                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-7291


SAMUEL JUNIOR JACKSON,

                 Plaintiff - Appellant,

           v.

DR. JOSEPH LIGHTSEY; DR. SHER GULERIA,

                 Defendants – Appellees,

           and

N.C. D.O.C. MEDICAL STAFF,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-ct-03221-F)


Argued:   October 28, 2014             Decided:   December 18, 2014


Before MOTZ, WYNN, and HARRIS, Circuit Judges.


Affirmed in part and vacated and remanded in part by published
opinion.   Judge Harris wrote the opinion, in which Judge Motz
and Judge Wynn joined.


ARGUED:    Daniel Scott Harawa, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant.   Kelly Street Brown, YOUNG
MOORE AND HENDERSON, P.A., Raleigh, North Carolina, for
Appellees.  ON BRIEF:   Elliott Schulder, COVINGTON & BURLING
LLP, Washington, D.C., for Appellant. Elizabeth P. McCullough,
YOUNG MOORE AND HENDERSON, P.A., Raleigh, North Carolina, for
Appellees.




                              2
PAMELA HARRIS, Circuit Judge:

       Samuel Junior Jackson (“Jackson”) is an inmate in the care

of    the    North    Carolina     Department       of       Corrections.         Since   his

incarceration, Jackson alleges, his chronic heart condition has

deteriorated, and he has suffered both a heart attack and a host

of other maladies that severely compromise his quality of life.

Jackson filed suit under 42 U.S.C. § 1983, alleging deliberate

indifference to his serious medical needs in violation of the

Eighth Amendment and naming as defendants two prison doctors,

Joseph Lightsey (“Lightsey”) and Sher Guleria (“Guleria”), and

the     medical      staff    of     the    Department           of    Corrections        (the

“Staff”).          The district court dismissed all of Jackson’s claims

at the pleading stage, ruling first that the Staff should be

dismissed      as    a   party     and    then,    in    a    subsequent        order,    that

Jackson had failed to state a claim against the doctors under

Rule 12(b)(6) of the Federal Rules of Civil Procedure.

       The     principal     question       before       us      is   whether     Jackson’s

complaint sets forth plausible claims of deliberate indifference

that should survive a motion to dismiss.                              But before we can

reach       that    issue,   we    must    consider          whether     this    appeal     is

properly before us, in whole or in part, in light of certain

omissions in Jackson’s notice of appeal.

       We conclude that Jackson did not appeal from the district

court       order    dismissing     the    Staff    as       a   party    to    this     case,

                                             3
depriving    us     of    jurisdiction     to    review       that    order.         We    do,

however,     have       jurisdiction     over    the     dismissal          of    Jackson’s

claims against the doctors, and we hold that while the claim

against    Lightsey       was   properly      dismissed       under     Rule      12(b)(6),

Jackson    has     alleged      facts    supporting       a    plausible          claim    of

deliberate indifference against Guleria.                       We therefore vacate

the   district      court’s      dismissal       of    Jackson’s        claim       against

Guleria and remand for further proceedings.



                                           I.

                                           A.

      Because Jackson appeals from an order granting a motion to

dismiss under Rule 12(b)(6), we recount the facts as alleged by

Jackson, accepting them as true for purposes of this appeal.

See   Summers      v.    Altarum   Inst.,       Corp.,    740        F.3d    325,    327–28

(4th Cir. 2014).

      Jackson has been an inmate in North Carolina’s state prison

system since 2008.          In 2003, before he was incarcerated, Jackson

was diagnosed with congestive heart failure by Dr. Lindsey White

(“White”), a cardiologist.               White prescribed Jackson a set of

six   medications        that   proved     effective      in    managing          Jackson’s

heart condition.

      Upon   his     incarceration       at     Central   Prison        in       Raleigh    in

2008, Jackson met with Lightsey, who is not a cardiologist, for

                                           4
a screening appointment.                  During this session, Jackson either

presented       Lightsey          with        medical        records      documenting               his

cardiologist’s          diagnosis        of    congestive        heart    failure            and    his

prescriptions, or notified Lightsey that White would be sending

the records to him separately. 1                         Lightsey proceeded to diagnose

Jackson with a heart arrhythmia, a comparatively less serious

condition, and to alter Jackson’s medication regimen.

      Jackson      alleges        that        his       health   went    into       a    tailspin

following Lightsey’s intervention.                           He began to experience a

number     of   unpleasant         and    alarming          symptoms,     including               chest

pains     and   burning      sensations             in    several     parts    of       his       body.

Fearing     that    the      changes          to    his     medication    were          to    blame,

Jackson made multiple requests to the Staff to be seen by a

cardiologist,       all      of   which        were       denied.       This    deterioration

culminated in Jackson suffering a heart attack, for which he

received treatment at Rex Hospital in Raleigh.

      Jackson       was      later        transferred            to     Nash     Correctional

Institution        in    Nashville,           North        Carolina.          There,         he    saw

Guleria, who told Jackson that he would order additional tests

and     treatments,       including           an        electrocardiogram,          heart          rate

monitoring,      and     a   special          diet.         Several     months      after          this

visit, having never received any of the tests or treatments and

      1
       Jackson’s complaint, informal brief, and counseled briefs
are inconsistent on this point.


                                                    5
having made numerous sick call requests, Jackson was informed by

members of the Staff that they had no record of Guleria entering

any orders.          As a result of substandard care provided by the

defendants, Jackson suffers from chronic and extreme pain, and

is unable even to walk to the prison dining hall to eat.

                                              B.

     On November 2, 2011, Jackson filed his § 1983 complaint in

the District Court for the Eastern District of North Carolina,

naming       Lightsey,      Guleria,      and       the    Staff    as    defendants   and

alleging deliberate indifference to his serious medical needs in

violation of the Eighth Amendment.                        J.A. at 6.      In response to

an order from the district court identifying an omission in his

original complaint, Jackson filed an amended complaint on April

27, 2012.         J.A. at 19.

     The district court reviewed that complaint for frivolity

under       28    U.S.C.    §     1915A(a).         Finding     that     the    complaint’s

allegations pertained only to Lightsey and Guleria, in an order

dated       July    6,     2012    (the   “2012       Order”)      the    district   court

dismissed all claims against the Staff and dismissed the Staff

as      a        party     to      the    case.              Jackson       v.     Lightsey,

No. 5:11-ct-03221-F (E.D.N.C. July 6, 2012), ECF No. 9.

     The remaining defendants, Lightsey and Guleria, then moved

to   dismiss        Jackson’s       complaint        under     Rule      12(b)(6).     The

district court granted their motion in a July 31, 2013 order

                                                6
(the “2013 Order”), holding that Jackson’s allegations described

only a medical disagreement over proper diagnosis and care and

thus   failed       to    state        a    claim       for   deliberate      indifference.

Jackson       v.         Lightsey,               No.      5:11-ct-03221-F          (E.D.N.C.

July 31, 2013), ECF No. 41.                      On the same day, the clerk of the

district court entered a final judgment in the case, dismissing

Jackson’s      action         in     its        entirety.          Jackson    v.   Lightsey,

No. 5:11-ct-03221-F (E.D.N.C. July 31, 2013), ECF No. 42.

       On August 12, 2013, Jackson filed a handwritten document

with the clerk of the district court stating his intention to

“[a]ppeal the Order of the United States District Court [for

the] Eastern District of North Carolina [] on this the 31st day

of   July,    2013       by    James       C.    Foxx    [sic],     Senior    United   States

District Judge.”              J.A. at 62.              The document did not name the

court to which Jackson intended to appeal.                            However, the clerk

for the Fourth Circuit, following standard procedure for pro se

appeals, promptly issued an informal briefing order to Jackson

as   well    as    to    the       lawyers       who    had   represented     Lightsey   and

Guleria in the district court.                     Jackson v. Lightsey, No. 13-7291

(4th   Cir.       Aug.    13,       2013),       ECF    No.   5.      After    Jackson    and

appellees Lightsey and Guleria filed their informal briefs, the

clerk appointed appellate counsel for Jackson to facilitate this

appeal.       Jackson v. Lightsey, No. 13-7291 (4th Cir. Apr. 28,

2014), ECF No. 25.

                                                   7
                                         II.

      Before reaching Jackson’s deliberate indifference claims,

we must address whether Jackson has brought those claims before

us consistent with Federal Rule of Appellate Procedure 3(c).

Because “Rule 3’s dictates are jurisdictional in nature, and

their satisfaction is a prerequisite to appellate review,” Smith

v. Barry, 502 U.S. 244, 248 (1992), this analysis determines

whether    we    have    jurisdiction     over       this   appeal,      and    if   so,

whether it extends to all of Jackson’s claims.

                                         A.

      Appellees     contend      that   we     are     without    jurisdiction       to

decide    this    case    because    Jackson     failed      to   name    the   Fourth

Circuit as the court to which he intended to appeal an order of

a   federal     district    court    within     that      circuit.       Pointing    to

Rule 3(c)(1)(C)’s requirement that a notice of appeal “name the

court to which the appeal is taken,” they argue that although

there is no court other than the Fourth Circuit to which Jackson

could have appealed, this defect in Jackson’s notice is fatal to

our jurisdiction.

      We disagree.       Our approach to Rule 3 is not so formalistic.

Instead,   following       the   instruction         of   the   Supreme    Court,     we

construe   Rule    3     liberally,     and    measure      compliance     by   asking

whether “the litigant’s action is the functional equivalent of

what the rule requires.”            Smith, 502 U.S. at 248 (quoting Torres

                                          8
v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988)); see In re

Spence, 541 F.3d 538, 543 (4th Cir. 2008).                     Where a challenged

notice of appeal has provided adequate notice and caused the

complaining party no prejudice, there is no reason to allow a

“technical impediment[]” to foreclose appellate review.                         In re

Spence, 541 F.3d at 543 (quoting Bogart v. Chapell, 396 F.3d

548, 555 (4th Cir. 2005)); see Smith, 502 U.S. at 248 (notice

afforded by a document determines the document’s sufficiency as

a notice of appeal); Canady v. Crestar Mortg. Corp., 109 F.3d

969, 974–75 (4th Cir. 1997) (finding compliance with Rule 3 in

light of adequate notice and lack of prejudice to the appellee).

       Applying those principles, we have no difficulty concluding

that Jackson’s failure to add the words “Fourth Circuit” to his

notice of appeal did not bring him out of compliance with Rule

3.     Where, as in this case, there is only one possible appellate

forum, the filing of an otherwise proper notice of appeal may

itself be the “functional equivalent” of naming that court under

Rule      3(c)(1)(C).         See        United       States     v.      Treto-Haro,

287 F.3d 1000,      1002    n.1    (10th      Cir.     2002)     (Rule    3(c)(1)(C)

satisfied despite failure to name appellate forum); Dillon v.

United    States,   184    F.3d    556,    558    (6th    Cir.   1999)    (en    banc)

(same).       The   facts     of    this      case       illustrate      the    point:

Notwithstanding      omission       of     the       words     “Fourth     Circuit,”

Jackson’s intent to appeal to this court was sufficiently clear

                                          9
that the district court clerk immediately transferred Jackson’s

notice to our clerk, who in turn issued an informal briefing

order     to    Jackson     and    to     the    appellees         the   very    next   day.

Appellees       concede,     as    they       must,    that      they    received      prompt

notice of Jackson’s appeal to the Fourth Circuit and suffered no

prejudice as a result of the claimed deficiency in Jackson’s

notice.         Under      these       circumstances,         we     hold,    Jackson      has

complied with Rule 3(c)(1)(C), and we may proceed to consider

his appeal. 2

                                                B.

      Though we have confirmed our jurisdiction over Jackson’s

appeal     as    a     whole,      we     must       also    consider        whether    that

jurisdiction         extends      to    the   2012     Order       dismissing    Jackson’s

claim     against     the    Staff.        In    his   notice       of   appeal,    Jackson

specified that he sought review of one order: “the Order of the

[district court] on this the 31st day of July, 2013 by James C.

Foxx [sic], Senior United States District Judge,” considering

and   granting       the    motions      to   dismiss       of     doctors   Lightsey      and

Guleria.        Consistent        with    his    notice,      Jackson     then     filed    an


      2
       Jackson’s pro se status, of course, also favors a liberal
construction of his notice of appeal.      See United States v.
Garcia, 65 F.3d 17, 19 (4th Cir. 1995).    But our holding, like
those of the other circuits to address the question, is not
restricted to pro se litigants.     See Treto-Haro, 287 F.3d at
1002 n.1 (omission by the federal government); Dillon, 184 F.3d
at 558.


                                               10
informal     brief    addressing     only    the   dismissal     of     his   claims

against Lightsey and Guleria.               In his counseled briefs and at

oral argument, however, Jackson renewed his claim against the

Staff, so we must now decide whether we may review the district

court’s 2012 dismissal of that claim.                 We conclude that we may

not.

        Rule      3(c)(1)(B)    requires      that     a     notice     of    appeal

“designate the judgment, order, or part thereof being appealed.”

Fed.   R.    App.    P.   3(c)(1)(B).        Again,    we    construe    the    rule

liberally and take a functional approach to compliance, asking

whether     the   putative     appellant     has   manifested     the    intent    to

appeal a specific judgment or order and whether the affected

party had notice and an opportunity fully to brief the issue.

See In re Spence, 541 F.3d at 543; Bogart, 396 F.3d at 555.

Here, we answer both those questions in the negative, leading to

the conclusion that Jackson did not properly designate the 2012

Order for appeal.

       First,     there   is   no   indication     that     Jackson   intended     to

appeal the 2012 Order when he filed his notice of appeal.                       This

is not a simple problem of omission, as with Jackson’s failure

to name the Fourth Circuit as the forum for his appeal.                           The

problem here is that Jackson did name the order he wished to

appeal, and that order was the 2013 Order dismissing his claims

against the prison doctors.           Given Jackson’s express designation

                                        11
of one particular order, the fairest inference is that Jackson

did   not   intend     to    appeal    the    other.      See   Smith       v.   Barry,

985 F.2d 180, 184 (4th Cir. 1993) (where “all issues triable by

Jury” are designated for appeal, court may not hear appeal as to

issues that are not triable by jury); see also Osterneck v. E.T.

Barwick     Indus.,    Inc.,    825    F.2d    1521,     1529   (11th   Cir.      1987)

(“[W]here     some    portions    of    a     judgment    and   some    orders      are

expressly made a part of the appeal, we must infer that the

appellant did not intend to appeal other unmentioned orders or

judgments.”); Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir.

1992) (same). 3

      That inference is confirmed by the informal brief Jackson

subsequently filed with this court, which fails even to mention

the   Staff   and     is    instead    addressed    exclusively        to   Jackson’s

allegations against Lightsey and Guleria.                  The informal brief is

an important document; under Fourth Circuit rules, our review is

limited to issues preserved in that brief.                      See 4th Cir. R.

34(b).      Jackson’s decision to confine his brief to his claims

      3
       At oral argument, Jackson’s counsel suggested that the
2012 Order was incorporated by reference into the designated
2013 Order, and hence properly before us.     That is incorrect.
It is a separate document – the final judgment issued by the
district court clerk dismissing Jackson’s action in its entirety
– that includes a reference to the 2012 Order.      J.A. at 61.
Whether designation of that final judgment in the notice of
appeal might have evinced the requisite intent to appeal the
2012 Order is not relevant here, because Jackson’s notice
designates only the 2013 Order.


                                         12
against     doctors    Lightsey       and        Guleria     mirrors    his   specific

designation      for   appeal    of    the        2013     Order    dismissing    those

claims.     Taken together, the plainest inference is that Jackson

intended to appeal only the dismissal of his claims against his

treating physicians.

       Second, and relatedly, there is a very substantial notice

problem in this case.        Precisely because there was no indication

that   Jackson    intended      to    appeal       the     2012    Order,   the   Staff,

having been dismissed as a party to the action for more than a

year, was never notified of Jackson’s appeal or asked to file an

informal brief.        As a result, the Staff was not represented in

this appeal, on briefs or at oral argument, and has had no

opportunity to defend the 2012 Order.                      This is a far cry from

cases in which we have found compliance with Rule 3(c)(1)(B)

despite an ambiguous designation because no harm was done – the

affected parties were before the court and fully briefed the

relevant issues, nobody was taken by surprise, and no prejudice

resulted.     See, e.g., Canady, 109 F.3d at 974–75; In re Spence,

541 F.3d at 543.

         Jackson urges us to look past his omission because he was

appearing pro se when he filed his notice of appeal and informal

brief.    Although we do liberally construe pro se pleadings, we

cannot excuse defects that, as here, deprive other parties of

the fair notice to which they are entitled.                         Because Jackson’s

                                            13
notice of appeal did not evince an intent to appeal the 2012

Order and because of the resulting failure of notice to the

Staff, we hold that under Rule 3(c)(1)(B), we lack jurisdiction

to review the 2012 Order dismissing the Staff as a party to this

case. 4



                                        III.

       We now consider whether Jackson’s amended complaint raises

plausible claims of deliberate indifference against Lightsey and

Guleria. 5      Our review of the district court’s order granting

appellees’ motion to dismiss is de novo.                   Summers, 740 F.3d at

328.       To survive a motion to dismiss, a complaint must present

factual      allegations      that   “state    a   claim      to   relief   that   is

plausible on its face.”              Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).       In     applying   that    standard,       we    liberally    construe

Jackson’s       pro      se      complaint,        see        Smith    v.     Smith,


       4
        In light of our holding that Jackson’s failure to
designate the 2012 Order for appeal deprives us of jurisdiction,
we need not reach questions regarding the timeliness of a
putative appeal from the 2012 Order, nor whether Jackson’s
failure to address the 2012 Order in his informal brief would
have precluded our review under Fourth Circuit Rule 34(b).
       5
        Jackson originally sought injunctive relief against
Lightsey and Guleria as well as damages.     On appeal, however,
Jackson’s counsel conceded that those claims for injunctive
relief are moot, and only the damages claims are before us now.


                                         14
589 F.3d 736, 738 (4th Cir. 2009), take all facts pleaded as

true, and draw all reasonable inferences in Jackson’s favor.

Summers, 740 F.3d at 328.

                                          A.

     A prison official’s deliberate indifference to an inmate’s

serious medical needs constitutes cruel and unusual punishment

under the Eighth Amendment.            Estelle v. Gamble, 429 U.S. 97, 104

(1976).       A     deliberate    indifference       claim    consists         of    two

components, objective and subjective.               Objectively, the inmate’s

medical     condition     must    be   “serious”      –    “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).         Appellees       do    not    dispute

that Jackson’s chronic heart condition qualifies as objectively

serious.

     Where the parties differ is over the subjective component.

An official is deliberately indifferent to an inmate’s serious

medical needs only when he or she subjectively “knows of and

disregards     an    excessive     risk    to     inmate   health        or    safety.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).                      That is a higher

standard    for     culpability    than    mere    negligence       or    even      civil

recklessness, and as a consequence, many acts or omissions that

would constitute medical malpractice will not rise to the level

                                          15
of deliberate indifference.                See Estelle, 429 U.S. at 106.                To

show an Eighth Amendment violation, it is not enough that an

official should have known of a risk; he or she must have had

actual subjective knowledge of both the inmate’s serious medical

condition and the excessive risk posed by the official’s action

or inaction.        Farmer, 511 U.S. at 837–39; Iko, 535 F.3d at 241.

It is that exacting standard, appellees argue, that Jackson’s

allegations fail to meet.

                                             B.

     We     agree        that    Jackson’s        allegations      against        Lightsey,

though     describing           behavior    that      might     support       a    medical

malpractice        claim,       do   not   make     out   a     case     of   deliberate

indifference.             Jackson     contends        that    during      a       screening

appointment, Lightsey, who is not a heart specialist, diagnosed

Jackson     with     a     heart     arrhythmia,      even      though    Jackson      had

produced or offered to produce medical records showing that a

cardiologist had diagnosed and treated him for a more serious

condition.     Lightsey also substantially modified the medication

regimen prescribed by Jackson’s cardiologist.                       Though hindsight

suggests    that     Lightsey’s        treatment       decisions       may    have    been

mistaken, even gravely so, we agree with the district court that

Jackson’s      claim            against      Lightsey         is       essentially       a

“[d]isagreement[] between an inmate and a physician over the

inmate’s proper medical care,” and we consistently have found

                                             16
such     disagreements             to     fall     short     of        showing        deliberate

indifference.           Wright v. Collins, 766 F.2d 841, 849 (4th Cir.

1985); see United States v. Clawson, 650 F.3d 530, 538 (4th Cir.

2011).      While       a    non-cardiologist’s            erroneous       diagnosis         of    a

serious     heart       condition,         as     alleged        by    Jackson,       may    well

represent     a    deviation            from     the   accepted         standard       of   care,

standing alone it is insufficient to clear the “high bar” of a

constitutional claim.              Iko, 535 F.3d at 241.

       Jackson’s case against Guleria is of a different order.

Jackson    has     no       quarrel       with    Guleria’s           medical    judgment         or

recommendations.              On    the     contrary,       what       Jackson     wanted      was

exactly    the     testing         and     treatment       that        Guleria    prescribed.

Jackson’s objection is that Guleria failed to enter the orders

necessary    to     provide         Jackson       with     the    promised        care,     which

resulted     in     Jackson         going       months     without       the     testing       and

treatment for his serious heart condition that Guleria thought

appropriate.

       We have held already that a “[f]ailure to provide the level

of care that a treating physician himself believes is necessary”

may    constitute       deliberate          indifference.               Miltier       v.    Beorn,

896 F.2d 848, 853 (4th Cir. 1990).                         In Miltier, we considered

allegations       against      prison          doctors   very         similar    to    those      at

issue     here:         One    doctor          recommended        that     a    patient,       who

ultimately died in prison of a heart attack, be transferred to a

                                                 17
cardiac unit but failed to follow up on this recommendation; and

another doctor approved the referral but also failed to follow

up and confirm that the transfer had occurred.                            Id.     Those

allegations, we concluded, clearly presented a triable claim of

deliberate indifference.             Id.

       The    same     reasoning      applies      here.     Miltier     predates      the

Supreme      Court’s       decision      in    Farmer,      which   established        the

requisite subjective mental state for a deliberate indifference

claim.       See Miltier, 896 F.2d at 852 (reciting a test for civil

recklessness).            But the substantive principle we borrow from

Miltier      –   that     a   doctor’s      failure   to    provide    care     that   he

himself deems necessary to treat an inmate’s serious medical

condition        may     constitute    deliberate        indifference     –     survives

Farmer.       At the 12(b)(6) stage, it is fair to infer that when

Guleria prescribed a set of tests and treatments for Jackson’s

unquestionably serious heart condition, he did so because he

subjectively believed they were necessary, and therefore must

have known that failing to provide them would pose an excessive

risk to Jackson’s health.              That is all that Farmer requires, see

511 U.S. at 842 (subjective prong may be met by showing that

risk is sufficiently obvious that official “must have known” of

it),   and       under    Miltier,     it     is   enough   to   state    a   claim    of

deliberate indifference, 896 F.2d at 853.                        See also Hudson v.

McHugh, 148 F.3d 859, 863–64 (7th Cir. 1998) (Farmer satisfied

                                              18
by   allegation   that   prison    officials   knew    of   serious   medical

condition   and   need   for   treatment   but   nevertheless      failed   to

provide treatment); Miller v. Schoenen, 75 F.3d 1305, 1310–11

(8th Cir. 1996) (same).

      Our decision today does not address the ultimate merits of

Jackson’s claim against Guleria, nor express any view about the

likelihood that Jackson will prevail.            We hold only that given

the liberal construction we afford pro se complaints and the

favorable light in which we review them under Rule 12(b)(6),

Jackson’s   allegations    state    a   plausible     claim   of   deliberate

indifference as to Guleria.        Accordingly, we vacate the district

court’s dismissal of Jackson’s claim against Guleria and remand

for further proceedings.



                                     IV.

      For the reasons set forth above, we affirm the judgment of

the district court in part and vacate and remand in part.



                  AFFIRMED IN PART AND VACATED AND REMANDED IN PART




                                     19
