                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-7381



WILLIAM EUGENE WEBB,

                Plaintiff - Appellant,

           v.


MATTHEW B. HAMIDULLAH, Warden; Z. R. VENDEL, M.D., Medical
Director; STEVE LABIER, Unit Manager; CHARLES GRUBBS, Unit
Manager; UNITED STATES OF AMERICA,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.   Henry F. Floyd, District Judge.
(0:05-cv-02546-HFF)


Argued:   February 1, 2008                    Decided:   June 6, 2008


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.    Judge Gregory wrote a
dissenting opinion.


ARGUED: William Harrison Baxter, II, MCGUIREWOODS, L.L.P.,
Richmond, Virginia, for Appellant. Barbara Murcier Bowens, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellees. ON BRIEF: Reginald I. Lloyd, United States Attorney,
Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     William Eugene Webb, a federal inmate, appeals from the

district   court’s   order    awarding   summary   judgment   to    several

officials of the Federal Correctional Institute in Estill, South

Carolina (“FCI-Estill”), on Webb’s Eighth Amendment claims of cruel

and unusual punishment.      See Webb v. Hamidullah, No. 0:05-cv-02546

(D.S.C. July 24, 2006) (the “Order”).1        Webb maintains that the

award of summary judgment was made erroneously, because he had

demonstrated that the Defendants were deliberately indifferent to

his medical needs, and that they had retaliated against him.2             As

explained below, we reject Webb’s contentions and affirm.



                                    I.

                                    A.

     In September 2005, Webb filed a pro se complaint against the

Defendants in the District of South Carolina, alleging that their

deliberate    indifference    to   his   medical   needs   and     acts   of



     1
      The Order is found at J.A. 651-54. (Citations to “J.A. __”
refer to the contents of the Joint Appendix filed by the parties in
this appeal.)
     2
      Webb’s constitutional claims are pursued under the authority
of Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against four Defendants (all FCI-
Estill officials), namely: Matthew B. Hamidullah, Warden; Z. R.
Vendel, M.D., Clinical Director; Steven LaBier, Unit Manager; and
Charles Grubbs, Counselor. A separate tort claim being pursued
against the United States was dismissed by the district court
without prejudice, and that dismissal is also challenged on appeal.

                                    2
retaliation violated his Eighth Amendment rights.                            In an amended

pro se complaint filed on October 6, 2005, Webb restated his

constitutional claims and alleged an additional claim under the

Federal Tort Claims Act (the “FTCA claim”).                      His claims center on

alleged         medical      care    deficiencies        related      to   (1)     a    hernia

condition, (2) left forearm problems, and (3) a foot deformity, as

well       as   retaliatory         and   medically      inappropriate        prison      work

assignments.           He sought compensatory and punitive damages, as well

as injunctive relief, such as proper medical care.

       Webb’s complaint was referred to a magistrate judge for

pretrial proceedings and, on February 3, 2006, the Defendants

sought      dismissal         or,   alternatively,        summary     judgment.          After

ordering         the    Defendants        to   submit     additional       evidence,          the

magistrate judge assessed the dispositive motion and, on June 23,

2006,       issued      his    Report      and   Recommendation.             See       Webb    v.

Hamidullah,            No.    0:05-cv-02546          (D.S.C.   June    23,     2006)      (the

“Report”).3            The Report recommended to the district court that

summary         judgment       be    awarded     to     the    Defendants        on     Webb’s

constitutional claims, and that the FTCA claim be dismissed without

prejudice.

       On July 24, 2006, the district court entered the Order giving

rise to this appeal, first ruling that Webb had failed to exhaust

his administrative remedies on the FTCA claim as it related to the


       3
        The Report is found at J.A. 610-36.

                                                 3
conduct of officials at FCI-Estill.        The court thus dismissed the

FTCA claim without prejudice.4          The Order also granted summary

judgment   to   the   Defendants   on    Webb’s   constitutional   claims,

adopting the Report of the magistrate judge.

     Webb timely noted an appeal from the district court’s rulings,

and we possess jurisdiction pursuant to 28 U.S.C. § 1291. Although

Webb initially proceeded pro se, we subsequently appointed counsel

to represent him on appeal.        Having carefully considered all of

Webb’s appellate contentions, we summarily reject the majority of

them. We conclude, however, that certain issues surrounding Webb’s

hernia-related Eighth Amendment claim are worthy of a more thorough

analysis, and we therefore dedicate the balance of this opinion to

those issues.

                                    B.

                                    1.

     Webb, who is fifty years old, is presently serving a 355-month

prison sentence, imposed on him in March 2001 in the Middle

District of North Carolina.    His medical conditions, which include

what is known as a ventral hernia, stem from several gunshot




     4
      The United States was not designated as a defendant in the
amended complaint, the Report, or the Order.    It was, however,
named as a defendant in the Judgment Order of July 25, 2006. The
Judgment Order correctly named the United States, the only proper
defendant in the FTCA claim. See 28 U.S.C. § 2674.

                                    4
wounds.5    While awaiting his initial designation to a federal

prison facility, Webb was hospitalized for hernia complications and

kidney failure.       He received emergency hernia surgery on May 10,

2001, and was transferred soon thereafter to the Springfield,

Missouri, prison medical facility.             With the exception of a few

weeks in early 2003, Webb was at Springfield until January 2004.

     In    September    2003,   a   surgical    consultant   at     Springfield

observed that scar tissue from Webb’s 2001 hernia surgery was

infected, and recommended surgical repair.                A second surgical

consultation in December 2003 revealed that Webb had “an extremely

enlarged    ventral    incisional     hernia,”     and   required    “surgical

intervention” to excise scar tissue that “inhibited and hindered

potential success for repair.”         J.A. 308.    Webb was scheduled for

such surgery on January 2, 2004, at an off-site hospital.               On the

morning of surgery, however, he refused to be transported to the

hospital, apparently due to animosity towards the correctional

officer who was to accompany him.          Webb also refused to sign a

Medical Treatment Refusal form that alerted him to the possible

consequences of foregoing surgery, including “worsening of hernia,

strangulation of hernia, bowel obstruction, death.”               Id. at 311.



     5
      In an affidavit of January 10, 2006, Dr. Vendel defines a
hernia as “the protrusion of an organ or tissue through a weak area
in the muscles or tissue that surround and contain it.” J.A. 314.
A ventral hernia occurs “on the front wall of the abdomen,”
generally resulting from the breakdown of muscles near an old
incision. Id. at 315.

                                       5
His   prison    medical     file   simply    reflects    that   Webb   “refused

surgery.”      Id. at 309.

                                       2.

      Webb was transferred from Springfield to FCI-Estill on June

16, 2004.      During a routine physical examination soon thereafter,

FCI-Estill      officials    learned    of    Webb’s    medical   conditions,

including his ventral hernia.          Prison records indicate that Webb

did not complain of chronic pain at the intake screening.               He was

initially assigned to work as a yard orderly — an assignment that

required him to pick up or sweep trash around the facility,

occasionally mow and trim grass, and sweep sidewalks.             Dr. Vendel,

the Clinical Director at FCI-Estill, oversaw the treatment of

Webb’s medical problems.

      Webb contends that, less than a week after his arrival at FCI-

Estill, he began requesting follow-up medical care and treatment

for his hernia problem, including the provision of a new abdominal

binder (or hernia belt) to control it.6                The details of Webb’s

medical condition, as documented in the FCI-Estill records, are

summarized as follows:

      •      On July 21, 2004, Webb was placed on convalescent
             status for one week.7

      6
      In Webb’s affidavit and in the medical records, the terms
“hernia belt” and “abdominal binder” appear to be used
interchangeably.
      7
      Convalescent  status,   as    defined  on   FCI-Estill   work
classification forms, refers to a “[r]ecovery period for operation,

                                       6
     •    On July 30, 2004, a consulting general surgeon
          recommended    “laparoscopic     ventral    hernia
          [surgery].” J.A. 356. According to notations in
          Webb’s medical file dated August 2, 2004, Webb was
          advised that he “needs surgery of ventral hernia,”
          and apparently requested “convalescence until
          surgery.”   Id. at 43.   Webb was placed on idle
          status for two weeks between August 20 and
          September 3, 2004.8

     •    On September 7, 2004, Webb was reassigned to work
          as a unit orderly, wiping down walls and handrails,
          with two restrictions: “no lifting over 10 lbs” and
          “no prolonged standing.” J.A. 165.

     •    At least twice in September 2004, Webb complained
          of extreme abdominal pain.9

     •    On September 24, 2004, Dr. Vendel noted that Webb
          demanded hernia surgery; that he had refused
          surgery in January 2004; that his hernia condition
          was reducible; that he had a hernia belt; and that
          “[o]ur consultant [in July 2004] recommended hernia
          repair but did not indicate that it was medically
          necessary.” J.A. 330.10 Dr. Vendel sought a second


injury, or serious illness,” during which convalescing inmates
enjoy “full institutional privileges and limited recreational
privileges, subject only to medical limitation.” J.A. 163.
     8
      Idle status, as defined by FCI-Estill, refers to a
“[t]emporary disability.” J.A. 163. Inmates on idle status are
“restricted to [their] room except for meals, religious services,
[and] sick call,” with no recreational privileges. Id.
     9
      On September 18, 2004, Webb complained that he was
“experiencing abdominal pain” that was “extreme at times.” J.A.
59. On September 20, 2004, Webb added that his extreme pain had
continued “for months.” Id. at 60. On September 27, 2004, Webb
reported that he had injured himself while working: “My Hernia is
causing me severe pain and my broken arm and dislocated wrist-
joint, has swollen and causes me severe pain.” Id. at 65.
     10
      Dr. Vendel has explained that a reducible hernia exists when
the protruding organ, tissue, or fat “can be pushed back into the
abdominal cavity,” causing the hernia to “flatten and disappear.”

                                7
         surgical consultation “about timing the hernia
         repair and probability of recurrence.” Id.11

    •    On September 29, 2004, Webb was examined by another
         consulting surgeon, who observed a “new bulge on
         [Webb’s] abdomen,” that was “not painful” but had
         increased in size over the prior two years. J.A.
         357.    The surgeon recommended “a laparoscopic
         repair” of the hernia, with “at least 3 to 4 days
         in the hospital.” Id. at 358.

    •    On October 1, 2004, Dr. Vendel examined Webb again,
         noting complaints of constipation and abdominal
         pain, but concluding that he “appeared not [to be]
         in acute distress.” J.A. 331.

    •    On October 4, 2004, Dr. Vendel recorded a treatment
         plan in Webb’s file: “I have discussed this case
         [with] the g[eneral] surgeon. We agreed that the
         surgery is not urgent, [and] can be done electively
         within a time frame of 6 [months].” J.A. 332.

    •    On October 13, 2004, Webb requested a new abdominal
         binder “to replace the extremely worn abdominal
         binder, to-which [sic] I am currently forced to
         wear daily.” J.A. 64. Webb complained that his
         old binder was “the only thing slowing the
         enlargement of this hernia,” and that “the hernia
         is   currently   causing   me  serious   pain   and
         discomfort, due to the worn and old [b]inder I am
         currently forced to wear.” Id. In responding, Dr.
         Vendel did not mention Webb’s request for an
         abdominal binder, but confirmed, “[y]ou are going
         to be scheduled for surgery, electively.” Id.

    •    On December 21, 2004, the medical staff examining
         Webb on a flu-related visit noted that his hernia



J.A. 315. By contrast, a non-reducible hernia cannot be pushed
back in; it “requires surgical repair, because the protrusion can
contain intestine, which can lose its blood supply and die if it
become[s] tightly trapped.” Id.
    11
      On September 24, 2004, Dr. Vendel noted that Webb had
“refused surgery” in January 2004; Dr. Vendel also recommended
performing “herniotomy, electively.” J.A. 360.

                               8
    was reducible, and that he did not complain of any
    pain. J.A. 336.

•   On March 8, 2005, Dr. Vendel noted that Webb’s
    “reducible” hernia was causing “mild pain,” and
    prescribed pain medication. J.A. 340-41.

•   On April 28, 2005, Webb’s medical restrictions of
    “light duty” and “no prolonged standing” were
    renewed due to his hernia condition. J.A. 342.

•   On May 25, 2005, Webb filed an informal prison
    complaint,   asserting   hernia  enlargement   and
    requesting to be relieved from his work assignment
    until elective hernia surgery was performed. J.A.
    91. Webb’s request was denied.

•   On June 21, 2005, Webb filed another informal
    complaint, requesting that he be provided with
    hernia surgery “with imminence.” J.A. 90.

•   On June 23, 2005, Webb filed yet another informal
    complaint, asserting that his work assignment
    aggravated his abdominal condition, and requesting
    “convalescent [i]dle [s]tatus.” J.A. 218.

•   On August 3, 2005, Dr. Vendel re-examined Webb.
    Although Webb complained of extreme pain, Dr.
    Vendel observed no objective signs of such pain —
    “no tachycardia, no sweating, no facial expression
    other than being angry” — and rated Webb’s pain
    level at 6 on a scale of 0 to 10. J.A. 345. Dr.
    Vendel noted that the size of Webb’s hernia was
    “unchanged,” and that the bulge was “easily
    reduced.” Id. He acknowledged that Webb “may need
    a new hernia belt,” and referred him to an
    orthopedic surgeon for a second opinion. Id.

•   Prison records dated August 10, 2005, reflect that
    “one hernia belt [was] provided” to Webb.     J.A.
    583.

•   On August 24, 2005, Dr. Vendel examined Webb   again,
    noting mild pain and no change in the size     of his
    reducible hernia. Concerning treatment, Dr.    Vendel
    wrote that Webb “may have [an] abdominal       hernia
    belt.” J.A. 349.


                          9
     •    In his January 10, 2006 affidavit, Dr. Vendel
          stated that Webb’s hernia was “still reduceable
          [sic] and controlled with the use of a hernia
          belt.” J.A. 316.

     •    On February 9, 2006, Webb filed another informal
          prison complaint, alleging that he had requested an
          abdominal binder on arriving at FCI-Estill; that on
          August 10, 2005, he was issued a “back-brace,” not
          a hernia belt; and that the back brace “doesn’t
          help at all.”    J.A. 584.   Webb requested to be
          “promptly provided the abdominal binder as ordered
          by Dr. Vendel[] about July and/or August of 2005.”
          Id.

     •    On March 2, 2006, FCI-Estill staff met with Webb
          and confirmed that “a new binder was ordered to
          replace your old binder . . . and upon receipt will
          be issued to you.” J.A. 584.

     •    In his affidavit of March 28, 2006, Webb stated
          that he “was never provided with a hernia belt.”
          J.A. 398.

     •    On March 30, 2006, Dr. Vendel examined Webb again.
          On April 27, 2006, he noted in Webb’s medical
          records that Webb’s hernia was a “5 x 4 cm bulge,
          minimally symptomatic,” and that “surgery can be
          done as I approved it before[,] electively.” J.A.
          586.   That same day, Dr. Vendel recommended that
          the proposed elective surgery be scheduled.

     •    In his affidavit of May 8, 2006, Dr. Vendel stated
          that Webb was issued a hernia belt on August 10,
          2005, and that “on March 2, 2006, a new hernia belt
          was ordered and Mr. Webb was instructed that once
          it arrived it would be issued to him.” J.A. 578.
          Vendel noted that he had requested Webb’s hernia
          surgery be scheduled, “although this surgery is an
          elective procedure.” Id.

     Addressing the hernia claim allegations in the Report, the

magistrate judge concluded that Webb had presented no evidence

suggesting   that   surgery   was   medically   required   (rather   than

properly deemed elective), or that surgery had been unduly delayed.

                                    10
See Report 18-20.        The magistrate judge further determined that

Webb’s assertion “that he was never provided with a hernia belt is

. . . contradicted by the medical records,” and that, “even

assuming there was a delay in [Webb’s] receipt of a hernia belt, .

. . the medical evidence before the Court shows that [Webb’s]

hernia remains reducible, with no evidence having been presented

that [Webb] has suffered any injury as a result of the delay in

receiving a hernia belt.”           Id. at 20.        The Order adopted this

aspect of the Report without specific comment.



                                           II.

      We   review   de   novo   a   district      court's    award     of   summary

judgment.    See Wolfe v. Weisner, 488 F.3d 234, 238 (4th Cir. 2007).

In so doing, we apply the same standard as the district court:

whether “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”                    Fed.

R. Civ. P. 56(c).    In conducting such a review, we are mindful that

a   mere   “scintilla    of   evidence   in      support    of   the   plaintiff’s

position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986).               However, in determining

whether a genuine issue of material fact is in dispute, “the


                                      11
evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.”             Id. at 255.



                                           III.

     On appeal, Webb challenges the district court’s award of

summary judgment to the Defendants on his Eighth Amendment claim

with respect to his hernia problems — asserting that his medical

care was so deficient as to constitute deliberate indifference to

his objectively serious medical needs. See U.S. Const. amend VIII;

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);   see   also     Loe   v.

Armistead, 582 F.2d 1291, 1292-93, 1295-96 (4th Cir. 1978).                       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.”); see also

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).


                                      12
        In this situation, it is undisputed that Webb suffers from a

ventral hernia and that, in the proper circumstances, such a

condition might be recognized as serious.                       See, e.g., Johnson v.

Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006) (holding that hernia

can be objectively serious medical problem); Jones v. Johnson, 781

F.2d 769, 771-72 (9th Cir. 1986) (same).                        In the context of his

constitutional      claim,     Webb    contends          that    the   Defendants     were

deliberately indifferent to his medical needs in three respects:

(1) in prescribing hernia surgery on an elective basis only; (2) in

unduly delaying such surgery; and, (3) in failing to provide him

with the hernia belt that he needed.12                     We review in turn these

aspects of Webb’s claim.

                                               A.

     Webb first maintains, in pursuing his Eighth Amendment claim,

that the Defendants were deliberately indifferent to his need for

surgery by prescribing such surgery for him on an elective basis

only.        Although   the    consequences         of    failing      to    prescribe   an

essential      surgical       procedure    can       be     serious,         any   medical

malpractice      committed      with    respect          thereto,       or    malpractice

committed by mischaracterizing an emergency surgical procedure as


        12
       In his hernia-related claim, Webb’s allegations of deliberate
difference relate only to Dr. Vendel. He does not allege that the
other Defendants bear any liability for Dr. Vendel’s acts or
omissions. In the absence of allegations of supervisory liability,
the district court properly awarded summary judgment to the other
Defendants. See Boyce v. Alizaduh, 595 F.2d 948, 953 (4th Cir.
1979).

                                          13
an elective one, will not contravene the Eighth Amendment.                           Put

simply, negligent medical diagnoses or treatment, without more, do

not constitute deliberate indifference. See Sosebee v. Murphy, 797

F.2d 179, 181 (4th Cir. 1986).

       And, in this case, Webb has failed to show any deliberate

indifference     on   the    part   of   Dr.    Vendel    with    respect       to   the

“elective surgery” classification of Webb’s hernia problem.                          The

record reflects that, shortly after Webb’s transfer to FCI-Estill,

Dr.    Vendel   sought      and   obtained      supporting       medical    opinions

classifying     Webb’s      surgery      as    elective.         Based     on    those

consultations, Dr. Vendel himself concluded, in October 2004, that

Webb’s need for hernia surgery was “not urgent, [and] can be done

electively within a time frame of 6 [months].”                   J.A. 339.       After

Webb   filed    informal    prison    complaints     in    May    and    June    2005,

requesting hernia surgery “with imminence,” id. at 90, Dr. Vendel

examined Webb twice in August 2005, but found no objective signs of

pain and no change in the size of his hernia.              In March 2006, after

examining Webb’s hernia and finding it unchanged, Dr. Vendel

renewed his assessment that the “surgery can be done as I approved

it before, electively.”           Id. at 586.

       In summary, even if Dr. Vendel somehow misdiagnosed Webb’s

need for surgery, Dr. Vendel made extensive efforts to diagnose,

monitor, and control Webb’s hernia symptoms, and that he did not

disregard any “risk of harm of which he was aware.”                 See Johnson v.


                                         14
Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (holding that doctors

are only deliberately indifferent if they “subjectively ‘know[] of’

the serious medical condition itself” and consciously disregard a

substantial risk of serious harm implied by that condition).                The

fact that Dr. Vendel consulted other physicians further undermines

any contention that his diagnosis, even if incorrect, was somehow

deliberate or indifferent.            See id. at 169 (concluding prison

physician’s consultation with outside experts supported inference

that misdiagnosis was not deliberate indifference).                   Thus, the

court     properly    concluded      in    its   Order   that   Dr.    Vendel’s

classification of Webb’s potential surgery as elective — rather

than as an emergency — does not implicate Webb’s Eighth Amendment

rights.

                                          B.

     Turning next to the delay aspect of Webb’s Eighth Amendment

claim, he argues that the fact that he was never scheduled for

elective hernia surgery while at FCI-Estill — despite Dr. Vendel’s

statement, in October 2004, that “surgery is not urgent, [and] can

be done electively within a time frame of 6 [months],” J.A. 332 —

supports an inference of deliberate indifference on the part of Dr.

Vendel. Under the applicable legal principles, a significant delay

in the treatment of a serious medical condition may, in the proper

circumstances,       indicate   an   Eighth      Amendment   violation.     See

Estelle, 429 U.S. at 104-05 (holding that deliberate indifference

                                          15
may be demonstrated by “intentionally denying or delaying access to

medical care”).

      An Eighth Amendment violation only occurs, however, if the

delay results in some substantial harm to the patient.13                 Thus, in

order to defeat summary judgment on the delay issue, Webb was

obligated to establish that the delay in his surgery caused him

substantial harm — evidenced by, for example, a marked increase in

his hernia’s size, frequent complaints of severe pain, or signs

that his hernia was becoming non-reducible or incarcerated.14                  Cf.

Militier      v.   Beorn,   896    F.2d        848,   852-53   (4th   Cir.   1990)

(concluding, where inmate suffered heart attack and died, that jury

could find physicians were deliberately indifferent by failing to

follow up on recommendations for inmate’s cardiac care).

      Our unpublished decisions recognize that a delay with respect

to   hernia    surgery   does     not   necessarily      constitute    deliberate

      13
      See, e.g., Sealock v. Colorado, 218 F.3d 1205, 1210 (10th
Cir. 2000) (“Delay in medical care only constitutes an Eighth
Amendment violation where the plaintiff can show that the delay
resulted in substantial harm.”); Mendoza v. Lynaugh, 989 F.2d 191,
195 (5th Cir. 1993) (same); Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990) (same).     But see Blackmore v. Kalamazoo
County, 390 F.3d 890, 899 (6th Cir. 2004) (“This [constitutional]
violation is not premised upon the ‘detrimental effect’ of the
delay, but rather that the delay alone in providing medical care
creates a substantial risk of serious harm [of which prison
officials are aware].”)
      14
       In his affidavit of January 10, 2006, Dr. Vendel explains
that “[a] non-reducible hernia requires surgical repair, because
the protrusion can contain intestine, which can lose its blood
supply   and   die  if   it  becomes   tightly  trapped  (called
‘strangulation’ or ‘incarceration’ of the hernia).” J.A. 315.

                                          16
indifference, absent some resultant harm or a worsened condition.

For example, in Price v. Carey, we deemed an eight-month delay in

providing elective hernia surgery as insufficient to constitute an

Eighth Amendment violation, because the prisoner “did not present

any information” to his physician during the intervening period “to

indicate that his situation was an emergency mandating immediate

treatment.”   No. 91-6643, 1992 WL 34208, at *4 (4th Cir. Feb. 26,

1992).   On the other hand, in   Garrett v. Elko, we recognized an

Eighth Amendment claim where the prisoner’s hernia surgery was

delayed for four years, in the face of continual “complaints of

intense pain, anxiety, and limited mobility.” No. 95-7939, 1997 WL

457667, at *1 (4th Cir. Aug. 12, 1997).

     After October 2004, Webb was prescribed pain medication, and

although he frequently complained about hernia-related discomfort,

his complaints focused largely on work assignments.     See, e.g.,

J.A. 91 (complaining of hernia enlargement on May 25, 2005, but

requesting reprieve from work assignment until elective surgery is

performed); id. at 90 (requesting, on June 21, 2005, being provided

hernia surgery “with imminence,” but failing to assert pain or

change in hernia’s size as basis therefor); id. at 218 (complaining

of increasing pain on June 23, 2005, making work impossible).

Moreover, when Webb informed the prison medical personnel that he

was in pain, they did not ignore his complaints.      Rather, they

monitored his condition, observed no objective signs of pain or


                                 17
change in the size of his hernia, provided pain medications, and

concluded    that      the    hernia   was   yet   reducible.       See    J.A.   331

(examining Webb on October 1, 2004, and noting that, despite his

complaints of constipation and abdominal pain in September 2004, he

“appeared not [to be] in acute distress”); id. at 341 (prescribing

pain medication on March 8, 2005, for “mild pain” caused by Webb’s

hernia);    id.   at    345    (examining     Webb   on    August   3,    2005,   and

observing no objective signs of pain or change in size of hernia);

id. at 349 (examining Webb on August 24, 2005, and observing no

change);    id.   at    586    (noting   that,     based    on   March    30,   2006,

examination, Webb’s hernia was “minimally symptomatic”).                    In such

circumstances, Webb’s allegation of improper delay fails to support

the proposition that summary judgment was improperly awarded.

                                         C.

     Finally, Webb focuses on the assertion that he was never

provided with a hernia belt at FCI-Estill.                   In addressing this

issue, Webb maintains that the magistrate judge and the district

court failed to construe the evidence in the light most favorable

to him.    In the Report (adopted by the Order), the magistrate judge

concluded that Webb’s assertion that he was never provided with a

replacement hernia belt was “contradicted by the medical records.”

Report 20.     On this point, the issue is simply whether Webb has

shown that Dr. Vendel acted with deliberate indifference concerning

the hernia belt.         In his affidavit of May 8, 2006, Dr. Vendel


                                         18
states that “on August 10, 2005, [Webb] was issued a hernia belt by

the Health Services Administrator.”        J.A. 578.     By contrast, in an

informal prison complaint of February 9, 2006, Webb alleged that,

although he had requested a new belt when he first arrived at FCI-

Estill in July 2004, he had been given a back brace only (on August

10, 2005).15 And, in his affidavit of March 28, 2006, Webb asserted

that he “was never provided with a hernia belt.”           Id. at 398.

     This apparent dispute of fact on whether Webb received a back

brace or a hernia belt on August 10, 2005, fails to establish an

Eighth Amendment claim.      Put succinctly, Webb failed to complain

about the inadequacy of the back brace until February 2006, six

months after it was issued to him (on August 10, 2005).             In the

interim, Dr. Vendel believed that Webb was provided with a hernia

belt on August 10, 2005.       See J.A. 578 (“[O]n August 10, 2005,

[Webb]    was   issued   a   hernia    belt   by   the    Health   Services

Administration.”).       Whether Dr. Vendel was incorrect in this

perception could be relevant in a malpractice claim, but it is not

material to Webb’s Eighth Amendment claim.         As a matter of law, Dr.

Vendel cannot have consciously disregarded a substantial risk of

serious harm to Webb if he did not know that Webb had been provided

an ineffectual back brace.     See Johnson v. Quinones, 145 F.3d 164,

     15
      There is no explanation of the differences, if any, between
a “back brace,” an “abdominal binder,” and a “hernia belt.” For
our purposes, we construe these terms in the light most favorable
to Webb, and deem a back brace to be distinct from — and less
effective than — an abdominal binder or a hernia belt.

                                      19
168 (4th Cir. 1998) (holding that, for purposes of establishing

deliberate indifference, “[t]he correct question is whether the

doctor   subjectively   ‘knows   of’     the   serious   medical   condition

itself”).      On this evidence, Dr. Vendel has not been shown to

subjectively know that Webb did not have a hernia belt, and thus

could not be deliberately indifferent to any of Webb’s hernia-

related medical needs.     As a result, Dr. Vendel cannot be liable on

the   Eighth   Amendment   claim.      In   such   circumstances,    summary

judgment was appropriate, and the Order of the district court must

be affirmed.



                                    IV.

      Pursuant to the foregoing, we affirm the district court’s

award of summary judgment on Webb’s Eighth Amendment claims, and

also its dismissal without prejudice of his FTCA claim.



                                                                    AFFIRMED




                                    20
GREGORY, Circuit Judge, dissenting:

     Webb has waited over four years to have an “extremely enlarged

incisional ventral hernia” removed — a surgery prison medical staff

determined could “electively” be done within six months.            It is

undisputed that the surgery is necessary, and the only accepted

medical procedure for remedying Webb’s serious condition. However,

as Webb lingers, the majority, without pause or hesitation, holds

that, as a matter of law, the prison medical staff has not been

“deliberately indifferent” to his serious medical need to have

surgery “absent some resultant harm or a worsened condition.”

(Maj. Op. 17.)   The Eighth Amendment does not require a prisoner to

be on the precipice of death to receive the necessary treatments

that the prison medical staff itself prescribed.

     The Eighth Amendment expressly prohibits the infliction of

“cruel and unusual punishments.”        U.S. Const. amend. VIII.       In

Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Supreme Court

established the standard for Eighth Amendment cases involving

prisoner medical needs.     In order to prove an Eighth Amendment

violation, the prisoner must show that the defendant acted with

deliberate   indifference   to   his   serious   medical   needs,   which

requires proof of two elements:         (1) that the deprivation of

medical care was sufficiently serious (objective component); and

(2) that the prison officials were deliberately indifferent to the

serious medical needs (subjective component).       Id.    “[D]eliberate


                                  21
indifference entails something more than mere negligence,”   Farmer

v. Brennan, 511 U.S. 825, 835 (1994), but indifference can be

manifested by prison doctors intentionally denying or delaying

access to medical care or intentionally interfering with the

treatment once prescribed.   Estelle, 429 U.S. at 104-05.

     It is undisputed that Webb’s hernia condition is a serious

medical need.   See Martin v. Bowman, 48 F.3d 1216 (4th Cir. 1995)

(“A medical need is serious if it is diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay

person would recognize the necessity for a doctor’s attention.”)

The majority’s “deliberate indifference” analysis of Webb’s Eighth

Amendment claim is simple: rather than arguing that he received no

medical treatment, Webb only alleges that Defendants conservative

course of treatment violates his Eighth Amendment rights and since

he was seen numerous times by prison medical staff and outside

medical specialists, defendants were not deliberately indifferent.

Simplicity notwithstanding, the majority errs.

     In September, 2003, a consulting general surgeon recommended

that Webb receive “laparoscopic ventral hernia surgery.”     (J.A.

356.)   Based on the alleged reducible nature of the hernia, Dr.

Vendel deemed Webb’s surgery “elective;” that is, “not urgent” and

he posited that surgery could be performed within six months of

September 24, 2004.   However, only five days after Dr. Vendel’s

determination that the surgery was “elective,” Webb was examined by


                                22
a consulting physician, who observed “a new bulge on [Webb’s]

abdomen,” that had increased in size, and recommended laparascopic

repair.    (J.A. 358.)     As the majority correctly notes, Webb

complained thirteen times of chronic abdominal pain, and two

different specialists recommended surgery during the course of two

years after the initial recommendation.        Yet, surgery was still

delayed and another six months passed without any discussion of

scheduling Webb for surgery. While the majority makes much of Webb

receiving treatment throughout this time and Dr. Vendel determining

that the surgery was “elective,” it is clear that Webb did not

receive the treatment that was prescribed year after year by

several surgeons despite his chronic pain and medical infirmities.

     For instance, there is no evidence that Dr. Vendel, after the

first six-months passed, determined that Webb could wait another

six-months for surgery.    In fact, the record suggests otherwise.

On August 3, 2005, Dr. Vendel referred Webb, after complaints of

extreme pain, to an orthopedic surgeon for a second opinion.            It

was not until April 27, 2006, nearly three years after surgery was

first recommended and five months after Webb filed suit, that Dr.

Vendel recommended surgery be scheduled.             On March 10, 2006,

another   orthopedic   surgeon   confirmed   that    Webb’s   hernia   had

increased and surgery was needed.      (J.A. 585.)    To be sure, even if

a procedure is “elective” - the term certainly should not mean that




                                  23
Webb must wait almost four years for a surgery that Dr. Vendel

stated could be scheduled at the very least within six months.

     We have held, albeit in an unpublished opinion, that where

prison officials are aware of a serious medical need and delay

treatment, the plaintiffs’ allegations are sufficient enough to

satisfy the objective component of a deliberate indifference suit.

See Clinkscales v. Pamlico Corr. Facility, 238 F.3d 411 (4th Cir.

2000) (inmate sufficiently alleged deliberate indifference as a

result of defendant’s nine-month delay in providing a necessary

surgery) (citing Monmouth County Corr. Inst. Inmates v. Lanzaro,

834 F.2d 326, 346-47 (3d Cir. 1987) (prison officials may not

interminably delay medical treatment or deny treatment based on

arbitrary   and   burdensome   procedures.))    Here,   Webb    presented

evidence, when viewed in a light most favorable to him - as we

must, sufficient to create a triable issue of material fact as to

whether the delay constitutes deliberate indifference.

     The majority’s rationale to the contrary rings hollow in the

face of the probability that further delay of Webb’s hernia surgery

could result in the worsening or strangulation of his hernia, bowel

obstruction,   or   even   Webb’s   death.   (J.A.   311.)     Deliberate

indifference should not turn on whether Webb’s condition worsened

during the delay and nor should Dr. Vendel’s decision to take an

easier but less efficacious course negate deliberate indifference.

It is the delay, itself, that is deliberately indifferent.         As the


                                    24
Supreme   Court   stated   in   Estelle,   an   unreasonable   delay   or

withholding of treatment can constitute deliberate indifference

and, therefore, offend the Eighth Amendment.       Estelle, 429 U.S. at

104-05.

     It is uncontroverted that Webb suffers from a serious medical

condition that requires surgery.     Merely providing a prisoner with

some treatment is not the Constitutional mandate of the Eighth

Amendment.   Rather, it is providing a prisoner with the care he or

she needs.   Prisoners are deprived of freedom and stripped of most

rights but the Eighth Amendment guarantees that they not be treated

less than human.    So I ask, is it humane for a prisoner, who has

suffered for four years with a serious medical condition, to be

waiting for a surgery that everyone agrees is necessary?          Based

upon the majority’s reasoning, it is uncertain how long Webb must

wait for medical treatment before he can make out an Eighth

Amendment claim that would at least survive summary judgment.

Because surely his protection under the Eighth Amendment has not

deteriorated to such an anemic state, I dissent.




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