United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
Tamar Devell Harvey, a Virginia inmate proceeding pro
se, filed this civil action pursuant to 42 U.S.C. §
1983, alleging, inter alia, that defendant Dr. Park
denied him medical treatment. Dr. Park filed a motion to
dismiss, and the motion is ripe for
disposition. After reviewing the pleadings, the court
concludes that Dr. Park's motion must be
complaint alleges that the defendants violated his
constitutional rights when they subjected him to cruel and
unusual living conditions, denied him access to grievances,
failed to protect him from assaults by other inmates, denied
him adequate medical and dental treatment following the
assaults, and conspired to cover up an assault. One of the
assaults on Harvey occurred on July 21, 2017. Following the
assault, Harvey was taken to the emergency room, where the
doctor allegedly told him that he would need “multiple
operations to fix [his] injuries.” On July 26, 2017,
Harvey filed an informal complaint notifying the medical
department of his need for the surgeries based on the
emergency room doctor's statement. A nurse responded on
August 3, 2017, indicating that he was scheduled to be seen
by a doctor at University of Virginia (UVA), apologizing for
the delay, and explaining that a process must be followed
which takes time to schedule the appointment. On August 14,
2017, Dr. Park, an otolaryngologist on staff at UVA Medical
Center, examined Harvey and determined that his septum was
deviated to the right, his nasal bones were flattened, he had
nasal trauma, and he had right-sided nasal obstruction.
Harvey argues that Dr. Park was “deliberately
indifferent to [his] very serious medical needs by refusing
medical intervention” on August 14, 2017. In an
amendment to his complaint, Harvey alleges that his right
nasal passage is now completely inactive and his breathing is
“severely restricted.” Compl. Dkt. No. 1, 2, 6-11;
Informal Compl., Dkt. No. 1-1, 6; Am. Compl., Dkt. No. 97, 3.
Park moved to dismiss the claims against him, arguing that
Harvey has failed to allege that Dr. Park was deliberately
indifferent or that Harvey suffered any resulting injury.
Mot. D., Dkt. No. 60.
response to the motion to dismiss, Harvey states that he
needed and still “severely needs” further medical
care to “properly medically correct the injuries he
suffered from both of [the] brutal assaults” on him.
Although he states that Dr. Park “outright refus[ed] to
provide [Harvey] with ANY medical intervention, ” he
also states that Dr. Park “personally” gave
Harvey a “full examination.” Dr. Park observed
that because Harvey's fractures had been sustained two
and half weeks prior, the frontal and nasal bones had already
set and could not be reduced without breaking them again. Dr.
Park determined that any treatment he could provide to Harvey
would be considered a “cosmetic procedure, ” for
which “VDOC insurance” would not pay. Dr. Park
recommended “no medical intervention or surgery at
[that] time.” He advised Harvey that if his right-sided
nasal obstruction became more severe, he should follow-up
with the prison physician and that he would see Harvey back
in the clinic “as needed.” Resp. Opp., Dkt. No.
89, 4-8; Med. Rec, Dkt. No. 89-1, 1-2.
Motion to Dismiss Standard
Park filed a motion to dismiss. A motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of a complaint to determine whether the plaintiff
has properly stated a claim; “it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In
considering a Rule 12(b)(6) motion, a court must accept all
factual allegations in the complaint as true and must draw
all reasonable inferences in favor of the plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Legal
conclusions in the guise of factual allegations, however, are
not entitled to a presumption of truth. Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
a complaint “does not need detailed factual
allegations, a plaintiffs obligation to provide the grounds
of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of a cause of
action's elements will not do.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citations and
quotations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level, ” id., with all the allegations in the
complaint taken as true and all reasonable inferences drawn
in the plaintiffs favor, Chao v. Rivendell Woods,
Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6)
does “not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. Consequently, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556). A claim is plausible if
the complaint contains “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged, ” and if there is
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. at 678.
order to allow for the development of a potentially
meritorious claim, federal courts have an obligation to
construe pro se pleadings liberally. See, e.g.,
Boag v. MacDougall, 454 U.S. 364, 365 (1982). Moreover,
“[l]iberal construction of the pleadings is
particularly appropriate where . . . there is a pro
se complaint raising civil rights issues.”
Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009).
Nevertheless, “[principles requiring generous
construction of pro se complaints are not . . .
without limits.” Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985). “A pro se
plaintiff still must allege facts that state a cause of
action.” Bracey v. Buchanan, 55 F.Supp.2d 416,
421 (E.D. Va. 1999).
deciding a motion to dismiss, attachments to the complaint
may be considered. See Butters v. James Madison
Univ., 145 F.Supp.3d 610, 616 (W.D. Va. 2015) (citing
Sec'y of State for Defence v. Trimble Navigation,
Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); see
also Fed. R. Civ. P. 10(c) (2018). Here, Harvey attached
grievance records to his complaint and attached medical
records to his opposition to Dr. Park's motion. In the
event of conflict between the bare allegations of the
complaint and any attached exhibit, the exhibit prevails.
Fayetteville Investors v. Commercial Builders, Inc.,
936 F.2d 1462, 1465 (4th Cir. 1991).
Deliberate Indifference to a Serious Medical Need
state a cognizable Eighth Amendment claim for denial of
medical care, a plaintiff must allege facts sufficient to
demonstrate that an official was deliberately indifferent to
a serious medical need. Estelle v. Gamble, 429 U.S.
97, 105 (1976); Conner v. Donnelly,42 F.3d 220, 222
(4th Cir. 1994); Staples v. Va. Dep't of Corr.,904 F.Supp. 487, 492 (E.D. Va. 1995). A prison official is
“deliberately indifferent” only if he or she
“knows of and disregards an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837. A
claim concerning a disagreement between an inmate and medical
personnel regarding diagnosis or course of treatment does not
implicate the Eighth Amendment. Wright v. Collins,766 F.2d 841, 849 (4th Cir. 1985); Russell v.
Sheffer,528 F.2d 318, 319 (4th Cir. 1975); Harris
v. Murray,761 F.Supp. 409, 414 (E.D. Va. 1990). In
fact, “many acts or omissions that would constitute
medical malpractice will not rise to the level of deliberate
indifference.” Jackson v. Lightsey, 775 F.3d
170, 178 (4th Cir. 2014). An “error of judgment”
on the part of prison medical staff or “inadvertent
failure to provide adequate medical care, ” while
perhaps sufficient to support an action for malpractice, does
not constitute a constitutional deprivation redressable under
§ 1983. Boyce v. Alizaduh,595 F.2d 948, 953
(4th Cir. 1979), abrogated on other grounds by Neitzke v.
Williams,490 U.S. 319 (1989). Mere negligence does not
constitute deliberate indifference; rather, a prison official
must both be aware of the facts from which the inference