                                UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                No. 08-7157


JIMMY RAY WEATHERHOLT, JR.,

                   Plaintiff – Appellant,

             v.

OFFICER BRADLEY,

                   Defendant – Appellee,

             and

SERGEANT HARVEY,

                   Defendant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:08-cv-00054-JBF-JEB)


Submitted:    January 30, 2009                Decided:   March 13, 2009


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion. Judge
Wilkinson wrote a dissenting statement.


Jimmy Ray Weatherholt, Jr., Appellant Pro Se.   Richard Carson
Vorhis, Senior Assistant Attorney General, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jimmy Ray Weatherholt, Jr., a Virginia prisoner at the

Greensville    Correctional    Center,     appeals     the   district   court’s

order dismissing his pro se 42 U.S.C. § 1983 (2006) complaint

against Sergeant Harvey, and the order granting summary judgment

in favor of Officer Bradley and denying his renewed motion for

appointment of counsel.         Because the district court erred in

both instances, we vacate the orders and remand the case for

further proceedings consistent with this opinion.



            I. Dismissal of Claim Against Sergeant Harvey

            We review de novo a district court’s dismissal under

Federal Rule of Civil Procedure 12(b)(6).               See Sec’y of State

for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th

Cir. 2007).     A plaintiff’s statement of his claim “need only

give the defendant fair notice of what the . . . claim is and

the grounds upon which it rests.”            Erickson v. Pardus, 127 S.

Ct. 2197, 2200 (2007) (citations and internal quotation marks

omitted).      “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, 550 U.S. ___, 127 S. Ct. 1955, 1965, 1974

(2007).     “[W]hen ruling on a defendant’s motion to dismiss, a

judge   must   accept   as    true   all    of   the    factual   allegations

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contained         in     the   complaint.”              Erickson,   127    S.     Ct.    at   2200

(citations omitted).                 In particular, a pro se complaint must be

liberally construed and “held to less stringent standards than

formal pleadings drafted by lawyers.”                        Id. (citation omitted).

                  The    Eighth       Amendment           imposes    a     duty     on    prison

officials “to protect prisoners from violence at the hands of

other prisoners.”              Farmer v. Brennan, 511 U.S. 825, 833 (1994)

(citation omitted).              To establish a claim for failure to protect

from violence, an inmate must show: (1) “that he is incarcerated

under conditions posing a substantial risk of serious harm,” id.

at 834, and (2) that the prison officials had a “sufficiently

culpable state of mind.”                  Id. (internal citations and quotations

omitted).          “In prison-conditions cases that state of mind is one

of ‘deliberate indifference’ to inmate health or safety.”                                      Id.

(internal citations omitted).                   To be deliberately indifferent, a

prison official must “know[] of and disregard[] an excessive

risk to inmate health or safety.”                        Id. at 837.

                  “Whether a prison official had the requisite knowledge

of     a    substantial          risk    is     a       question    of    fact     subject      to

demonstration            in    the      usual       ways,    including      inference         from

circumstantial evidence, . . . and a factfinder may conclude

that a prison official knew of a substantial risk from the very

fact       that    the    risk    was    obvious.”           Id.    at    842.     “While      the

obviousness of a risk is not conclusive and a prison official

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may show that the obvious escaped him, . . . he would not escape

liability     if    the      evidence      showed       that     he    merely    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.”               Id. at 843 n.8.              A prison official also

may not “escape liability for deliberate indifference by showing

that, while he was aware of an obvious, substantial risk to

inmate   safety,        he    did        not   know      that     the    complainant       was

especially likely to be assaulted by the specific prisoner who

eventually committed the assault.”                      Id. at 843.            A plaintiff’s

failure to personally notify prison officials of an alleged risk

to his safety is not dispositive as to the issue of whether

prison officials knew of the risk.                      Id. at 848-49.          A showing of

mere   negligence       does       not    qualify       as    deliberate       indifference.

See Davidson v. Cannon, 474 U.S. 344, 347 (1986); Grayson v.

Peed, 195 F.3d 692, 695 (4th Cir. 1999).                               The plaintiff must

also   show    he   suffered        a     serious       or    significant       physical    or

mental   injury         as     a    result         of    the     defendants’         conduct.

Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th Cir. 1993).

              Weatherholt claims that he suffered serious injuries

at the hands of other inmates because Harvey directed that he

identify inmates who allegedly robbed him in person, rather than

through a photo identification process.                           Although Weatherholt

does not explicitly allege that Harvey knew of, and disregarded,

                                               4
the risk to his safety, his pro se pleading must be liberally

construed and is sufficient to give notice of a plausible claim

to relief under the Eighth Amendment.                  Weatherholt attached the

response    to    an   administrative           grievance    that     he   filed        with

prison officials concerning this incident, which indicates that

Harvey did not follow proper procedure and that “appropriate

action” was taken against her as a result.                       The resolution of

Weatherholt’s grievance in his favor is not conclusive evidence

that     Harvey    acted         with    deliberate       indifference,           but     it

constitutes some evidence that Harvey may have disregarded an

obvious,    general     risk      to    inmate   safety     by   failing     to    follow

proper     procedure        in     ordering       Weatherholt         to     make        his

identifications        in   person.        The    attachment     of    the   grievance

resolution to the complaint also constitutes further notice of a

plausible claim that Harvey was deliberately indifferent to a

serious risk to Weatherholt’s safety.                     Accordingly, we vacate

the order dismissing Weatherholt’s claim against Harvey.



           II. Summary Judgment in Favor of Officer Bradley

            We review a district court’s order granting summary

judgment de novo, viewing the facts and drawing all reasonable

inferences in the light most favorable to the non-moving party.

Doe v. Kidd, 501 F.3d 348, 354 (4th Cir. 2007), cert. denied,

128 S. Ct. 1483 (2008).            Summary judgment “should be rendered if

                                            5
the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”          Fed. R. Civ. P. 56(c).           In order to withstand a

motion for summary judgment, the non-moving party must produce

competent       evidence      sufficient     to    reveal    the    existence    of    a

genuine issue of material fact.                   Fed. R. Civ. P. 56(e)(2); see

Pension Benefit Guar. Corp. v. Beverley, 404 F.3d 243, 246-47

(4th Cir. 2005).

                We conclude the district court accorded insufficient

weight     to    the    administrative      finding       that   proper     procedures

called for Weatherholt to be asked to identify inmates involved

in   the   theft       from   him   by   looking     at   photos.      While    it    is

correct, as noted by the court, that “failure to follow prison

rules or regulations does not, without more, give rise to a

constitutional violation,” Myers v. Klevenhagen, 97 F.3d 91, 94

(5th Cir. 1996), it does not appear that the court adequately

considered       the    rationale    for    the     prison   policy    in   question.

Presumably, the administrative rule violated in this case was

adopted    out     of    recognition       that    in-person     identification       of

inmates involved in an incident inherently creates a risk of

retaliation.        Accordingly, while we do not hold that Bradley’s

failure to follow proper procedures conclusively establishes her

deliberate indifference to a substantial risk of serious injury,

                                            6
we believe that resolution of the claim on the present record

was simply premature.

                  We make this finding recognizing that Bradley, in her

affidavit attached to her motion for summary judgment, explains

that    she       was    not     aware    of      any     risk      to   Weatherholt’s           safety

before       taking       him     to     identify         the     perpetrators          he      alleged

forcibly entered his cell, held him against his will, and robbed

him of his belongings.                  But Bradley’s asserted lack of awareness

of     any        risk    of      harm       to     Weatherholt           from     an       in-person

identification of the inmates involved in the incident is not

dispositive.                  Given    the        violent       nature       of     the      incident

Weatherholt          described,          the       present        record      could         permit    a

factfinder          to    rationally          conclude          that      Bradley       ignored      an

obvious       risk       of    significant         harm      to     Weatherholt        of    which    a

reasonable         prison        official         would      have     been   aware.             Summary

judgment in favor of Bradley, at least at this stage of the

proceedings, was accordingly inappropriate.

                  For the reasons stated, we vacate the district court’s

judgment           and        remand      for       further           proceedings.                While

Weatherholt’s motion for appointment of counsel on appeal is

denied,       we    leave       the    question         of     appointment        of    counsel      on

remand       to    the    sound        discretion         of    the      district      court.        We

dispense          with    oral        argument       because          the    facts        and    legal



                                                    7
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

     Judge Wilkinson dissents and would affirm the judgment for

the reasons given by the district court.      See Weatherholt v.

Harvey, No. 2:08-cv-54, slip op. at 4-5 (E.D. Va. April 11,

2008); Weatherholt v. Bradley, No. 2:08-cv-54, slip op. at 8-9

(E.D. Va. June 20, 2008).


                                             VACATED AND REMANDED




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