Ronald L. Cosner v. B. DODT, Nurse Practitioner at Powhatan Medical Unit

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8104
RONALD L. COSNER,
Plaintiff – Appellant,
v.
B. DODT, Nurse Practitioner at Powhatan Medical Unit;
RONALD TONEY, Doctor and Medical Director in the P.M.U.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cv-01366-LMB-TRJ)
Submitted: April 19, 2013 Decided: April 30, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ronald L. Cosner, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ronald L. Cosner appeals from the district court’s
order dismissing with prejudice his 42 U.S.C. § 1983 (2006) suit
pursuant to 28 U.S.C. § 1915A (2006). Cosner’s complaint raised
a claim of deliberate indifference to his serious medical needs,
based upon the Defendants’ treatment of his condition following
his attempted suicide by swallowing a sharp, plastic knife.
Because we conclude that Cosner may be able to state a plausible
claim, we vacate and remand for further proceedings.
The statutory screening provision of the PLRA directs
a district court to conduct an early review of any action filed
by a prisoner against “a governmental entity or officer or
employee of a governmental entity” and to dismiss any claims
that are “frivolous, malicious, or fail[] to state a claim upon
which relief may be granted.” 28 U.S.C. § 1915A(b)(1). We
review de novo a district court’s § 1915A dismissal for failure
to state a claim. Slade v. Hampton Rds. Reg’l Jail, 407 F.3d
243, 248 (4th Cir. 2005). A complaint should not be dismissed
for failure to state a claim unless “after accepting all
well-pleaded allegations in the plaintiff’s complaint as true
and drawing all reasonable factual inferences from those facts
in the plaintiff's favor, it appears certain that the plaintiff
cannot prove any set of facts in support of his claim entitling
him to relief.” Id. (quoting Edwards v. City of Goldsboro, 178

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F.3d 231, 244 (4th Cir. 1999)). While a pro se litigant’s
pleadings are liberally construed, Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), a pro se complaint must still
contain sufficient facts “to raise a right to relief above the
speculative level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007).
Cosner presents more facts in his informal brief than
he did in his complaint, and he asserts that the district court
should have given him an opportunity to amend his complaint.
While the district court need not inform the plaintiff that he
should amend his complaint, where no opportunity is given to
amend the complaint, the dismissal should generally be without
prejudice. See Arnett v. Webster, 658 F.3d 742, 756 (7th Cir.
2011; see also Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.
1965) (per curiam) (holding that, if a pro se complaint contains
a potentially cognizable claim, the plaintiff should be given an
opportunity to particularize his allegations). Here, the
district court dismissed the complaint with prejudice and
without giving Cosner an opportunity to clarify his claim.
A prison official unnecessarily and wantonly inflicts
pain proscribed by the Eighth Amendment by acting with
deliberate indifference to a prisoner’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order for a

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prisoner to prevail on such a claim of medical mistreatment
under § 1983, he “must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical
needs.” Id. at 106. First, the prisoner must show objectively
that the deprivation suffered or the injury inflicted was
serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second,
the prisoner must satisfy the subjective component of such a
claim by a showing of deliberate indifference by prison
officials. This “entails something more than mere negligence”
but does not require actual purposeful intent. Rish v. Johnson,
131 F.3d 1092, 1096 (4 th Cir. 1997). “It requires that a prison
official actually know of and disregard an objectively serious
condition, medical need, or risk of harm.” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Here, the district court held that Cosner satisfied
the first prong by showing a serious medical need but concluded
that he had failed to allege that Defendants were deliberately
indifferent. Liberally construing Cosner’s complaint, Cosner
alleged that he attempted to commit suicide by swallowing a
needle-sharp, five inch plastic knife. Defendant Dodt treated
this condition by checking Cosner’s vital signs and ordering
x-rays that were conducted three days later. Despite Cosner’s
request, Dodt declined to send Cosner to the hospital, even
though she knew that an endoscopy would have been a safe and

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effective treatment and that a delay in treatment would render
an endoscopy unavailable.
When the x-rays did not show the presence of a knife,
Cosner requested a CT scan which would have picked up the
presence of the plastic knife that the x-ray missed. Dodt and
Defendant Toney refused to send Cosner to the hospital because
they did not want to give in to his demands, even while they
recognized that an endoscopy “could very well work.” As a
result, Cosner was not taken to the hospital until he started to
bleed, five days after ingesting the knife. He suffered extreme
pain from the delay in treatment, as well as transfusions and
multiple hospital stays that could have been avoided if he had
been given a CT scan and endoscopy when he first reported his
situation.
We find that these allegations, when liberally
construed with all inferences in his favor, state a potentially
cognizable claim for deliberate indifference to medical needs.
See Farmer, 511 U.S. at 842 (holding that deliberate
indifference standard is satisfied where an official “acted or
failed to act despite his knowledge of a substantial risk of
serious harm.”). It is at least plausible that an examination
and x-rays are constitutionally inadequate treatment for the
suspected swallowing of a plastic knife. See De’lonta v.
Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (holding that, even

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if Defendants provided “some” treatment, it does not necessarily
follow that Defendants provided “constitutionally adequate
treatment”); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005)
(noting that continued treatment that is known to be ineffective
can constitute an Eighth Amendment violation).
Moreover, we need not decide whether these allegations
alone are sufficient, as consideration of the allegations in
Cosner’s informal brief further strengthens his complaint. Had
Cosner’s complaint been dismissed without prejudice, he would
have been able to construct a new complaint with these facts,
and perhaps others. The additional allegations are as follows:
(1) Toney denied Cosner treatment in order to teach him a
lesson, (2) Toney and Dodt were aware of Cosner’s history of
swallowing dangerous objects, (3) Cosner had no history of lying
about his suicide attempts, and (4) x-rays would not show the
presence of a plastic item. When liberally construed, these
allegations adequately assert that Defendants were deliberately
indifferent by responding to a suspected knife swallowing by
ordering x-rays that were unlikely to detect the presence of the
knife and by refusing further treatment, not because of a
medical judgment, but rather to punish and deter Cosner.
Based on the foregoing, we find that Cosner’s claim
was improperly dismissed with prejudice. We therefore vacate
and remand to permit amendments to the complaint and for further

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proceedings. We deny Cosner’s motion for appointment of
counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED

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