United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
Rogers, Jr., a Virginia inmate proceeding pro se,
commenced this action pursuant to 42 U.S.C. § 1983,
alleging that the defendants failed to protect him from an
assault by another inmate and delayed subsequent medical
treatment. Defendants filed motions to dismiss and the matter
is ripe for disposition. After reviewing the pleadings, the
court grants defendants' motions to dismiss.
alleges that on November 11, 2018, while housed at Green Rock
Correctional Center (“Green Rock”), he was
assaulted by another inmate for forty-five minutes without
intervention by a correctional officer. As a result of the
assault, Rogers suffered a fractured eye socket and loss of
part of his ear. After the assault, Rogers was questioned by
Green Rock staff for one hour and fifteen minutes before he
was taken to a medical center for treatment. Rogers alleges
that he was taken to a hospital for surgery two days after
the assault and the doctor told him that he could have saved
Rogers' ear if Rogers had been brought to the hospital
sooner. Rogers states that he received twenty-two stiches in
his ear and a titanium implant in his eye socket. Rogers
complains that correctional officers failed to protect him
from the assault and staff delayed his medical treatment for
the injuries he sustained. Rogers brings this action against
Warden Davis, Major Northup, Captain Zawhorodny, Lieutenant
Williams, Sergeant Hiatt, Dr. Wang, and nurses Harris, Ganey,
support of his complaint, Rogers submits institutional
medical records which begin on the date of the assault. The
records reflect that the medical department was called to
Rogers' housing unit for a medical emergency and, upon
arriving, met Rogers and Sgt. Hiatt leaving the building.
Rogers reported to medical staff that he had cut his ear
while shaving his head. Medical records indicate that a
“large portion” of his right ear had been
“sliced off” and that his eye was swollen shut.
Bandages and an ice pack were applied and Dr. Wang was called
and apprised of the incident. Dr. Wang approved Rogers'
transport to the Gretna Emergency Room, and Rogers'
housing unit was locked down during an investigation of the
incident. Staff at the Gretna Emergency Room notified Green
Rock staff that Rogers had a fractured eye socket and that
his ear could not be reattached, that they had given him two
medications, and that they had scheduled an appointment for
Rogers with a plastic surgeon in the morning. Rogers returned
to Green Rock from the emergency room that night and the
medical records note that his eye was swollen shut with
bruising, an ice pack was given to him, his dressing on his
eye socket was changed multiple times, and he did not
complain of pain. That night, at almost midnight, Nurse
Harris left a message for Dr. Wang to call Green Rock. Nurse
Cobbs approved Rogers' offsite medical appointment in
Lynchburg, scheduled for 8:00 am the next morning. During the
night, Rogers' dressing on his eye was changed and Rogers
indicated that he was beginning to experience pain and
weakness. Rogers was given Tylenol. Early the next morning,
Nurse Harris noted that Rogers' dressing on his ear was
clean and dry, that he did not complain of pain, that he
stated he was feeling better, that his color was back to
normal, and that his morning medications were given to him.
Shortly after, Dr. Wang called Green Rock and was given an
update. Dr. Wang prescribed Amoxicillin and Tylenol, and
ordered that Rogers be sent to the plastic surgeon
appointment that morning, as scheduled by the Gretna
Emergency Room staff. Rogers was transported to the Lynchburg
Hospital for his scheduled appointment. Green Rock's
medical department was notified that Rogers would receive
surgery the next day, on November 13, 2018. Rogers returned
to Green Rock in the evening of November 13, 2018, and the
medical department noted that he had bruising and swelling,
twenty-two stitches in his ear, no signs or symptoms of
infections, and he was given an ice pack. Dr. Wang was
notified that Rogers had returned to Green Rock and of his
current condition. The medical records continue through
November 26, 2018; however, Rogers' claims about medical
treatment only concern the time period between the assault
and his surgery.
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.
a complaint “does not need detailed factual
allegations, a plaintiff's 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 plaintiff's 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, “[p]rinciples 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).
alleges that no correctional officer intervened while he was
attacked by another inmate for forty-five minutes. To the
extent Rogers is arguing that the defendants failed to
protect him, his allegations against the named defendants
fail to state a cognizable claim. An inmate has an Eighth
Amendment right to be protected from violence perpetrated by
other prisoners. Danser v. Stansberry, 772 F.3d 340,
346 (4th Cir. 2014); see Farmer v. Brennan, 511 U.S.
825, 833-35 (1994). To state a claim for damages against a
prison official for failure to protect from inmate violence,
an inmate must plead facts that show (1) he was incarcerated
under conditions posing a substantial risk of serious harm,
(2) the official was deliberately indifferent to that
substantial risk to his health and safety, and (3) the
official's deliberate indifference caused him harm.
Farmer, 511 U.S. at 834. Rogers fails to adequately
state a failure to protect claim against any of the named
defendants with any specificity. Rogers does not allege that
any of the defendants were present during the assault or even
aware that it was occurring. He also does not allege that any
of the defendants knew of a “pervasive and unreasonable
risk to harm” to Rogers. See Orpiano v.
Johnson, 632 F.2d. 1096, 1101 (4th Cir. 1980).
Accordingly, the court concludes that Rogers has not stated a
failure to protect claim against the named defendants and,
thus will grant defendants' motions to dismiss this
alleges that staff delayed medical treatment for his injuries
sustained during the assault. To 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 v. Brennan, 511 U.S.
825, 837 (U.S. 1994). 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 could be drawn that a
substantial risk of harm exists and must draw the inference.
Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir.
1998); see also Farmer, 511 U.S. at 837. The prison
official's conduct must be so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness. Militier v.
Beorn, 896 F.2d 848, 851 (4th Cir. 1990).
in medical treatment may constitute deliberate indifference.
See Smith v. Smith, 589 F.3d 736, 739 (4th Cir.
2009); Estelle, 429 U.S. at 104 (deliberate
indifference may manifest by “prison guards 
intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once
prescribed.”). In such cases, a plaintiff must show not
only that his medical need was objectively serious, but also
that the delay in providing medical care caused him to suffer
“substantial harm.” See Webb v.
Hamidullah, 281 Fed.Appx. 159, 166 (4th Cir. 2008).
“The substantial harm requirement may be satisfied by
lifelong handicap, permanent loss, or considerable