UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 (4th 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