              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                           FILED
                                        No. 06-30744                  September 12, 2007
                                      Summary Calendar
                                                                    Charles R. Fulbruge III
                                                                            Clerk
ROY A VANDERHOFF

                                                     Plaintiff-Appellant

v.

RANDY PRENTICE, Medical Director of Avoyelles Correctional
Center; ALFONSO PACHECO, Individually and In His Official
Capacity as a Medical Doctor at Avoyelles Correctional Center

                                                     Defendants-Appellees


                        Appeal from the United States District Court
                           for the Western District of Louisiana
                                 USDC No. 1:05-CV-309


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Proceeding through counsel, Roy Vanderhoff, a former inmate at the Avoyelles
Correctional Center (ACC), filed a 42 U.S.C. § 1983 complaint against Randy Prentice, the
medical director of the ACC, and Dr. Pacheco, a medical doctor at the ACC, alleging
deliberate indifference to a serious medical condition.1 The district court dismissed the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
        Prentice was never served and did not make an appearance in the district court. He thus
was not a party to the suit. See Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987); United States v.
                                         No. 06-30744

complaint for failure to state a claim under FED. R. CIV. P. 12(b)(6). Vanderhoff timely
appealed.
       This court reviews a district court’s dismissal for failure to state a claim pursuant to
Rule 12(b)(6) de novo. Abraham v. Singh, 480 F.3d 351, 354 (5th Cir. 2007). The
plaintiff’s allegations are accepted as true and the dismissal will be upheld “only if it appears
that no relief could be granted under any set of facts that could be proven consistent with the
allegations.” Id.
       To prove an Eighth Amendment claim, a plaintiff must set forth facts showing
deliberate indifference to a serious medical need. See Lawson v. Dallas County, 286 F.3d
257, 262 (5th Cir. 2002). Deliberate indifference requires actual knowledge and conscious
disregard of the risk of harm to the plaintiff. Id. It cannot be inferred from a prison official’s
mere failure to act reasonably. Id. at 262-63. In Lawson, id. at 263, a finding of deliberate
indifference was made where the defendants had “actual knowledge” that a paraplegic inmate
had decubitus ulcers yet failed to follow the instructions of hospital doctors regarding
treatment of the condition.
       Vanderhoff alleged that Pacheco was made aware of his back condition when he
inquired about a scheduled appointment with the orthopedic specialist. Vanderhoff also
alleged that Pacheco told him that surgery “costs too much.” “Under certain circumstances,
allegations of deliberate indifference may be shown when prison officials deny an inmate
recommended treatment by medical professionals.” Payne v. Lynaugh, 843 F.2d 177, 178
(5th Cir. 1988). It is not yet apparent beyond doubt that Vanderhoff could prove no set of
facts consistent with his complaint that would allow him relief. Accordingly, the judgment
is VACATED and the case is REMANDED to the district court for further proceedings.




Texas Educ. Agency, 679 F.2d 1104, 1105 n.1 (5th Cir. 1982).

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