                              UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                               4
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

                                              5
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

                                        6
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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