                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-6353


KEITH W.R. LOWE,

                     Plaintiff - Appellant,

              v.

DR. SHERRI JOHNSON, physician for Wexford, sued in her individual capacity;
DONNA WARDEN, Medical Director of MOCC, sued in her individual capacity;
DAVID BALLARD, Warden at MOCC; JAMES RUBENSTEIN, Commissioner of
WVDOC, sued in his individual capacity and official; DANIEL CONN, CEO of
Wexford sued in his individual and official capacity,

                     Defendants - Appellees,

              and

WEST VIRGINIA DEPARTMENT OF CORRECTIONS; WEXFORD HEALTH
SOURCES, INC.,

                     Defendants.



Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Thomas E. Johnston, Chief District Judge. (2:17-cv-02345)


Submitted: February 27, 2020                                    Decided: March 17, 2020


Before GREGORY, Chief Judge, and WILKINSON and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
Keith W.R. Lowe, Appellant Pro Se. Jeffery W. Lilly, ROSE PADDEN PETTY TAYLOR
& LILLY, LC, Fairmont, West Virginia; John P. Fuller, BAILEY & WYANT, PLLC,
Charleston, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Keith Lowe, a West Virginia inmate, appeals the district court’s order dismissing

his claim of deliberate indifference for failing to state a claim. We vacate the district

court’s order and remand for further proceedings.

       We review the granting of a motion to dismiss for failure to state a claim de novo.

Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir.2015). “To survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted). In doing so, we “construe . . . facts in the light most

favorable to the plaintiff,” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d

250, 255 (4th Cir. 2009), and “draw all reasonable inferences in [his] favor,” E.I. du Pont

de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Yet, “we need

not accept as true unwarranted inferences, unreasonable conclusions, or arguments.”

Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006) (internal quotation marks

omitted). Nor do we credit allegations that offer only “naked assertions devoid of further

factual enhancement.” Iqbal, 556 U.S. at 678 (alteration and internal quotations marks

omitted).

       It is well-established law that “[i]f facts outside the complaint are to be considered,

either party or the district court, sua sponte, shall cause an order to be entered converting

the motion to dismiss into a motion for summary judgment.” Fayetteville Inv’rs v.

Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991); see also vonRosenberg v.

Lawrence, 849 F.3d 163, 167 n.1 (4th Cir. 2017) (“It is well-established that parties cannot

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amend their complaints through briefing or oral advocacy.” (internal quotation marks

omitted)). Indeed, “[c]onsideration of extrinsic documents by a court during the pleading

stage of litigation improperly converts the motion to dismiss into a motion for summary

judgment. This conversion is not appropriate when the parties have not had an opportunity

to conduct reasonable discovery.” Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597,

606 (4th Cir. 2015). And although the district court may consider documents attached to

the complaint if they are intrinsic to the complaint and integral to proving the sufficiency

of that complaint, Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006), any other

consideration of documents outside the pleadings requires conversion of the motion to

dismiss to a motion for summary judgment. Here, as discussed below, the district court

considered matters outside the pleadings to determine that the complaint was insufficient.

       To succeed on an Eighth Amendment deliberate indifference claim, the plaintiff

“must show that he is incarcerated under conditions posing a substantial risk of serious

harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted).

This “deprivation . . . must be, objectively, sufficiently serious; . . . the denial of the

minimal civilized measure of life’s necessities.” Id. (internal quotation marks omitted).

Second, the “prison official must have a sufficiently culpable state of mind . . . . In

prison-condition cases that state of mind is one of deliberate indifference to inmate health

or safety.”   Id. (internal quotation marks omitted).     “[D]eliberate indifference to a

substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding

that risk.” Id. at 836. “[T]o act recklessly in [this context,] a person must consciously

disregar[d] a substantial risk of serious harm.” Id. at 839 (internal quotation marks

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omitted). And while the prisoner does not have to show the prison official “act[ed] or

omi[tted to act] for the very purpose of causing harm or with knowledge that harm will

result,” the prisoner must show “more than mere negligence.” Id. at 835. Indeed, “a

prisoner does not enjoy a constitutional right to the treatment of his . . . choice” so long as

the medical treatment provided is adequate. De’lonta v. Johnson, 708 F.3d 520, 526 (4th

Cir. 2013).

       We conclude that Lowe plausibly claim alleged a deliberate indifference claim

against Dr. Sherri Johnson. The parties do not dispute that epilepsy satisfies the first prong

of Farmer. As to the second prong, while Lowe rejected initial attempts by the prison to

draw his blood, thereby requiring the discontinuation of Dilantin, Johnson failed to provide

a different antiseizure medication for about three weeks—and indeed, Lowe suffered

seizures during the time he was not taking Dilantin or another antiseizure medication. This

goes beyond the mere disagreement about treatment on which the district court relied to

deny relief.

       We also conclude that Lowe plausibly alleged a claim of supervisory liability

against James Rubenstein and David Ballard. See Shaw v. Stroud, 13 F.3d 791, 799 (4th

Cir. 1994) (providing standard). The complaint contained Lowe’s letters to both

Rubenstein and Ballard informing them of Johnson’s conduct, but it was not until after

Lowe started his new medication that he received a response. The district court concluded

that these defendants relied on Dr. Johnson’s medical expertise in failing to respond to

Lowe’s letters, but this conclusion is not admitted in the complaint and was not properly

considered at the motion to dismiss stage.

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      We therefore vacate the district court’s order and remand for further proceedings.

We express no opinion on the ultimate disposition of Lowe’s claims. 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.

                                                           VACATED AND REMANDED




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