United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Senior United States District Judge
Dupree Cobbs, a Virginia inmate proceeding pro se, filed this
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that he has received inadequate medical care for his
hernia while in jail. Upon review of the record, the court
finds that the action must be summarily dismissed.
arrived at the New River Regional Jail ("the jail")
on June 1, 2016. Before his incarceration, he had been
diagnosed with a hernia, but it did not bother him until the
middle of 2017. He began to experience "pain and a
burning sensation" in his lower abdomen and asked for
medical attention. Compl., Cobbs Aff. 1, ECF No. 1-2. Cobbs
told Dr. Moses about the hernia diagnosis and pain. The
doctor explained that the pain was caused by muscles cutting
off circulation to Cobbs' intestines, but his current
condition was not an emergency warranting surgery. When Cobbs
told Dr. Moses that he had three more years to serve in
prison, the doctor advised him to have the hernia repaired
soon after his release, because it would only get worse.
weeks later, Cobbs began to suffer pain during urination and
bowel movements. His vegetarian diet included two servings of
beans every day that caused bloating, and passing gas was
painful. Cobbs filed a request to change to the regular jail
diet and see a nurse. The nurse provided medication to help
him move his bowels and recommended that he should "hold
the hernia in" while using the bathroom. Id.
When Cobbs received no response to his diet change request,
he stopped eating. A nurse he spoke to about the difficulties
the vegetarian diet was causing told him to file a diet
change request with Betty Akers. He did so, but got no
response. After several trips to medical about his hernia
symptoms, he saw Dr. Moses again. The doctor said that
because the hernia "wasn't 'stuck' ... it
wasn't an emergency." Id. at 2. Cobbs asked
the doctor for a diet change, and soon thereafter, began
receiving regular diet meals.
then developed constipation that irritated the hernia. He
asked for medical care and received medication to help move
his bowels. The nurse told Cobbs that "the constipation
came from the hernia and that since it wasn't an
emergency that the jail couldn't do anything about
it." IcL Even with medication, Cobbs continued to suffer
from constipation, stopped eating, and grew depressed. He
says he "was in real bad pain" and was aggravated
at his inability to get help. Id. He checked himself
into administrative segregation and met with a mental health
counselor, but was not suicidal. Back in "G-block,
" Cobbs continued not eating. He began experiencing pain
in his testicles when he walked and "requested to see
somebody about it but [he] never got a response."
Id. at 3. He "asked Major Stallard for a
grievance and never received one. Instead [he] was sent to
medical" to see a doctor. Id. This doctor did
not ask about the hernia, but ordered an X-ray related to
Cobbs' complaints of constipation.
went back to his cell and days passed. He wrote Stallard
again, asking for a grievance. Nurse Lisa Fergerson responded
to this request, telling Cobbs that the X-ray results showed
that he was "O.K." Id. Cobbs states:
"I kept telling them my testicles hurt and I was in
pain. I called my mother. She call[ed] up to the jail and I
was given an ultra sound." Id. Cobbs next wrote
requests to medical that after several days of not eating,
his urine was dark as though it had blood in it. The medical
staff took a urine sample and referred him to Dr. Moses.
Cobbs told the doctor that the hernia "hurt[ ] bad[, he]
had to hold it in when [he] walk[ed, ] and [it made] it. . .
hard to jump up and down from [his] bunk." Id.
at 4. The doctor again explained that the hernia was not
presently "stuck, " so was not an emergency for
which the jail would arrange for surgery. Id. Dr.
Moses said that if it got stuck, Cobbs "would be in
serious pain to where [he] wouldn't be able to walk or
sit up." Id. Cobbs asked Dr. Moses to "fax
[his] medical records to the DOC, " but the doctor said
no, because the DOC "wouldn't do anything about
it" either. Id. Days later, Cobbs saw Nurse
Fergerson again, and she told him that his test showed he was
"O.K." Id. He "requested his medical
records and was denied."Compl.Exh. 1, ECF No. 1-1.
November 20, 2017, Cobbs signed his § 1983 Complaint,
alleging the following claims: (1) Dr. Moses said the hernia
was not serious enough for surgery and Cobbs could live with
it; (2) Nurse Fergerson told Cobbs that test results showed
no complications from the hernia, said he would be OK, and
denied his request for copies of medical records; and (3)
Major Stallard never gave Cobbs a grievance form. As relief,
he seeks monetary damages and "administrative
punishments" for the defendants. Compl. Attach., ECF No.
court is required to dismiss any action or claim filed by a
prisoner against a governmental entity or officer if the
court determines the action or claim is frivolous, malicious,
or fails to state a claim upon which relief may be granted.
28 U.S.C. § 1915A(b)(1). To state a claim under §
1983, the plaintiff must allege facts showing that a person
acting under color of state law undertook conduct that
violated the plaintiffs constitutional rights. See Cooper
v. Sheehan. 735 F.3d 153, 158 (4th Cir. 2013). Because
liability under § 1983 is personal, the "plaintiff
must plead that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution." See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009). Plaintiffs "[f]actual allegations must
be enough to raise a right to relief above the speculative
level, " to one that is "plausible on its face,
" rather than merely "conceivable." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
prison official's deliberate indifference to an
inmate's serious medical need violates the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 102
(1976). A prison official is "deliberately
indifferent" if he or she "knows of and disregards
[or responds unreasonably to] an excessive risk to inmate
health or safety." Farmer v. Brennan, 511 U.S.
825, 837 (1994). The deliberate indifference standard
"is not satisfied by . . . mere disagreement concerning
'[q]uestions of medical judgment, '" Germain
v. Shearin. 531 Fed.Appx. 392, 395 (4th Cir. 2013)
(quoting Russell v. Sheffer, 528 F.2d 318, 319 (4th
Cir. 1975)), or mere negligence in diagnosis or treatment.
Estelle. 429 U.S. at 105-106; see also Bowring
v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) ("[T]he
essential test is one of medical necessity and not simply
that which may be considered merely desirable").
significant delay in the treatment of a serious medical
condition may indicate an Eighth Amendment violation, but
only "if the delay results in some substantial harm to
the patient." Webb v. Hamidullah, 281 Fed.Appx.
159, 166 (4th Cir. 2008).
[A] delay with respect to hernia surgery does not necessarily
constitute deliberate indifference, absent some resultant
harm or a worsened condition. For example, in Price v.
Carey, [the court] deemed an eight-month delay in
providing elective hernia surgery as insufficient to
constitute an Eighth Amendment violation, because the
prisoner "did not present any information" to his
physician during the intervening period "to indicate
that his situation was an emergency mandating immediate
treatment." No. 91-6643, 1992 WL 34208, at *4 (4th Cir.
Feb. 26, 1992). On the other hand, in Garrett v.
Elko, [the court] recognized an Eighth Amendment claim
where the prisoner's hernia surgery was delayed for four
years, in the face of continual "complaints of intense
pain, anxiety, and limited mobility." No. 95-7939, 1997
WL 457667, at *1 (4th Cir. Aug. 12, 1997).
Id. at 167. Thus, a hernia sufferer like Cobbs
states a § 1983 claim only if he presents evidence
showing that "the delay in his surgery caused him
substantial harm-evidenced by, for example, a marked increase
in his hernia's size, frequent complaints of severe pain,
or signs that his ...