                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 11-6425


JOHN N. LOWERY,

                  Plaintiff - Appellant,

          v.

BOYD BENNETT; DENNIS ROWLAND; TARQUINTUS WALSER; LIEUTENANT
ADDINGTON; LIEUTENANT SHERROD; MS. BARZILEY; MR. WOODLIFT;
MS. CANOLIS; MR. HENDERSON; MS. CRAIG,

                  Defendants – Appellees,

          and

MOORIS REID; MS. GODFREY,

                  Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-ct-03023-BO)


Submitted:   June 20, 2012                    Decided:   August 9, 2012


Before GREGORY, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas Davies, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for
Appellant.   Roy Cooper, Attorney General, Peter A. Regulski,
Assistant   Attorney  General,   NORTH  CAROLINA   DEPARTMENT     OF
JUSTICE, Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

                                               I.

                  John    Lowery    is   a    Department       of   Corrections     (“DOC”)

inmate confined at the Polk Correctional Institution (“PCI”) in

its High Security Maximum Control (“Hcon”) unit.                             Hcon “is the

isolation of close custody felon inmates that pose, or continue

to pose, an imminent threat to the life or health of other

inmates or staff . . . .”                  To be placed in Hcon, an inmate must

have       been     found    guilty      of    a       major   disciplinary    infraction

“involving a serious assault, active or passive participation in

a riot or mutiny, or seizing or holding a hostage . . . .” or

committed          some     other    serious           infraction    while    on    maximum

control.          Hcon procedures forbid any inmates from “creating any

type of cell disturbance.”

               On    April    6,    2007,      Lowery      tapped   or    knocked   on   the

window of his cell to get the attention of Appellee Henderson, * a

correctional officer.               When Henderson responded, Lowery told the

officer that he had been served the wrong meal -- under prison

regulations, he was entitled to a vegan special management meal.

Henderson          spoke    with     his      sergeant,        Appellee    Barziley,     and

returned to tell Lowery that there was no such meal.                                He also


       *
        The first names of Appellees Henderson, Barziley,
Woodlift, Canolis, and Craig do not appear in the record.



                                                   3
ordered Lowery not to “hit the window no more.”                         Lowery showed

Henderson the prison regulation providing for a vegan special

management meal; Henderson acknowledged that Lowery was correct,

but repeated his order that Lowery not hit the window and then

walked away.      Lowery then knocked on his window again and yelled

at Henderson that he wanted to speak to the officer in charge.

Henderson ignored him.            Barziley then sent officers Woodlift,

Henderson,     and      Canolis     to   put      Lowery     in    full      restraints.

Woodlift told Lowery that he was being punished for banging on

the window.       Lowery was taken to an observation cell for several

hours, and when he returned to his cell, nearly all of his items

had   been     removed,      including         his    personal        hygiene    items,

religious     books,      mattress,       bedding,         towels,     and     clothing.

Pursuant to the prison’s procedures, Lowery was placed on strip-

cell confinement for ten days.              Lowery asserts that as a result,

he suffered back and hip pain and that this pain has persisted

for more than a year.

             During      this     ten-day         period,         Appellees      Kenneth

Addington and Claudia Sherrod were the lieutenants in charge of

the   day    shift    and    second      shift;      both    helped     to    carry   out

Lowery’s punishment by sending officers to search his cell and

make sure nothing was in it.

             Lowery’s       punishment      was       in     accordance       with    the

policies     of   the     prison.         Appellee         Tarquintis     Walser,     the

                                           4
assistant superintendent of special housing, had issued a memo

to inmates stating that they must not tap or knock on “cell

doors, observation windows, or any other fixtures inside of your

cell.”       Prisoners who violate the rule “will be subject to the

removal of all your property (including shoes) from your cell

building for up to ten (10) days.”

              After Lowery’s punishment was over, he was taken to

Appellee Craig, a nurse at the prison, for examination.                           Lowery

told Craig that he was suffering from hip and back pain and a

rash on his face.          The nurse did not examine his back, hip, but

only his thumb.

              In    January       2008,    Lowery      filed      suit    against     the

Appellees       alleging     various       violations       of   his     constitutional

rights.       He also filed a motion under 28 U.S.C. § 1915(e)(1) to

appoint       counsel;     the     district       court        denied    that    motion.

Appellees filed a motion for summary judgment and the district

court    held      that    they    were     entitled      to     qualified      immunity.

Lowery notes that while this appeal was pending, PCI changed

some of its policies, including those that served as the basis

of     his     First      Amendment         and     Religious          Land     Use   and

Institutionalized Person Act claims.                    As a result, he appeals

only    the    district     court’s       dismissal    of      his   Eighth     Amendment

claims.



                                             5
                                               II.

               Lowery makes several arguments on appeal.                            He asserts

that    (1)    he    did   not     waive       the   argument      that    the       Appellees

violated his Eighth Amendment rights; (2) the district court

erred in dismissing his first Eighth Amendment claim that he was

unjustifiably        punished      for     knocking       on     his    window;       (3)     the

district court erred in dismissing his second Eighth Amendment

claim    that    Craig,     the     DOC    nurse,       failed     to     treat      him;     and

(4) the       district     court    abused       its    discretion        in    denying       his

motion for appointment of counsel.                       We reject these arguments

and affirm the district court.



                                               A.

               The   Government      first       makes    the    affirmative          defense,

not presented below, that Lowery waived his claims regarding the

promulgation and enforcement of PCI’s cell restrictions.                                      It

argues that Lowery’s complaint asserted that Hcon’s procedures

were    not    followed     in     his    specific       case;    only     on       appeal    did

Lowery        assert       that          the        procedures         themselves            were

unconstitutional.          Citing Broaddus v. Shields, 665 F.3d 846, 853

(7th Cir. 2011), the Government contends that issues not first

presented      to    the   trial     court      cannot     be    raised        on    appeal    as

grounds for reversal.



                                                6
             We reject this argument.                Lowery’s complaint alleges

the facts surrounding his ten-day punishment and then asserts

that his Eighth Amendment rights were violated.                       It is true that

he never directly addresses this issue in his complaint, making

only the broader assertion that his constitutional rights were

violated.        But because Lowery was not assisted by counsel, his

court papers must be liberally construed to afford him relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed

pro    se   is   to    be   liberally     construed     .   .     .   .”)   (citations

omitted).        We therefore hold that Lowery did not waive these

causes of action.



                                          B.

             The      Appellant   first    challenges       the   district       court’s

order entering summary judgment on qualified immunity grounds on

his claim that the prison violated his Eighth Amendment rights

in sentencing him to a ten-day confinement.                     This Court reviews

the issue de novo.           Henry v. Purnell, 652 F.3d 524, 531 (4th

Cir.    2011).         Summary    judgment      is    appropriate        when,    after

reviewing the record as a whole, no genuine issue of material

fact exists and the movant is entitled to judgment as a matter

of law.     Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986).

             Government       officials        are     entitled        to    qualified

immunity from civil damages so long as “their conduct does not

                                           7
violate clearly established statutory or constitutional rights

of   which   a     reasonable       person   would    have    known.”         Harlow     v.

Fitzgerald, 457 U.S. 800, 818 (1982).                     This Circuit has adopted

a two-pronged approach: First, the court must “decide whether a

constitutional       right     would    have       been    violated     on    the     facts

alleged.”     Bailey v. Kennedy, 439 F.3d 731, 739 (4th Cir. 2003).

Second, assuming that a right was violated, courts must consider

whether that right was clearly established.                       Id.      With respect

to the second prong, the question is “whether it would be clear

to a reasonable officer that his conduct was unlawful in the

situation he confronted.”              Saucier v. Katz, 533 U.S. 194, 202

(2001).      At the same time, the courts have the discretion to

decide which prong is analyzed first.                     Pearson v. Callahan, 129

S. Ct. 808 (2009).



                                             1.

             The     Eighth     Amendment         prohibits    the      infliction       of

“cruel and unusual punishments.”                   U.S. CONT. amend. VIII.               It

forbids the “unnecessary and wanton infliction of pain” against

inmates.     Whitley v. Albers, 475 U.S. 312, 319 (1986); Rhodes v.

Chapman, 452 U.S. 337, 346 (1981).                        To make out a claim, a

plaintiff     must     allege       “the     prison       official      acted    with     a

sufficiently        culpable     state       of     mind    and     ...      [that]     the

deprivation      suffered      or    injury       inflicted    on    the     inmate     was

                                             8
sufficiently serious.”         Iko v. Shreve, 535 F.3d 225, 238 (4th

Cir.2008).

            The objective component of this claim is “contextual

and responsive to ‘contemporary standards of decency.’”                  Hudson

v. McMillian, 503 U.S. 1, 8 (1992) (citations omitted).                      The

plaintiff has a high burden:

                Extreme deprivations are required to make
      out   a  conditions-of-confinement claim.     Because
      routine discomfort is part of the penalty . . . only
      those deprivations denying the minimal civilized
      measures of life’s necessities are sufficiently grave
      . . . .

            Id. at 9.        With respect to the subjective component,

the   plaintiff    must       show   “obduracy        and   wantonness,      not

inadvertence or error in good faith . . . .”                Wilson v. Seiter,

501 U.S. 294, 298-99 (1991).         In the context of a condition-of-

confinement claim, the offending official must generally have

acted with deliberate indifference.            Wilson, 501 U.S. at 303.

            The Appellant relies heavily on Hope v. Pelzer, 536

U.S. 730, 737-38 (2002), where the Supreme Court held that a

prisoner’s    Eighth   Amendment     rights    were    violated   when   prison

guards    handcuffed   the    plaintiff   to    a   hitching   post   for   over

seven hours without regular water or bathroom breaks.                 536 U.S.

at 733.     Noting the “clear lack of an emergency situation” and

the “substantial risk of physical harm,” the Court held the use

of the hitching post violated the Eighth Amendment.               Id. at 738.


                                      9
Importantly,       the    conduct       giving       rise    to    the        constitutional

violation     in    Hope        was     in     accordance         with        that    prison’s

procedures:       the use of the hitching post was a common practice.

Id. at 734-35.       Similarly, the Appellant argues, he was confined

for   ten   days    without       any    personal        items     or     a    mattress      for

knocking on his window and arguing with the guard.                                     Because

“Hope was treated in a way antithetical to human dignity . . .

and under circumstances that were both degrading and dangerous,”

id. at 745, his claim must move forward.

            The     facts        of     this        case,    however,           are    readily

distinguishable from Hope.               To begin with, the Hope Court noted

the unusual nature of the punishment at issue:                           “[O]ur system of

justice has consistently moved away from forms of punishment

similar to hitching posts in prisons.”                       Id. at 737 n.6.             Here,

in    contrast,    the    use     of    a     prison     cell     and     the    removal     of

personal    items    is     a    common       penological         tool.         Second,      the

defendant in Hope was in substantially more physical danger than

the   Appellant.         There    the        defendant      was   given       little    to    no

water, no bathroom breaks, and was attached to a post and forced

to stand up in an uncomfortable position for 7.5 hours; he was

out in the sun, without his shirt on, and the heat generated by

his handcuffs burned his skin.                       Id. at 735.              In this case,

Lowery did allege that he suffered injury to his hip and back,

but the extent of the physical danger involved is substantially

                                               10
less.     Third,       the   prison    had    a     legitimate   penological

justification    for     imposing     the    cell    restriction.    As    the

Government notes in its brief, the restraints were the price

disruptive inmates pay for their behavior.                The restrictions

were not arbitrarily instituted, but the result of conduct that

the Appellant himself admits was in violation of prison policy.

The legitimate interest the prison has in maintaining order --

especially in Hcon, where every inmate has already committed

several serious infractions -- was not present in Hope.                   While

the punishment inflicted on the Appellant was severe, it did not

constitute an unnecessary or wanton infliction of suffering.

          Even   assuming     that    the    objective   component   of    the

Eighth Amendment violation were satisfied, the Appellant has not

alleged facts sufficient to establish the subjective component -

- that the prison officials demonstrated obduracy or wantonness,

rather than inadvertence or error in good faith.                 See Wilson,

501 U.S. at 298-99.      As the Whitley Court noted:

               Prison administrators . . . should be
     accorded wide-ranging deference in the adoption and
     execution of policies and practices that in their
     judgment are needed to preserve internal order and
     discipline and to maintain institutional security.
     That deference extends to . . . prophylactic or
     preventive measures intended to reduce the incidence
     of . . . breaches of prison discipline.

          Whitley v. Alberts, 475 U.S. 312 (1986).               The use of

cell restriction was not left to the discretion of correctional


                                      11
personnel or applied on an ad-hoc basis, but uniformly applied

to   all    Hcon    inmates    causing    a    disturbance.     There    are    no

allegations that suggest the officials acted in anything but

good faith.         The Appellant therefore cannot meet his burden on

the Eighth Amendment claim, and we affirm the district court’s

order as to this cause of action.

              If there was no Eighth Amendment violation, then there

can be no vicarious liability on the part of the supervising

officers.      See Lewis v. Tripp, 604 F.3d 1221, 1227 (10th Cir.

2010).      We therefore also affirm the entry of summary judgment

as   to     Appellees    Walser,    Rowland,       Bennett,    Addington,      and

Sherrod.



                                          C.

              Lowery next argues that the district court erroneously

entered summary judgment on his claim against Appellee Craig for

her alleged failure to provide proper medical care.                    An appeal

of a district court’s entry of summary judgment is reviewed de

novo.      Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

              The   Eighth    Amendment    mandates   that    prison   officials

provide inmates with “adequate . . . medical care.”                    Farmer v.

Brennan, 511 U.S. 825, 832 (1994).                “[D]eliberate indifference

to serious medical needs of prisoners violates the Amendment

because it constitutes the unnecessary and wanton infliction of

                                          12
pain contrary to contemporary standards of decency.”                               Helling v.

McKinney, 509 U.S. 25, 32 (1993) (citations omitted).                                   “[S]uch

deliberate indifference may be manifested by prison doctors in

their response to the prisoner’s needs . . . .”                              United States

v.    Clawson,        650     F.3d    530,     537    (4th     Cir.    2011)       (citations

omitted).           As with any other Eighth Amendment violation, the

defendant          must     demonstrate       that    the     official      acted       with    a

sufficiently          culpable        state    of     mind     and    that        the    injury

inflicted is sufficiently serious.                    Shreve, 535 F.3d at 238.

               With respect to the subjective component, the Supreme

Court has found that deliberate indifference can be manifested

in at least three ways:                “[B]y prison doctors in their response

to the prisoner’s needs or by prison guards in intentionally

denying       or    delaying       access     to    medical    care    or    intentionally

interfering         with     the     treatment       once    prescribed.”           Smith      v.

Smith, 589 F.3d 736, 738-39 (4th Cir. 2009) (citing Estelle v.

Gamble, 429 U.S. 97, 104 (1976)).                       Here, the allegations that

the nurse was deliberately indifferent are sufficient to survive

a    motion    for     summary       judgment.        According       to    the    complaint,

Craig was informed that the Appellant had both hip and back

pain.     While Craig examined Lowery’s thumb, she did not examine

his back or hip.             Id.     Lowery then repeated that he had back and

hip    pain    and        requested    treatment;       Craig    responded         by    saying

“no.”

                                               13
               With respect to the objective component, the plaintiff

must     demonstrate         that      the    medical      need        was    “sufficiently

serious.”          “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.’” Shreve, 535 F.3d 225, 241

(4th Cir. 2008) (citing Estelle, 429 U.S. at 97).                              We hold that

that the injuries alleged are not sufficiently serious to make

out an Eighth Amendment claim.                         Lowery asserts only that he

suffers from “hip and back pain.”                       E.g., Br. of Appellant 32.

It is not possible to infer, based on this fact alone, that the

medical need was so serious that any lay person would recognize

the necessity of treatment.                  This case may be analogized to the

Sixth Circuit’s decision in Lockett v. Suardini, 526 F.3d 866,

877    (6th    Cir.    2008),       where     that      court    held    that     a   nurse’s

refusal       to     treat     minor     lacerations        did    not        constitute    a

sufficiently         serious     injury      to    make   out     an    Eighth       Amendment

claim.     While the Appellant repeatedly notes that his back and

neck pain has persisted for more than a year, e.g., Br. of

Appellant       32,    this      argument      ignores      the    fact       that    Craig’s

allegedly       improper      conduct        occurred     when    the        symptoms    first

manifested.          The Appellant must show that the medical need was

serious       when    he   was    examined        by    Craig,    not    that     they   were

serious one year later.              The bare allegations that the Appellant

                                              14
suffered “pain” are not sufficient to establish the requisite

level of seriousness.          We therefore affirm the district court’s

entry of summary judgment as to Appellee Craig.



                                            D.

             Finally,    Lowery           argues     that    the     district      court

improperly denied his motion to appoint counsel.                           This Court

reviews the decision to deny appointed counsel in a civil case

for abuse of discretion.             Whisenant v. Yuam, 739 F.2d 160, 163

(4th Cir. 1984), abrogated on other grounds by Mallard v. U.S.

Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).

             The Constitution does not compel the appointment of

counsel in civil cases.             Id.     However, 28 U.S.C. § 1915(e) does

give   the   trial   courts        the    power     to   “request    an   attorney     to

represent any person unable to afford counsel.”                           28 U.S.C. §

1915(e)   (1996).       The    courts       are     instructed     to   exercise     this

power “only in exceptional circumstances.” Yuam, 739 F.3d at

163.   Whether the circumstances are exceptional depends on “the

type   and   complexity       of    the     case,    and    the    abilities    of   the

individuals bringing it.”            Id.

             In this case there are no exceptional circumstances

that would justify reversing the district court on abuse-of-

discretion grounds.       The issues presented -- whether the ten-day

confinement or Craig’s failure to treat the Appellant’s hip and

                                            15
back pain violated the Appellant’s Eighth Amendment rights --

are   straightforward.      Moreover,    the   Appellant     was   an   able

litigant:    he followed the district court’s direction and timely

filed successive complaints, sought mediation, and timely filed

a notice of appeal.       We therefore affirm the district court’s

denial of Appellant’s motion to appoint counsel.




                                  III.

            For   the   reasons   discussed    above,   we    affirm    the

judgment of the district court.         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




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