UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6449
WILLIAM EUGENE WEBB,
Plaintiff - Appellant,
v.
JOE DRIVER, Warden; ACTING WARDEN MARTINEZ; ASSOCIATE WARDEN
ORSOLITS; FOOD SERVICE ADMINISTRATOR GREENWALL; DEBRA
BRADLEY, Supervisor of Education,
Defendants – Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:07-cv-00062-JPB-JSK)
Submitted: September 29, 2008 Decided: November 24, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
William Eugene Webb, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Eugene Webb appeals from the district court’s
order adopting the report and recommendation of the magistrate
judge and dismissing his complaint under 28 U.S.C. § 1915A
(2006) for failure to state a claim. Webb raised numerous
claims challenging his prison conditions. We find that the
district court correctly dismissed the majority of his
complaint; however, we hold that Webb’s claim that prison
officials were deliberately indifferent to his serious medical
needs regarding his hernia states a claim. Thus, we vacate and
remand in part and affirm in part.
We review de novo a district court’s dismissal
pursuant to § 1915A(b)(1) for failure to state a claim.
Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 248 (4th Cir.
2005). Allegations in the complaint are to be liberally
construed. De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.
2003). To state a claim, factual allegations must be enough to
raise a right to relief above the speculative level and have
“enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974
(2007).
Allegations that a prison’s medical care was so
deficient as to constitute deliberate indifference to
objectively serious medical needs states a constitutional claim.
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Estelle v. Gamble, 429 U.S. 97, 104 (1976). As a general
proposition, a medical need may be deemed objectively serious if
it is “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.”
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980). In order to
act with deliberate indifference, a public official must have
been personally aware of facts indicating a substantial risk of
serious harm, and the official must have actually recognized the
existence of such a risk. Farmer v. Brennan, 511 U.S. 825, 838
(1994) (“[A]n official’s failure to alleviate a significant risk
that he should have perceived but did not . . . cannot under our
cases be condemned as the infliction of punishment.”).
Regarding Webb’s hernia, this condition can be an
objectively serious medical problem. See Johnson v. Doughty,
433 F.3d 1001, 1010 (7th Cir. 2006). Webb alleges that
officials were deliberately indifferent to this serious medical
problem by failing to schedule his medically necessary hernia
surgery. Webb asserted that he was in unbearable pain due to
the delay and that his condition had deteriorated. See
Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir. 2000)
(holding that unnecessarily prolonged pain and suffering can
constitute substantial harm).
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The district court determined that, notwithstanding
Webb’s allegations of a serious medical need coupled with
extreme pain, Webb could not show deliberate indifference
because he failed to show that the surgery was medically
necessary or that the Defendants’ determination that it was not
rose to the level of a constitutional violation. See Russell v.
Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (holding that mere
disagreement between an inmate and medical staff regarding the
proper course of treatment provides no basis for relief).
However, Webb submitted documentation showing that two surgeons
had recommended surgery as far back as 2003, with one surgeon
noting that the surgery was “required.” In 2004, Webb’s then
prison doctor recommended elective surgery within six months.
Webb alleges that, when he was transferred to Hazelton in June
2004, he informed the medical staff of these recommendations.
Instead of scheduling the already-delayed surgery, the prison
officials deferred surgery on two occasions, only to grant a
high priority surgery a year after Webb was transferred, with no
indication why the surgery was now of such an urgent nature.
Webb had repeatedly complained of unbearable pain and a
deteriorating condition.
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We find these allegations sufficient to state a
constitutional claim. * Accordingly, we vacate the portion of the
district court’s order dismissing this claim and remand for
further proceedings. As to the remainder of Webb’s claims, we
find no reversible error in the district court’s judgment.
Accordingly, we affirm for the reasons stated by the district
court. Webb v. Driver, No. 3:07-cv-00062-JPB-JSK (N.D. W. Va.
Mar. 14, 2008). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
*
In Webb v. Hamidullah, No. 06-7381 (4th Cir. June 6, 2008)
(unpublished), we affirmed the district court’s grant of summary
judgment to Defendants on Webb’s claim against officials at a
different institution regarding treatment of Webb’s hernia
condition. However, this prior case, which was decided at the
summary judgment stage, is distinguishable from the instant case
for two material reasons. First, in our prior opinion, we
determined that Webb failed to support his claim of surgical
delay with evidence of resultant harm or a worsened condition.
Here, at the pleading stage, Webb has alleged that his pain is
severe and that his hernia has grown larger due to the alleged
delay in surgery. Second, after seeking and obtaining
supporting medical opinions, the physician at his prior
institution determined that a hernia operation was “elective”
surgery--a decision we found did not implicate Webb’s Eighth
Amendment rights. In this case, Webb alleges that a doctor,
examining him several years later while he was housed at
Hazelton, deemed surgery medically necessary. We conclude that
the material differences between the two cases require a
different result.
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materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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