Bristow v. Dulaney et al

Filing 36

MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on 9/21/2016. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
STEVEN BRISTOW,
Plaintiff,
v.
DR. ROSE DULANEY,
Defendant.

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Civil Action No. 7:15-CV-316

MEMORANDUM OPINION
Steven Bristow (“Bristow”), a prisoner proceeding pro se, filed a complaint against Dr.
Rose Dulaney (“Dr. Dulaney”), a physician at Wallen’s Ridge State Prison, pursuant to 42
U.S.C. § 1983, alleging that Dr. Dulaney was deliberately indifferent to his serious medical
needs in violation of his Eighth Amendment rights. Dr. Dulaney filed a motion to dismiss, which
I DENY.
ALLEGATIONS
Bristow alleges in his Complaint (Dkt. No. 1) and Verified Statement (Dkt. No. 3) that on
February 13, 2014, he filed a request for medical services complaining that he had blood clots in
his stool, experienced rectal swelling, had both weight and blood loss, and requested medical
staff to perform a blood test. Nurse Roberts responded that day, informing Bristow that he had
been placed on sick call. Sometime thereafter, Bristow saw Dr. Dulaney who ordered a blood
test, the results of which were given to Bristow upon his request. In May 2014, Dr. Dulaney
performed a rectal exam and determined that Bristow required surgery to treat his hemorrhoids.
Surgery was originally scheduled with Dr. Thongdang Banchuin, but Bristow received a
letter on August 4, 2014 advising that Dr. Banchuin was retiring from Wellmont Medical
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Associates and that the office staff would reschedule any appointments with another qualified
physician. Bristow was again placed on sick call.
On August 26, 2014, Bristow underwent what he terms a “colonoscopy procedure.”1
While in medical for further evaluation after the procedure, Bristow told Dr. Dulaney that all
three rubber bands from the surgery had come out. Bristow claims this rendered the surgery a
failure by any standard, but he was still released from medical and put on sick call. On
September 1, 2014, Bristow filed an Offender Request for Information complaining that he
continued to experience swelling and bloody stools. Nurse Collin responded two days later and
told Bristow that he had been placed on sick call.
On March 25, 2015, Bristow filed an informal complaint about his pain and general
health. He again described his symptoms but added that he felt dizzy and light headed due to the
amount of blood he lost each time he used the bathroom. The next day, medical responded and
told him he had been placed on sick call and would be referred to a doctor, if needed. On March
30, 2015, Dr. Dulaney examined Bristow and ordered lab work to be done the next day.
In early April, Bristow filed a regular grievance, again complaining that his surgery was a
failure and that he continued to have swelling, bleeding, and severe pain from his rectum. He
claimed that it was uncomfortable to walk or sit and requested another corrective procedure. In a
Level I Offender Grievance Response, the Health Services Director (“the Director”) determined
Bristow’s grievance to be unfounded. The Director noted that Bristow was scheduled for an
exam and that Dr. Dulaney would determine a plan of care based on her exam and results of the
lab tests. The results of blood work taken on April 18 showed that Bristow’s blood level had
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While it is unclear what type of procedure Bristow underwent, his mention of rubber bands indicates that
a rubber band ligation procedure was performed. This common procedure, also called hemorrhoid banding, allows a
physician to place a rubber band around the base of the hemorrhoid, restricting blood flow and causing the
hemorrhoid to wilt and fall off within a week or two. The procedure generally takes less than ten minutes and, if
successful, patients experience very minimal, if any, discomfort.

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dropped from 13 to 7, but Bristow does not explain the significance of these values. Bristow was
taken to the hospital for a blood transfusion, and on April 25, 2015, underwent corrective
surgery.2
After the surgery, Bristow appealed the Director’s Level I response claiming that “the
lengthy time frame” from when he informed Dr. Dulaney of his failed surgery to when he had
corrective surgery was “frightening.” He expressed fear that if the second procedure did not
work, he might become anemic or die. He also sought transfer to Sussex-I State Prison and stated
that he was still in pain, had no energy, and feared for his health. In a Level II Offender
Grievance Response, the Director again determined his grievance to be unfounded. The Director
stated that Bristow’s condition was “being treated and monitored appropriately at this
institution.” According to the Director, all administrative remedies were exhausted at this point.
Bristow asserts that the failure to arrange for corrective surgery sooner constituted deliberate
indifference to a serious medical need.
STANDARD OF REVIEW
1. Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of a complaint,” and to
survive such a motion, the complaint must give the defendant “fair notice of what the…claim is
and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal
quotation marks and citations omitted). I must accept Bristow’s nonconclusory factual
allegations as true at the motion to dismiss stage. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
572 (2007); Aziz v. Alcolac. Inc., 658 F.3d 388, 391 (4th Cir. 2011) (when ruling on 12(b)(6)

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While it is not clear what the corrective surgery entailed, it is implied that it was another rubber band
ligation procedure.

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motion, the court assumes “all well-pleaded, nonconclusory factual allegations in the complaint
to be true”).
Plaintiff must allege facts which “raise a right to relief above the speculative level,” and
the complaint must contain “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555, 570. A plaintiff’s “obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions…” Id. at 555 (internal alterations
and quotations omitted). Thus, neither “a formulaic recitation of the elements of a cause of
action, id., nor “naked assertions devoid of further factual enhancements” will suffice. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal alterations and quotation marks omitted). “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.” Id. The factual
allegations must “permit the court to infer more than the mere possibility of misconduct” based
upon its “judicial experience and common sense.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187,
190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 678), aff’d sub nom, Coleman v. Ct. of Appeals
of Md., 132 S. Ct. 1327 (2012).
Pro se complaints are held to a less stringent standard than those drafted by attorneys.
See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged
with liberally construing a complaint filed by a pro se litigant to allow the development of a
potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9, 101 (1980). The requirement of
liberal construction, however, does not mean that the court can ignore a clear failure in the
pleading to allege sufficient facts supporting a claim cognizable in a federal district court.
See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

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2. Deliberate Indifference
To succeed on his Eighth Amendment claim for the delay of medical care, Bristow must
sufficiently plead that Dr. Dulaney was deliberately indifferent to a serious medical need. Estelle
v. Gamble, 429 U.S.97, 105 (1976); Gary v. Wang, 7:14 CV 00103, 2014 WL 1276906, at *1
(W.D. Va. March 20, 2015). A constitutional violation in this context involves both an objective
and a subjective component. The objective component is met if the deprivation is “sufficiently
serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need that is sufficiently
serious to give rise to a constitutional claim involves a condition that places the inmate at a
substantial risk of serious harm, such as loss of life or permanent disability, or a condition for
which lack of treatment perpetuates severe pain. Sosebee v. Murphy, 797 F.2d 179, 181–83 (4th
Cir. 1986). While there is no clear definition of what constitutes a serious medical need, “the
Eighth Amendment embraces the treatment of medical conditions which may cause future health
problems” as indicative of a serious medical need. Harden v. Green, 27 Fed. App’x 173, 177 (4th
Cir. 2001) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).
The subjective component is met if a prison official is “deliberately indifferent” to that
serious medical need. Deliberate indifference is a very high standard. Grayson v. Peed, 195 F.3d
692, 695 (4th Cir. 1999). It requires a state actor to have been personally aware of facts
indicating a substantial risk of serious harm, and the actor must have actually recognized the
existence of such a risk. Farmer, 511 U.S. at 838; Estelle, 429 U.S. at 104. “Deliberate
indifference may be demonstrated by either actual intent or reckless disregard.” Miltier v. Beorn,
896 F.2d 848, 851 (4th Cir. 1990). “A defendant acts recklessly by disregarding a substantial risk
of danger that is either known to the defendant or which would be apparent to a reasonable
person in the defendant’s position.” Miltier, 896 F.2d at 851–52. A health care provider may be

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deliberately indifferent when the treatment provided is so grossly incompetent, inadequate, or
excessive as to shock the conscience or when it is intolerable to fundamental fairness. Id.
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); Carter
v. Fluvanna Correctional Center for Women, 7:03 CV 00286, 2003 WL 23312789, at *2 (W.D.
Va. April 28, 2003) (“[A] disagreement between patient and medical staff…over the required
course of medical treatment states at most a claim that the defendants have negligently
misdiagnosed the problem or have negligently decided on an insufficient treatment for it.”).
Additionally, inadequate medical treatment caused by accident or inadvertence is not “an
unnecessary and wanton infliction of pain” and thus “does not state a valid claim of medical
treatment under the Eighth Amendment.” Estelle, 429 U.S. at 105–06.
A significant delay in the treatment of a serious medical condition may, in the proper
circumstances, indicate an Eighth Amendment violation. See Id., at 104–05 (holding that
deliberate indifference may be demonstrated by intentionally denying or delaying access to
medical care). However, an Eighth Amendment violation only occurs if the delay “results in
some substantial harm to the patient.” Webb v. Hamidullah, 281 F. App’x 159, 166 (4th Cir.
2008) (unpublished) (cited more than 150 times by courts in the Fourth Circuit).
ANALYSIS
Bristow asserts a single § 1983 claim, that he alleges arose through three separate time
periods: (1) February 13, 2014 through May 2014 – the time which expired before Dr. Dulaney
performed a rectal examination; (2) May 2014 until August 2014 – the delay in scheduling

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Bristow promptly for surgery; and (3) the eight month delay after the initial procedure before Dr.
Dulaney scheduled the corrective surgery.
1. Serious Medical Need
Bristow sufficiently alleged the objective component that his hemorrhoids constituted a
serious medical need. He stated that he had blood clots in his stool, lost weight as a result of a
decreased appetite, felt dizzy to the point where he thought he might pass out, felt nauseous and
fatigued, and experienced swelling and severe throbbing pain in his rectum. Additionally,
Bristow’s condition required medical treatment, including two surgical procedures and a blood
transfusion. See Malik v. Ozmint, 2008 WL 701517, at *4 (D.S.C. Feb. 13, 2008) (holding that
plaintiff’s hemorrhoids and constipation constituted a serious medical need because they caused
him substantial pain and discomfort and required medical treatment); but see Hopkins v. Brrja
Medical Services, 2012 WL 6677670, at *2 (W.D. Va. Dec. 21, 2012) (finding that plaintiff had
not established that his hemorrhoids were a serious medical need because he only alleged that he
bled when defecating but did not note any discomfort or pain). Bristow has alleged sufficient
facts regarding the objective component of his deliberate indifference claims.
2. Deliberate Indifference
Bristow sets out in his complaint that from February 2014 until his second surgery in
April 2015 he consistently had pain, blood clots in his stool and rectal bleeding. His condition
was severe enough that he made numerous complaints to medical staff. Certain delays may be
inevitable in the prison setting in getting medical treatment for non-emergency conditions, and
indeed, Bristow was placed on sick call to address his medical concerns. Here, however, Bristow
alleges that had severe bleeding while he waited almost 90 days to have Dr. Dulaney examine
him, that he was not placed in line for surgery promptly and despite knowing that the first

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surgical procedure was unsuccessful, it took eight months before he had his second surgery.
Bristow alleges that he suffered pain and humiliation during this time and that on one occasion
he was taken to the hospital for a blood transfusion.
At the motion to dismiss stage, Bristow has alleged sufficient facts to establish a § 1983
claim. See Johnson v. Fields, 616 Fed. App’x 599, 601 (4th Cir. 2015) (citing White by White v.
Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (“A claim of deliberate indifference…implies at a
minimum that defendants were plainly placed on notice of a danger and chose to ignore the
danger notwithstanding notice.”)); see also Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009)
(“[M]ere delay or interference can be sufficient to constitute a violation of the Eighth
Amendment.”). A more complete record, whether through a motion for summary judgment or at
trial, may well yield a different result, and this opinion does not find that Dr. Dulaney violated
Bristow’s constitutional rights. For now, however, this claim will go forward.
CONCLUSION
For the foregoing reasons, I deny Dr. Dulaney’s motion to dismiss (Dkt. No. 26).

Entered: September 21, 2016

Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge

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