                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-6403



DEREK L. SIMMS,

                                             Plaintiff - Appellant,

          versus


WILLIAM BAIR, Doctor; STEVEN WILLIAMS, Warden;
CRYSTAL LATERMORE, Nurse; DR. HAFT,

                                            Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:06-cv-02867-WMN)


Submitted:   September 26, 2007           Decided:   October 9, 2007


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Derek L. Simms, Appellant Pro Se. Dena M. Terra, Francis X. Leary,
WHITEFORD, TAYLOR & PRESTON, Towson, Maryland; Kevin Bock
Karpinski, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.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

           Derek L. Simms appeals the district court’s order denying

relief on his 42 U.S.C. § 1983 (2000) complaint.               Simms alleged in

his § 1983 complaint that prison personnel were deliberately

indifferent to his serious medical needs and that he was subjected

to unwanted medical treatment, in violation of the Eighth and

Fourteenth Amendments.      Insofar as the district court granted

summary   judgment    against   Simms       on   his   claim    of   deliberate

indifference,   our   review    of    the    record    discloses     no   error.

Accordingly, as to this claim, we affirm for the reasons stated by

the district court.    See Simms v. Bair, No. 1:06-cv-02867-WMN (D.

Md. filed Mar. 12, 2007 & entered Mar. 13, 2007).

           However, the court failed to address Simms’s Fourteenth

Amendment claim in which he alleged that he was subjected to

medical treatment without his consent.            “The right to be free of

unwanted physical invasions has been recognized as an integral part

of the individual’s constitutional freedoms . . . .” United States

v. Charters, 829 F.2d 479, 491 (4th Cir. 1987), vacated on other

grounds, 863 F.2d 302 (4th Cir. 1988).           Moreover, “[t]he right to

refuse medical treatment has been specifically recognized as a

subject of constitutional protection,” id., that survives criminal

conviction and incarceration, cf. Youngberg v. Romeo, 457 U.S. 307,

316 (1982) (recognizing liberty from bodily restraint, as protected

by the Due Process Clause from arbitrary governmental action,


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survives criminal conviction and incarceration).              Thus, “[i]f an

individual is competent to make medical decisions, the individual’s

informed decision presumptively is the best decision for that

individual . . . .”         Charters, 829 F.2d at 494-95; see also

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).

            Nevertheless, forced medical treatment may be necessary

to secure the health and safety of the affected individual, other

inmates, and prison personnel.        See Washington, 494 U.S. at 227;

see also Charters, 829 F.2d at 499.         “The procedural protections

required   by   the   Due   Process   Clause    must   be    determined     with

reference to the rights and interests at stake in the particular

case.”     Washington, 494 U.S. at 229.          Factors that should be

considered in determining the procedural requirements due under the

Fourteenth Amendment are: (1) the private interests involved; (2)

the   governmental    interests     involved;    and   (3)    the   value    of

procedural requirements.      Id.

            Neither Simms nor Dr. Bair has produced evidence, other

than their own statements, to establish whether the treatment was

refused.   Though Simms’s Inmate Request Form indicated a desire to

be examined by medical staff, this is not dispositive of the issue

in dispute.     Additionally, the record is silent regarding whether

the challenged procedure, if performed without Simms’s consent, was


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medically necessary to protect the health and safety of Simms,

other inmates, and prison personnel.    Therefore, because there are

material issues of fact in dispute, we vacate and remand to the

district court for consideration of this issue.

          We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                   AFFIRMED IN PART,
                                       VACATED IN PART, AND REMANDED




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