                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-6212


JASON W. KING,

                 Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA, et. al.; FEDERAL BUREAU OF
PRISONS, et. al.; MICHAEL B. MUKASEY, et. al.; MONTY
CHRISTY,    Correctional    Counselor;   MICHAEL    MIDGLEY,
Correctional Counselor; SAUCUE MA' AT, Unit Manager; ERIC
BROOKS, Case Manager; SUE ENGLES, Associate Warden of
Programs; T.R. CRAIG, Warden; DR. DAVID AIAKMAN, Dentist;
DR. S. HUGHES, DDS/CDO; HATTIE SMALLS, Assistant Warden; DR.
MCDANIELS, Psychologist; F.C.I. BECKLEY, All being sued in
their individual and Official capacity,

                 Defendants - Appellees.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:09-cv-00068)


Argued:   May 14, 2013                        Decided:   July 31, 2013


Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.             Judge Keenan wrote the
majority opinion, in which Judge           Wilkinson joined.   Judge
Gregory wrote a dissenting opinion.


ARGUED:      Stephanie  D.   Taylor,  JONES  DAY,   Pittsburgh,
Pennsylvania, for Appellant. John Fulton Gianola, OFFICE OF THE
UNITED   STATES   ATTORNEY,   Charleston,   West  Virginia,  for
Appellees.    ON BRIEF:     Lawrence D. Rosenberg, JONES DAY,
Washington, D.C., for Appellant.     R. Booth Goodwin II, United
States Attorney, Stephen M. Horn, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

        Jason King brings this action pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), 1 claiming that staff members at F.C.I. Beckley, the

Federal Bureau of Prisons (BOP) institution in West Virginia

where King was then incarcerated, violated his Eighth Amendment

rights by acting with deliberate indifference to his serious

medical needs.       Following the recommendation of a magistrate

judge, the district court dismissed King’s complaint under 28

U.S.C. § 1915A for failure to state a claim.     Upon our review,

we conclude that King did not plead a plausible claim that his

constitutional rights were violated.    Accordingly, we affirm the

judgment of the district court.



                                  I.

     In his pro se complaint, King alleged that he was scheduled

for a mandatory dental screening at F.C.I. Beckley on May 30,

2007.       When he arrived at the dental clinic, he provided his

prison identification card to dental staff and received an x-

        1
       Although King pleaded his claims under 42 U.S.C. § 1983,
we, like the district court, construe his allegations as
asserting Bivens claims.     See 403 U.S. at 389 (permitting
damages   actions   against  federal   officials  for   certain
constitutional claims); see also Carlson v. Green, 446 U.S. 14
(1980) (extending Bivens to claims brought under the Eighth
Amendment).



                                  3
ray.       Thereafter, the dentist approached King with a needle and,

in response to King’s question, the dentist stated that the use

of a needle was routine.       King generally alleges that he “tried

to inform [staff] that he was only there for a (first time)

examination.”       Nevertheless, King received a filling in a tooth

that was previously healthy (the damaged tooth).

       King alleged in his complaint that another patient, also

with the last name of King, was scheduled to have a filling

procedure that day, and the dental staff mistook King for the

other patient.       The dental staff discovered the error after the

procedure was complete.

       King suffered ongoing pain in the damaged tooth following

the procedure.       Although King received treatment for the pain,

dental staff at F.C.I. Beckley did not perform a root canal, to

which King claims he was entitled. 2

       After pursuing various grievance procedures with the BOP,

King filed a pro se complaint in the district court in January

2009.       The court dismissed King’s complaint according to the

mandatory screening procedures for lawsuits filed by prisoners




       2
        King eventually received a root canal          after   he   was
transferred to a new BOP facility in April 2008.



                                    4
set forth in 28 U.S.C. § 1915A, concluding that the complaint

failed to state a claim upon which relief can be granted. 3

      King   timely    filed     a     notice        of     appeal,     and       is     now

represented by counsel.



                                        II.

      We review de novo the district court’s decision to dismiss

King’s complaint for failure to state a claim pursuant to 28

U.S.C. § 1915A.      Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243,

248   (4th   Cir.   2005).     We     must    construe       liberally        a    pro    se

complaint, “however inartfully pleaded,” and accept as true the

factual allegations in the complaint.                     Erickson v. Pardus, 551

U.S. 89, 94 (2007) (citation omitted); De’lonta v. Johnson, 708

F.3d 520, 522 (4th Cir. 2013).

      To state a claim of cruel and unusual punishment under the

Eighth    Amendment,    a    prisoner         must        allege:     (1)     that       the

deprivation of a basic human need, as an objective matter, was

sufficiently    serious;       and     (2)     that,        when    viewed        from    a

subjective     perspective,          prison     officials           acted         with     a


      3
       The district court also held that dismissal was warranted
because King had not exhausted his administrative remedies as
required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). However, because King has not adequately pleaded a
Bivens cause of action, we do not address this alternative basis
for the court’s order of dismissal.



                                         5
sufficiently culpable state of mind.                          See De’lonta, 708 F.3d at

525.       To     satisfy    the    subjective          component,       a     prisoner      must

allege       that        prison      officials            acted        with         “deliberate

indifference”        to     his    serious       medical       need.         Id.;    Wilson    v.

Seiter, 501 U.S. 294, 297 (1991).                       We consider prison officials’

culpable mental state because “only the unnecessary and wanton

infliction of pain implicates the Eighth Amendment.”                                   Wilson,

501 U.S. at 297 (citing Estelle v. Gamble, 429 U.S. 97, 104

(1976))         (internal     quotation           marks        omitted)        (emphasis       in

original).

       To constitute deliberate indifference to a serious medical

need, “the treatment [a prisoner receives] must be so grossly

incompetent, inadequate, or excessive as to shock the conscience

or   to    be     intolerable       to    fundamental          fairness.”           Miltier    v.

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

indifference        requires       that     a    prison       official       “know[]    of    and

disregard[] an excessive risk to inmate health or safety,” that

is, “the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exists,     and     he     must    also        draw   the      inference.”           Farmer    v.

Brennan, 511 U.S. 825, 837 (1994).                      It is well-settled, however,

that      “mere    negligence       or     malpractice          does     not    violate       the

[E]ighth        [A]mendment.”            Miltier,       896    F.2d    at    852     (citations

omitted).

                                                 6
                                            A.

       We first address King’s contention that prison officials

acted with deliberate indifference to his serious medical need

when they operated on his healthy tooth, without confirming his

identity or determining whether he required a filling. 4                        King

claims that, based on his protests, dental staff were on notice

that       he   was   the    wrong   patient     and    that   they   should    have

investigated further before proceeding with the filling process.

       A prison official has displayed deliberate indifference if

he     “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.”                   Farmer, 511 U.S. at 843

n.8; see also Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105

(4th    Cir.     1995)     (“[A]   prison   official     cannot   hide     behind   an

excuse that he was unaware of a risk, no matter how obvious.”).

Thus, “Eighth Amendment liability requires consciousness of a

risk” on the part of prison officials.                  Farmer, 511 U.S. at 840.

See also White ex rel. White v. Chambliss, 112 F.3d 731, 737

(4th Cir. 1997) (deliberate indifference “implies at a minimum




       4
       We assume for purposes of this opinion that King has
alleged the existence of a serious medical need sufficient to
satisfy the objective component of the Eighth Amendment
standard.



                                            7
that defendants were plainly placed on notice of a danger and

chose to ignore the danger notwithstanding the notice”).

       King argues that he pleaded facts that satisfy the standard

set    forth   in    Farmer,        namely    that:     (1)   he     “tried   to    inform”

dental      staff    that      he     was     present     for       an    initial    dental

screening; (2) dental staff did not inquire about his dental

problems when he arrived in the clinic; (3) an x-ray was taken

before the procedure, from which dental staff apparently failed

to    ascertain     that    King      did    not   require      a    filling;      (4)   King

questioned the dentist about the need for a needle; and (5) King

was not given a consent form to sign before the procedure was

performed.

       We   are     troubled    by     the    dental     staff’s         failure    to   take

common-sense        steps   before      performing        the       procedure,      such   as

confirming through visual or x-ray inspection that King in fact

required a filling.            Such efforts may well have prevented the

harm King now asserts.                Nevertheless, we cannot conclude that

these failures rise to the level of deliberate indifference.

       First, the prison dental staff did not entirely abdicate

their responsibility to ensure that they provided treatment to

the correct patient.            The staff apparently attempted to verify

King’s identity by reviewing his prison identification card when

he arrived in the clinic.                    Moreover, although on appeal King

contends that he attempted to notify the staff of his identity

                                              8
“several” times, the allegations in the complaint regarding the

extent of his protests are far less clear.                   King proffers only

two allegations that he protested the drilling procedure: (1)

when the dentist approached King with a needle, King “asked what

[the   needle]    was   for”;   and    (2)    King    “tried      to    inform    [the

dentist and a dental assistant] that [King] was only there for a

(first time) examination.”

       Moreover, in contrast to King’s current contention that he

vigorously     protested      the     case    of     mistaken      identity,       the

allegations    in   the    complaint     indicate     that    King      himself    was

unsure of the mistake until after the procedure was complete.

Even   construing    the     complaint   liberally      in    King’s      favor,    we

cannot ignore his own assertions that the dental staff should

have   asked     questions    alerting       King    that    he   was    the     wrong

patient, and that after his tooth was filled and dental staff

realized the error, “the mistake was then brought to [King’s]

attention.”

       In sum, the facts pleaded in the complaint do not indicate

that prison officials “refused to verify underlying facts that

[they] strongly suspected to be true,” see Farmer, 511 U.S. at

843 n.8, but rather suggest at most that prison officials were




                                         9
negligent     in    failing      to   confirm      King’s    identity. 5       We    have

explained     that       “[d]eliberate       indifference          is   a   very     high

standard—a showing of mere negligence will not meet it.”                            Young

v.   City   of     Mt.   Ranier,      238   F.3d    567,    575     (4th    Cir.    2001)

(quoting Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)).

King must meet this rigorous standard because the Constitution’s

protection of rights does not provide a remedy for mere errors

in   judgment,      “even    though     such      errors    may     have    unfortunate

consequences.”       Grayson, 195 F.3d at 695-96.                  For these reasons,

we conclude that the district court properly dismissed King’s

claim that prison officials acted with deliberate indifference

when they subjected him to an unneeded dental procedure.

                                            B.

      We    next    turn    to   consider        King’s    claim    that    his    Eighth

Amendment rights were violated when prison officials “refused to

alter their diagnosis and course of treatment, despite [King’s]


      5
       We agree with King’s argument that the district court
should not have focused on King’s use of the word “mistake”
throughout his complaint to refer to the prison officials’
error.    The word “mistake” in this context is a legal
conclusion, not a fact that we must assume is true in evaluating
whether a plaintiff has stated a claim for relief. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).     In light of our duty to
construe pro se complaints liberally, we disagree with the
district court’s conclusion that, through this word choice, King
intended   to    allege   negligence   rather   than   deliberate
indifference.   Thus, we do not consider King’s use of the word
“mistake” in analyzing the sufficiency of his complaint.



                                            10
complaints of continued pain” following the erroneous drilling

procedure.            King urges that, although he received some treatment

for        the        damaged        tooth,        including           pain        medication          and

antibiotics,            prison           officials          still    acted       with         deliberate

indifference by failing to perform a root canal.                                         We disagree

with King’s argument.

       A prisoner can establish a claim of deliberate indifference

“by    a    showing          of    grossly       inadequate          care     as    well       as    by   a

decision         to     take       an    easier        but    less     efficacious            course      of

treatment.”            McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.

1999).           This    standard          can    be        satisfied      “when     the       need    for

treatment         is     obvious”          yet     prison          officials       merely        provide

“medical care which is so cursory as to amount to no treatment

at all.”          Id.        We thus have explained that when a prisoner is

provided “some treatment” appropriate for his condition, this

fact       does        not     necessarily         satisfy           the    Eighth        Amendment’s

requirement of “constitutionally adequate treatment.”                                          De’lonta,

708 F.3d at 526 (emphasis in original).                               Nevertheless, prisoners

do not have a constitutional right “to the treatment of his or

her    choice,”         id.,       and    “[m]ere       disagreement          as    to    the       proper

medical treatment” does not constitute deliberate indifference.

Spruill          v.     Gillis,          372     F.3d        218,     235     (3d     Cir.          2004).

Accordingly,            we        must     evaluate          whether       the     treatment          King

received          in     advance          of     his        root    canal     was        so     “grossly

                                                       11
inadequate” that it amounted to cruel and unusual punishment

under the Eighth Amendment.

       Following the erroneous drilling procedure, King repeatedly

complained of pain and was evaluated by prison dental staff nine

times over a period of almost six months.                During those visits,

he received several x-rays, which showed no problems with the

damaged tooth but decay in a neighboring tooth, for which King

declined treatment.         Also in response to King’s reports of pain,

dental    staff     adjusted    his   occlusion,       and   provided    numerous

prescriptions for pain medication as well as antibiotics.                      When

King    continued    to     experience   pain,    dental     staff   offered    to

extract   the     damaged    tooth,   which    offer    King   refused.        King

ultimately received a root canal on the damaged tooth after he

arrived at a new BOP facility.                Upon a careful review of the

allegations in King’s complaint, as well as his arguments on

appeal, we conclude that these allegations do not state a claim

for deliberate indifference.

       In arguing that the treatment he received at F.C.I. Beckley

was    constitutionally       inadequate,     King   relies    largely    on    his

contention that he eventually received an “urgent” root canal on

the damaged tooth.        Even assuming that a root canal was a proper

treatment for his condition and was required at the time of his

transfer in April 2008, these facts alone do not state a claim

of deliberate indifference.           The complaint contains no factual

                                         12
allegations     indicating         that     the       root     canal       was     in    fact

“urgently” required or that the procedure was performed on an

emergency     basis.          More      importantly,          the    fact        that    King

eventually    received       a   root    canal       does    not    raise    a    plausible

inference that the care he already had received between June and

October 2007 at F.C.I. Beckley, including the pain medication,

antibiotics,    and     an       occlusion      adjustment,          was    improper        as

initial     treatment    for       tooth     pain,      much        less    that        prison

officials    acted     with      deliberate       indifference         to    his    medical

needs in providing this series of treatments.                          Compare Loe v.

Armistead, 582 F.2d 1291, 1292-93 (4th Cir. 1978) (a prisoner’s

“obvious[ly]” broken arm was not examined by a jail physician

until eleven hours after the injury occurred, and the prisoner

was transferred to a hospital almost a full day later, despite

his repeated requests for medical care); McElligott, 182 F.3d

1257-58   (medical      staff      failed       to    investigate          the    cause    of

extreme     gastrointestinal         symptoms         stemming       from    undiagnosed

terminal colon cancer).

      Instead, King’s complaint alleges that, in response to his

continued reports of pain, prison dental staff evaluated King on

numerous occasions over several months, and attempted multiple

diagnostic and treatment options, including x-rays that revealed

no problems with the damaged tooth.                   Although these efforts were

not   ultimately       successful,         we        cannot    conclude          that      the

                                           13
allegations in the complaint show more than the dental staff’s

mere       negligent   attention   to   King’s   need     for    a   root   canal. 6

Accordingly, we hold that the treatment King received for his

damaged tooth was not so egregiously deficient as to constitute

cruel and unusual punishment under the Eighth Amendment. 7



                                        III.

       We are not unsympathetic to King’s plight.                     He was the

victim of an unfortunate case of mistaken identity that resulted

in     ongoing    pain.      Nevertheless,       relief    under      the   Eighth

Amendment is reserved for cases of cruel and unusual punishment,

that is, egregious conduct by prison officials reflecting the

“unnecessary and wanton infliction of pain.”                    Wilson, 501 U.S.

       6
        In De’lonta, in which we held that an inmate had
adequately alleged a claim of deliberate indifference, the
prison flatly refused to provide the inmate with a surgical
procedure that was the single remaining, approved treatment for
her documented “debilitating” condition, “despite her repeated
complaints   to    [prison officials]    alerting them  to  the
persistence of her symptoms and the inefficacy of her existing
treatment.”     708 F.3d at 525.      Here, by contrast, prison
officials utilized a variety of diagnostic tests and treatments
in response to King’s complaints, and King ultimately received
the root canal procedure.
       7
       In his complaint, King also alleged that a prison mental
health counselor acted with deliberate indifference by failing
to provide King mental health services following the erroneous
dental procedure. Because King has not briefed the dismissal of
this claim, but merely references it in a cursory fashion in his
opening brief, we do not consider this claim on appeal.      See
United States v. Holness, 706 F.3d 579, 592 (4th Cir. 2013).



                                         14
at 297 (emphasis omitted).       This level of culpability is not

present   here.   Accordingly,   we   affirm   the   judgment    of   the

district court.

                                                                AFFIRMED




                                 15
GREGORY, Circuit Judge, dissenting:

       The majority correctly states the high threshold for an

Eighth Amendment claim of deliberate indifference.                               I concur in

the judgment holding that King failed to state a claim regarding

the    course      of    treatment     after       his      dental    visit.        However,

because the facts as pled by King pertaining to the unnecessary

dental      procedure        meet     the     high        threshold        for     deliberate

indifference, I respectfully dissent from Part II(A).



                                              I.

       As   the         majority     explains,         “[a]       prison     official      has

displayed       deliberate         indifference        if     ‘he    refused       to   verify

underlying facts that he strongly suspected to exist.’”                                 Ante 7

(quoting Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994)).                                   A

deliberate      indifference         claim        “need     not     show    that    a   prison

official acted or failed to act believing that harm actually

would befall an inmate; it is enough that the official acted or

failed to act despite his knowledge of a substantial risk of

serious harm.”           Farmer, 511 U.S. at 842.

       King’s statement that he was only present for a first-time

examination was unequivocal.                  There is no basis for filling a

tooth without first diagnosing decay.                       As such, King’s statement

that   he    was    only     present        for    a   first-time          examination     was

tantamount to a statement that he was not there for a filling.

                                              16
The dentist’s choice not to verify the purpose of King’s visit,

and his persistence in completing the drilling despite King’s

protest is plausible deliberate indifference.                     See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550

U.S.    544,   570    (2007).       The        dentist    was    on   notice      of    a

fundamental underlying fact establishing that he was about to

commit an extreme error in treatment.

       The majority finds that Defendants were not deliberately

indifferent, in part, because the staff members did not entirely

“abdicate their responsibility” to verify King’s identity.                         Ante

8.     They did in fact ask upon arrival for his identification

card.    However, it is apparent the staff did not verify King’s

identity.       Also,    King     protested       after    he    handed     over       his

identification card and while seated in the dental chair.                              See

Giroux v. Somerset, 178 F.3d 28, 34 (1st Cir. 1999) (prison

official’s abdication of responsibility after being placed on

notice of risk to prisoner can rise to the level of deliberate

indifference).       No confirmation took place at the critical point

when it mattered most that Defendants verify the purpose for

King’s visit and his identity.

       Moreover,     abdication    of     responsibility        is    not   the    only

means of establishing deliberate indifference.                        There can be

deliberate     indifference     when    the      defendant      refuses     to   verify

underlying facts upon a strong suspicion of error.                        Farmer, 511

                                          17
U.S.   at    843     n.8.       That     is        the    claim       here.         King   plausibly

alleges Defendants chose not to verify his identity and purpose

for his visit even after his warning to the dentist that he had

not been diagnosed with any decay that needed treatment.

       The majority also points out that King only protested the

drilling      twice,       implying          that        this    was     not    enough          to    put

Defendants on notice of the impending error.                                  Ante 9.        However,

the    communication’s            “content         and     manner       of     transmission”           to

Defendants, not quantity, are essential to a determination of

the sufficiency of notice regarding the risk of harm.                                      See Vance

v.    Peters,      97    F.3d     987,       993    (7th        Cir.   1996).            King    stated

directly      to     the    staff       that       he     was     there       for    a     first-time

examination, making clear the purpose of his visit and providing

sufficient notice that any other treatment could be harmful.

       Likewise,         the    majority           points       out    that     even       King       was

unaware      that       another    inmate          named    King       was     coming       into      the

dental office until after the erroneous filling was complete.

Ante    9.         This     does       not     diminish          the     sufficiency            of    his

complaint.         Although King did not know of the other inmate, he

was clearly aware of the purpose of his visit.                                 The fact that he

did not know about the other inmate does not change the fact

that he adequately protested the drilling.

       What makes the dentist’s alleged actions blameworthy is his

“persistent         conduct       in   the     face        of    . . .       [the]       risk    of    []

                                                   18
injury.”     See White v. Napoleon, 896 F.2d 103 (3d Cir. 1990)

(prisoner stated claim for deliberate indifference where prison

doctor continued to use medication despite being told by the

plaintiff that it had caused him injury); see also Mutcheler v.

SCI Albion CHCA Health Care, 445 F. App’x 617 (3d Cir. 2011)

(unpublished) (prisoner stated claim for deliberate indifference

where prison official continued to use latex catheter despite

being told by plaintiff about his allergy and a medical record

reflected    allergic   reaction   history).       The    dentist’s   actions

were not “mere errors in judgment.”            Ante 10.      At this stage,

there are sufficient facts to conclude the dentist was aware of

the risk of filling a healthy tooth.        See Coleman v. Rahija, 114

F.3d 778, 786 (8th Cir. 1997) (“The factual determination that a

prison official had the requisite knowledge of substantial risk

may be inferred from circumstantial evidence or from the very

fact that the risk was obvious.” (citing Farmer, 511 U.S. at

842)).     The risk was obvious here.          Without assessing whether

the tooth was healthy, King’s question about the purpose of the

needle and his statement that he was only present for a first-

time examination are sufficient facts to make the dentist aware

of the risk posed.

     King’s complaint does not lower the high standard for a

deliberate    indifference   claim    and   open    the    flood   gates   to

pleadings that would not rise to a constitutional violation.

                                     19
This is a rare situation where King alleges his warning was

ignored which resulted in his injury.    The fate of this case if

it were to go to trial is unknown.      “Of course, the prisoner[]

may have insufficient evidence to show the [dentist] intended to

inflict pain or was deliberately indifferent to [his] needs.

The [dentist] may come forward with evidence to the contrary.”

White, 897 F.2d at 109.    However at this stage, all we are to

determine is whether King has made a sufficient showing in the

complaint to survive dismissal for failure to state a claim.

Id.   Because King met his burden, I respectfully dissent.




                                20
