

United States District Court, W.D. Virginia, Roanoke Division

September 21, 2016

DR. ROSE DULANEY, Defendant.


          Robert S. Ballou United States Magistrate Judge

         Steven Bristow (“Bristow”), a prisoner proceeding pro se, filed a complaint against Dr. Rose Dulaney (“Dr. Dulaney”), a physician at Wallen's Ridge State Prison, pursuant to 42 U.S.C. § 1983, alleging that Dr. Dulaney was deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Dr. Dulaney filed a motion to dismiss, which I DENY.


         Bristow alleges in his Complaint (Dkt. No. 1) and Verified Statement (Dkt. No. 3) that on February 13, 2014, he filed a request for medical services complaining that he had blood clots in his stool, experienced rectal swelling, had both weight and blood loss, and requested medical staff to perform a blood test. Nurse Roberts responded that day, informing Bristow that he had been placed on sick call. Sometime thereafter, Bristow saw Dr. Dulaney who ordered a blood test, the results of which were given to Bristow upon his request. In May 2014, Dr. Dulaney performed a rectal exam and determined that Bristow required surgery to treat his hemorrhoids.

         Surgery was originally scheduled with Dr. Thongdang Banchuin, but Bristow received a letter on August 4, 2014 advising that Dr. Banchuin was retiring from Wellmont Medical Associates and that the office staff would reschedule any appointments with another qualified physician. Bristow was again placed on sick call.

         On August 26, 2014, Bristow underwent what he terms a “colonoscopy procedure.”[1]While in medical for further evaluation after the procedure, Bristow told Dr. Dulaney that all three rubber bands from the surgery had come out. Bristow claims this rendered the surgery a failure by any standard, but he was still released from medical and put on sick call. On September 1, 2014, Bristow filed an Offender Request for Information complaining that he continued to experience swelling and bloody stools. Nurse Collin responded two days later and told Bristow that he had been placed on sick call.

         On March 25, 2015, Bristow filed an informal complaint about his pain and general health. He again described his symptoms but added that he felt dizzy and light headed due to the amount of blood he lost each time he used the bathroom. The next day, medical responded and told him he had been placed on sick call and would be referred to a doctor, if needed. On March 30, 2015, Dr. Dulaney examined Bristow and ordered lab work to be done the next day.

         In early April, Bristow filed a regular grievance, again complaining that his surgery was a failure and that he continued to have swelling, bleeding, and severe pain from his rectum. He claimed that it was uncomfortable to walk or sit and requested another corrective procedure. In a Level I Offender Grievance Response, the Health Services Director (“the Director”) determined Bristow's grievance to be unfounded. The Director noted that Bristow was scheduled for an exam and that Dr. Dulaney would determine a plan of care based on her exam and results of the lab tests. The results of blood work taken on April 18 showed that Bristow's blood level had dropped from 13 to 7, but Bristow does not explain the significance of these values. Bristow was taken to the hospital for a blood transfusion, and on April 25, 2015, underwent corrective surgery.[2]

         After the surgery, Bristow appealed the Director's Level I response claiming that “the lengthy time frame” from when he informed Dr. Dulaney of his failed surgery to when he had corrective surgery was “frightening.” He expressed fear that if the second procedure did not work, he might become anemic or die. He also sought transfer to Sussex-I State Prison and stated that he was still in pain, had no energy, and feared for his health. In a Level II Offender Grievance Response, the Director again determined his grievance to be unfounded. The Director stated that Bristow's condition was “being treated and monitored appropriately at this institution.” According to the Director, all administrative remedies were exhausted at this point. Bristow asserts that the failure to arrange for corrective surgery sooner constituted deliberate indifference to a serious medical need.


         1. Motion to Dismiss

         A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of a complaint, ” and to survive such a motion, the complaint must give the defendant “fair notice of what the…claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks and citations omitted). I must accept Bristow's nonconclusory factual allegations as true at the motion to dismiss stage. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007); Aziz v. Alcolac. Inc., 658 F.3d 388, 391 (4th Cir. 2011) (when ruling on 12(b)(6) motion, the court assumes “all well-pleaded, nonconclusory factual allegations in the complaint to be true”).

         Plaintiff must allege facts which “raise a right to relief above the speculative level, ” and the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. A plaintiff's “obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions…” Id. at 555 (internal alterations and quotations omitted). Thus, neither “a formulaic recitation of the elements of a cause of action, id., nor “naked assertions devoid of further factual enhancements” will suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal alterations and quotation marks omitted). “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.” Id. The factual allegations must “permit the court to infer more than the mere possibility of misconduct” based upon its “judicial experience and common sense.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 678), aff'd sub nom, Coleman v. Ct. of Appeals of Md., 132 S.Ct. 1327 (2012).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9, 101 (1980). The requirement of liberal construction, however, does not mean that the court can ignore a clear failure in the pleading to allege sufficient ...

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