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Officials sued for delayed skin cancer treatment

Virginia Lawyers Weekly//June 22, 2023

Officials sued for delayed skin cancer treatment

Virginia Lawyers Weekly//June 22, 2023//

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Where a detainee alleged facts plausibly suggesting that medical and correctional officials had knowledge of his skin cancer, but delayed treating it or setting his dermatology appointment, his deliberate indifference claim survived their motion to dismiss.


Nicholas Tierney brings a § 1983 claim against Qing Liu, MD, a jail’s medical director, and several jail nurses and correctional officers, asserting they denied, delayed and withheld medical care while acting under color of state law in violation of his Fourteenth Amendment rights. Defendants move to dismiss the complaint.

Dr. Liu

Dr. Liu moves to dismiss Tierney’s claim for failure to allege he acted with deliberate indifference to the setting of Tierney’s dermatology appointment. He also argues that Tierney’s claim fails because he provided Tierney care and was not involved in Tierney’s medical care in any way after providing him care in July 2021.

First, Tierney has sufficiently alleged that Dr. Liu knew about Tierney’s hardened skin and prior skin cancer. And considering that Dr. Liu recognized this “could be serious,” Tierney has also sufficiently alleged that Dr. Liu understood the risk of harm to him.

Second, Tierney has alleged that Dr. Liu recognized his actions were insufficient to mitigate the risk of harm to Tierney arising from his medical needs. Dr. Lee, who examined Tierney in August 2022, explained he “generally recommends skin cancer lesions to be ‘treated immediately once diagnosed.’” Considering Dr. Lee’s recommendation, Dr. Liu might have recognized that referring Tierney to a dermatologist without any specification on when such an appointment should occur and failing to schedule a follow-up appointment with Tierney was “insufficient to mitigate the [true] risk of harm” from Tierney’s hardening skin, which likely indicated his skin cancer had returned.

Nurse defendants

Tierney has sufficiently alleged that nurses Witt and Rucker had “actual knowledge of the risk of harm to” Tierney because they personally saw and treated his wound when it had developed into a hole under his right eye. Based on these allegations, it is plausible that Witt and Rucker recognized their actions were insufficient to mitigate the risk of harm to Tierney from his wound and skin cancer. A reasonable jury could conclude that cleaning the wound and giving Tierney a band-aid was not constitutionally adequate treatment.

Defendants argue Tierney’s claim against Stanley, the jail’s nurse manager, should be dismissed because Stanley only facilitated the scheduling of Tierney’s medical appointments and did not have the expertise to know that a two-month delay between Tierney’s appointment with Dr. Liu and his dermatology appointment was too long. The court disagrees. Tierney’s allegations taken all together support a reasonable inference that Stanley knew about Tierney’s wound and prior skin cancer and recognized the risk of harm to Tierney.


Tierney sufficiently alleges that correctional officer Smith knew about his wound and the risk of harm to him. Even though Smith had knowledge of the risk of harm to Tierney, he failed to tell a medical official about his worsening condition or seek any medical treatment for him. The fact that Tierney received some medical care prior to his interactions with Smith does not change this court’s analysis. Similarly, despite having knowledge of Tierney’s wound and his cancer potentially returning, correctional officer Phelps failed to take any steps to mitigate the risk of harm to him.

Tierney, however, fails to state a claim against correctional officers Schmitt, Sears, Shaw or Kraft. Tierney “makes only collective allegations against” a group of defendants, “without identifying how” these defendants “personally interacted with [Tierney] or was responsible for the denial of his [Fourteenth] Amendment rights.” And while Sears and Schmitt operated the jail and supervised its personnel, they cannot be held liable for the alleged actions of others they oversaw.

Finally, taking all his allegations as true, Tierney has sufficiently alleged that Sprouse, Baldonado, Sykes, Hicks, Hayes, Hendricks, Wasman and Mountjoy had knowledge of Tierney’s medical needs and that they intentionally or recklessly refused him access to medical care and that his condition worsened without medical treatment.

Defendants’ motion to dismiss granted in part, denied in part.

Tierney v. Liu, Case No. 6:22-cv-00061, May 31, 2023. WDVA at Lynchburg (Moon). VLW 023-3-284. 19 pp.

VLW 023-3-284

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