                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-7582


MARTIN JAMES SHARPE, a/k/a James Martin Sharpe, a/k/a James
Sharpe,

                Plaintiff - Appellant,

          v.

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, SCDC; DR. WILLIAM
AKERMAN, SCDC Dental Director; DR. UBAH, Dentist Lee CI;
MCCLARY, Dental Assistant Lee CI; GREGG, Dental Assistant
Broad   River   CI;  DWIGHT  D.   MCMILLIAN,   Broad  River
Correctional Institution,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   David C. Norton, District Judge.
(4:13-cv-01538-DCN)


Submitted:   March 26, 2015                  Decided:    April 3, 2015


Before MOTZ and     KEENAN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Martin James Sharpe, Appellant Pro Se.     James E. Parham, Jr.,
Irmo, South Carolina; Ashley S. Heslop, TURNER, PADGET, GRAHAM &
LANEY, PA, Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Martin James Sharpe appeals the dismissal of his 42 U.S.C.

§   1983    (2012)         action       following      the   district       court’s       order

accepting in part the recommendation of the magistrate judge and

granting     Defendants’            motions      for     summary     judgment.           Sharpe

alleged     that      Defendants         were    deliberately        indifferent         to   his

serious    medical         needs       when    they    failed   to    treat    his       painful

wisdom tooth and delayed referral to an oral surgeon for its

extraction.         For the reasons that follow, we affirm in part,

vacate in part, and remand for further proceedings.

     We review a district court’s grant of summary judgment de

novo, applying the same legal standards as the district court

and viewing the evidence in the light most favorable to the

nonmoving party.            Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir.

2012).      “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).                 “Where the record taken as a whole could

not lead a rational trier of fact to find for the non-moving

party, there is no genuine issue for trial.”                            Matsushita Elec.

Indus.     Co.   v.    Zenith          Radio    Corp.,    475   U.S.    574,       587    (1986)

(internal quotation marks omitted).

     To     prevail         on     a    claim     of     constitutionally          inadequate

medical     care,      a    plaintiff          must    establish     acts     or    omissions

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harmful enough to constitute deliberate indifference to serious

medical needs.            Estelle v. Gamble, 429 U.S. 97, 106 (1976).

First, he must objectively show that the deprivation suffered or

the    injury       inflicted         was    sufficiently        serious.           Farmer       v.

Brennan, 511 U.S. 825, 834 (1994).                          A serious medical need “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.”                                       Iko

v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (internal quotation

marks omitted).

       Next, the prisoner must show that the defendant acted with

deliberate         indifference         to    his     serious        medical      need.         See

Farmer,      511     U.S.     at      834.       Deliberate          indifference         can    be

established         by   showing        that     the      medical      treatment      was       “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), overruled

in part on other grounds by Farmer, 511 U.S. at 837.

       “[A]n inadvertent failure to provide adequate medical care”

does   not    satisfy         the     standard,       and     thus    mere     negligence        in

diagnosis or treatment is insufficient.                              Estelle, 429 U.S. at

105-06.       Moreover,          mere       disagreement       between       an     inmate      and

medical staff regarding the proper course of treatment provides

no basis for relief.                Russell v. Sheffer, 528 F.2d 318, 319 (4th

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Cir. 1975).     Instead, officials evince deliberate indifference

by acting intentionally to delay or deny the prisoner access to

adequate medical care or by ignoring an inmate’s known serious

medical needs.       Estelle, 429 U.S. at 104-05; Young v. City of

Mount Ranier, 238 F.3d 567, 576 (4th Cir. 2001).                   “A delay in

treatment may constitute deliberate indifference if the delay

exacerbated the injury or unnecessarily prolonged an inmate’s

pain.”    McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)

(vacating and remanding summary dismissal of complaint alleging

three-month delay in dental treatment); see Smith v. Smith, 589

F.3d 736, 738-39 (4th Cir. 2009) (finding claim of delay in

administering    prescribed      medical     treatment    stated    an    Eighth

Amendment claim).

      Viewing the evidence in the light most favorable to Sharpe,

we conclude that the district court properly granted summary

judgment to Defendant McMillian and Defendant Akerman.                However,

we find the district court’s reliance on Dulany v. Carnahan, 132

F.3d 1234, 1240 (8th Cir. 1997), with regard to Sharpe’s claims

against   Defendant     Ubah,    to    be    misplaced.     Sharpe’s      sworn

declaration creates a genuine dispute of material fact as to

Defendant Ubah’s knowledge of Sharpe’s serious medical needs and

precludes summary judgment as to Defendant Ubah.                 Accordingly,

we   vacate   that   portion    of    the   district   court’s   order.      The

district court’s finding that Ubah was entitled to qualified

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immunity based on the lack of a constitutional violation is also

vacated.      This   case   is   remanded   to   the        district   court   for

further proceedings.

     We deny Sharpe’s motion for the appointment of counsel.                    We

dispense   with      oral   argument   because        the     facts    and   legal

contentions    are   adequately    presented     in    the    materials      before

this court and argument would not aid the decisional process.



                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




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