                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6449


WILLIAM EUGENE WEBB,

                  Plaintiff - Appellant,

             v.

JOE DRIVER, Warden; ACTING WARDEN MARTINEZ; ASSOCIATE WARDEN
ORSOLITS;   FOOD  SERVICE   ADMINISTRATOR  GREENWALL;  DEBRA
BRADLEY, Supervisor of Education,

                  Defendants – Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:07-cv-00062-JPB-JSK)


Submitted:    September 29, 2008           Decided:   November 24, 2008


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


William Eugene Webb, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               William Eugene Webb appeals from the district court’s

order adopting the report and recommendation of the magistrate

judge    and    dismissing           his    complaint          under       28    U.S.C.       § 1915A

(2006)    for       failure    to     state       a       claim.     Webb       raised        numerous

claims    challenging          his    prison          conditions.          We     find    that      the

district       court     correctly           dismissed             the     majority           of    his

complaint;       however,       we     hold       that       Webb’s      claim      that       prison

officials were deliberately indifferent to his serious medical

needs regarding his hernia states a claim.                               Thus, we vacate and

remand in part and affirm in part.

               We     review     de        novo       a     district       court’s        dismissal

pursuant       to     § 1915A(b)(1)          for          failure     to        state     a    claim.

Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 248 (4th Cir.

2005).         Allegations       in        the    complaint         are     to     be     liberally

construed.          De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.

2003).     To state a claim, factual allegations must be enough to

raise a right to relief above the speculative level and have

“enough facts to state a claim to relief that is plausible on

its face.”          Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007).

               Allegations          that     a    prison’s          medical        care       was    so

deficient        as     to      constitute                deliberate        indifference             to

objectively serious medical needs states a constitutional claim.

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Estelle    v.    Gamble,    429    U.S.    97,   104    (1976).       As    a    general

proposition, a medical need may be deemed objectively serious if

it is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would

easily     recognize      the     necessity      for    a    doctor’s      attention.”

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980).                         In order to

act with deliberate indifference, a public official must have

been personally aware of facts indicating a substantial risk of

serious harm, and the official must have actually recognized the

existence of such a risk.              Farmer v. Brennan, 511 U.S. 825, 838

(1994) (“[A]n official’s failure to alleviate a significant risk

that he should have perceived but did not . . . cannot under our

cases be condemned as the infliction of punishment.”).

             Regarding      Webb’s     hernia,     this      condition     can    be    an

objectively serious medical problem.                   See Johnson v. Doughty,

433   F.3d      1001,    1010   (7th      Cir.   2006).        Webb     alleges    that

officials were deliberately indifferent to this serious medical

problem by failing to schedule his medically necessary hernia

surgery.        Webb asserted that he was in unbearable pain due to

the   delay      and    that    his    condition       had    deteriorated.            See

Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir. 2000)

(holding     that      unnecessarily      prolonged     pain    and   suffering        can

constitute substantial harm).



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               The    district      court    determined         that,   notwithstanding

Webb’s    allegations          of    a   serious     medical      need    coupled   with

extreme    pain,        Webb    could       not   show     deliberate      indifference

because    he        failed    to    show    that    the    surgery      was    medically

necessary or that the Defendants’ determination that it was not

rose to the level of a constitutional violation.                         See Russell v.

Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (holding that mere

disagreement between an inmate and medical staff regarding the

proper    course        of    treatment      provides      no    basis    for    relief).

However, Webb submitted documentation showing that two surgeons

had recommended surgery as far back as 2003, with one surgeon

noting that the surgery was “required.”                         In 2004, Webb’s then

prison doctor recommended elective surgery within six months.

Webb alleges that, when he was transferred to Hazelton in June

2004, he informed the medical staff of these recommendations.

Instead of scheduling the already-delayed surgery, the prison

officials deferred surgery on two occasions, only to grant a

high priority surgery a year after Webb was transferred, with no

indication why the surgery was now of such an urgent nature.

Webb     had    repeatedly          complained      of     unbearable     pain    and   a

deteriorating condition.




                                              4
                 We   find     these      allegations      sufficient         to   state     a

constitutional claim. *              Accordingly, we vacate the portion of the

district         court’s     order    dismissing        this    claim   and    remand      for

further proceedings.               As to the remainder of Webb’s claims, we

find       no    reversible       error    in    the    district    court’s        judgment.

Accordingly, we affirm for the reasons stated by the district

court.          Webb v. Driver, No. 3:07-cv-00062-JPB-JSK (N.D. W. Va.

Mar. 14,        2008).       We    dispense      with    oral   argument      because      the

facts      and    legal      contentions        are    adequately   presented        in    the




       *
       In Webb v. Hamidullah, No. 06-7381 (4th Cir. June 6, 2008)
(unpublished), we affirmed the district court’s grant of summary
judgment to Defendants on Webb’s claim against officials at a
different institution regarding treatment of Webb’s hernia
condition.   However, this prior case, which was decided at the
summary judgment stage, is distinguishable from the instant case
for two material reasons.      First, in our prior opinion, we
determined that Webb failed to support his claim of surgical
delay with evidence of resultant harm or a worsened condition.
Here, at the pleading stage, Webb has alleged that his pain is
severe and that his hernia has grown larger due to the alleged
delay in surgery.        Second, after seeking and obtaining
supporting medical opinions, the physician at his prior
institution determined that a hernia operation was “elective”
surgery--a decision we found did not implicate Webb’s Eighth
Amendment rights.    In this case, Webb alleges that a doctor,
examining him several years later while he was housed at
Hazelton, deemed surgery medically necessary.    We conclude that
the material differences between the two cases require a
different result.



                                                 5
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                     AFFIRMED IN PART;
                                          VACATED AND REMANDED IN PART




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