                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Frank L. Ferguson,
Petitioner Below, Petitioner                                                       FILED
                                                                                  October 4, 2013
                                                                              RORY L. PERRY II, CLERK
vs) No. 12-1195 (Marshall County 12-C-171)                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Evelyn Seifert, Warden, Northern Correctional Facility,
Respondent Below, Respondent

                               MEMORANDUM DECISION

       Petitioner Frank L. Ferguson, appearing pro se, appeals the order of the Circuit Court of
Marshall County, entered September 25, 2012, that dismissed his petition for a writ of mandamus
to compel medical treatment. The respondent warden, by counsel Cynthia R.M. Gardner, filed a
response and motion to dismiss.1 Petitioner filed a reply.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner is an inmate at Northern Correctional Facility. On August 10, 2012, petitioner
filed a petition for a writ of mandamus to compel medical treatment. Petitioner alleged that the
respondent warden was not providing the medical attention he needed. Petitioner attached to the
petition a grievance form that indicates the respondent warden upheld the denial of the grievance
on July 28, 2012, and that petitioner had been seen by medical staff and was “receiving
medication.”




       On September 25, 2012, the circuit court dismissed the petition ruling as follows:


       1
          In the motion to dismiss, the respondent warden argues that the petition should be
dismissed pursuant to West Virginia Code § 55-17-3 because of petitioner’s failure to provide
pre-suit notice to state officials. However, because this Court finds that the circuit court properly
dismissed the petition due to a lack of a prima facie case, see infra, the Court declines to address
petitioner’s alleged noncompliance with West Virginia Code § 55-17-3.

                                                 1
                       Having had an opportunity to review and maturely
               considered Petitioner’s “Writ of Mandamus,” as well as W.Va.
               Code § 53-1-1, et seq., the Court is of the opinion that [the] same
               fails to make a prima facie case. Accordingly, this Court will not
               issue a rule against respondent to show cause why the writ prayed
               for should not be awarded.

(Emphasis in original.).2

       We review the circuit court’s dismissal of the petition for a writ of mandamus de novo. See
Nobles v. Duncil, 202 W.Va. 523, 528, 505 S.E.2d 442, 447 (1998) . This standard is applicable to
cases where the circuit court’s decision was based on the following analysis:

               A writ of mandamus will not issue unless three elements coexist-(1)
               a clear legal right in the petitioner to the relief sought; (2) a legal
               duty on the part of respondent to do the thing which the petitioner
               seeks to compel; and (3) the absence of another adequate remedy.

Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

        On appeal, petitioner asserts that the circuit court should have appointed counsel and held a
hearing before ruling on the petition. Petitioner asserts that his blackened toe and the numbness in
his hands require immediate attention, but that the medical staff merely places him on a waiting list
to see a doctor and gives him medication that does not relieve his pain. The respondent warden
argues that while petitioner may disagree with the course of treatment, his difference of opinion
does not establish a violation of the Eighth Amendment to the United States Constitution.3

       In Syllabus Point 5 of Nobles, this Court held that “[t]o establish that a health care
provider’s actions constitute deliberate indifference to a prison inmate’s serious medical need, the
treatment, or lack thereof, must be so grossly incompetent, inadequate, or excessive as to shock the
conscience or be intolerable to fundamental fairness.” Based on the respondent warden’s
comments in denying petitioner’s grievance and petitioner’s own statements contained in his
appellate brief, the respondent warden is correct that petitioner merely disagrees with the course of
treatment he has been receiving. Therefore, this Court concludes that the circuit court did not err in
dismissing the petition. See United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987)

       2
          In its order, the circuit court noted that the respondent warden previously filed a response
and motion to dismiss, and that petitioner filed a reply. The circuit court declined to consider these
pleadings because they were filed before the court had an opportunity to determine whether the
petition warranted the issuance of a rule to show cause.
       3
        See U.S. Const., amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.) (Emphasis added.).


                                                  2
(“[T]hough it is plain that an inmate deserves adequate medical care, he cannot insist that his
institutional host provide him with the most sophisticated care that money can buy.”) (Emphasis in
original.).

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 4, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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