                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-6996


TROY GOODMAN, SR.,

                Plaintiff – Appellant,

           v.

WEXFORD HEALTH SOURCES, INCORPORATED, Under M.O.C.C. Control
or the State of W.Va’s Control,

                Defendant – Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:09-cv-00122)


Argued:   March 22, 2011                  Decided:   April 28, 2011


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Duncan and Senior Judge Hamilton joined.


ARGUED: Myra Hiott Chapman, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant.        Joseph M.
Farrell, Jr., FARRELL, FARRELL & FARRELL, PLLC, Huntington, West
Virginia, for Appellee.    ON BRIEF: Neal L. Walters, Melody E.
Akhavan, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate
Litigation Clinic, Charlottesville, Virginia, for Appellant.
Megan E. Farrell, FARRELL, FARRELL & FARRELL, PLLC, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      Troy       Goodman,    Sr.      appeals     the        district     court’s        order

dismissing        his     civil     rights        complaint        under       28        U.S.C.

§ 1915A(b)(1) for failure to state a claim. For the following

reasons, we affirm.

                                             I.

      Goodman alleges the following facts, which we accept as

true and we construe in the light most favorable to him, see

Schatz     v.     Rosenberg,       943     F.2d   485,       489   (4th       Cir.       1991),

recognizing        that     liberal       construction        of   his       pleadings       is

especially       appropriate       here    because      he    is   a   pro    se     litigant

raising civil rights issues, see Smith v. Smith, 589 F.3d 736,

738 (4th Cir. 2009). Goodman is incarcerated at the Mount Olive

Correctional Complex in West Virginia. On December 9, 2008, he

received     a    pneumococcal        polysaccharide          vaccine     from       a   nurse

employed by Wexford Health Sources, Inc. (“Wexford”). At that

time, the nurse gave Goodman a pamphlet issued by the federal

government that explained the vaccine and its associated risks.

Further, she advised him to seek medical attention in the event

he suffered any allergic reaction to the vaccine injection.

      On December 11, 2008, Goodman experienced adverse reactions

to   the   vaccine,       including       swelling      and    redness       in    his    arm,




                                             3
breathing problems, and hives. He asked a prison official 1 “for

medical      assistance”         and    “to   see     the       doctor,    or   nurse,     for

reactions from the shot,” J.A. 7, 14, but the prison official

denied Goodman’s request and threatened him with a “write up” if

he was not having any reactions. Goodman then “told the CO to

forget about it” and that he would “act as if it didn’t happen.”

J.A. 14.

                                              II.

       Goodman      instituted         this   §     1983    action    seeking          monetary

damages for violations of his Eighth Amendment right to freedom

from       cruel    and    unusual      punishment.            Pursuant    to     28    U.S.C.

§ 1915A,      the    case       was    screened      by    a    magistrate      judge,      who

submitted      a    proposed      recommendation           to    dismiss    the    case     for

failure to state a claim of deliberate indifference to a serious

medical need. Goodman filed objections to the magistrate judge’s

recommendation.           The    district         court     adopted       the     magistrate

judge’s       recommendation           and    dismissed           Goodman’s       complaint.

Goodman now appeals.




       1
       It appears from Goodman’s complaint that he directed his
request toward “the night worker, or the CO” (i.e. correctional
officer), whom he also refers to elsewhere in his filings as
simply a “prison official.”



                                               4
       We review a district court’s order granting a motion to

dismiss de novo, Schatz, 943 F.2d at 489, and we will dismiss a

complaint “if it does not allege ‘enough facts to state a claim

to    relief    that    is    plausible       on    its     face,’”    Giarratano      v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must

allege facts sufficient “to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

       The     Eighth   Amendment's         prohibition        against     cruel      and

unusual punishment protects prisoners from the “unnecessary and

wanton       infliction       of     pain,”        which     includes     “deliberate

indifference to serious medical needs of prisoners.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks and

citation omitted). To prevail on an Eighth Amendment claim, “a

prisoner      must    prove   two     elements:       (1)    that     objectively     the

deprivation of a basic human need was sufficiently serious, and

(2)    that     subjectively         the   prison     officials        acted   with     a

sufficiently culpable state of mind.” Johnson v. Quinones, 145

F.3d   164,     167   (4th    Cir.    1998)     (internal     quotation     marks     and

citations omitted). The first element “is satisfied by a serious

medical condition,” while the second element “is satisfied by

showing deliberate indifference by prison officials.” Id.                           Mere

negligence       does     not        constitute       deliberate        indifference;

“[b]asically, a prison official ‘must both be aware of facts

                                            5
from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.’”

Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus,

a prison official may be held liable for deliberate indifference

only where “the official knows of and disregards an excessive

risk to inmate health or safety.”       Farmer, 511 U.S. at 837.

      Viewing the allegations of the complaint in the light most

favorable to Goodman, we conclude the district court properly

dismissed the complaint for failure to state a claim. Goodman

alleges that after requesting to see a doctor or nurse, the

prison official warned him that he would receive a “write up” if

he was not having the complained-of reactions. At that point,

Goodman admits that he withdrew his request for assistance and

told the prison official to “forget about it.”             The official

could have reasonably inferred from Goodman’s response that he

was not experiencing any of the alleged reactions; regardless,

having received the instruction to “forget about it,” and under

the facts of this case, no prison official could be deliberately

indifferent to a prisoner’s medical need by taking no further

action.    Therefore,    we   conclude      that    Goodman’s     factual

allegations do not support a finding that the prison official

had   a   sufficiently   culpable   state    of    mind   of    deliberate

indifference.



                                    6
      Goodman also argues that the factual assertions made in his

objections should be considered and liberally construed along

with the allegations in his complaint in determining whether to

dismiss his complaint for failure to state a claim.                      As such,

Goodman contends that dismissal of his complaint was improper

because he asserts in his objections that the nurse, in addition

to   the   prison   official,    knew   of   but   disregarded     his    medical

condition.    J.A.    29.       Thus,   regardless       of    whether    he   had

withdrawn his request to the prison official, Goodman argues the

nurse still    had   an     independent     obligation    to   respond    to   his

request and failure to do so constituted deliberate indifference

to a serious medical need.         However, Goodman cites no supporting

authority, nor have we found any, for the proposition that, when

reviewing a complaint for failure to state a claim under 28

U.S.C. § 1915A, factual assertions contained in the plaintiff’s

objections to the magistrate’s recommendation must be viewed in

the same light as factual assertions contained in the initial

complaint.     Cf. 28 U.S.C. § 636(b)(1) (requiring district court

to make de novo review of magistrate’s proposed findings and

recommendations to which objection is made, and permitting the

court to receive further evidence); Doe v. Chao, 306 F.3d 170,

183 n.9 (4th Cir. 2002) (“[W]hether to consider such evidence

rests within the sound discretion of the district court.”).



                                        7
     We decline to decide this issue here because even if we

accept as true all of the factual assertions made in Goodman’s

complaint and objections and construe those facts in a light

most favorable to him, we conclude he has failed to state a

claim for relief that is plausible on its face.           Goodman does

not allege that he spoke directly to the nurse to inform her of

his medical condition, 2 nor does he allege that anyone told the

nurse of his condition.     All he alleges is that the nurse knew.

This allegation, with nothing more, is not sufficient to support

a finding that the nurse had a sufficiently culpable state of

mind of deliberate indifference to a serious medical condition. 3

     Therefore,   because   Goodman   has   failed   to   allege   facts

sufficient to support a finding that the prison official and




     2
       Goodman’s counsel acknowledged during oral argument that
Goodman does not allege he actually talked to the nurse, but
only that the nurse knew of his condition. Moreover, Goodman’s
complaint and objections indicate that his communication to the
nurse was indirect, rather than direct. For example, he told the
CO “to tell the nurse” to write him up, J.A. 14; and he “ask[ed]
to see a nurse, or doctor,” J.A. 28.
     3
       We note that, to the extent the nurse was aware of
Goodman’s condition, on this record it was necessarily the
result of the prison official informing her. And, assuming the
prison official did communicate Goodman’s request to the nurse,
there is no basis to believe he failed to convey Goodman’s full
conversation, including the fact that he had withdrawn his
request for assistance. Nothing in Goodman’s complaint suggests
the contrary.



                                  8
nurse were deliberately indifferent to his medical needs, he has

failed to state an Eighth Amendment claim against Wexford.



                              III.

     For the foregoing reasons, we affirm the district court’s

order dismissing Goodman’s complaint.

                                                         AFFIRMED




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