William Webb v. Joe Driver

Filing 920081124

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 (2006) claims and for dismissing failure to his his complaint a under 28 U.S.C. raised find § 1915A numerous that of the his

state prison

claim.

Webb We

challenging court

conditions. the

district complaint;

correctly we

dismissed that

majority claim that

however,

hold

Webb's

prison

officials were deliberately indifferent to his serious medical needs regarding his hernia states a claim. remand in part and affirm in part. We pursuant to review de novo for a district failure to court's state dismissal a claim. Thus, we vacate and

§ 1915A(b)(1)

Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 248 (4th Cir. 2005). construed. 2003). Allegations in the complaint are to be liberally

De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.

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." (2007). Allegations deficient as to that a prison's medical care was so to Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974

constitute

deliberate

indifference

objectively serious medical needs states a constitutional claim. 2

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." In order to

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980).

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. 433 F.3d 1001, 1010 (7th Cir.

See Johnson v. Doughty, Webb alleges that

2006).

officials were deliberately indifferent to this serious medical problem by failing to schedule his medically necessary hernia surgery. the delay Webb asserted that he was in unbearable pain due to 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).

3

The Webb's extreme because

district of

court a

determined

that, need

notwithstanding coupled with

allegations pain, he Webb

serious not

medical

could to show

show the

deliberate surgery

indifference was medically

failed

that

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.

4

We

find

these

allegations

sufficient

to

state

a

constitutional claim. * district court's order

Accordingly, we vacate the portion of the dismissing this claim and remand for

further proceedings. find no reversible

As to the remainder of Webb's claims, we error in the district court's judgment.

Accordingly, we affirm for the reasons stated by the district court. Mar. 14, facts Webb v. Driver, No. 3:07-cv-00062-JPB-JSK (N.D. W. Va. 2008). legal We dispense with are oral argument because in the the

and

contentions

adequately

presented

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.

*

5

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART

6