United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
Monroe, a Virginia inmate proceeding pro se and
in forma pauper is, filed this 42 U.S.C. § 1983
action. Monroe contends that he failed to receive adequate
medical care during his incarceration in the Haynesville
Correctional Center. Monroe names Dr. Dennis Rivet, an
attending physician in the Department of Neurosurgery at VCU
Medical Center, as the sole Defendant. (ECF No. 4, at 1; ECF
No. 21, at 1.) Defendant Rivet has moved to dismiss the
Complaint. (ECF No. 20.) For the reasons stated below, the
Motion to Dismiss will be DENIED.
STANDARD FOR MOTION TO DISMISS
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, 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) (citation
omitted). In considering a motion to dismiss for failure to
state a claim, a plaintiffs well-pleaded allegations are
taken as true and the complaint is viewed in the light most
favorable to the plaintiff. Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also
Martin, 980 F.2d at 952. This principle applies only to
factual allegations, however, and "a court considering a
motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level," id.
(citation omitted), stating a claim that is "plausible
on its face," id. at 570, rather than merely
"conceivable." Id. "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."
Iqbal, 556 U.S. at 678 (citing Bell Alt.
Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim,
therefore, the plaintiff must "allege facts sufficient
to state all the elements of [his or] her claim."
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft
Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v.
United States, 289 F.3d 270, 281 (4th Cir. 2002)).
Lastly, while the Court liberally construes pro se
complaints, Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978), it does not act as the inmate's
advocate, sua sponte developing statutory and
constitutional claims the inmate failed to clearly raise on
the face of his complaint. See Brock v. Carroll, 107
F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring);
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
SUMMARY OF ALLEGATIONS
alleges the following in support of his Eighth Amendment
While incarcerated at the Haynesville Correction[al] Center,
I visited medical and began complaining about headaches and
constant dizziness. I was sent out to an outside specialist
for further observation and examination to get a better
understanding of the problem. During which time it was noted
I had a blood clot developing in my head that needed to be
removed. On 8/11/2017, the first surgery was commenced to
remove the blood clot. After this initial surgery proved to
be unsuccessful, another surgery was conducted on 9/25/17 to
eradicate the remaining blood clot. Unfortunately, this
surgery also proved to be a failure. Therefore, on 10/30/17,
the surgeon attempted to try a procedure that subjected
Plaintiff to cruel and unusual medical practices by a doctor
who [is] supposed to be competent and dexterous in the
Instead of correcting the problem of the 8/11/17 and 9/25/17
surgeries, this doctor deviated from the requisites of the
medical guide and on 10/30/17, he subjected Plaintiff to
harm. First, this doctor injected "onyx in the area of
the blood clot and continually kept Plaintiff under a
'radiation lamp'." From this subsequent surgery,
Plaintiff underwent an allergic reaction and had to be rushed
to the emergency room for further diagnosis.
After thorough evaluations, tests, and other medical
procedures, it was confirmed that Plaintiff['s] scalp
[was] perpetually burned from the "radiation lamp"
being left on too long and an acute infection had developed
from the injection of onyx. [This] now keeps Plaintiff in the
hospital for several days/weeks undergoing intense tests,
evaluation, and causing him to take heavy doses of medication
to reduce the swelling in his head. When none of this
seem[ed] to be working, Plaintiff was removed from the
hospital and placed in a medical ward at DMCC, during which
time he had to remain for the next 6 to 7 months being hooked
with a "pickline" to [ensure] none of the toxins
from the infections entered his brain. After months of going
through this "pain and suffering," on 5/11/18
another surgery was done. As a result, from the (4) four
surgeries Plaintiff underwent, he is left with a debilitating
on his head [sic] and constantly he experienc[es] dizziness
and pain... . [T]he institution is having to refer [him] time
& time again to be seen by an outside specialist, due to
this doctor's deliberate indifference to Plaintiffs
serious medical need and health.
Plaintiff now, becomes the victim of a "cruel medical
tactic the doctor used which he knew would be detrimental to
Plaintiffs initial medical treatment and health." As a
result, leaving Plaintiff with a permanent scar on his head
[and] subjecting Plaintiff to both mental pain and mental
suffering, where Plaintiff has to continually be seen by
outside physicians in order to determine the longevity
[effect] the botched surgery/surgeries will have on
Plaintiffs life and health.
(Compl. 4-5.) Monroe demands monetary damages. (Id.
STANDARD FOR AN EIGHTH AMENDMENT CLAIM
out an Eighth Amendment claim, an inmate must allege facts
that indicate "(1) that objectively the deprivation
suffered or harm inflicted was 'sufficiently
serious,' and (2) that subjectively the prison officials
acted with a 'sufficiently culpable state of
mind.'" Johnson v. Quinones,145 F.3d 164,
167 (4th Cir. 1998) (quoting Wilson v. Seiter, 501
U.S. 294, 298 (1991)). Under the objective prong, the inmate
must allege facts that suggest that the deprivation
complained of was extreme and amounted to more than the
'"routine discomfort'" that is
'"part of the penalty that criminal offenders pay
for their offenses against society.'" Strickler
v. Waters,989 F.2d 1375, 1380 n.3 (4th Cir. 1993)
(quoting Hudson v. McMillian,503 U.S. 1, 9 (1992)).
"In order to demonstrate such an extreme deprivation, a
prisoner must allege 'a serious ...