                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-6084


DAVID LEE RUSSELL,

                Plaintiff - Appellant,

          v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.    John Preston Bailey,
District Judge. (2:15-cv-00022-JPB-MJA)


Submitted:   August 18, 2016                 Decided:   November 2, 2016


Before AGEE, THACKER, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


David Lee Russell, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

     David Lee Russell, a federal inmate housed in West Virginia,

appeals the district court’s order dismissing without prejudice

his complaint brought pursuant to the Federal Tort Claims Act

(FTCA),   28   U.S.C.    §§ 1346(b)(1),     2671-2680   (2012).   Russell

alleged that two of the prison’s healthcare providers committed

malpractice in treating his elevated blood pressure.         The district

court concluded that Russell’s claim could not proceed because,

under West Virginia law, he required expert testimony to establish

the elements of the claim, W. Va. Code § 55-7B-3 (2016), and he

had not submitted a screening certificate of merit completed by an

appropriate expert, W. Va. Code § 55-7B-6 (2016).             We conclude

that the court’s failure to explain its decision regarding the

necessity of expert testimony in this case renders it difficult,

if not impossible, to engage in meaningful appellate review.            We

therefore vacate and remand for further proceedings.

     We review a district court’s dismissal for failure to state

a claim de novo, “accept[ing] as true the factual allegations set

forth in the complaint.”     Kerr v. Marshall Univ. Bd. of Governors,

824 F.3d 62, 71 (4th Cir. 2016).          Although we are “obligat[ed] to

liberally construe a pro se complaint,” the factual allegations

must still “be enough to raise a right to relief above the

speculative    level.”     Id.   at   71-72   (internal   quotation   marks

omitted).

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      “The FTCA waives the federal Government’s sovereign immunity

in tort actions, making the United States liable in the same manner

and   to   the   same   extent   as   a       private    individual     under   like

circumstances.”        Cibula v. United States, 664 F.3d 428, 429 (4th

Cir. 2012) (internal quotation marks omitted).                      To determine

liability under the FTCA, courts apply “the law of the place where

the negligent act or omission occurred.”                Id. at 430 (brackets and

internal quotation marks omitted).                 Here, the district court

appropriately applied West Virginia law.

      Medical malpractice claims in West Virginia are governed by

the Medical Professional Liability Act.                 Banfi v. Am. Hosp. for

Rehab., 529 S.E.2d 600, 605 (W. Va. 2000).               Generally, “in medical

malpractice cases[,] negligence or want of professional skill can

be proved only by expert witnesses.” Id. (internal quotation marks

omitted).     However, failure to produce expert testimony “is not

fatal to a plaintiff’s prima facie showing of negligence” when

“lack of care or want of skill is so gross, so as to be apparent,

or the alleged breach relates to noncomplex matters of diagnosis

and treatment within the understanding of lay jurors by resort to

common     knowledge    and   experience.”         Id.    at   605-06    (internal

quotation marks omitted).        Whether an expert is required is within

the discretion of the court, and the court’s decision on the matter

is therefore reviewed for abuse of discretion.                 Id. at 605; see W.

Va. Code § 55-7B-7 (2016).

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     In concluding that Russell was required to proffer an expert

opinion before advancing his claim, the district court stated only

that, “[u]pon a review of the case file, this [c]ourt finds this

subject matter is such that requires expert testimony.”   Although

the standard of review is deferential, the court’s explanation

must still allow us to engage in meaningful appellate review.    We

are unable to discern which facts the court deemed significant in

concluding that Russell’s is not one of the rare cases that may be

submitted to a jury without the benefit of expert testimony.    See

Totten v. Adongay, 337 S.E.2d 2, 7 (W. Va. 1985) (describing

“common knowledge exception” as “rare”).    Accordingly, we vacate

and remand for further proceedings. *   The district court is free

to reconsider its decision or again conclude that expert testimony

is required.     But, in either scenario, the court must identify

specific reasons for its decision, drawing support from evidence

in the record.




     * Although the court may certainly reassess the propriety of
appointing counsel at a later time, we conclude that the court did
not abuse its discretion in denying Russell’s motions for
appointment of counsel. See Miller v. Simmons, 814 F.2d 962, 966
(4th Cir. 1987). Further, because we vacate and remand the court’s
order dismissing Russell’s FTCA claim, we decline to consider
Russell’s appeal of the order denying his Fed. R. Civ. P. 59(e)
motion for reconsideration.

                                 4
     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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