                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-6382


ADRIAN F. KING, JR.,

                Plaintiff - Appellant,

           v.

JIM RUBENSTEIN, Commissioner; MARVIN C. PLUMLEY, Warden;
DIANNE   R.   MILLER,  Associate   Warden   Programs/Housing;
SERGEANT GROVER ROSENCRANCE, Deputy Warden; LESTER THOMPSON,
Unit Manager E-1 Segregation; SHERRI DAVIS, Unit Manager
E-2 Segregation; STACY SCOTT, Supervised Psychologist/Ad
Seg Board; MIKE SMITH, SR., Unit Manager Ad Seg Board;
SAMANTHA GSELL, Case Manager Ad Seg Board; ADAM SMITH, Unit
Manager/Ad   Seg   Board   Chairman;   CLIFF   GOODIN,   Head
Psychologist, in their official and personal capacities,

                Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cv-00042-GMG-JSK)


Argued:   January 27, 2016                 Decided:   June 7, 2016


Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.


Affirmed in part, reversed, vacated, and remanded in part by
published opinion.   Judge Gregory wrote the opinion, in which
Judge Duncan and Judge Floyd joined.


ARGUED:   Tennille Jo Checkovich, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant. Natalie C. Schaefer, SHUMAN, MCCUSKEY
& SLICER, PLLC, Charleston, West Virginia, for Appellees.    ON
BRIEF: Michael W. Stark, MCGUIREWOODS LLP, Richmond, Virginia,
for Appellant.   Kimberly M. Bandy, SHUMAN, MCCUSKEY & SLICER,
PLLC, Charleston, West Virginia, for Appellees Jim Rubenstein,
Marvin C. Plumley, Dianne R. Miller, Grover Rosencrance,
Lester Thompson, Sherri Davis, Mike Smith, Sr., Samantha Gsell,
and Adam Smith.




                               2
GREGORY, Circuit Judge:

       Adrian F. King, Jr. appeals the district court’s dismissal

of his complaint for failure to state a claim.                          King filed suit

under 42 U.S.C. § 1983 against several correctional officers,

medical      personnel,          and     prison       administrators          for     alleged

violations        of    his     constitutional            rights    after    he     underwent

surgery      to    remove       penile    implants         while     incarcerated.         We

conclude      that      King’s     complaint         properly       stated    his    Fourth,

Eighth,      and       Fourteenth      Amendment          Equal     Protection      and    Due

Process claims.           We also hold that King stated a claim against

Marvin Plumley.               We reverse the district court’s decision on

those    bases,        vacate    the     dismissal,        and     remand    the    case   for

further proceedings.             We affirm the dismissal as to Stacy Scott,

Cliff Goodin, and Jim Rubenstein, but modify the dismissal of

the latter two to be without prejudice.



                                             I.

       In reviewing a dismissal for failure to state a claim, we

accept as true all of the factual allegations contained in the

complaint and draw all reasonable inferences in favor of the

plaintiff.         E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 440 (4th Cir. 2011).                         We may consider additional

documents attached to the complaint or the motion to dismiss “so

long    as   they       are    integral    to       the    complaint    and    authentic.”

                                                3
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009).       Here,        we   look    to    King’s     complaint,       including    his

attached statement of claims, and his notice of claim, including

the grievance attachment, all filed pro se, in laying out the

following factual allegations.

                                              a.

     King     is     an     inmate     at    Huttonsville       Correctional       Center

(“HCC”) and has been incarcerated since March 23, 2012.                         In fall

2008, prior to his incarceration, King had marbles implanted in

and tattoos drawn on his penis.                    He and his then fiancée, who is

now deceased, decided to have the implants done during the “body

modification”         craze,          as     they       had      heard     about      the

“intensification of sensitivity and euphoric climaxes” resulting

from the procedure.            J.A. 16.

     On January 8, 2013, King was called to the control booth in

his unit, where a corrections officer told him to report to

“medical” to be examined.                  Id. at 25.     King was to be examined

because     an     inmate      reported      seeing     King    and   another      inmate

implanting marbles into their penises.                        The nurse who examined

King verified that the marbles were not recently implanted and

that there was no sign of infection.

     King was escorted to the segregation unit, where an officer

told him that the implants were not noted in his file.                               King

responded that when he was being processed at Mt. Olive, he

                                              4
informed the processing officer of the marbles and tattoo.                       The

officer told him, “This isn’t a pornographic camera, put [your]

clothes back on.”      Id.

     King    was     subsequently         found    in    violation       of    Policy

Directive    325.00-1.26,         which   prohibits     exposing    body      fluids,

tattoos, and piercings.           The policy states:

     1.26—Exposing    Body   Fluids/Tattooing/Piercing:   No
     inmate shall intentionally expose to any person body
     fluids such as urine, feces, spit, blood, or any other
     body fluid. No inmate shall give oneself or others a
     tattoo/piercing or allow another inmate to give
     him/her a tattoo/piercing.     No inmate shall possess
     any    tattooing/piercing   equipment,    to   include,
     tattooing ink, tattooing patterns, tattooing needles,
     etc.
King Br. 24. Due to this violation, King was sentenced to sixty

days of punitive segregation, sixty days loss of privileges, and

ninety days of loss of good time.

     While    King    was    in    segregation,        Sherri   Davis,    the   unit

manager of segregation unit E-2, brought King to her office.

There, she had King sign a piece of paper without giving him the

opportunity to read it.              Davis told him that he was signing

consent papers to go to Ruby Memorial Medical Center to have a

doctor   examine     his    implants      and,    if   necessary,    remove     them.

King was taken to Ruby Memorial, where he was examined by Dr.

Henry Fooks, Jr.           Fooks determined that the implants were not

recently inserted and that there was no medical need to remove

them.    When King was transported back to HCC, Deputy Warden


                                           5
Grover Rosencrance told him, “Get comfortable you stupid Son of

a Bitch, you’ll be placed in Administrative Segregation until

you do as I say and have those marbles removed.”                      J.A. 26.      King

responded that Rosencrance could not punish him twice for the

same violation.            Rosencrance said, “I can do what the Fuck I

want.”        Id.          King     was   then     returned     to    administrative

segregation.         King alleges that HCC officials threatened him

with segregation for the remainder of his sentence and loss of

parole eligibility if he did not consent to surgery.

      On June 19, 2013, King “gave in” and let them remove the

marbles      at    Ruby     Memorial.            Id.     The    surgery     was     done

“practically        against       [his]   will    as   [he]    was   coerced   by    the

administration because of the threats they made” about continued

segregation and loss of parole eligibility.                    Id. at 31.

      As a result of the surgery, King now experiences physical

symptoms.         He has tingling and numbness in his penis; pain in

the   area    where    the    marbles      were     removed;    an   “uncomfortable,

stretching feeling where the cut was made”; pain in his penis

when it rains, snows, or gets cold; and “stabbing pain [that]

shoots into [his] stomach” if he bumps into something or the

scar on his penis is touched.                     Id. at 15, 27.          King never

experienced        these     symptoms      until       after   his    implants      were

removed.



                                            6
      King also experiences mental and emotional anguish as a

result of the surgery.         He gets “very depressed every time [he]

shower[s] or urinate[s]” because he sees the scarring and is

reminded of his deceased fiancée.           Id. at 15.        He worries about

“the possibilities that [his] penis will still be numb when [he]

. . . is with another woman” and about how he will explain what

happened if in the future someone is “sickened by the scarring.”

Id. at 16.    Additionally, King is unable to urinate when any of

his five roommates are in the cell with him, a problem he did

not previously experience.         He is also frightened every time he

sees any of the defendants.           He is ridiculed by the staff:           they

refer to him as “Marble Man” and when they search him, they ask

where his marbles are.         Id. at 15.       Correctional officers make

“[h]omosexual remarks” when they see him.               Id.   He also now has

gay inmates approach him, because of the way the staff have

gossiped about him.       These inmates ask him questions that make

him   feel   uncomfortable      and    “place   [him]    in    a     compromising

situation,   where   it   is   a   strong   possibility       that    a   physical

confrontation” might occur.        Id. at 17.

                                       b.

      King originally filed suit under 42 U.S.C. § 1983 in the

Circuit Court of Kanawha County, West Virginia.                    His complaint

named as defendants Jim Rubenstein (Commissioner), Warden Marvin

Plumley, Dianne R. Miller (Associate Warden Programs/Housing),

                                        7
Deputy    Warden    Rosencrance,     Lester    Thompson       (Unit       Manager   E-1

Segregation),         Sherri    Davis,         Stacy         Scott        (Supervised

Psychologist/Ad Seg Board), Mike Smith, Sr. (Unit Manager, Ad

Seg Board), Samantha Gsell (Case Manager Ad Seg Board), Adam

Smith (Unit Manager Ad Sec Board Chairman), and Cliff Goodin

(Head Psychologist).       A circuit court judge in the Circuit Court

of Kanawha County, West Virginia, reviewed the initial pleadings

and found that the complaint was not “frivolous, malicious or

fails to state a claim,” and accordingly had the clerk issue

process against the defendants.               Id. at 33.             The defendants

removed the case to the U.S. District Court for the Southern

District of West Virginia and moved to dismiss under Federal

Rule of Civil Procedure 12(b)(6).              The case was transferred to

the Northern District of West Virginia, where a magistrate judge

entered his report and recommendation on the motion to dismiss.

Both     sides     filed   objections;        only     the     defendants       filed

responses.       The district court rejected in part and adopted in

part the magistrate’s recommendation and granted the defendants’

motion to dismiss in full.         King timely appeals.



                                      II.

       This   Court   reviews   de    novo     the   grant      of    a    motion   to

dismiss.      Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d

754, 768 (4th Cir. 2011).             A Rule 12(b)(6) motion tests the

                                       8
sufficiency     of   a   complaint;     it    does   not,    however,     “resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.”            Edwards v. City of Goldsboro, 178

F.3d   231,   243    (4th    Cir.   1999)     (quoting    Republican     Party   v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992)).                 To survive a motion

to   dismiss,    the     complaint’s    “[f]actual        allegations     must   be

enough to raise a right to relief above the speculative level”—

that is, the complaint must contain “enough facts to state a

claim for relief that is plausible on its face.”                         Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).                       Bare legal

conclusions “are not entitled to the assumption of truth” and

are insufficient to state a claim.              Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).            Nevertheless, pro se pleadings are “to be

liberally     construed,”       and    “a     pro    se     complaint,     however

inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.”                  Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)).



                                       III.

       King appeals the dismissal of his substantive claims, as

well as the dismissal of Scott, Plumley, Rubenstein, and Goodin.




                                        9
                                            a.

     King    first     claims        that    the          district         court        improperly

dismissed    his    Fourth    Amendment           claim.          The      Fourth       Amendment

protects    “[t]he    right     of    the     people         to       be   secure        in   their

persons . . . against unreasonable searches and seizures.”                                      U.S.

Const. amend. IV.         The applicability of the Fourth Amendment

turns on whether “the person invoking its protection can claim a

‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of

privacy’ that has been invaded by government action.”                                   Hudson v.

Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442

U.S. 735, 740 (1979)).

     In Hudson, the Supreme Court held that an inmate has no

reasonable expectation of privacy, and thus no Fourth Amendment

protection, in his prison cell, given “the paramount interest in

institutional      security.”          Id.       at       528.        While    “imprisonment

carries with it the circumscription or loss of many significant

rights,” the Supreme Court nevertheless cautioned that “prisons

are not beyond the reach of the Constitution.”                                Id. at 523-24.

Indeed, five years earlier in Bell v. Wolfish, 441 U.S. 520

(1979),     the    Supreme    Court         “developed            a    flexible          test     to

determine    the     reasonableness          of       a    broad       range       of    sexually

invasive searches . . . .”             United States v. Edwards, 666 F.3d

877, 883 (4th Cir. 2011) (citation and internal quotation marks

omitted).     Under Wolfish, a court is to consider the following

                                            10
factors to determine the reasonableness of the search:                             “the

scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in

which it is conducted.”            441 U.S. at 559.

      This    Court    has    previously         “assum[ed]     that     the     Fourth

Amendment    continues       to    apply   to    lawfully     confined    prisoners”

before     weighing     the       competing      interests     to     determine     the

reasonableness of a search.                E.g., Jones v. Murray, 962 F.2d

302, 307 (4th Cir. 1992).            As the district court noted, “nothing

in Hudson indicates the Supreme Court intended to abrogate a

prisoner’s expectation of privacy beyond his cell.”                           J.A. 171.

And   we   agree     with   our     sister      circuits    that,     under    Wolfish,

prisoners retain an interest in some degree of bodily privacy

and integrity after Hudson.             See King v. McCarty, 781 F.3d 889,

900 (7th Cir. 2015) (per curiam) (“Even in prison, case law

indicates that the Fourth Amendment protects, to some degree,

prisoners’ bodily integrity against unreasonable intrusions into

their bodies.”); Sanchez v. Pereira-Castillo, 590 F.3d 31, 42 &

n.5 (1st Cir. 2009) (“We have recognized that a limited right to

bodily     privacy     against       searches      is   not    incompatible        with

incarceration.”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.

1997) (“Notwithstanding the language in Hudson, our circuit has

held that the Fourth Amendment right of people to be secure

against      unreasonable          searches       and      seizures     extends      to

                                           11
incarcerated prisoners . . . .” (internal quotations omitted));

Elliott v. Lynn, 38 F.3d 188, 191 n.3 (5th Cir. 1994) (same);

Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“[A]

convicted    prisoner     maintains        some      reasonable    expectations      of

privacy while in prison . . . even though those privacy rights

may be less than those enjoyed by non-prisoners.”); Covino v.

Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that despite

Hudson, “inmates do retain a limited right to bodily privacy”);

Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (same);

Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (citing Wolfish

and applying traditional Fourth Amendment analysis to prisoner’s

claim).     Accordingly, King maintains some legitimate expectation

of privacy in his person.

       We    hold     that       the     Wolfish       factors      weigh       against

reasonableness and thus reverse the district court’s dismissal

of King’s complaint.          As to the first factor, the scope of the

intrusion, the surgery was beneath the skin into a sensitive,

private     body    part—it    was      certainly      not   “commonplace.”         See

Sanchez, 590 F.3d at 45.               Unlike the blood test in Schmerber v.

California, 384 U.S. 757 (1966), this surgery involved “risk,

trauma,     [and]     pain”:      King     alleged       scarring     and       botched

incisions, pain and tingling, and emotional anguish.                            See 384

U.S.   at   771;    see   also    Winston       v.   Lee,    470   U.S.   753    (1985)

(holding, outside of the prison context, that Virginia could not

                                           12
compel surgery to remove a bullet from a suspect’s chest, in

part    because   of    the      risk,   trauma,        and    pain   involved        in    the

procedure); Sanchez, 590 F.3d at 45 (finding scope egregious

where    plaintiff      alleged      that    he    was     “slashed      and    mutilated”

during surgery, that his “life and health were jeopardized,” and

that he experienced “severe physical and emotional pain” as a

result).       The interest in bodily integrity involves the “most

personal and deep-rooted expectations of privacy,” Lee, 470 U.S.

at 760, and here, the nature of the surgery itself—surgery into

King’s penis—counsels against reasonableness.

       The district court acknowledged the “unusual” nature of the

surgery but found that King “precipitated [it] by electing the

unusual    insertion        of     marbles    into      his     penis”    in    the     first

instance.      J.A. 177.         That King decided to have marbles inserted

into his penis, however, is of no moment; the scope of the

intrusion is not a subjective inquiry.                     See, e.g., United States

v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015) (finding the scope

suggested unreasonability where officers physically extracted a

plastic     bag   containing         contraband         from     defendant’s       rectum,

making    no   mention      that     defendant       had      presumably       inserted      it

himself);      Rodriques      v.    Furtado,      950    F.2d    805,     811    (1st      Cir.

1991)     (finding      a        warrant-authorized           vaginal-cavity          search

“extreme,”      again   not       considering      that       plaintiff    inserted         the



                                             13
contraband      herself).            We    find      the    scope        of    the    intrusion

objectively extreme.

      The   second      factor,       the       manner     in     which       the    search   was

conducted, also favors finding the search unreasonable.                                  “[O]nce

contraband is discovered in the course of a sexually invasive

search, the contraband may not be seized in a manner that poses

an   unnecessary       risk     of    harm      to   the        person    being      searched.”

Edwards, 666 F.3d at 885.                 Again, King alleged that the surgery

left him scarred, with pain and emotional anguish.                                      We agree

with the district court that “the surgery posed a risk to King’s

health and caused him trauma and pain.”                         J.A. 176.

      Turning     to     the    third       factor,        the     defendants         correctly

contend that they have an interest in controlling contraband

within the prison for the health and security of the inmates.

The Supreme Court has long recognized the need to “guarantee the

safety” of the prison community, administrators, inmates, and

visitors    alike.        Hudson,         468    U.S.      at    527.         Indeed,    “prison

administrators . . . , and not the courts, [are] to make the

difficult       judgments        concerning             institutional               operations.”

Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Jones v. N.C.

Prisoners’      Union,    433    U.S.       119,     128        (1977))       (alterations     in

original).       “In addressing this type of constitutional claim

courts   must    defer     to    the      judgment         of    correctional          officials

unless the record contains substantial evidence showing their

                                                14
policies are an unnecessary or unjustified response to problems

of jail security.”          Florence v. Bd. of Chosen Freeholders of

Cty. of Burlington, 132 S. Ct. 1510, 1513-14 (2012).

      Nevertheless,       searches      conducted     “in   an     abusive         fashion

. . . cannot be condoned.”              Wolfish, 441 U.S. at 560 (internal

citation omitted).         Instead, the “‘deference’ that is afforded

to prison administrators ‘does not insulate from review actions

taken in bad faith and for no legitimate purpose.’”                       Williams v.

Benjamin, 77 F.3d 756, 765 (4th Cir. 1996) (quoting Whitley v.

Albers,     475   U.S.     312,   322     (1986))     (considering            an    Eighth

Amendment     claim);       see    also        Hudson,      468        U.S.        at   528

(“[I]ntentional harassment of even the most hardened criminals

cannot be tolerated by a civilized society.”).

      Throughout his complaint, King stated that the defendants

had no penological justification in the surgery, J.A. 16, 18,

and   provided    facts    that   support      this   contention.             First,     he

alleged that the marbles were implanted prior to incarceration

(an   allegation    supported      by    the   findings     of    the     two      medical

professionals who inspected the marbles).                   This, he argues, is

inconsistent      with    the   policy    directive      that     he    was    found     in

violation of:

      1.26—Exposing   Body   Fluids/Tattooing/Piercing:   No
      inmate shall intentionally expose to any person body
      fluids such as urine, feces, spit, blood, or any other
      body fluid. No inmate shall give oneself or others a
      tattoo/piercing or allow another inmate to give

                                         15
        him/her a tattoo/piercing.   No inmate shall possess
        any    tattooing/piercing  equipment,   to   include,
        tattooing ink, tattooing patterns, tattooing needles,
        etc.

Id. at 24.       While the defendants contested the timing of the

insertion of King’s implants at oral argument, at this stage, we

draw all reasonable inferences in King’s favor.                   E.I. du Pont de

Nemours & Co., 637 F.3d at 440.               Accordingly, King already had

the implants and was not exposing blood by inserting the marbles

at the time of the violation.

      King also alleged that other prisoners “implanted foreign

objects into their penises,” but unlike King, they have been

permitted to keep them.            J.A. 27.     King noted that some of these

inmates have “even had it done while incarcerated.”                     Id. at 17.

The   defendants    point     to    King’s    examples     of   other   inmates   as

proof     that   this    practice       is    not     an   isolated     occurrence,

contending that “inmates have now devised an additional place to

potentially        conceal         contraband:      beneath       their        skin.”

Appellees’ Br. 18-19.              King alleges, however, that the staff

knew of this behavior and “caught, charged and convicted” other

inmates    but   did    not   require    them    to    surgically     remove   their

implants.        J.A.     17.         These     allegations      contradict       the

defendants’ arguments that prison officials are to detect and

prevent this behavior and that a general ban is preferable to

carving out exceptions for individual inmates.                    Appellee’s Br.


                                         16
19-20 (citing Florence, 132 S. Ct. at 1516; Hudson, 468 U.S. at

527).     And while not conclusive, these allegations lend support

to King’s argument that the officers’ actions here were meant to

harass.

     Finally, the argument that King consented to the surgery

does not provide cover for the defendants.                  As in Sanchez, King

raised allegations that his consent was not freely given.                     E.g.,

J.A. 15 (“I was threatened with Administrative Segregation until

I discharge my sentence, if I did not consent to the surgery to

have my ‘Professionally Implanted Marbles’ removed.”); id. at

25-26     (describing       under   what     conditions     he    was    placed    in

segregation, including keeping him in segregation “under ‘False

Pretenses’”); id. at 27 (“I was FORCED with the use of MENTAL

TORTURE and UNLAWFUL SEGREGATION to remove my implants that were

professionally        done.”);      see    Sanchez,      590     F.3d    at   46-47.

“‘Consent’     that    is    the    product      of   official    intimidation      or

harassment is not consent at all.”                Florida v. Bostick, 501 U.S.

429, 438 (1991).            Based on King’s complaint, his consent to

surgery was not “voluntarily given, and [instead] the result of

duress    or    coercion,      express      or    implied.”        Schneckloth     v.

Bustamonte, 412 U.S. 218, 248 (1973).

     While prison officials must be afforded wide deference in

deterring      security      threats,      the    pleadings      raise   sufficient

concerns about the legitimacy of the reasons for surgery.                         This

                                           17
is doubly so where defendants sought “to intrude upon an area in

which our society recognizes a significantly heightened privacy

interest,” requiring “a more substantial justification” to make

the search “reasonable.”          Lee, 470 U.S. at 767.            Thus, at this

early stage of the proceedings, we find that the justification

for the search weighs in favor of unreasonableness.

      The fact that the search occurred in a hospital does not

trump    the       overwhelming     evidence     that       the     search     was

unreasonable.        Accordingly,     we    reverse   the     district   court’s

dismissal of King’s claim and hold that he pleaded sufficient

facts to establish a Fourth Amendment claim plausibly entitling

him to relief.

                                      b.

      King next appeals the dismissal of his Eighth Amendment

claim.   The Eighth Amendment “prohibits the infliction of ‘cruel

and unusual punishments’ on those convicted of crimes.”                   Wilson

v. Seiter, 501 U.S. 294, 297 (1991).                 “[T]o make out a prima

facie case that prison conditions violate the Eighth Amendment,

a plaintiff must show both ‘(1) a serious deprivation of a basic

human need; and (2) deliberate indifference to prison conditions

on the part of prison officials.’”               Strickler v. Waters, 989

F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin,

952   F.2d   820,    824   (4th   Cir.     1991)).      The    first   prong    is

objective    and    requires   that   the    deprivation      be   “sufficiently

                                      18
serious”;       the      second        requires          us     to        determine     whether

subjectively “the officials act[ed] with a sufficiently culpable

state of mind.”             Wilson, 501 U.S. at 298; see Strickler, 989

F.3d at 1379.

       We     hold   that      King’s      complaint          plausibly       satisfies       both

prongs of an Eighth Amendment claim and reverse the district

court.       Regarding the first prong, King alleged physical injury

and mental anguish, which he “never experienced until after [he]

was FORCED into having [his] implants removed . . . or remaining

in Segregation INDEFINATELY [sic].”                            J.A. 27.        These include

tingling and numbness in his penis; pain in the area where the

marbles       were     removed;       an    “uncomfortable,               stretching    feeling

where the cut was made;” pain in his penis when it rains, snows,

or   gets      cold;    and     “stabbing         pain     [that]         shoots   into   [his]

stomach” if he bumps into something or his penis is touched

where    the    scar     is.         Id.   at    15,     27.        King    also   gets   “very

depressed every time [he] shower[s] or urinate[s]” because he

sees    the    scarring        and    is       reminded    of       the    marbles     that   his

deceased fiancée bought for him.                       Id. at 15.           He worries about

“the possibilities that [his] penis will still be numb when [he]

. . . is with another woman” and about how he will explain what

happened if someone is “sickened by the scarring.”                                   Id. at 16.

He is now unable to urinate when any of his five roommates are

in     the    cell     with     him,       a     problem       he    did     not     previously

                                                 19
experience.          Id. at 15.      He is also frightened every time he

sees    any    of    the   defendants.         Id.       King     claims    that    he     is

“constantly ridiculed by staff”:               they call him “Marble Man” and

ask where his marbles are.               Id.      Guards also “make Homosexual

remarks that entail [his] marbles when they see [him].”                            Id.    He

now has “[g]ay inmates approaching [him] because the staff that

was     involved      in   forcing   [him]        to    have      the    surgery,        have

continually gossiped” about him.                Id. at 16.         These inmates ask

him questions that are “very uncomfortable” and put him in a

“compromising situation, where it is a strong possibility that a

physical confrontation” will occur.                  Id. at 17.         These facts are

sufficient to support a finding of serious injury.

       In     dismissing    the    claim,      the      district        court   read     too

narrowly the extent of King’s harm.                     The court pointed to our

decision in Allgood v. Morris, 724 F.2d 1098 (4th Cir. 1984),

for     the     proposition       that    segregated           confinement       is      not

unconstitutional.           The court also concluded that any harm to

King resulted only from the surgery, not from his segregation.

       This reliance on Allgood is misplaced.                     Indeed, we stated,

“[S]egregated         confinement    is     not        per   se    unconstitutional.”

Allgood, 724 F.2d at 1101 (citing Sweet v. S.C. Dep’t of Corr.,

529 F.2d 854, 860 (4th Cir. 1975)).                     But that very language is

fatal    to    the    district    court’s      conclusion.              Segregation,       by

itself, is not the harm King alleged in his complaint.                                    Cf.

                                          20
Sweet, 529 F.2d at 861 (“[Certain] inescapable accompaniments of

segregated confinement[] will not render segregated confinement

unconstitutional            absent          other     illegitimate           deprivations.”

(emphasis added)).

       In his complaint, King provides that his Eighth Amendment

claim was based on more than the confinement itself:                               “The Staff

at [HCC] Abused their power when they took it upon themselves to

use threats of Administrative Segregation for the remainder of

my     sentence      and    loss       of     Parole    Eligibility          in    order    to

intimidate me into consenting to a surgery that they had no

right    to    have    performed.”             J.A.    16;    see    id.     at    15,   25-27

(describing          threats       of       administrative           segregation         until

discharge       of    sentence,         as     well    as      sentence       of     punitive

segregation,         loss   of    privileges,         and    loss     of   good     time    for

violation of policy directive).                     Put another way, King alleges

more than segregation per se as his Eighth Amendment violation;

instead, the confinement itself was used as a tool to coerce

King    into    consenting        to    surgery,       which    in    turn     resulted     in

physical      and    mental      injuries.          This     harm    resulting      from    the

coerced       surgery,      of    which      the    segregation        was    a     part,   is

sufficient to satisfy the first prong of an Eighth Amendment

violation.

       As to the second prong, only the “unnecessary and wanton

infliction of pain” implicates the Eighth Amendment.                                  Wilson,

                                               21
501 U.S. at 297 (quoting Estelle, 429 U.S. at 104) (emphasis

omitted).          The    requisite       state       of     mind      is    thus     “one   of

deliberate indifference to inmate health or safety.”                                   Odom v.

S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (citation

and     internal     quotation         marks        omitted).          While     “deliberate

indifference entails something more than mere negligence, the

cases are also clear that it is satisfied by something less than

acts or omissions for the very purpose of causing harm or with

knowledge that harm will result.”                      Farmer v. Brennan, 511 U.S.

825, 835 (1994).

      “Among     ‘unnecessary          and   wanton’        inflictions        of   pain     are

those    that    are     ‘totally       without       penological           justification.’”

Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v.

Georgia, 428 U.S 153, 183 (1976)).                         A prisoner states a claim

under the Eighth Amendment when he plausibly alleges that the

conduct in question “was motivated by a desire to harass or

humiliate rather than by a legitimate justification, such as the

need for order and security.”                       King, 781 F.3d at 897 (citing

cases);    see     also    Hope    v.    Pelzer,        536     U.S.    730,     738    (2002)

(discussing “taunting” and “humiliation” as circumstances that

contributed to finding that unnecessarily handcuffing prisoner

to a hitching post “violated the ‘basic concept underlying the

Eighth Amendment[, which] is nothing less than the dignity of

man’”     (quoting       Trop     v.    Dulles,        356    U.S.      86,     100     (1958)

                                               22
(alterations         in      original));                 Hudson,        468        U.S.        at      530

(underscoring         that        the        Eighth        Amendment          protects          against

“calculated harassment unrelated to prison needs”).

     In King, the Seventh Circuit reversed a district court’s

dismissal    of      an    inmate’s          claim       that        being   forced       to    wear    a

transparent       jumpsuit        during       his        transfer       violated         the       Eighth

Amendment.           781    F.3d        at    896.             The    court     pointed         to    the

plaintiff’s allegations that he was “degraded and humiliated by

being   transported          in     a    see-through             jumpsuit          that    left       him

exposed . . . .”            Id. at 898.                  The plaintiff’s assertion that

“there was no legitimate reason for this policy” was supported

by his allegation, among others, that other inmates were not

required to wear similar garments.                              Id.     The court cautioned,

“Even   where     prison      authorities                are    able    to    identify          a    valid

correctional justification for the search, it may still violate

the Eighth Amendment if conducted in a harassing manner intended

to   humiliate        and    cause           psychological             pain.”        Id.        at     897

(citation and internal quotation marks omitted).

     Here, King alleged that there was “absolutely NO security

interest” in removing his implants, J.A. 16; see also id. at 18

(“There was absolutely NO penological interest in forcing the

Petitioner      to    consent       to        the    surgery.”),             and    supports          this

contention      with       factual       allegations.                  The    removal          was    not

medically necessary:              the nurse who first examined him confirmed

                                                    23
that the marbles were not recently implanted and there was no

sign of infection, and the doctor he saw confirmed this.                                   Id. at

25-26.         Further,        King      alleges        that       other    prisoners        have

“implanted foreign objects into their penises,” but unlike King,

they have been permitted to keep them.                         Id. at 27.         King notes

that    some    of    these        inmates       have       “even    had    it    done      while

incarcerated.”           Id.       at    17.     Like       those     presented       in    King,

“[t]hese    facts     tend         to    suggest      that     there       was   no   security

reason” for requiring either surgery or indefinite segregation.

See 781 F.3d at 898.

       Moreover, “a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was

obvious.”       Farmer, 511 U.S. at 842; Makdessi v. Fields, 789 F.3d

126, 133 (4th Cir. 2015).                      Here, as King argues, “[i]nvasive

surgery on a highly-sensitive body part has obvious risks,” of

which the defendants must have been aware.                              King Br. 30.           We

agree that these risks were “compounded” by the fact that the

marbles    were      not    recently           implanted       and    their      removal      not

medically necessary.               Id.     King’s consent to the surgery does

not    change    this.         A    prisoner         does    not     absolve     correctional

officers of risk simply by “not accepting [their] offer to stay

in segregation.”           Thomas v. Younce, 604 F. App’x 325, 326 (4th

Cir. 2015) (unpublished).                 Here, King “did not voluntarily place

himself at risk [posed by surgery]; rather, he refused [the]

                                                24
objectionable offer to place him in segregation . . . in lieu of

[surgery], where he faced substantial risk of serious injury.”

Id.    We thus reverse the district court’s dismissal of King’s

Eighth Amendment claim.

                                               c.

       King also appeals the dismissal of his Fourteenth Amendment

Equal Protection claim.                “The purpose of the equal protection

clause of the Fourteenth Amendment is to secure every person

within      the     State’s        jurisdiction         against        intentional       and

arbitrary discrimination.”                Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (internal quotation marks and alteration

omitted).     “To succeed on an equal protection claim, a plaintiff

must first demonstrate that he has been treated differently from

others with whom he is similarly situated and that the unequal

treatment         was     the     result       of     intentional          or   purposeful

discrimination.”             Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir.     2001).         We      then   consider       “whether       the    disparity     in

treatment     can       be      justified      under    the    requisite         level    of

scrutiny.”          Id.         “[T]he    Supreme      Court     has       recognized    the

validity of ‘class of one’ Equal Protection claims, ‘where the

plaintiff     alleges         that     she     has    been    intentionally        treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment.’”                                Willis v.

Town   Of   Marshall,         N.C.,      426   F.3d    251,    263     (4th     Cir.   2005)

                                               25
(quoting Olech, 528 U.S. at 564); see also Sansotta v. Town of

Nags Head, 724 F.3d 533, 542-44 & n.13 (4th Cir. 2013).                            We hold

that King’s allegations are sufficient to state a class-of-one

equal protection claim. 1

      With   regard    to     the       first       prong,     we   find    that    King’s

complaint alleged facts that he was treated differently from

other similarly situated inmates.                    King alleged that there were

at   least   two    other   inmates       with        implants      in   their   penises.

These inmates were known to prison officials and were similarly

“caught, charged and convicted,” but neither was subjected to

extended segregation or surgery.                      J.A. at 17.          King further

alleges that the defendants “single[d him] out” from these other

inmates.     Id. at 27.       Taken together, we find these allegations

sufficient to state an intentional disparity in treatment from

other similarly situated inmates.

      We thus turn to the second prong of King’s equal protection

claim.       In    general,    unless          a     suspect     class     is    involved,

disparate    treatment      “is     presumed          to    be   valid     and   will   be

sustained    ‘if    there     is    a    rational          relationship     between     the

disparity     of     treatment          and        some     legitimate      governmental

purpose.’”        Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002)

      1We note King’s argument that he was discriminated against
because of homosexual animus on the part of prison officials.
Because we find that King has stated a class-of-one claim, we do
not find it necessary to resolve this alternative theory now.


                                              26
(quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993)); see also

Olech, 528 U.S. at 564 (applying rational basis review to class-

of-one claims).         When equal protection challenges arise in the

prison     context,     however,          “courts    must     adjust      the    level      of

scrutiny     to     ensure    that        prison    officials      are       afforded      the

necessary discretion to operate their facilities in a safe and

secure manner.”        Veney, 293 F.3d at 732.                 That is, even when a

“regulation        impinges     on    inmates’       constitutional          rights,       the

regulation is valid if it is reasonably related to legitimate

penological interests.”              Turner, 482 U.S. at 89; Morrison, 239

F.3d at 655.         To evaluate whether an action is reasonable, we

apply the factors set forth in Turner:                      (1) whether there is a

“valid,     rational         connection       between       the        policy       and    the

penological        interest”;       (2)    whether    there       is    an    “alternative

means of exercising the right” available to inmates; (3) what

“impact accommodation of the asserted right will have on” the

prison, including guards, other inmates, and prison resources;

and   (4)     “the     absence        of     ready     alternatives           that        fully

accommodate the prisoner’s rights at de minimis cost to valid

penological        interests.”        Morrison,       239     F.3d      at    655    (citing

Turner, 482 U.S. at 89).

      We    have    held     that    “[p]romoting       the    inmates’         safety      and

health is a legitimate concern.”                    Jehovah v. Clarke, 798 F.3d

169, 178 (4th Cir. 2015) (citing McRae v. Johnson, 261 F. App’x

                                             27
554,       558    (4th   Cir.    2008)        (unpublished)).                Nonetheless,        as

discussed         above,    we       are    not        persuaded       by    the    defendants’

arguments         that     King’s          marbles       posed     a        security      threat.

Additionally, the defendants’ argument that permitting King to

keep the marbles could lead other inmates to implant objects

into their bodies is also unconvincing.                            Unlike with King, in

the    defendants’         scenario,        other       inmates    would       be    implanting

these objects while incarcerated, which behavior the prison has

a policy to address.

       Moreover, we do not find that the other Turner factors—

particularly the third and fourth factors—support the conclusion

that       that   surgery      was    reasonable.            We    acknowledge         that   the

fourth      factor,      the   absence       of    ready     alternatives,          “is    not   a

‘least restrictive alternative’ test.”                        Turner, 482 U.S. at 90.

Nevertheless, when pressed at oral argument, the defendants were

unable to explain why their process for dealing with an inmate

who enters prison with tattoos or even a steel rod in his arm—

where the condition is documented at booking and the inmate is

subsequently “monitored”—cannot be applied to King’s situation. 2

King       also   suggested      other       alternatives         to    surgery,       including

leaving him alone, as defendants had allegedly done with other

       2
       Here, instead, when King was originally processed and
informed the officer of the marbles and tattoo, he was rebuffed
by the officer, who told him, “This isn’t a pornographic camera,
put [your] clothes back on.” J.A. 25.


                                                  28
inmates, or requiring him to cover the implants with clothing as

to not reveal their presence.

       Here, the implants posed no medical risk to King, were not

recently implanted, and were not accessible nonsurgically.                             The

defendants do not appear to have made any attempt to confirm

whether the marbles posed a security risk and could not explain

why they could not monitor King’s marbles in the same way as

other types of preincarceration body modifications.                               On this

record,     we      conclude      that       surgery      was        an     unreasonable

“exaggerated      response”       to     defendants’         concerns.           See   id.

Therefore, we reverse the district court’s dismissal of King’s

Equal Protection claim.

                                          d.

       On appeal, King argues that he alleged sufficient facts to

state a claim under the Due Process Clause of the Fourteenth

Amendment.       The district court did not originally consider any

substantive due process claim, and the defendants argue that

King    raises      this   claim       for     the     first        time    on    appeal.

Nevertheless,       King   was    “not    required      to     use    any    precise     or

magical words in [his] pleading.”                    Stevenson v. City of Seat

Pleasant,    Md.,    743   F.3d    411,      418   (4th      Cir.    2014);      see   also

Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (“Legal labels

characterizing a claim cannot, standing alone, determine whether

it fails to meet [the standard for notice pleading under Federal

                                          29
Rule of Civil Procedure 8(a)(2)].”).                       Simply because King did

not specifically label a claim under a due process heading does

not mean that he did not raise one.

       “[A]    competent       person    has       a     constitutionally            protected

liberty       interest    in     refusing          unwanted       medical        treatment.”

Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).

This   liberty       interest    survives          conviction      and        incarceration.

Washington v. Harper, 494 U.S. 210, 221-22, (1990) (recognizing

an individual’s “significant liberty interest in avoiding the

unwanted       administration”          of     a       specific        form     of     medical

treatment); Hogan v. Carter, 85 F.3d 1113, 1116 (4th Cir. 1996)

(en banc) (citing Harper, 494 U.S. 221-22).                             In this context,

prison    officials      may    override          this    right    when        treatment      is

“reasonably       related       to    legitimate           penological           interests.”

Harper, 494 U.S. at 223 (citing Turner, 482 U.S. at 89).                                   “This

is true even when the constitutional right claimed to have been

infringed       is     fundamental,          and         the   State           under       other

circumstances        would     have     been       required       to    satisfy        a   more

rigorous standard of review.”                  Id. (citation omitted).                 As the

district court did not consider this potential claim, and given




                                             30
the   facts   alleged   in   King’s    complaint,   we   remand   for

consideration of this claim. 3

                                  e.

      King appeals the dismissal without prejudice 4 of Scott for

failure to effect service.       “[T]o preserve for appeal an issue

      3The defendants argued that they are entitled to qualified
immunity, as any constitutional violations were not clearly
established. The district court did not consider this argument,
presumably because it concluded that King failed to allege a
violation.    As we may affirm a dismissal on any grounds
supported by the record, Pitt Cty. v. Hotels.com, L.P., 553 F.3d
308, 311 (4th Cir. 2009), we briefly consider the argument here.
     Even where a plaintiff suffers a constitutional violation,
an officer is only liable if “the right was clearly established
at the time the violation occurred such that a reasonable person
would have known that his conduct was unconstitutional.” Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015).     “We do not require
that a prior case be identical to the case at bar for fair
notice to be provided.” West v. Murphy, 771 F.3d 209, 216 (4th
Cir. 2014) (citing Hope, 536 U.S. at 741).     Instead, a law is
clearly established “so long as ‘existing precedent [has] placed
the statutory or constitutional question beyond debate.’”    Id.
(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)).
     We decline to affirm the dismissal on qualified-immunity
grounds at this stage:    we cannot conclude that a right to be
free   from  an  egregiously   sexually  invasive,   unjustified,
compelled surgery was not clearly established under the Fourth,
Eighth, and Fourteenth Amendments. See Cruzan, 497 U.S. at 278
(“[A] competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment.”); Wolfish, 441
U.S. at 560 (establishing that inmate searches “must be
conducted in a reasonable manner” (citing Schmerber, 384 U.S. at
771-72)); Morrison, 239 F.3d at 655 (“[R]egulation that impinges
on inmates’ constitutional rights . . . is [only] valid if it is
reasonably related to legitimate penological interests.”); Lopez
v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990) (“Prison
conditions   are   unconstitutional   if   they   constitute   an
‘unnecessary and wanton’ infliction of pain and are ‘totally
without penological justification.’” (quoting Rhodes, 452 U.S.
at 346)).


                                  31
in    a       magistrate       judge’s    report,       a   party    must      object    to   the

finding          or        recommendation      on      that      issue     with      sufficient

specificity so as reasonably to alert the district court of the

true          ground   for     the   objection.”            Makdessi,      789    F.3d   at   131

(quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir.

2007)) (alteration in original).                       “Where an appellant has failed

to preserve an issue, it is deemed waived.”                              Id.     Here, despite

objecting             on     multiple     other        grounds      to     the      report    and

recommendation, King did not object to the magistrate judge’s

recommendation               that    Scott     be      dismissed         without     prejudice.

Accordingly, King waived his right to appeal Scott’s dismissal,

and we affirm the district court.

                                                  f.

          Finally, King appeals the dismissal of his claims against

Plumley, Goodin, and Rubenstein with prejudice.                                  Alternatively,

King argues that he should have been permitted leave to amend

his complaint as to these defendants.

          A state official can be in a § 1983 suit in three ways:                               in

his       personal         capacity,     his   official       capacity,        or   in   a    more


          4
        The   district  court’s  conclusion   appears  to   have
accidentally dismissed the complaint in its entirety with
prejudice, and the judgment entered by the clerk indicates that
King’s complaint was dismissed with prejudice.     Nevertheless,
the district court’s order dismissed Scott without prejudice,
and both parties understand that the dismissal was without
prejudice. J.A. 163; King’s Reply Br. 29; Defs.’ Br. 47.


                                                  32
limited way, his supervisory capacity.                     For personal liability,

“it is enough to show that the official, acting under color of

state law, caused the deprivation of a federal right.”                          Kentucky

v. Graham, 473 U.S. 159, 166 (1985).                       In an official-capacity

suit, however, “[m]ore is required”:                  the suit is “treated as a

suit against the entity,” which must then be a “‘moving force’

behind    the    deprivation,”     id.     (third          quotation    quoting       Polk

County v. Dodson, 454 U.S. 312, 326 (1981)); thus, the entity’s

“‘policy or custom’ must have played a part in the violation of

federal law,” id. (quoting Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658, 694 (1978)).                            Meanwhile, a

supervisor can be liable where (1) he knew that his subordinate

“was engaged in conduct that posed a pervasive and unreasonable

risk     of    constitutional     injury”;           (2)     his     response     showed

“deliberate       indifference    to     or     tacit       authorization       of     the

alleged       offensive     practices”;        and    (3)     that     there    was    an

“affirmative       causal     link”    between         his     inaction        and     the

constitutional injury.”          Shaw v. Stroud, 13 F.3d 791, 799 (4th

Cir. 1994) (internal quotation marks omitted).

       As to Plumley, we find that King properly stated a claim.

Regarding actions in his personal capacity, Plumley overturned

the Ad.-Seg. Committee’s recommendation that King return to the

general       population.      King    claims        that     Plumley     so    decided

“because I had not had the marbles surgically removed.” J.A. 31;

                                          33
see   also    id.     (“I    wrote    an    appeal      to    Warden    Plumley      seeking

release from ad-seg.              Shortly thereafter I was told by the Unit

Manager . . . that if I did not have the marbles removed I would

be    sent    to     the     Quality       of    Life    Program       at    Mount    Olive

Correctional         Complex       . . . .”).           The     defendants      point    to

documentation King produced in his opposition to their motion to

dismiss,      which       shows    that     Plumley      rejected      the    committee’s

recommendation        to    keep     King   in       punitive      segregation,      instead

sending      him     to     administrative           segregation.            Nevertheless,

Plumley appears to have participated to some degree in King’s

segregation.         King also claims that the “Administration here at

Huttonsville        has     chosen    to    single      me    out     for    some    unknown

reason.”      Id. at 27.          The warden, more so than anyone, should be

considered the administration.

      The     district       court     concluded         that       these    facts    “only

show[ed]      that    Plumley        played      a    part    in    King’s    housing    in

administrative segregation that allegedly led to the surgery.”

Id.   at     165.      As    the     district        court    found    that     segregated

confinement was not a per se Eighth Amendment violation, it held

that King failed to state a claim.                      As held above, however, it

was not the segregation standing alone that may have constituted

the Eighth Amendment violation.

      That “King [did] not contend that Plumley [was] liable in

his official or supervisory capacity,” id. at 166, is belied by

                                                34
the caption itself:           King brought suit against all defendants in

their      personal     and   official      capacities.             Moreover,    the   few

allegations          contained     in     the       complaint       itself,     construed

liberally,       attempt      to   make        a    connection      between     Plumley’s

actions and subsequent actions of his subordinate staff.                            E.g.,

id.   at    26   (“The     Warden       overturned        their     recommendation     and

Sherri Davis (Unit Manager-Seg. Unit E-2) had me escorted to her

office [where she] had me sign a paper that she would NOT permit

me to read.           She said it was consent papers to go to Ruby

Memorial Medical Center to have a doctor examine the implants,

and if necessary, have them removed.”); id. at 31 (“I wrote an

appeal to Warden Plumley seeking release from ad-seg.                              Shortly

thereafter       I   was   told    by    the       Unit   Manager    of   E-Unit    Lester

Thomspon, that if I did not have the marbles removed I would be

sent to the Quality of Life Program at Mount Olive Correctional

Complex . . . .”).            In his objection to the magistrate judge’s

recommendation, King also provided,

      Plumley is the Warden of HCC. He has the final say in
      Administrative Segregation Hearings.   When the Board
      released the Plaintiff from Ad. Seg., he overturned
      their decision, and ordered the Plaintiff to remain on
      Ad. Seg. Status until he agreed to surgery. Therefore
      he   directly   participated   in  the   violation  of
      Plaintiff’s . . . Rights, and should not be relieved
      of responsibility for his actions.

Id. at 148.            Accordingly, we find that King stated a claim

against Plumley and reverse his dismissal with prejudice.


                                               35
       King’s      allegations        as     to     Rubenstein       and      Goodin      are

admittedly        significantly       less     robust,     and    the    district      court

found that King made no mention of either outside of the caption

of     his    complaint.           King    did     make    slightly      more       specific

allegations       as   to    these    defendants      in    his    objections        to   the

magistrate judge’s report and recommendation.                            Even a pro se

plaintiff, however, must allege sufficient facts “to raise a

right to relief above the speculative level” and “state a claim

to relief that is plausible on its face.”                        Twombly, 550 U.S. at

555, 570.          We find the facts alleged to fall short of this

standard.

       Nevertheless, we find that the dismissal against these two

defendants should have been without prejudice.                           Here, King did

not move to amend his complaint, and we do not “expect[] the

district courts to assume the role of advocate for the pro se

plaintiff.”         Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.

1978).       But the district court neither gave King the opportunity

to amend nor did it engage in any discussion as to why amendment

would be futile.             In such a situation, the dismissal should

generally be without prejudice.                   See Arnett v. Webster, 658 F.3d

742, 756 (7th Cir. 2011); Coleman v. Peyton, 340 F.2d 603, 604

(4th    Cir.      1965)     (per     curiam)      (holding       that,   if     a   pro   se

complaint contains a potentially cognizable claim, the plaintiff

should       be     given      an      opportunity         to      particularize          his

                                             36
allegations).          Accordingly,          we     affirm      the    dismissal     as    to

Rubenstein      and    Goodin       but    modify     it   to    reflect      that   it    is

without prejudice.



                                             IV.

     Based      on    the    foregoing,       we     conclude     that    King     properly

stated    his    Fourth,          Eighth,     and     Fourteenth        Amendment        Equal

Protection      and   Due        Process    claims.        We   also     hold    that     King

stated a claim against Marvin Plumley.                       We reverse the district

court’s   decision          on    those     bases,    vacate      the    dismissal,        and

remand    the    case       for     further        proceedings.          We     affirm    the

dismissal as to Stacy Scott.                 We also affirm the dismissal as to

Cliff Goodin and Jim Rubenstein but modify it to be without

prejudice.



          AFFIRMED IN PART, REVERSED, VACATED, AND REMANDED IN PART
                       FOR PROCEEDINGS CONSISTENT WITH THIS OPINION




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