                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6840


LLOYD EUGENE BROWN,

                  Plaintiff - Appellant,

             v.

JOHN J. LAMANNA, Warden of FCI-Edgefield; WAYNE SMITH, Camp
Administrator;   BRIAN   FINNERLY,  Special  Housing   Unit
Lieutenant; JASON KAPRAL, Special Housing Unit Officer and
in their official capacities,

                  Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.      R. Bryan Harwell, District
Judge. (2:06-cv-00390-RBH)


Submitted:    November 21, 2008             Decided:   December 29, 2008


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished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


Lloyd Eugene Brown, Appellant Pro Se. Beth Drake, Assistant
United States Attorney, Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

              Lloyd Eugene Brown appeals from the district court’s

grant of summary judgment to Defendants in his suit regarding

prison    conditions.             Brown      raises        claims    under       Biven   v.    Six

Unknown Named Agents, 403 U.S. 388 (1971), the Americans with

Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”).                                   We

find that Brown’s claims of overcrowding and violations of the

ADA    and    RA    were     correctly        rejected        by     the    district      court.

Accordingly,        we     affirm     the    judgment        on     these    claims      for   the

reasons stated by the district court.                              Brown v. LaManna, No.

2:06-cv-00390-RBH (D.S.C. Mar. 27, 2008).                             However, we vacate

the    portion      of     the    district        court’s      order        granting     summary

judgment on Brown’s claims that his crutches were improperly

confiscated, that he was denied recreation for sixty-five days,

and    that    he    was    not      given    a       handicapped      accessible        shower.

Finding that Brown has raised disputed issues of material fact

concerning these claims, we remand them for further proceedings.

              To     state       a    claim       for       relief     under       the    Eighth

Amendment, the plaintiff must establish that a prison official

was    deliberately         indifferent        to      a   serious     condition,        medical

need, or risk of harm.                See Short v. Smoot, 436 F.3d 422, 427

(4th    Cir.       2006).        In    addition,           conditions       that    deprive      a

prisoner       of     basic       human      needs,         involve        the     wanton      and

unnecessary          infliction         of        pain,       or      constitute         extreme

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deprivation disproportionate to the severity of the crime amount

to   cruel    and    unusual     punishment        under       the    Eighth    Amendment.

Rhodes v. Chapman, 452 U.S. 337, 347 (1981).                             With regard to

lack of recreation, an inmate must show specific harm resulting

from   the    deprivation       and    a   complete       denial       for     an    extended

period of time.             Compare Mitchell v. Rice, 954 F.2d 187, 192

(4th   Cir.    1992)        (seven    months       without      out-of-cell          exercise

violated     constitutional          standards       of   decency),       and       Knight   v.

Armontrout, 878 F.2d 1093, 1095-96 (8th Cir. 1989) (thirteen

days   without       recreation       does     not    rise      to     Eighth       Amendment

violation).              Complaints    about       infrequent         showers        state     a

constitutional            violation    only        upon    a         showing        that     the

deprivation         is     a   serious       one     to    which       defendants          were

deliberately indifferent. See Wilson v. Seiter, 501 U.S. 294,

303 (1991).

              We review de novo a district court’s order granting

summary judgment and view the facts in the light most favorable

to the nonmoving party.               Bogart v. Chapell, 396 F.3d 548, 555

(4th   Cir.    2005).          Summary     judgment       is    appropriate          when     no

genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law.                         See Fed. R. Civ. P.

56(c); United States Dep’t of Labor v. N.C. Growers Ass’n, 377

F.3d 345, 350 (4th Cir. 2004).                    The non-movant is entitled “to

have the credibility of his evidence as forecast assumed, his

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version of all that is in dispute accepted, [and] all internal

conflicts in it resolved favorably to him.”                               Charbonnages de

France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).                               To raise a

genuine issue of material fact, Brown may not rest upon the mere

allegations or denials of his pleadings.                       Fed. R. Civ. P. 56(e).

Rather, he must present evidence supporting his position through

“depositions,       answers      to    interrogatories,           and       admissions      on

file, together with . . . affidavits, if any.”                            Celotex Corp. v.

Catrett,    477     U.S.   317,    322       (1986)     (quoting      Fed.    R.    Civ.    P.

56(c)).

            The district court relied primarily on the affidavits

of   a   prison     physician     and    the       Defendants        to    show    that    the

Defendants contacted prison medical staff and determined that

crutches were not medically required once Brown was transferred

to   the   Special    Housing         Unit    (“SHU”),     where      he     remained      for

sixty-five days.           Specifically, the court noted that “medical

records    stated     that    Plaintiff           was   able    to    ambulate       without

assistance” and that Defendants were informed as such when they

inquired.    These determinations formed the basis of the district

court’s decision.

            However,       our    review      of    the   medical         records    reveals

that they are, in fact, ambiguous.                        They do not state that

crutches or a wheelchair are medically necessary, but they also

do   not    state    that     Brown      can       ambulate      without       assistance.

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Instead, they merely record that, in the summer prior to his

stint in SHU, Brown ambulated with crutches.                        As such, we find

that the medical records are insufficient to show that Brown was

ambulatory        without     assistance.             Moreover,         Brown     submitted

affidavits        and    other      evidence      showing       that,     prior    to     his

incarceration,          he   had    been    found     to   be    disabled,        requiring

crutches and/or a wheelchair; that he was unable to stand or

walk without assistance; that he repeatedly complained of pain

while   in     SHU;      that      he     repeatedly       complained      of     lack    of

recreation and access to the shower while in SHU; that, when he

was transferred during his stay in SHU, officials used crutches

or a wheelchair; and that, since being released from SHU, he has

been confined to a wheelchair.

             While Brown does not (and logically could not) dispute

that officials checked on his condition and were told by medical

staff   that       crutches        were    not    a    medical      necessity,          these

affidavits cannot completely shield Defendants from claims of

deliberate        indifference.             First,     Brown      asserts        that     his

condition was blatant and obvious--he could not stand or walk

without assistance and was constantly in a great deal of pain.

See Brice v. Virginia Beach Corr. Ctr., 58 F.3d 101, 105 (4th

Cir. 1995) (noting that official cannot hide behind an excuse

that he was unaware of a risk, if the risk was obvious and that

official     is    charged         with    confirming      inferences       he    strongly

                                              5
suspects       exist).      Second,      if     Brown’s      allegations          are     true,

Defendants were obliged to further investigate his condition to

determine       if    it     had    deteriorated        or      whether      the        initial

diagnosis      was    incorrect.         See       McElligott    v.    Foley,       182    F.3d

1248,    1258    (11th      Cir.    1999)      (holding      that     jury        could   find

deliberate indifference where prison staff failed to respond to

deteriorating condition); Greeno v. Daley, 414 F.3d 645, 655

(7th    Cir.    2005)      (finding      that       “dogged[]    persist[ance]            in   a

course of treatment known to be ineffective” can violate the

Eighth Amendment).               While Brown did see a physician while in

SHU, Defendants do not allege that they asked this physician

about Brown’s condition, even after receiving Brown’s grievances

stating that he was unable to shower or recreate.                            Finally, the

fact that the crucial conversation between medical staff and the

prison     officials        was    not    reduced       to    writing        or    otherwise

memorialized         in    the    medical     records     would       seem    to    militate

against blindly accepting its veracity, especially in light of

Brown’s conflicting affidavits.

               In short, we find that Brown has sufficiently raised a

material issue of fact as to whether crutches or a wheelchair

were medically necessary for him to ambulate, recreate, take a

shower, ease his pain, and prevent further damage.                                 Moreover,

Brown presented evidence showing that he could not recreate or

take a shower without assistance and that Defendants refused

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assistance in the face of his obvious need, resulting in over

two months without a shower or recreation.                           In addition, Brown

asserts    that     the    Defendants’     failure        to    address         his   obvious

needs resulted in a deteriorated condition.                           While a trier of

fact     may     find     that,   under      all    the      circumstances,           prison

officials        were     entitled    to     rely    on        the     medical        staff’s

conclusions or were not aware of Brown’s condition, Brown has

raised questions about the credibility of Defendants’ affidavits

and other material issues of fact that should be resolved at

trial.     See Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991)

(holding that summary judgment may not be granted when there is

opposing sworn testimony, even when one side’s story is hard to

believe).

               Accordingly, we vacate the district court’s judgment

on     Brown’s    claims     discussed       above     and      remand      for       further

proceedings.        The remainder of the district court’s judgment is

affirmed.        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 AND REMANDED IN PART




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