United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge
Leigh Burt, a Virginia inmate proceeding pro se, has filed a
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that he suffers deliberate indifference to his
serious medical needs at Greensville Correctional Center.
Plaintiff has applied to proceed in forma pauperis
in the lawsuit. Following review of the initial complaint,
deficiencies in it were explained to plaintiff, and he was
allowed an opportunity to file a particularized and amended
complaint. After careful review of the amended complaint, the
claim must be dismissed with prejudice pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim for which
relief can be granted.
the careful instructions plaintiff received in the
Court's initial order, his allegations in the amended
complaint are disjointed and difficult to follow.
Nonetheless, it fairly can be gleaned that in essence,
plaintiff believes that defendants are remiss in failing to
treat his broken nose. In an exhibit to the amended
complaint, plaintiff states that he has a "crookit
[sic], broke nose" that has caused him to suffer pain
for 28 years. Am. Compl. Ex. at 9, Correspondence to Regional
Administrator. Plaintiff experiences "pressure on [his]
forehead from crookit brokeness, " and he knows this
because when he touches his nose he "can feel the
crookit brokeness." Id. Plaintiff also feels
weak and dizzy, and "many times" he "fell out,
black out from seizure(s), " which he "truly
believe[s]... is from [his] crookitness, brokeness."
states that on March 20, 2015, Dr. Tarpley of Greensville
Correctional Center ("GCC") noticed the injury to
his nose and ordered an x-ray. The x-ray was taken on April
9, 2015 and Dr. Tarpley said that it showed that nothing was
wrong with plaintiffs nose. Head Nurse E. Shaw also informed
plaintiff that his alleged injury was "just nasal
congestion." Am. Compl. § IV. Apparently plaintiff
also was given some medication, because when he filed an
informal complaint about the diagnosis he was instructed to
"[p]lease continue prescribed treatment." Am.
Compl., Ex. at p.7. Plaintiff argues that Dr. Tarpley arrived
at a "false diagnosis" which cannot be correct
"when in fact, plaintiff suffers pain, pressure on
forehead, [and] dizziness where plaintiff feels like falling
out." Id. He reasons that because Dr. Tarpley
ordered an x-ray of his nose, "why was it done, if she
didn't feel something was wrong. There has to be a
problem." Am. Compl., attached p. 2. Therefore,
plaintiff "knows" that he suffers cruel and unusual
punishment in violation of the Eighth Amendment, and he
contends that the defendants should allow him to be sent out
to see a specialist to check to see if further action is
needed, id- at pp. 2-3, because in plaintiffs opinion
"something like surgery needs to be done." Am.
CompL, Ex. at p.7. The named defendants are Dr. Tarpley and
Nurse Shaw,  and as relief plaintiff seeks an
unspecified award of monetary damages as well as "reset
nose recover heal miracle." Am. Compl. §V.
reviewing a complaint pursuant to § 1915 A, 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 & Spalding.
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. -,
-, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. However, "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice" to meet this
standard, id., and a plaintiffs "[f]actual allegations
must be enough to raise a right to relief above the
speculative level...". Twombly, 550 U.S. at 55.
Moreover, a court "is not bound to accept as true a
legal conclusion couched as a factual allegation."
Iqbal. 129 S.Ct. at 1949-1950.
state a cognizable Eighth Amendment claim for denial of
medical care, a 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, a 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);
Miltier v. Beorn. 896 F.2d 848, 851 (4th Cir. 1990).
The prisoner must demonstrate that defendants' actions
were "[s]o grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to
fundamental fairness." Id. (citations omitted).
Additionally, 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).
taking all of plaintiff s allegations as true, he fails to
state an actionable Eighth Amendment claim for the denial of
medical care. As to the first component of such a claim, a
condition is sufficiently serious to merit constitutional
protection if it is "a condition of urgency, one that
may produce death, degeneration, or extreme pain."
Hathaway v. Coughlin. 37 F.3d 63, 66 (2d
Cir. 1994). The condition with which plaintiff was diagnosed
and for which he was treated - namely, nasal congestion -
patently is not a sufficiently serious condition to meet
apparent that plaintiff believes that he was misdiagnosed as
suffering only from nasal congestion, and that instead his
actual malady is a broken nose. Even if that were assumed to
be true, it is questionable that a broken nose is a
sufficiently serious condition to warrant constitutional
protection. In Riles v. Buchanan. 656 Fed.App'x
577 (2d Cir. 2016), an inmate suffered a broken nose when a
corrections officer used physical force against him. In
pertinent part, the inmate claimed that prison physicians
acted with deliberate indifference in failing to treat his
nose promptly, which resulted in his loss of taste and smell.
An x-ray taken shortly after his initial medical visit which
revealed "multiple nose fractures of the rights and left
nasal bone, mildly displaced." Id. at 582. In
finding that the inmate's deliberate indifference claim
was insufficient as a matter of law, the court noted that
"[t]he evidence demonstrates that such injuries
ordinarily heal without medical intervention."
Id.; see also. Sylvia v. Maddox. 2007 WL
2300799 (W.D. N.C. Aug. 7, 2007) (finding that a broken nose
sustained by an inmate due to use of force by officers was
insufficiently serious to sustain Eighth Amendment claims for
either excessive force or deliberate
however, the issue of whether plaintiffs alleged broken nose
would satisfy the first component of an actionable claim of
deliberate indifference need not be resolved, because it is
clear that he did not suffer deliberate indifference to his
condition. Plaintiff states that the nose was x-rayed, the
x-ray revealed no fracture, and he was provided with some
form of treatment for the nasal congestion that was
diagnosed. While plaintiff obviously feels that these
measures were inadequate, his disagreement with the course of
his treatment does not make out a cause of action. Wright,
766 F.2d at 849. Moreover, to the extent that plaintiff
asserts that the conclusion that he suffers from nasal
congestion was a "false diagnosis, " it is settled
that "an incorrect diagnosis is not deliberate
indifference." Smith v. Asghar. 114
Fed.App'x 222, 224 (7th Cir. 2004), citing Steele v.
Choi, 82 F.3d 175, 178 (7th Cir. 1996). If defendants did
misinterpret the x-ray with which plaintiff was provided,
such an error would amount at worst to negligence, and even
treatment that is sufficiently negligent to amount to medical
malpractice does not amount to deliberate indifference.
Estelle. 429 U.S. at 106. As the defendants'
actions in responding to plaintiff's asserted injury to
his nose were not "(s]o grossly incompetent, inadequate,
or excessive as to shock the conscience or to be intolerable
to fundamental fairness, " Miltier. 896 F.2d at
851, the second component of an actionable Eighth Amendment
claim is absent here, and he states no claim for which §
1983 relief is available.
foregoing reasons, plaintiffs claim must be dismissed with
prejudice for failure to state a claim, pursuant to 28
U.S.C.§ 1915A(b)(1). ...