                                             Filed:   January 31, 2002

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 01-6393
                            (CA-99-786-9)



William G. Harden,

                                                Plaintiff - Appellant,

           versus


Michael S. Green, et al.,

                                               Defendants - Appellees.



                              O R D E R



     The court amends its opinion filed November 19, 2002, as

follows:

     On the cover sheet, section 3, line 2 -- the district court is

corrected to read “the District of South Carolina, at Beaufort.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM G. HARDEN,
Plaintiff-Appellant,

v.

MICHAEL S. GREEN, MD; EMSA
                                                               No. 01-6393
CORRECTIONAL CARE; HUGH G.
HARRIS, MD; JAMES K. WOLFSON,
MD,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Matthew J. Perry, Jr., Senior District Judge.
(CA-99-786-9)

Submitted: October 31, 2001

Decided: November 19, 2001

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________

COUNSEL

William G. Harden, Appellant Pro Se. Charles Elford Carpenter, Jr.,
S. Elizabeth Brosnan, William Curry McDow, RICHARDSON,
PLOWDEN, CARPENTER & ROBINSON, Columbia, South Caro-
lina; Weldon R. Johnson, Andrea C. Pope, BARNES, ALFORD,
STORK & JOHNSON, Columbia, South Carolina; James Boyce
Pressly, Jr., HAYNESWORTH SINKLER BOYD, P.A., Greenville,
South Carolina; Barbara Murcier Bowens, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William G. Harden appeals the district court's order granting sum-
mary judgment to Defendants in his 42 U.S.C.A. § 1983 (West Supp.
2001) suit, which named as defendants EMSA Correctional Care;
Michael S. Green, M.D.; Hugh G. Harris, M.D.; and James K. Wolf-
son, M.D. In his complaint, Harden alleged violation of his civil
rights due to EMSA's, Green's, and Harris's failure to adequately
treat his broken arm after surgery and Wolfson's overbroad compe-
tency report.

On appeal, Harden first contends that the district court erred in
refusing to appoint him counsel. A district court abuses its discretion
if it fails to appoint counsel when exceptional circumstances exist.
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). The existence
of exceptional circumstances depends on the complexity of the case,
and the ability of the prisoner to present it. Id. A review of the record
indicates that this case is not extremely complex and that Harden was
able to adequately present his case, as demonstrated by his numerous
and lengthy motions and exhibits. Thus, the district court did not
abuse its discretion by denying Harden's motions for appointment of
counsel.

Harden next contends that the district court improperly denied his
motion to compel entry of a scheduling order under Fed. R. Civ. P.

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16(b). Because Harden's motion was untimely filed and because he
failed to show any harm from the lack of a scheduling order, we find
that there was no reversible error.

Harden next challenges the district court's grant of summary judg-
ment. We review grants of summary judgment de novo. Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is proper if the pleadings and evidence show that
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In determining whether this show-
ing has been made, the factual evidence and all inferences to be
drawn therefrom are reviewed in a light most favorable to the party
opposing the motion. Ross v. Communications Satellite Corp., 759
F.2d 355, 364 (4th Cir. 1985). Finally, summary judgment is not
appropriate if the resolution of material issues depends upon credibil-
ity determinations. Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.
1979).

Prisoners can establish an Eighth Amendment violation with
respect to medical care if they can prove that there has been deliberate
indifference to their serious medical needs. Estelle v. Gamble, 429
U.S. 97, 104 (1976). The test for deliberate indifference has two parts.
First, whether the deprivation of medical care was sufficiently serious
(objective component) and second, whether there existed a culpable
state of mind (subjective component). Wilson v. Seiter, 501 U.S. 294,
298 (1991). With these standards in mind, the various defendants will
be addressed in turn.

1. Dr. Green

Harden injured his left wrist and hand while trying to escape from
police officers. On March 13, 1997, Green, an orthopedic surgeon,
performed surgery (an open reduction and internal fixation) on Har-
den's wrist, repairing the damage with a plate and screws. Following
surgery, Harden was returned to the Lexington County Detention
Center, where medical care was provided by EMSA. Harden's prison
medical file includes Green's prescriptions for the medications Tylox,
Demoral, Lortab, and Phenergan, as well as post-operative instruc-

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tions for Harden to move his fingers frequently and keep his arm
raised.

Harden asserts that Green was deliberately indifferent to his medi-
cal needs when Green did not inform him of the necessity to move
his fingers following surgery, did not inquire as to whether his pre-
scriptions would be filled at the prison, and did not implement a long-
term care plan when Harden was transferred. However, the evidence
shows that Green, at the very least, gave the post-operative instruc-
tions to the prison medical department. In addition, he prescribed pain
medications for Harden and treated him at two post-operative
appointments, where he instructed Harden to continue moving his fin-
gers and planned a timeline for removal of Harden's cast. There is no
evidence that Green controlled the actions of EMSA, and Green has
averred that Harden's type of surgery was routinely handled on an
outpatient basis. Thus, Green cannot be responsible for any failure by
EMSA to implement his follow-up instructions, and we find that any
failure to monitor on Green's part was only negligence, at most.
Accordingly, summary judgment was properly granted to Green.

2. Dr. Harris

On April 17, Harden was transferred to a federal prison in Spring-
field, Missouri, so that he could undergo a competency examination.
On April 28, Harris removed Harden's cast and noted stiffness in the
fingers and wrist and decreased sensation in the thumb, index, and
middle fingers. Harris ordered occupational therapy three times a
week for range of motion and strengthening exercises. In addition,
Harris instructed Harden to perform stretching and range of motion
exercises on his own. Harris followed up with Harden on May 23 and
noted improvement, but ordered continued occupational therapy.
When Harden was released on June 11, he was instructed to continue
with physical therapy, was given a copy of the exercise descriptions,
and was given a number to call if he lost the instructions.

Harden asserts that Harris removed his cast a week later than he
should have (according to Green's timeline) and failed to ensure that
Harden was having therapy three time per week as Harris had pre-
scribed. Harden contends that he only had three therapy sessions in

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the six weeks he was under Harris's care. However, we find that any
wrongdoing on Harris's part was mere negligence, at most.

Although Harden contends that the untimely removal of his cast
aggravated his "frozen-fist" syndrome, he submitted no evidence in
support of this claim. Instead, the medical records show that Harden's
condition improved under Harris's care. Moreover, the evidence is
inconclusive as to how many therapy sessions Harden had. In any
event, Harris ordered therapy and cannot be held responsible for the
prison officials' failure to follow through. Moreover, Harris also
instructed Harden how to do his own therapy, thereby mitigating any
damage caused by the lack of therapy sessions and weighing against
a finding of deliberate indifference. Because there is no evidence that
Harris was deliberately indifferent to Harden's medical needs, the dis-
trict court properly granted summary judgment to Harris.

3. Dr. Wolfson

Harden's claim against Wolfson does not allege deliberate indiffer-
ence. Instead, Harden makes a claim more akin to denial of access to
courts or denial of due process in that he alleges that Wolfson alleg-
edly authored a damaging and overbroad competency evaluation that
went beyond the inquiry directed by the district court. However,
court-appointed psychiatrists are entitled to absolute judicial and wit-
ness immunity for their conduct in completing competency exams and
furnishing written reports. Hughes v. Long, 242 F.3d 121, 127-28 (3d
Cir. 2001). Thus, the district court correctly granted summary judg-
ment on the claims against Wolfson.

4. EMSA

Harden asserts that EMSA housed him in a "drunk tank" on the
floor immediately following surgery, preventing him from elevating
his arm. Additionally, EMSA allegedly failed to give him prescribed
pain medication for three days and, thereafter, only provided alterna-
tive pain medication, rather than that prescribed by Green. In addi-
tion, Harden contends that EMSA failed to pass on Green's directions
that he should move his fingers and elevate his arm.

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The first issue (the objective element) is whether Harden was
deprived of a serious medical need. The component can be further
broken down into two elements: (1) a serious medical need and (2)
mistreatment or nontreatment of that need. There is no clear definition
of what constitutes a serious medical need. However, the Eighth
Amendment embraces the treatment of medical conditions which may
cause future health problems. Helling v. McKinney, 509 U.S. 25, 35
(1993). Further, a medical need is serious if it is one that has been
diagnosed by a physician or is so obvious that even a layperson would
recognize the need for a doctor's treatment. Ramos v. Lamm, 639 F.2d
559, 575 (10th Cir. 1980).

Here, Harden had a broken wrist repaired with a plate and screws.
His surgeon prescribed elevation, moving the fingers, and potent
painkillers. Harden alleges that EMSA did not provide him with his
medicine and failed to inform him of the surgeon's other directions.
As a result, Harden alleges that he suffered terrible pain and that his
hand is permanently deformed and his use of it has been seriously
diminished. The medical records support Harden's allegations of stiff-
ness and reduced range of motion. Accordingly, we find that Harden
has properly alleged that he had a serious medical need following sur-
gery.

The objective element also requires Harden to prove that his seri-
ous medical need was not timely or properly treated. Harden contends
that the delay in treatment exacerbated his condition and caused him
excruciating pain. Harden's medical records show that he complained
of pain and requested medication. EMSA admits to some delay in giv-
ing Harden pain killers and to administering different medication than
Green prescribed. There are conflicting accounts in the record as to
how Harden was housed, and EMSA has been silent as to whether it
relayed Green's other orders to Harden. Nonetheless, even focusing
only on Harden's pain, Harden's sworn assertions that EMSA with-
held pain medication for three days satisfied his burden as to the
objective component of a deliberate indifference suit. See, e.g., Coo-
per v. Schriro, 189 F.3d 781, 783-84 (8th Cir. 1999) (delaying treat-
ment for painful dental problems); Brice v. Virginia Beach
Correctional Ctr., 58 F.3d 101, 104-05 (4th Cir. 1995) (four hours of
trauma and pain due to injured jaw was a serious medical need);

                  6
Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (pain from hernia
was serious medical need).

The subjective element requires a showing that the defendant's
actions were wanton. The standard for wantonness depends upon the
circumstance of the case. Wilson, 501 U.S. at 302-03. Deliberate
indifference requires, at a minimum, that the defendant thought about
the matter and chose to ignore it. It may appear when prison officials
deny, delay, or intentionally interfere with medical treatment.
McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled
on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th
Cir. 1997).

Harden avers that he requested pain medication often, but received
none for three days, causing terrible pain. EMSA does not specifically
deny this assertion but claims only that Harden was eventually given
pain medication, although not the type prescribed by Green. In addi-
tion, Harden's prison medical records do not reflect that EMSA ever
told him the importance of moving his fingers, as instructed by Green.
Viewing the evidence in the light most favorable to Harden, we find
that the evidence can fairly support a claim that EMSA was aware of
Harden's pain and recovery needs, but unreasonably delayed or with-
held treatment.

However, Harden has not made his allegations specific to the
actions of individual employees of EMSA. The medical department
of a prison may not be sued, because it is not a person within the
meaning of § 1983. Will v. Michigan Dep't of State Police, 491 U.S.
58, 70-71 (1989); Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973).
However, where a pro se litigant alleges a cause of action which may
be meritorious against persons unknown, the district court should
afford him a reasonable opportunity to determine the correct person
or persons against whom the claim is asserted, advise him how to pro-
ceed, and direct or permit amendment of the pleadings to bring that
person or persons before the court. Gordon v. Leeke, 574 F.2d 1147,
1152-53 (4th Cir. 1978); see also Coleman v. Peyton, 340 F.2d 603,
604 (4th Cir. 1965) (pro se plaintiff should be given an opportunity
to particularize a potentially viable claim).

Based on the foregoing, we affirm the district court's denial of Har-
den's motions for counsel and for a scheduling order; affirm the dis-

                   7
trict court's grant of summary judgment in favor of Drs. Green,
Harris, and Wolfson; vacate the grant of summary judgment to
EMSA; and remand for further proceedings and the opportunity for
Harden to amend his complaint. 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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