UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6212
JASON W. KING,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, et. al.; FEDERAL BUREAU OF
PRISONS, et. al.; MICHAEL B. MUKASEY, et. al.; MONTY
CHRISTY, Correctional Counselor; MICHAEL MIDGLEY,
Correctional Counselor; SAUCUE MA' AT, Unit Manager; ERIC
BROOKS, Case Manager; SUE ENGLES, Associate Warden of
Programs; T.R. CRAIG, Warden; DR. DAVID AIAKMAN, Dentist;
DR. S. HUGHES, DDS/CDO; HATTIE SMALLS, Assistant Warden; DR.
MCDANIELS, Psychologist; F.C.I. BECKLEY, All being sued in
their individual and Official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:09-cv-00068)
Argued: May 14, 2013 Decided: July 31, 2013
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
majority opinion, in which Judge Wilkinson joined. Judge
Gregory wrote a dissenting opinion.
ARGUED: Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. John Fulton Gianola, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellees. ON BRIEF: Lawrence D. Rosenberg, JONES DAY,
Washington, D.C., for Appellant. R. Booth Goodwin II, United
States Attorney, Stephen M. Horn, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Jason King brings this action pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), 1 claiming that staff members at F.C.I. Beckley, the
Federal Bureau of Prisons (BOP) institution in West Virginia
where King was then incarcerated, violated his Eighth Amendment
rights by acting with deliberate indifference to his serious
medical needs. Following the recommendation of a magistrate
judge, the district court dismissed King’s complaint under 28
U.S.C. § 1915A for failure to state a claim. Upon our review,
we conclude that King did not plead a plausible claim that his
constitutional rights were violated. Accordingly, we affirm the
judgment of the district court.
I.
In his pro se complaint, King alleged that he was scheduled
for a mandatory dental screening at F.C.I. Beckley on May 30,
2007. When he arrived at the dental clinic, he provided his
prison identification card to dental staff and received an x-
1
Although King pleaded his claims under 42 U.S.C. § 1983,
we, like the district court, construe his allegations as
asserting Bivens claims. See 403 U.S. at 389 (permitting
damages actions against federal officials for certain
constitutional claims); see also Carlson v. Green, 446 U.S. 14
(1980) (extending Bivens to claims brought under the Eighth
Amendment).
3
ray. Thereafter, the dentist approached King with a needle and,
in response to King’s question, the dentist stated that the use
of a needle was routine. King generally alleges that he “tried
to inform [staff] that he was only there for a (first time)
examination.” Nevertheless, King received a filling in a tooth
that was previously healthy (the damaged tooth).
King alleged in his complaint that another patient, also
with the last name of King, was scheduled to have a filling
procedure that day, and the dental staff mistook King for the
other patient. The dental staff discovered the error after the
procedure was complete.
King suffered ongoing pain in the damaged tooth following
the procedure. Although King received treatment for the pain,
dental staff at F.C.I. Beckley did not perform a root canal, to
which King claims he was entitled. 2
After pursuing various grievance procedures with the BOP,
King filed a pro se complaint in the district court in January
2009. The court dismissed King’s complaint according to the
mandatory screening procedures for lawsuits filed by prisoners
2
King eventually received a root canal after he was
transferred to a new BOP facility in April 2008.
4
set forth in 28 U.S.C. § 1915A, concluding that the complaint
failed to state a claim upon which relief can be granted. 3
King timely filed a notice of appeal, and is now
represented by counsel.
II.
We review de novo the district court’s decision to dismiss
King’s complaint for failure to state a claim pursuant to 28
U.S.C. § 1915A. Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243,
248 (4th Cir. 2005). We must construe liberally a pro se
complaint, “however inartfully pleaded,” and accept as true the
factual allegations in the complaint. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); De’lonta v. Johnson, 708
F.3d 520, 522 (4th Cir. 2013).
To state a claim of cruel and unusual punishment under the
Eighth Amendment, a prisoner must allege: (1) that the
deprivation of a basic human need, as an objective matter, was
sufficiently serious; and (2) that, when viewed from a
subjective perspective, prison officials acted with a
3
The district court also held that dismissal was warranted
because King had not exhausted his administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). However, because King has not adequately pleaded a
Bivens cause of action, we do not address this alternative basis
for the court’s order of dismissal.
5
sufficiently culpable state of mind. See De’lonta, 708 F.3d at
525. To satisfy the subjective component, a prisoner must
allege that prison officials acted with “deliberate
indifference” to his serious medical need. Id.; Wilson v.
Seiter, 501 U.S. 294, 297 (1991). We consider prison officials’
culpable mental state because “only the unnecessary and wanton
infliction of pain implicates the Eighth Amendment.” Wilson,
501 U.S. at 297 (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976)) (internal quotation marks omitted) (emphasis in
original).
To constitute deliberate indifference to a serious medical
need, “the treatment [a prisoner receives] must be so grossly
incompetent, inadequate, or excessive as to shock the conscience
or to be intolerable to fundamental fairness.” Miltier v.
Beorn, 896 F.2d 848, 851 (4th Cir. 1990). Deliberate
indifference requires that a prison official “know[] of and
disregard[] an excessive risk to inmate health or safety,” that
is, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). It is well-settled, however,
that “mere negligence or malpractice does not violate the
[E]ighth [A]mendment.” Miltier, 896 F.2d at 852 (citations
omitted).
6
A.
We first address King’s contention that prison officials
acted with deliberate indifference to his serious medical need
when they operated on his healthy tooth, without confirming his
identity or determining whether he required a filling. 4 King
claims that, based on his protests, dental staff were on notice
that he was the wrong patient and that they should have
investigated further before proceeding with the filling process.
A prison official has displayed deliberate indifference if
he “refused to verify underlying facts that he strongly
suspected to be true, or declined to confirm inferences of risk
that he strongly suspected to exist.” Farmer, 511 U.S. at 843
n.8; see also Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105
(4th Cir. 1995) (“[A] prison official cannot hide behind an
excuse that he was unaware of a risk, no matter how obvious.”).
Thus, “Eighth Amendment liability requires consciousness of a
risk” on the part of prison officials. Farmer, 511 U.S. at 840.
See also White ex rel. White v. Chambliss, 112 F.3d 731, 737
(4th Cir. 1997) (deliberate indifference “implies at a minimum
4
We assume for purposes of this opinion that King has
alleged the existence of a serious medical need sufficient to
satisfy the objective component of the Eighth Amendment
standard.
7
that defendants were plainly placed on notice of a danger and
chose to ignore the danger notwithstanding the notice”).
King argues that he pleaded facts that satisfy the standard
set forth in Farmer, namely that: (1) he “tried to inform”
dental staff that he was present for an initial dental
screening; (2) dental staff did not inquire about his dental
problems when he arrived in the clinic; (3) an x-ray was taken
before the procedure, from which dental staff apparently failed
to ascertain that King did not require a filling; (4) King
questioned the dentist about the need for a needle; and (5) King
was not given a consent form to sign before the procedure was
performed.
We are troubled by the dental staff’s failure to take
common-sense steps before performing the procedure, such as
confirming through visual or x-ray inspection that King in fact
required a filling. Such efforts may well have prevented the
harm King now asserts. Nevertheless, we cannot conclude that
these failures rise to the level of deliberate indifference.
First, the prison dental staff did not entirely abdicate
their responsibility to ensure that they provided treatment to
the correct patient. The staff apparently attempted to verify
King’s identity by reviewing his prison identification card when
he arrived in the clinic. Moreover, although on appeal King
contends that he attempted to notify the staff of his identity
8
“several” times, the allegations in the complaint regarding the
extent of his protests are far less clear. King proffers only
two allegations that he protested the drilling procedure: (1)
when the dentist approached King with a needle, King “asked what
[the needle] was for”; and (2) King “tried to inform [the
dentist and a dental assistant] that [King] was only there for a
(first time) examination.”
Moreover, in contrast to King’s current contention that he
vigorously protested the case of mistaken identity, the
allegations in the complaint indicate that King himself was
unsure of the mistake until after the procedure was complete.
Even construing the complaint liberally in King’s favor, we
cannot ignore his own assertions that the dental staff should
have asked questions alerting King that he was the wrong
patient, and that after his tooth was filled and dental staff
realized the error, “the mistake was then brought to [King’s]
attention.”
In sum, the facts pleaded in the complaint do not indicate
that prison officials “refused to verify underlying facts that
[they] strongly suspected to be true,” see Farmer, 511 U.S. at
843 n.8, but rather suggest at most that prison officials were
9
negligent in failing to confirm King’s identity. 5 We have
explained that “[d]eliberate indifference is a very high
standard—a showing of mere negligence will not meet it.” Young
v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001)
(quoting Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)).
King must meet this rigorous standard because the Constitution’s
protection of rights does not provide a remedy for mere errors
in judgment, “even though such errors may have unfortunate
consequences.” Grayson, 195 F.3d at 695-96. For these reasons,
we conclude that the district court properly dismissed King’s
claim that prison officials acted with deliberate indifference
when they subjected him to an unneeded dental procedure.
B.
We next turn to consider King’s claim that his Eighth
Amendment rights were violated when prison officials “refused to
alter their diagnosis and course of treatment, despite [King’s]
5
We agree with King’s argument that the district court
should not have focused on King’s use of the word “mistake”
throughout his complaint to refer to the prison officials’
error. The word “mistake” in this context is a legal
conclusion, not a fact that we must assume is true in evaluating
whether a plaintiff has stated a claim for relief. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). In light of our duty to
construe pro se complaints liberally, we disagree with the
district court’s conclusion that, through this word choice, King
intended to allege negligence rather than deliberate
indifference. Thus, we do not consider King’s use of the word
“mistake” in analyzing the sufficiency of his complaint.
10
complaints of continued pain” following the erroneous drilling
procedure. King urges that, although he received some treatment
for the damaged tooth, including pain medication and
antibiotics, prison officials still acted with deliberate
indifference by failing to perform a root canal. We disagree
with King’s argument.
A prisoner can establish a claim of deliberate indifference
“by a showing of grossly inadequate care as well as by a
decision to take an easier but less efficacious course of
treatment.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999). This standard can be satisfied “when the need for
treatment is obvious” yet prison officials merely provide
“medical care which is so cursory as to amount to no treatment
at all.” Id. We thus have explained that when a prisoner is
provided “some treatment” appropriate for his condition, this
fact does not necessarily satisfy the Eighth Amendment’s
requirement of “constitutionally adequate treatment.” De’lonta,
708 F.3d at 526 (emphasis in original). Nevertheless, prisoners
do not have a constitutional right “to the treatment of his or
her choice,” id., and “[m]ere disagreement as to the proper
medical treatment” does not constitute deliberate indifference.
Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
Accordingly, we must evaluate whether the treatment King
received in advance of his root canal was so “grossly
11
inadequate” that it amounted to cruel and unusual punishment
under the Eighth Amendment.
Following the erroneous drilling procedure, King repeatedly
complained of pain and was evaluated by prison dental staff nine
times over a period of almost six months. During those visits,
he received several x-rays, which showed no problems with the
damaged tooth but decay in a neighboring tooth, for which King
declined treatment. Also in response to King’s reports of pain,
dental staff adjusted his occlusion, and provided numerous
prescriptions for pain medication as well as antibiotics. When
King continued to experience pain, dental staff offered to
extract the damaged tooth, which offer King refused. King
ultimately received a root canal on the damaged tooth after he
arrived at a new BOP facility. Upon a careful review of the
allegations in King’s complaint, as well as his arguments on
appeal, we conclude that these allegations do not state a claim
for deliberate indifference.
In arguing that the treatment he received at F.C.I. Beckley
was constitutionally inadequate, King relies largely on his
contention that he eventually received an “urgent” root canal on
the damaged tooth. Even assuming that a root canal was a proper
treatment for his condition and was required at the time of his
transfer in April 2008, these facts alone do not state a claim
of deliberate indifference. The complaint contains no factual
12
allegations indicating that the root canal was in fact
“urgently” required or that the procedure was performed on an
emergency basis. More importantly, the fact that King
eventually received a root canal does not raise a plausible
inference that the care he already had received between June and
October 2007 at F.C.I. Beckley, including the pain medication,
antibiotics, and an occlusion adjustment, was improper as
initial treatment for tooth pain, much less that prison
officials acted with deliberate indifference to his medical
needs in providing this series of treatments. Compare Loe v.
Armistead, 582 F.2d 1291, 1292-93 (4th Cir. 1978) (a prisoner’s
“obvious[ly]” broken arm was not examined by a jail physician
until eleven hours after the injury occurred, and the prisoner
was transferred to a hospital almost a full day later, despite
his repeated requests for medical care); McElligott, 182 F.3d
1257-58 (medical staff failed to investigate the cause of
extreme gastrointestinal symptoms stemming from undiagnosed
terminal colon cancer).
Instead, King’s complaint alleges that, in response to his
continued reports of pain, prison dental staff evaluated King on
numerous occasions over several months, and attempted multiple
diagnostic and treatment options, including x-rays that revealed
no problems with the damaged tooth. Although these efforts were
not ultimately successful, we cannot conclude that the
13
allegations in the complaint show more than the dental staff’s
mere negligent attention to King’s need for a root canal. 6
Accordingly, we hold that the treatment King received for his
damaged tooth was not so egregiously deficient as to constitute
cruel and unusual punishment under the Eighth Amendment. 7
III.
We are not unsympathetic to King’s plight. He was the
victim of an unfortunate case of mistaken identity that resulted
in ongoing pain. Nevertheless, relief under the Eighth
Amendment is reserved for cases of cruel and unusual punishment,
that is, egregious conduct by prison officials reflecting the
“unnecessary and wanton infliction of pain.” Wilson, 501 U.S.
6
In De’lonta, in which we held that an inmate had
adequately alleged a claim of deliberate indifference, the
prison flatly refused to provide the inmate with a surgical
procedure that was the single remaining, approved treatment for
her documented “debilitating” condition, “despite her repeated
complaints to [prison officials] alerting them to the
persistence of her symptoms and the inefficacy of her existing
treatment.” 708 F.3d at 525. Here, by contrast, prison
officials utilized a variety of diagnostic tests and treatments
in response to King’s complaints, and King ultimately received
the root canal procedure.
7
In his complaint, King also alleged that a prison mental
health counselor acted with deliberate indifference by failing
to provide King mental health services following the erroneous
dental procedure. Because King has not briefed the dismissal of
this claim, but merely references it in a cursory fashion in his
opening brief, we do not consider this claim on appeal. See
United States v. Holness, 706 F.3d 579, 592 (4th Cir. 2013).
14
at 297 (emphasis omitted). This level of culpability is not
present here. Accordingly, we affirm the judgment of the
district court.
AFFIRMED
15
GREGORY, Circuit Judge, dissenting:
The majority correctly states the high threshold for an
Eighth Amendment claim of deliberate indifference. I concur in
the judgment holding that King failed to state a claim regarding
the course of treatment after his dental visit. However,
because the facts as pled by King pertaining to the unnecessary
dental procedure meet the high threshold for deliberate
indifference, I respectfully dissent from Part II(A).
I.
As the majority explains, “[a] prison official has
displayed deliberate indifference if ‘he refused to verify
underlying facts that he strongly suspected to exist.’” Ante 7
(quoting Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994)). A
deliberate indifference claim “need not show that a prison
official acted or failed to act believing that harm actually
would befall an inmate; it is enough that the official acted or
failed to act despite his knowledge of a substantial risk of
serious harm.” Farmer, 511 U.S. at 842.
King’s statement that he was only present for a first-time
examination was unequivocal. There is no basis for filling a
tooth without first diagnosing decay. As such, King’s statement
that he was only present for a first-time examination was
tantamount to a statement that he was not there for a filling.
16
The dentist’s choice not to verify the purpose of King’s visit,
and his persistence in completing the drilling despite King’s
protest is plausible deliberate indifference. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550
U.S. 544, 570 (2007). The dentist was on notice of a
fundamental underlying fact establishing that he was about to
commit an extreme error in treatment.
The majority finds that Defendants were not deliberately
indifferent, in part, because the staff members did not entirely
“abdicate their responsibility” to verify King’s identity. Ante
8. They did in fact ask upon arrival for his identification
card. However, it is apparent the staff did not verify King’s
identity. Also, King protested after he handed over his
identification card and while seated in the dental chair. See
Giroux v. Somerset, 178 F.3d 28, 34 (1st Cir. 1999) (prison
official’s abdication of responsibility after being placed on
notice of risk to prisoner can rise to the level of deliberate
indifference). No confirmation took place at the critical point
when it mattered most that Defendants verify the purpose for
King’s visit and his identity.
Moreover, abdication of responsibility is not the only
means of establishing deliberate indifference. There can be
deliberate indifference when the defendant refuses to verify
underlying facts upon a strong suspicion of error. Farmer, 511
17
U.S. at 843 n.8. That is the claim here. King plausibly
alleges Defendants chose not to verify his identity and purpose
for his visit even after his warning to the dentist that he had
not been diagnosed with any decay that needed treatment.
The majority also points out that King only protested the
drilling twice, implying that this was not enough to put
Defendants on notice of the impending error. Ante 9. However,
the communication’s “content and manner of transmission” to
Defendants, not quantity, are essential to a determination of
the sufficiency of notice regarding the risk of harm. See Vance
v. Peters, 97 F.3d 987, 993 (7th Cir. 1996). King stated
directly to the staff that he was there for a first-time
examination, making clear the purpose of his visit and providing
sufficient notice that any other treatment could be harmful.
Likewise, the majority points out that even King was
unaware that another inmate named King was coming into the
dental office until after the erroneous filling was complete.
Ante 9. This does not diminish the sufficiency of his
complaint. Although King did not know of the other inmate, he
was clearly aware of the purpose of his visit. The fact that he
did not know about the other inmate does not change the fact
that he adequately protested the drilling.
What makes the dentist’s alleged actions blameworthy is his
“persistent conduct in the face of . . . [the] risk of []
18
injury.” See White v. Napoleon, 896 F.2d 103 (3d Cir. 1990)
(prisoner stated claim for deliberate indifference where prison
doctor continued to use medication despite being told by the
plaintiff that it had caused him injury); see also Mutcheler v.
SCI Albion CHCA Health Care, 445 F. App’x 617 (3d Cir. 2011)
(unpublished) (prisoner stated claim for deliberate indifference
where prison official continued to use latex catheter despite
being told by plaintiff about his allergy and a medical record
reflected allergic reaction history). The dentist’s actions
were not “mere errors in judgment.” Ante 10. At this stage,
there are sufficient facts to conclude the dentist was aware of
the risk of filling a healthy tooth. See Coleman v. Rahija, 114
F.3d 778, 786 (8th Cir. 1997) (“The factual determination that a
prison official had the requisite knowledge of substantial risk
may be inferred from circumstantial evidence or from the very
fact that the risk was obvious.” (citing Farmer, 511 U.S. at
842)). The risk was obvious here. Without assessing whether
the tooth was healthy, King’s question about the purpose of the
needle and his statement that he was only present for a first-
time examination are sufficient facts to make the dentist aware
of the risk posed.
King’s complaint does not lower the high standard for a
deliberate indifference claim and open the flood gates to
pleadings that would not rise to a constitutional violation.
19
This is a rare situation where King alleges his warning was
ignored which resulted in his injury. The fate of this case if
it were to go to trial is unknown. “Of course, the prisoner[]
may have insufficient evidence to show the [dentist] intended to
inflict pain or was deliberately indifferent to [his] needs.
The [dentist] may come forward with evidence to the contrary.”
White, 897 F.2d at 109. However at this stage, all we are to
determine is whether King has made a sufficient showing in the
complaint to survive dismissal for failure to state a claim.
Id. Because King met his burden, I respectfully dissent.
20