                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 18 2005
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 STEVEN RAY THOMAS,

          Plaintiff - Appellant,

 v.                                                     No. 04-3368
                                                (D.C. No. 04-CV-3274-GTV)
 LOUIS E. BRUCE, Warden,                                (D. Kansas)
 Hutchinson Correctional Facility;
 ROGER WERHOLTZ, Secretary of
 Corrections; DENNIS GOFF, Nurse
 Practitioner; JANET MYERS,
 Registered Nurse; DEBRA LUNDRY,
 Nurse; NEAL R. BROCKBANK,
 Contracting Physician; CORRECT
 CARE SOLUTIONS; KANSAS
 DEPARTMENT OF CORRECTIONS;
 STATE OF KANSAS; HUTCHINSON
 CORRECTIONAL FACILITY,

          Defendants - Appellees.



                             ORDER AND JUDGMENT *



Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges. Judge O’Brien
concurs in the result only.



     The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
       Steven Ray Thomas, a pro se prisoner, appeals the district court’s dismissal

of his complaint in which he asserts an Eighth Amendment claim for deliberate

indifference to his serious medical needs. Finding that materials submitted by

Thomas reflect that he is receiving continuing medical care, the district court

dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Because we

conclude that his complaint alleges sufficient facts that if true would entitle him

to relief, we exercise jurisdiction under 28 U.S.C. § 1291 and REVERSE.

       After being diagnosed with Hepatitis C at the El Dorado Correctional

Center, Thomas was moved to the Hutchinson Correctional Facility (“HCF”)

where blood tests were conducted and, according to Thomas, a liver biopsy was

ordered by a Dr. Brockbank. 1 At least one lab report demonstrates abnormally

high liver enzyme levels which might indicate the need for a biopsy. No biopsy

has been performed. After Thomas’s internal grievances seeking further

treatment for his Hepatitis C and a liver biopsy were denied by prison officials, he

brought suit under 42 U.S.C. § 1983 alleging a violation of his Eighth

Amendment rights. That suit having been dismissed, he now appeals.

       Section 1915(e)(2)(B)(ii) provides that a district court shall dismiss in

   1
     The district court’s order states that the liver biopsy was ordered prior to
Thomas’s transfer to Hutchinson. It appears from the record before us, as alleged
by the petitioner, that Dr. Brockbank’s recommendation for a liver biopsy was
made after his transfer.

                                          2
forma pauperis prisoner actions which it determines “fail[] to state a claim on

which relief may be granted.” Because this language parallels that of Fed. R. Civ.

Proc. 12(b)(6), we apply a de novo standard to a district court’s dismissal of a

prisoner’s action under § 1915(e)(2)(b)(ii). Perkins v. Kan. Dep't. of Corr., 165

F.3d 803, 806 (10th Cir. 1999); see also Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998). “Dismissal of a pro se complaint for failure to state a claim

is proper only where it is obvious that the plaintiff cannot prevail on the facts he

has alleged and it would be futile to give him an opportunity to amend.” Perkins,

165 F.3d at 806. Accordingly, when reviewing a district court’s dismissal of a

prisoner’s complaint under § 1915(e)(2)(b)(ii), we view the factual allegations in

the “light most favorable” to the prisoner just as we do to complaints dismissed

under 12(b)(6):

      All well-pleaded factual allegations in the . . . complaint are accepted as
      true and viewed in the light most favorable to the nonmoving party. A
      12(b)(6) motion should not be granted unless it appears beyond doubt that
      the plaintiff can prove no set of facts in support of his claim which would
      entitle him to relief.

Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

(quotation and citation omitted).

      “Granting defendant’s motion to dismiss is a harsh remedy which must be

cautiously studied, not only to effectuate the spirit of the liberal rules of pleading

but also to protect the interests of justice.” Cottrell, Ltd. v. Biotrol Int’l, Inc.,



                                            3
191 F.3d 1248, 1251 (10th Cir. 1999). Moreover, because Thomas is proceeding

pro se, we must construe his complaint liberally. Haines v. Kerner, 404 U.S. 519,

520–21 (1972). Under this rule, we have concluded that if a court “can

reasonably read the pleadings to state a valid claim on which the [petitioner]

could prevail, it should do so despite the [petitioner's] failure to cite proper legal

authority, his confusion of various legal theories, his poor syntax and sentence

construction, or his unfamiliarity with pleading requirements.” Barnett v.

Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (citation omitted).

      Conditions of prisoner confinement create an obligation on the state to

provide adequate health care for a prisoner. Estelle v. Gamble, 429 U.S. 97, 103

(1976). In light of this duty, we have held that “[a] prison official’s deliberate

indifference to an inmate’s serious medical needs violates the Eight Amendment.”

Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). However, not all failures

to provide health care rise to the level of a constitutional violation. Indeed, “[i]n

order to state a cognizable claim, a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Estelle, 429 U.S. at 106. “Deliberate indifference” is analyzed according to an

objective and subjective component. Farmer v. Brennan, 511 U.S. 825, 834

(1994); Sealock, 218 F.3d at 1209. Under the objective component, deliberate

indifference occurs if the deprivation is of a sufficiently serious nature, which we



                                           4
have held is “one that has been diagnosed by a physician as mandating

treatment. . . .” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Under the

subjective component, petitioner must establish that the “defendant(s) knew he

faced a substantial risk of harm and disregarded that risk, by failing to take

reasonable measures to abate it.” Id. (quotation omitted).

      As for the objective component, and taking petitioner’s claims as true, as

we must on review of a district court’s dismissal pursuant to § 1915(e)(2)(b)(ii),

Thomas asserts that Dr. Brockbank diagnosed his liver-enzyme levels as

sufficiently abnormal to warrant treatment which would begin with a liver biopsy.

It appears from the record that he has been denied this treatment by defendant Ms.

Myers, the Health Services Administrator working on behalf of Correct Care

Solutions, a private health care provider operating health services at Hutchinson

Correctional Facility, by defendant Ms. Lundry, Director of Nursing for the

facility, and by the Warden, Mr. L.E. Bruce, who reviewed the matter.

Defendants’ denial conflicts with Dr. Brockbank’s diagnosis and recommendation

for treatment. Thus, at the present stage of the proceedings, the deprivation is of

a sufficiently serious nature because we accept that it has been “diagnosed by a

physician mandating treatment.” Hunt, 199 F.3d at 1224.

      As for the subjective component, petitioner has provided evidence of

defendants’ knowledge of his Hepatitis C disease, Dr. Brockbank’s



                                          5
recommendation that a liver biopsy be performed, and lab reports indicating

abnormally high liver-enzyme levels. Moreover, defendants’ apparent failure to

take reasonable measures to abate petitioner’s disease, given their knowledge of

the risk, would satisfy the subjective component for deliberate indifference. As

evidence of defendants’ subjective knowledge, petitioner provides a memorandum

written by Ms. Lundy on June 10, 2004 in response to his grievance complaint,

which in relevant part provides: “I have also reviewed your medical record

concerning your Hepatitis C issues. You have been followed on a regular basis

for your Hepatitis C. We are following the protocol regarding your treatment for

Hepatitis C. Your most recent lab indicates your liver enzymes to be within

normal limits.” Petitioner attaches a lab report dated October 21, 2004 which

indicates abnormally high ALT levels (193 – normal is less than 40) and AST

levels (119 – normal is less than 37). 2 Although the “most recent lab” referenced

in a June 10, 2004 memorandum could not possibly mean the October 2004

report, Ms. Lundy’s claim conflicts with Dr. Brockbank’s conclusion that

Thomas’s liver enzymes are abnormally elevated (as petitioner characterizes Dr.




   2
     A cursory review of the Centers for Disease Control’s website reveals that
such high ALT levels are indicative of Hepatitis C and could indicate the
presence of liver disease stemming from his Hepatitis C infection. See
http://www.cdc.gov/ncidod/diseases/hepatitis/c/.

                                         6
Brockbank’s conclusion), and it conflicts with the lab report petitioner provides. 3

Both of these inconsistencies lead us to conclude that Thomas’s complaint

sufficiently alleges defendants’ subjective disregard of risk to his health by

failing to take reasonable measures to abate that risk. 4 See Farmer, 511 U.S. at

847; Hunt, 199 F.3d at 1224.

       We are concerned that the record reflects no evidence, beyond defendants’

own administrative denials of petitioner’s claims, that petitioner’s “specific needs

are being met and will continue to be met into the future” as Warden Bruce writes

in his final conclusion to Thomas’s internal grievance. See also Helling v.

McKinney, 509 U.S. 25, 33 (1993) (providing that the Eighth Amendment also

protects against future harm to an inmate). Indeed, the record does not reflect

that defendants have provided any treatment for Thomas’s disease. Beyond

receiving blood tests confirming that he has Hepatitis C and suggesting abnormal

enzyme levels possibly indicative of liver disease, we can find no basis in the


   3
      We also note that Thomas’s brief indicates that a biopsy has been ordered at
least twice while he has been at Hutchinson. After Thomas confronted Nurse
Practitioner Dennis Goff with a copy of his October 2004 lab report that clearly
indicated abnormal enzyme levels, Goff, who had previously stated that his
enzyme levels were normal, ordered a biopsy subject to review by Ms. Meyers. If
true, these allegations suggest both subjective knowledge and a disregard of the
risk to petitioner.
   4
     Although Thomas’s Hepatitis C disease may not be at a stage that would
warrant treatment by alpha or pegylated interferon or ribavirin, taking Thomas’s
complaint as true, it is unclear how the appropriate course of treatment for his
disease properly could be determined without a liver biopsy.

                                          7
record to support the district court’s finding that Thomas “is receiving ongoing

care for his medical condition.” Without much more to indicate an appropriate

and specific course of treatment for petitioner’s Hepatitis C, and in light of the

claims for relief raised by petitioner, dismissal of Thomas’s complaint was error.

        Accordingly, we REVERSE the district court’s dismissal of petitioner’s

complaint and REMAND with instructions to allow Thomas to amend his

complaint as needed. 5 We remind the petitioner that he must continue making

payments on his appellate filing fee.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




   5
       We DENY Thomas’s motion for a preliminary injunction.

                                          8
