UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMIE DONALD CREECH,

Plaintiff-Appellant,

v.

TIEN D. NGUYEN, M.D.,

Defendant-Appellee,

and

WALLACE COX; DINWIDDIE COUNTY

ADMINISTRATOR; BENNIE HEATH;

LAWRENCE K. MALLORY; MERYLE

No. 97-6925

WILKINS; OFFICER CLIFF MAITLAND;

CORRECTIONAL OFFICER JAMES

WEAVER; DWAYNE GILLIAM; JOHN

DOE, III, Warden; M. ORNELAS;

MR. WALCH; DR. J. HARLAND;

DR. DANIEL LASKIN, D.D.S.;

DR. JEFFREY CYR, D.D.S.; DR.

KIMBERLEY S. SWANSON, D.D.S.;

MUHAMMED SARKER, M.D.,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge;

William T. Prince, Magistrate Judge.

(CA-92-970-2)

Argued: March 4, 1998

Decided: August 7, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia,

sitting by designation.
Vacated and remanded with instructions by unpublished opinion.

Judge Hamilton wrote the majority opinion, in which Judge Broadwater joined. Judge Williams wrote a dissenting opinion.

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COUNSEL

ARGUED: Scott William Kezman, KAUFMAN & CANOLES, Norfolk, Virginia, for Appellant. Carlyle Randolph Wimbish, III,

SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

HAMILTON, Circuit Judge:

Jimmie Creech (Creech) brought this civil rights action under 42

U.S.C. § 1983 against Dr. Tien Duc Nguyen, M.D. (Dr. Nguyen), an

attending physician at the receiving and classification unit at Powhatan Correctional Facility in Virginia (Powhatan). Creech's action

alleged that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution

while an inmate at Powhatan as a result of Dr. Nguyen's deliberate

indifference to his serious medical need for post-operative care at the

Medical College of Virginia's Oral Surgery Clinic (MCV's Oral Surgery Clinic).1 Creech had undergone oral surgery at MCV's Oral Surgery Clinic on October 3, 1990 to immobilize his jaw so that a

fracture to his jaw would heal properly, but he was not returned for

post-operative care until January 11, 1991. A jury found in favor of

Creech and awarded Creech $60,000 in damages. The United States

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1 Creech's complaint also named several other persons as defendants

who are not parties to this appeal.

 2
magistrate judge who tried the case granted Dr. Nguyen's post-trial

motion for judgment as a matter of law and conditionally granted Dr.

Nguyen's motion for a new trial. On appeal, Creech seeks reinstatement of the jury's verdict on the basis that the magistrate judge erred

by entering judgment in favor of Dr. Nguyen and by conditionally

granting Dr. Nguyen's motion for a new trial. For reasons that follow,

we conclude the magistrate judge erred by entering judgment in favor

of Dr. Nguyen and by conditionally granting Dr. Nguyen's motion for

a new trial. Accordingly, we vacate the magistrate judge's entry of

judgment in favor of Dr. Nguyen, vacate the magistrate judge's order

conditionally granting Dr. Nguyen's motion for a new trial, and

remand with instructions to the magistrate judge to enter judgment in

favor of Creech on the jury's verdict.

I.

On October 2, 1990, while an inmate at the Dinwiddie, Virginia

county jail, Creech suffered a minimally displaced angle fracture of

his left mandible as the result of an assault by a fellow inmate. After

being examined at the emergency room of a local hospital, Creech

was taken to MCV's Oral Surgery Clinic in Richmond, Virginia for

specialized care. The next day, on October 3, 1990, Creech underwent

oral surgery to immobilize his jaw for the purpose of allowing his

fracture to heal properly. The surgery consisted of anaesthetizing

Creech and affixing metal arch bars with small hooks to his upper and

lower teeth. After surgery, elastics were attached to the small hooks

thereby immobilizing Creech's upper and lower jaws in a closedmouth position referred to in the medical field as intermaxillary fixation.

Creech's oral maxillofacial surgeon at MCV's Oral Surgery Clinic,

Dr. Daniel Laskin, D.D.S. (Dr. Laskin), intended for Creech to remain

in intermaxillary fixation between six and ten weeks as determined by

post-operative progress and evaluation.2 Creech was discharged from

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2 The mandible is surrounded by very large muscles that control its

motion. When a person sustains a mandible fracture, there is a lot of

bleeding within the muscle, and this bleeding pulls in and around the

muscle bellies causing the development of scar tissue clinically known

 3
MCV's Oral Surgery Clinic on October 4, 1990. In Creech's discharge instructions, Dr. Laskin stated that Creech was scheduled for

post-operative treatment at MCV's Oral Surgery Clinic on October 9,

1990. According to Dr. Laskin, this post-operative treatment was

medically necessary. Indeed, mandible fractures set by intermaxillary

fixation require weekly evaluations by an oral surgeon in order to

ensure there is no infection, that the jaws are in proper alignment, and

that intermaxillary fixation is adequate and still necessary. With

proper post-operative care, a patient with a mandibular fracture such

as Creech should recover full range of jaw motion.

Following his discharge from MCV's Oral Surgery Clinic, Creech

was taken to the infirmary at Powhatan where he was treated by the

infirmary's attending physician, Dr. Sarker, until his discharge on

October 26, 1990. On October 15, 1990, Dr. Sarker wrote an order in

Creech's medical chart that his return to MCV's Oral Surgery Clinic

be "expedite[d]." (J.A. 276).

Dr. Nguyen, who was the attending physician at Powhatan's

receiving and classification unit, also took some responsibility for

Creech's medical care while Creech was in the infirmary.3 First, on

October 5, 1990, Dr. Nguyen reviewed Creech's discharge summary

from MCV's Oral Surgery Clinic and wrote an order in Creech's

medical chart that Creech be seen at MCV's Oral Surgery Clinic on

October 9, 1990.4 Dr. Nguyen also ordered that Creech receive a liq-

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as fibrosis. Most of the time, the scar tissue is easily broken up by simple

movement of the jaw as late as five to six weeks after the person has sustained a mandible fracture. However, if a person who has sustained a

mandible fracture is kept in intermaxillary fixation beyond this period of

time, the person could suffer varied degrees of permanent limitation of

his jaw mobility due to the continuing formation of mature scar tissue

that cannot be broken up by mouth exercises.

3 Dr. Nguyen had been on staff at Powhatan since 1988.

4 Once a physician at Powhatan writes an order in a prisoner's medical

chart ordering that the prisoner be seen at an outside medical facility, the

physician's nurse is responsible for passing the order along to Powhatan's medical appointment clerk who is responsible for scheduling the

actual appointment at the outside medical facility. With respect to

 4
uid diet. Although Dr. Nguyen examined Creech in the infirmary on

October 11, 1990, he was not again directly involved in Creech's

medical care until after Creech was discharged from the infirmary on

October 26, 1990 and assigned to Powhatan's receiving and classification unit. For reasons unexplained in the record, Creech was not

returned to MCV's Oral Surgery Clinic on October 9, 1990 as ordered

by Dr. Nguyen.

As of November 6, 1990, Dr. Nguyen understood that an appointment at MCV's Oral Surgery Clinic had been made for Creech, but

he did not know the date of the appointment.5 Accordingly, after Dr.

Nguyen examined Creech on November 6, 1990, he wrote a note in

Creech's medical chart that Creech be taken to the follow up appointment at MCV's Oral Surgery Clinic as scheduled. Dr. Nguyen also

ordered that Creech be examined by one of the prison dentists. On

November 14, 1990, a prison dentist examined Creech and noted in

Creech's medical chart that he needed to be seen at MCV's Oral Surgery Clinic "ASAP."6 (J.A. 266).

On November 26, 1990, Dr. Nguyen filled out a Consultation Form

with respect to Creech's appointment scheduled for later the same day

at MCV's Oral Surgery Clinic. For reasons unexplained in the record,

prison officials failed to take Creech to the appointment. Dr. Nguyen

learned of this fact the same day, and thereafter wrote an order in

Creech's medical chart that he be taken to MCV's Oral Surgery

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MCV's Oral Surgery Clinic, it may take several weeks from the time that

a physician at Powhatan requests an appointment for an inmate before

the inmate is returned to the clinic. Either the day before or the day of

the scheduled appointment at the outside facility, the same Powhatan

physician who ordered the outside appointment must fill out a form called a "Consultation Form," which accompanies the patient to the appointment at the outside medical facility. According to Dr. Nguyen, because

he must fill out a Consultation Form before one of his patients visits an

outside medical facility, he "always know[s]" when one of his patients

visits an outside medical facility. (J.A. 132).

5 The appointment was actually scheduled for November 26, 1990.

6 A general dentist cannot provide the type of specialized postoperative care needed by a patient such as Creech.

 5
Clinic for post-operative care "ASAP." See (J.A. 46). Additionally, at

this time, Dr. Nguyen reviewed all of the orders previously written in

Creech's medical chart, including the order on November 14, 1990 by

the prison dentist that Creech be returned to MCV's Oral Surgery

Clinic "ASAP." Despite Dr. Nguyen's November 26, 1990 order to

the same effect, Creech was not returned to MCV's Oral Surgery

Clinic for post-operative care until January 14, 1991, fourteen weeks

after Creech's surgery and four weeks past the latest time that Dr.

Laskin intended for Creech to be fully relieved of intermaxillary fixation. Indeed, although Creech was under the care of Dr. Nguyen, he

received no medical care the entire month of December 1990 and the

first ten days of January 1991.

On January 11, 1991, Creech sought treatment from Dr. Nguyen

for a cold and inquired of Dr. Nguyen when he would be returned to

MCV's Oral Surgery Clinic for post-operative care. Dr. Nguyen testified during his pre-trial deposition that, when he examined Creech on

January 11, 1990, enough of the elastics keeping Creech in intermaxillary fixation were still in place that he was just able to project a

small pen light to see Creech's throat. He also described the tension

of the elastic bands that were still in place as"not very loose." (J.A.

152). Dr. Nguyen later attached an errata sheet to the transcript of his

deposition in which he essentially recanted this testimony, stating that

after he subsequently reviewed Creech's medical records and certain

documents prepared by Creech in November of 1990, he believed that

the elastics were no longer on when he examined Creech on January

11, 1990.7 After examining Creech on January 11, 1990, Dr. Nguyen

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7 The documents referred to by Dr. Nguyen were two prison grievance

forms filed by Creech in November 1990. A prison grievance form is a

mechanism whereby a prisoner can complain of his conditions to prison

officials and request relief. Creech filed three prison grievance forms in

all, two in November and one in December, complaining that he needed

to return to MCV's Oral Surgery Clinic because all of the elastic bands

in his mouth had broken. Contrary to the prison grievance forms, Creech

testified at trial that when Dr. Nguyen examined him on January 11,

1991, some of the elastics bands keeping him in intermaxillary fixation

were still on. Creech's explanation at trial for the inconsistency between

his trial testimony and his statements in the grievance forms was that the

grievance forms were desperate attempts on his part to get somebody to

respond to his request for post-operative care.

 6
noted in Creech's medical chart that he had difficulty chewing and a

"limitation of mouth opening secondary to wiring." (J.A. 146-47).

Dr. Harland, the senior dentist at Powhatan, also examined Creech

on January 11, 1991. After learning that Creech had never been

returned to MCV's Oral Surgery Clinic for post-operative care, Dr.

Harland was able to schedule Creech's return to MCV's Oral Surgery

Clinic on January 14, 1991.8 Creech was returned to MCV's Oral Surgery Clinic for that appointment where he was seen by an oral surgeon, Dr. Cyr, who noted that the elastics holding Creech's jaw in

intermaxillary fixation were no longer in place. Dr. Cyr then removed

the metal arch bars from Creech's teeth.

Creech subsequently filed this action pursuant to 42 U.S.C. § 1983

in the United States District Court for the Eastern District of Virginia

against Dr. Nguyen and several others who are not parties to this

appeal. Of relevance here, Creech alleged that Dr. Nguyen violated

his right under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment by being deliberately indifferent to his serious medical need for post-operative care.

After discovery, Dr. Nguyen moved for summary judgment, which

the district court denied.

The case proceeded to trial before a jury, which the parties agreed

would be conducted by a magistrate judge. At trial, Creech offered

the expert testimony of oral surgeon Dr. Michael Schwartz, D.D.S.

(Dr. Schwartz), that the permanent mobility range of Creech's jaw is

significantly less than a normal adult male because he was left in prolonged intermaxillary fixation.9

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8 Dr. Harland did not remember how he was able to expedite Creech's

return to MCV's Oral Surgery Clinic, but he testified that he could have

done it one of two ways. He may have personally telephoned MCV's

Oral Surgery to schedule an appointment or he may have personally

informed the appointment clerk at Powhatan that he wanted Creech seen

at MCV's Oral Surgery Clinic as soon as possible.

9 Dr. Schwartz did not actually testify at trial, but the jury heard and

witnessed his deposition testimony by videotape. For ease of reference,

we will treat Dr. Schwartz' testimony as if he had testified at trial.

 7
Dr. Nguyen moved for judgment as a matter of law at the close of

Creech's case in chief, which the magistrate judge denied. Dr.

Nguyen renewed the motion at the close of all evidence, but to no

avail. The jury returned a verdict in favor of Creech and awarded him

$60,000 in damages. Dr. Nguyen again renewed his motion for judgment as a matter of law, and in the alternative, moved for a new trial.

Ruling from the bench, the magistrate judge granted Dr. Nguyen's

motion for judgment as a matter of law and conditionally granted Dr.

Nguyen's motion for a new trial in the event judgment as a matter of

law was set aside on appeal.

Creech filed a timely notice of appeal. On appeal, Creech challenges both the magistrate judge's grant of Dr. Nguyen's motion for

judgment as a matter of law and the magistrate judge's conditional

grant of Dr. Nguyen's motion for a new trial.

II.

Creech first maintains that the magistrate judge erred by granting

judgment as a matter of law in favor of Dr. Nguyen under Federal

Rule of Civil Procedure 50. We review de novo the magistrate judge's

grant of judgment as a matter of law in favor of Dr. Nguyen to determine whether the evidence presented at trial, viewed in the light most

favorable to Creech, would have allowed a reasonable jury to render

a verdict in Creech's favor. See Price v. City of Charlotte, N.C., 93

F.3d 1241, 1249 (4th Cir. 1996), cert. denied , 117 S. Ct. 1246 (1997).

Because the Seventh Amendment does not allow federal courts to

review jury verdicts directly, Dr. Nguyen "bears a hefty burden in

establishing that the evidence is not sufficient to support the

award[ ]." Id. Recognizing that we may neither substitute our judgment for that of the jury nor make credibility determinations, we must

conclude that judgment as a matter of law was granted erroneously if

there is any evidence on which a reasonable jury could have returned

a verdict in Creech's favor. See id. at 1249-50.

The Eighth Amendment, inter alia, prohibits the infliction of cruel

and unusual punishment on one convicted of a crime. See U.S. Const.

amend. VIII.10 The law is well settled that scrutiny under the cruel and

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10 The cruel and unusual punishment clause of the Eighth Amendment

applies to the States through the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. See Wilson v. Seiter, 111

S. Ct. 2321, 2323 (1991).

 8
unusual punishment clause of the Eighth Amendment"is not limited

only to those punishments meted out by statute or imposed by a sentencing judge," but extends to "`the treatment a prisoner receives in

prison and the conditions under which he is confined.'" Rish v.

Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997) (quoting Helling v.

McKinney, 509 U.S. 25, 31 (1993)). Accordingly, a prisoner makes

out a claim under the Eighth Amendment if he can establish that a

prison doctor responsible for his medical care was deliberately indifferent to his serious medical needs. See Amos v. Maryland Dept. of

Public Safety & Correctional Services, 126 F.3d 589, 610 (4th Cir.

1997).

Such a claim has both an objective and subjective component. See

Rish, 131 F.3d at 1096. The objective component is satisfied upon

proof that the prisoner suffered a "`serious or significant physical or

emotional injury resulting from the challenged conditions,'" or that

the prisoner was put at "substantial risk of such serious harm resulting

from the prisoner's unwilling exposure to the challenged conditions

. . . ." Rish, 131 F.3d at 1096 (quoting Strickler v. Waters, 989 F.2d

1375, 1381 (4th Cir. 1993)). The subjective component is satisfied

upon proof of deliberate indifference by the prison doctor, which

requires proof that the prison doctor knew of and disregarded "an

objectively serious [1] condition, [2] medical need, or [3] risk of

harm." Id.; see also Amos, 126 F.3d at 610 (stating that "the `deliberate indifference' standard recognizes a constitutional violation where

prison officials know of and disregard an objectively serious condition, medical need, or risk of harm."); Shakka v. Smith, 71 F.3d 162,

166 (4th Cir. 1995) (same).

A. The Objective Component.

The question of whether Creech met his burden of offering sufficient evidence, when viewed in the light most favorable to him, to satisfy the objective component of his Eighth Amendment claim will not

detain us long. First, we note that whether Creech's need to be

returned to MCV's Oral Surgery Clinic for post-operative care constituted a serious medical need was not in dispute below. In this regard,

the magistrate judge instructed the jury without objection by Dr.

Nguyen that:

 9
A serious medical need is one that has been diagnosed by

a physician as requiring treatment or one that is so obvious

that even a lay person would easily recognize the necessity

for a doctor's attention. In the present case, Mr. Creech has

met his burden of proving that his need for specialized treatment for his broken jaw is a serious medical need, so you

need not concern yourselves with that issue in reaching your

verdict.

(J.A. 291). Second, we conclude that Creech has satisfied the objective component of a claim for deliberate indifference of a serious

medical need even without relying on this jury instruction. Evidence

was before the jury in the form of expert testimony that, following the

type of oral surgery Creech underwent, weekly appointments with an

oral surgeon are important to ensure the absence of infection, the correct alignment of the jaws so that the fracture will heal properly, and

that at the appropriate time, as determined by the oral surgeon, the

intermaxillary fixation is released in order to avoid permanent limitation of jaw mobility. Furthermore, evidence was before the jury that

Creech suffers from a certain degree of permanent restriction of jaw

mobility because he was not returned to MCV's Oral Surgery Clinic

for post-operative care for approximately one month after the latest

date that Dr. Laskin intended for Creech to be relieved of intermaxillary fixation. Based on this evidence, we find it difficult to believe

that a reasonable juror would quarrel with the proposition that a

patient such as Creech who has undergone oral surgery resulting in

the intermaxillary fixation of his jaw has a serious medical need for

post-operative care. In sum, the evidence at trial, viewed in the light

most favorable to Creech, was sufficient to allow a reasonable jury to

conclude that, objectively, Creech had a serious medical need to be

returned to MCV's oral surgery clinic for post-operative care.

B. The Subjective Component.

We now consider whether the record contains any evidence from

which a reasonable jury could have found that Dr. Nguyen knew of

and disregarded Creech's objectively serious medical need to return

to MCV's Oral Surgery Clinic for post-operative care. Whether Dr.

Nguyen had the requisite knowledge of Creech's serious medical

need is a question of fact subject to demonstration in the normal

 10
ways, including inferences from circumstantial evidence, and a fact

finder may conclude that Dr. Nguyen knew of Creech's serious medical need, if obvious, from the very fact that it was obvious. Cf.

Farmer v. Brennen, 511 U.S. 825, 843 (1994) (noting that "[w]hether

a prison official had the requisite knowledge of a substantial risk is

a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact finder may

conclude that a prison official knew of a substantial risk from the very

fact that the risk was obvious" (citation omitted)). Furthermore, even

if Dr. Nguyen is able to prove that he was in fact oblivious to an obvious medical need of sufficient seriousness, he "may not escape liability if it is shown, for example, that he merely refused to verify

`underlying facts that he strongly suspected to be true,' which, if verified, would have compelled him to realize that" Creech had a serious

medical need to be returned to MCV's Oral Surgery Clinic. Brice v.

Virginia Beach Correctional Ctr, 58 F.3d 101, 105 (4th Cir. 1995)

(quoting Farmer, 511 U.S. at 843 n.8).

1. Knowledge.

On the issue of whether Dr. Nguyen knew that post-operative care

at MCV's Oral Surgery Clinic was a serious medical need of Creech,

the jury had before it the following direct and circumstantial evidence: (1) testimony by Dr. Nguyen that he was the person who

received Dr. Laskin's discharge instructions, instructing that Creech

be returned to MCV's Oral Surgery Clinic for post-operative care on

October 9, 1990; (2) an order in Creech's medical chart dated October 5, 1990 by Dr. Nguyen that Creech be seen at MCV's Oral Surgery Clinic on October 9, 1990; (3) an order in Creech's medical

chart dated October 15, 1990 by Dr. Sarker that Creech's return to

MCV's Oral Surgery Clinic be expedited; (4) an order in Creech's

medical chart dated November 6, 1990 by Dr. Nguyen that Creech

follow up with his scheduled appointment at MCV's Oral Surgery

Clinic;11 (5) an order in Creech's medical chart dated November 14,

1990 by one of the prison dentists that Creech needed to be seen at

MCV's Oral Surgery Clinic "ASAP," (J.A. 266), which Dr. Nguyen

testified at trial that he reviewed on November 26, 1990; (6) an order

in Creech's medical chart dated November 26, 1990 by Dr. Nguyen

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11 The appointment was scheduled for November 26, 1990.

 11
that Creech be returned to MCV's Oral Surgery Clinic"ASAP," (J.A.

267); (7) testimony by Dr. Nguyen that he ordered Creech's return to

MCV's Oral Surgery Clinic "ASAP" when he learned that Creech had

missed his scheduled appointment earlier that day, because "Mr.

Creech needed to be seen at MCV Oral Surgery Clinic," (J.A. 137);

(8) testimony by Dr. Nguyen that, as of November 26, 1990, he knew

that Creech had not been returned to MCV's Oral Surgery Clinic for

post-operative care; and (9) testimony by Dr. Nguyen that, as of January 11, 1991, he knew that Creech had not been returned to MCV's

Oral Surgery Clinic for post-operative care between November 26,

1990 and January 11, 1991 because he had not filled out a Consultation Form for Creech during this period of time.

Viewing this evidence in the light most favorable to Creech, a reasonable jury could find that Dr. Nguyen knew that Creech had a serious medical need to be returned to MCV's Oral Surgery Clinic for

post-operative care. First, the various orders in Creech's medical chart

that he be returned to MCV's Oral Surgery Clinic by the physicians

who treated Creech through November 1990 were accompanied by

words denoting an increasing sense of urgency that their orders be

carried out. Dr. Nguyen testified at trial that on November 26, 1990,

he reviewed all of these orders in Creech's medical chart. Second, the

jury could have reasonably inferred the requisite knowledge on the

part of Dr. Nguyen from his order on November 26, 1990, that Creech

be returned to MCV's Oral Surgery Clinic "ASAP." At bottom, Dr.

Nguyen cannot escape liability on this issue because his "ASAP"

notation evidences that he strongly suspected Creech had a serious

medical need to be returned to MCV's Oral Surgery Clinic for postoperative care, but failed to take steps to confirm his suspicion. See

Brice, 58 F.3d at 105. Finally, we conclude without hesitation that

this is one of those situations where the jury was entitled to infer that

Dr. Nguyen knew of Creech's serious medical need to return to

MCV's Oral Surgery Clinic for post-operative care from the very fact

that it was obvious. Common sense dictates that a person who has

undergone oral surgery needs to receive post-operative care by his

surgeon or another qualified oral surgeon at some point within a reasonable amount of time following surgery. Here, Dr. Nguyen admits

that he knew on January 11, 1991 that Creech had never been

returned to MCV's Oral Surgery Clinic for post-operative care. In

sum, the record contains evidence from which a reasonable jury could

 12
have found that Dr. Nguyen knew that Creech had a serious medical

need to be returned to MCV's Oral Surgery Clinic for post-operative

care.

2. Disregard.

We next turn to consider whether, viewing the evidence in the light

most favorable to Creech, a reasonable jury could have found that Dr.

Nguyen disregarded Creech's serious medical need to return to

MCV's Oral Surgery Clinic for post-operative care. Generally, once

a physician at Powhatan orders that a prisoner be seen at an outside

medical facility, the actual logistics of scheduling the appointment

and transporting the prisoner to the appointment are handled by other

prison employees. The undisputed evidence showed that if an

inmate's appointment at MCV's Oral Surgery Clinic got canceled, it

could take up to several weeks to get a new appointment.

Viewing the evidence in the light most favorable to Creech, the

jury could have reasonably found that Dr. Nguyen disregarded

Creech's serious medical need to be returned to MCV's Oral Surgery

Clinic for post-operative care when he took no action to ensure that

Creech returned to MCV's Oral Surgery Clinic between midDecember 1990 and early January 1991. Critically, the record contains evidence that Dr. Nguyen could have taken further action to

expedite Creech's return or otherwise attempt to meet his serious

medical need for post-operative care after five separate orders to

return Creech to MCV's Oral Surgery clinic went unexecuted. Dr.

Harland testified that, although physicians at Powhatan are asked to

follow the chain of command in scheduling appointments, in his

experience, when a physician at Powhatan believes that a prisoner

urgently needs to be seen at MCV's Oral Surgery Clinic he can expedite the process by personally informing the appointment clerk that he

wants the prisoner to be seen at MCV's Oral Surgery Clinic as soon

as possible, or by personally telephoning MCV and setting up the

appointment with an appropriate physician. (J.A. 65). Given Dr.

Nguyen's two year tenure as an attending physician at Powhatan at

the time that he treated Creech and Dr. Nguyen's testimony that in the

past he had called outside specialists if he "really . . . needed" to consult with a particular specialist, (J.A. 141), the jury could have reasonably inferred that Dr. Nguyen also knew of these two ways to

 13
expedite a prisoner's return to MCV. Notably, when Dr. Harland

learned during his examination of Creech on January 11, 1991 that

Creech had never returned to MCV's Oral Surgery Clinic for postoperative care, he promptly used one of these two ways to schedule

an appointment for Creech to be seen within just three days.12 Finally,

at a minimum, Dr. Nguyen could have contacted Creech's oral surgeon to find out whether he, Dr. Nguyen, or a dentist at Powhatan

could have treated Creech in some way as directed by the oral

surgeon before Creech could be returned to the clinic in order to prevent Creech from suffering permanent physical harm. Obviously this

was one of those times that Dr. Nguyen really needed to consult a

specialist. In sum, the record contains evidence from which a reasonable jury could have found that Dr. Nguyen disregarded Creech's

serious medical need to be returned to MCV's Oral Surgery Clinic for

post-operative care.13 In summary, because the record contains suffi-

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12 From Dr. Harland's quick response to Creech's serious medical need

to be returned to MCV's Oral Surgery Clinic for post-operative care, the

jury could have reasonably inferred that Dr. Harland believed that

Creech had a serious medical need to be returned to MCV's Oral Surgery

Clinic for post-operative care, despite the fact that Dr. Harland testified

at trial that Creech did not have a dental emergency akin to one who is

suffering from a life threatening infection.

13 The dissent asserts that the fact Dr. Nguyen could have taken actions

to meet Creech's serious medical need to be returned to MCV's Oral

Surgery Clinic for post-operative care, but did not, is inadequate as a

matter of law to show that he consciously disregarded that need. See post

at 21. According to the dissent, the appropriate questions are (1) whether

the actions that Dr. Nguyen actually took, when considered in context,

were reasonable under the circumstances, and if they were not,

(2) whether the unreasonableness rises to the level of deliberate indifference. See id. The dissent goes on to characterize Dr. Nguyen's actions

as reasonable when considered in context. See id. at 21.

In so characterizing, the dissent misses the crucial point that as of midDecember 1990 Dr. Nguyen knew that Creech still had a serious medical

need to return to MCV's Oral Surgery Clinic for post-operative care, but

nevertheless did nothing. Thus, the fact that Dr. Nguyen could have

taken the steps outlined to meet Creech's serious medical need as

opposed to doing nothing is sufficient for a reasonable jury to find that

Dr. Nguyen disregarded Creech's serious medical need.

 14
cient evidence from which the jury could have reasonably found that

Creech had a serious medical need of which Dr. Nguyen had knowledge but disregarded, we hold that the magistrate judge erroneously

entered judgment as a matter of law in favor of Dr. Nguyen.

III.

Creech's final challenge concerns the magistrate judge's conditional grant of Dr. Nguyen's motion for a new trial pursuant to Federal Rule of Civil Procedure 50(c)(1). In pertinent part, Rule 50(c)(1)

provides:

If the renewed motion for judgment as a matter of law is

granted, the court shall also rule on the motion for a new

trial, if any, by determining whether it should be granted if

the judgment is thereafter vacated or reversed, and shall

specify the grounds for granting or denying the motion for

the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of

the judgment. In case the motion for a new trial has been

conditionally granted and the judgment is reversed on

appeal, the new trial shall proceed unless the appellate court

has otherwise ordered.

Fed. R. Civ. P. 50(c)(1). According to the magistrate judge, Dr.

Nguyen was entitled to the conditional grant of a new trial, because

the jury verdict was against the clear weight of the evidence on the

issue of whether Creech's mouth was still immobilized by the elastic

bands when he was seen at MCV's Oral Surgery Clinic on January

_________________________________________________________________

Finally we note that the dissent seems to imply that Creech should

have brought his serious medical need to the attention of Dr. Nguyen

after November 29, 1990 by filing a prison grievance form requesting

medical attention. See id. at 22-23. Given that the dissent does not take

issue with our conclusion that a reasonable jury could find that Dr.

Nguyen knew as of mid-December 1990 that Creech still had a serious

medical need to be returned to MCV's Oral Surgery Clinic for postoperative care, the fact that Creech did not file a grievance form requesting medical attention after November 29, 1990 is completely irrelevant.

 15
14, 1991. The magistrate judge also stated that the verdict might have

been based upon Creech's testimony that the elastic bands immobilizing his mouth were still on when he saw the oral surgeon at MCV's

Oral Surgery Clinic on January 14, 1991. The magistrate judge

believed that Creech's testimony on this issue was false in view of the

fact that Creech had filled out three prison grievance forms (on

November 27, 29, and December 20, 1990, respectively) complaining

that he needed post-operative care because the elastics in his mouth

had broken. Creech's explanation at trial for the inconsistency

between his trial testimony and his statements in the grievance forms

is that he stated in the grievance forms that all the bands were broken

in a "desperate attempt" to get somebody to listen to his plea for postoperative care.

We review the magistrate judge's conditional grant of a motion for

a new trial for abuse of discretion, see Freeman v. Case Corp., 118

F.3d 1011, 1014 (4th Cir. 1997), cert. denied , 118 S. Ct. 739 (1998),

recognizing that we are permitted to weigh the evidence and consider

the credibility of the witnesses, see Poynter v. Ratcliff, 874 F.2d 219,

223 (4th Cir. 1989). When, as here, a new trial is granted on the

ground that the verdict is against the clear weight of the evidence, we

must exercise a closer degree of scrutiny and supervision than if the

ground was that some undesirable or pernicious influence obtruded

into the trial. See United States v. Tobias, 899 F.2d 1375, 1380 (4th

Cir. 1990). A closer degree of scrutiny is warranted to protect the litigant's Seventh Amendment right to a jury trial. See id.

Exercising this closer degree of scrutiny and supervision than is

normal in our review of a trial court's conditional grant of a new trial,

we hold that the magistrate judge abused his discretion in conditionally granting Dr. Nguyen's motion for a new trial. In reaching this

holding, we first note that whether Creech was still in intermaxillary

fixation on January 14, 1991 is not a critical issue in the case, because

the evidence shows that Creech could have started to incur permanent

limitation to his jaw mobility as early as six weeks after surgery, with

the limitation increasing as time passed without proper post-operative

treatment or evaluation. Rather, the relevant issue is whether Creech

was still in intermaxillary fixation in late December 1990 and early

January 1991, the time period when Dr. Nguyen knowingly disre-

 16
garded Creech's serious medical need to return to MCV's Oral Surgery Clinic.

On that issue, the jury heard essentially an equal amount of conflicting evidence. First, the jury heard testimony by Creech that some

of the elastic bands keeping him in intermaxillary fixation broke the

last week of November 1990, but that when Dr. Nguyen examined

him on January 11, 1991 some of the bands were still in place.

Although this testimony was inconsistent with statements made by

Creech in the three prison grievance forms that he filed seeking to

obtain post-operative care, Creech explained to the jury that he made

the prior inconsistent statements in desperate attempts to draw the

attention of prison officials to the fact that he had not been returned

to MCV's Oral Surgery Clinic for post-operative care. The jury, in

weighing the credibility of the evidence, was certainly entitled to

accept or reject Creech's explanation for his prior inconsistent statements.

Second, the jury had before it Dr. Nguyen's deposition testimony

given with his treatment notes from January 11, 1991 in front of him

that at the time he examined Creech on January 11, 1991, the elastic

bands were "still on," but they were loose enough for him to use a

small pen light to view Creech's throat. (J.A. 151). The jury also had

before it an errata sheet to Dr. Nguyen's deposition, which in substance changed his deposition testimony regarding the presence of the

elastic bands on January 11, 1991 from "still on" to "no" longer still

on. (J.A. 156). Dr. Nguyen told the jury that he changed his testimony

because, upon his subsequent review of Creech's medical chart and

"certain documents prepared by Mr. Creech in November of 1990,"

he believed his deposition testimony that the elastic bands were still

on as of January 11, 1991 to be inaccurate. (J.A. 156). Once again,

the jury, in weighing the credibility of the evidence, was entitled to

accept or reject Dr. Nguyen's explanation for changing his deposition

testimony. See Podell v. Citicorp Diner Club, Inc., 112 F.3d 98, 103

(2d Cir. 1997) (holding that when a party amends his or her deposition testimony, the original answers to the deposition questions may

be fully considered by the trier of fact).

Third, the jury had before it a notation by Dr. Nguyen in Creech's

medical chart that on January 11, 1991, Creech had a"limitation of

 17
mouth opening secondary to teeth wiring in [sic] October 3," (J.A.

147), from which it could have reasonably inferred that at least some

of the elastic bands were still on, because the metal arch bars themselves did not restrict Creech's mouth from opening. Fourth and

finally, evidence of this notation was arguably offset by evidence that

Dr. Nguyen ordered Creech's diet changed on January 11, 1990 from

a liquid diet to a soft diet and prescribed Creech an antibiotic and cold

medicine to be taken by mouth. However, even this evidence could

have been construed by the jury as consistent with Creech's testimony

that on January 11, 1991, his jaw was still in partial fixation and consistent with Dr. Nguyen's deposition testimony that on January 11,

1991, the elastic bands holding Creech's jaw in intermaxillary fixation were loose enough for him to see Creech's throat with a pen

light.

In summary, the jury's verdict is certainly not against the clear

weight of the evidence on the issue of whether Creech suffered harm

as a result of not being free from intermaxillary fixation as of late

December 1990 and/or early January 1991.14 Because the magistrate

judge's decision rested on his erroneous determination that the jury's

verdict was against the clear weight of the evidence, we hold that the

magistrate judge abused his discretion in conditionally granting Dr.

Nguyen's motion for a new trial.

IV.

In conclusion, we hold that the magistrate judge erred as a matter

of law in entering judgement as a matter of law in favor of Dr.

Nguyen, and abused his discretion in conditionally granting Dr.

Nguyen's motion for a new trial. Accordingly, we vacate the magistrate judge's entry of judgment as a matter of law in favor of Dr.

Nguyen, vacate the magistrate judge's order conditionally granting

Dr. Nguyen's motion for a new trial, and remand with instructions

_________________________________________________________________

14 We note that the jury could have fully credited Dr. Cyr's testimony

that Creech was not in fixation on January 14, 1991 and still found that

Creech remained in partial intermaxillary fixation in late December 1990

and/or early January 1991.

 18
that the magistrate judge enter judgment in favor of Creech based on

the jury's verdict.15

VACATED AND REMANDED WITH INSTRUCTIONS

WILLIAMS, Circuit Judge, dissenting:

I believe that the evidence presented during trial does not support

the conclusion that Dr. Nguyen was deliberately indifferent to

Creech's serious medical need to be returned to MCV for follow-up

treatment. Therefore, the magistrate judge's decision to grant judgment as a matter of law was correct, and I respectfully dissent.

Because the majority has fully discussed the standards of liability

under the Cruel and Unusual Punishment Clause of the Eighth

Amendment as enunciated in Farmer v. Brennan, 511 U.S. 825

(1994), and its progeny, only a brief review of the controlling legal

principles is necessary here.

To succeed on a claim under § 1983 for inadequate medical treatment under the Eighth Amendment, a prisoner must satisfy a two-part

test, the first part of which is objective and the second part subjective.

First, the plaintiff must demonstrate that he was deprived of an objectively serious human need. See Johnson v. Quinones, No. 97-2392,

1998 WL 234201, at *3 (4th Cir. May 12, 1998). Second, the plaintiff

must prove that the prison official subjectively had a "sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298 (1991). The

state of mind requirement is met when the prisoner proves that the

prison official acted with deliberate indifference. See Johnson, 1998

WL 234201, at *3. "Deliberate indifference entails something more

than mere negligence . . . [and] something less than acts or omissions

for the very purpose of causing harm or with knowledge that harm

will result." Farmer, 511 U.S. at 835. Thus, prison officials must

"know of and disregard" a prisoner's objectively serious medical need

before liability attaches. Amos v. Maryland Dep't of Pub. Safety &

Correctional Servs., 126 F.3d 589, 610 (4th Cir. 1997), vacated in

_________________________________________________________________

15 We note that on remand, Creech is free to make a motion seeking an

award of reasonable attorney's fees as the prevailing party in a § 1983

case. See 42 U.S.C. § 1988(b).

 19
part on other grounds, 66 U.S.L.W. 3474 (U.S. June 22, 1998) (No.

97-1113). The parties stipulated below that Creech had an objectively

serious medical need; thus, we are concerned only with Dr. Nguyen's

state of mind.

As noted, deliberate indifference requires that the prison official

know of and consciously disregard the serious medical need. In this

case, Creech needed to produce sufficient evidence from which a reasonable fact-finder could conclude that Dr. Nguyen both knew of his

need for follow-up care at the MCV oral surgery clinic and also consciously disregarded that need. We agree with the majority that sufficient evidence was presented at trial from which a reasonable factfinder could conclude that Dr. Nguyen knew that Creech needed to

return to MCV.

I take issue, however, with the majority's analysis of the "disregard" portion of the deliberate indifference test. The Supreme Court

has stated in reference to the disregard prong of the deliberate indifference test that "[p]rison officials who actually knew of a substantial

risk to inmate health or safety may be found free from liability if they

respond[ ] reasonably to the risk, even if the harm ultimately was not

averted." Farmer, 511 U.S. at 844. I believe that the reasonableness

of a prison official's actions must be assessed in context. See Wilson,

501 U.S. at 303 (stating that an assessment of a prison official's mental state "depends on the constraints facing the official" (emphasis

deleted)). Because Dr. Nguyen's actions were reasonable under the

circumstances, the magistrate judge's decision to grant judgment as

a matter of law was correct.

The majority hinges its decision that Dr. Nguyen disregarded

Creech's need for follow-up treatment on actions Dr. Nguyen could

have taken. Specifically, the majority notes that Dr. Nguyen could

have verbally instructed the appointment clerk that he wanted Creech

to be seen as soon as possible at MCV1 or that he could have called

MCV personally, as the dentist, Dr. Harland, did in early January

1991. Further, although this argument was not pursued by the parties

_________________________________________________________________

1 Dr. Nguyen did indicate to the appointment clerks in writing that he

wanted Creech seen "ASAP" on November 26, 1990, the date on which

Creech missed his scheduled follow-up appointment at MCV.

 20
in their briefs, the majority asserts that Dr. Nguyen could have consulted with the MCV oral surgery department by telephone to get

information on appropriate follow-up care that could have been

undertaken in the prison while Creech was waiting for his appointment to take place. See ante at 13-14.

I agree with the majority that Dr. Nguyen could have taken those

actions. The trouble with the majority opinion, however, is that the

mere fact that Dr. Nguyen could have treated Creech differently or

more effectively is not adequate as a matter of law to show that he

consciously disregarded Creech's needs. The appropriate question is

whether the actions Dr. Nguyen actually took were reasonable under

the circumstances. Only if the doctor's actions, considered in context,

were an unreasonable response to the inmate's medical concern

should we proceed to consider whether the doctor's unreasonableness

rises to the level of deliberate indifference.

In § 1983 cases relating to the medical treatment of prison inmates,

as in medical negligence cases, it is appropriate to assess whether Dr.

Nguyen's actions were reasonable when compared to the standard of

care provided by similarly situated doctors. See Miltier v. Beorn, 896

F.2d 848, 852 (4th Cir. 1990) (noting that in § 1983 case the professional standard of care is relevant to a determination of whether a

prison doctor is deliberately indifferent). During Creech's trial, two

physicians testified as to the relevant standard of care for securing

outside medical appointments for inmates. Dr. Harland testified that

the doctors at the correctional facility had been discouraged from calling MCV directly and were instructed on several occasions to schedule appointments through the appointment clerks. Dr. Harland also

testified that on occasion when a patient had an acute potentially lifethreatening problem, he had called the residents at MCV directly to

schedule an appointment. Dr. Harland testified, however, that Creech

did not have such a condition.2 Further, Dr. Harland stated that doc-

_________________________________________________________________

2 In fact, no medical testimony was presented at Creech's trial indicating that, as of January 11, his condition was considered to be either acute

or an emergency. Thus, it does not appear that Dr. Nguyen misperceived

the urgency of Creech's condition on November 26. Additionally, Dr.

Cyr, the MCV medical resident, indicated that prior to January 14, no

doctor from MCV had called the prison to inquire about Creech's overdue follow-up visit.

 21
tors as a general matter were not kept informed of when inmates were

scheduled for appointments and whether or not the inmates had

missed scheduled appointments, nor was it expected for doctors to

follow-up with the appointments clerks to ensure that their orders to

make appointments were followed. Dr. Viol, the expert on the delivery of medical services in a correctional facility, testified that making

the notation on the chart to reschedule the appointment at MCV as

soon as possible satisfied Dr. Nguyen's standard of care and that it

was not the practice of doctors to review the activities of clerical staff

to ensure that they were undertaken.

This expert testimony did not provide a sufficient basis from which

a reasonable jury could conclude that Dr. Nguyen responded unreasonably to Creech's condition. Although there was testimony during

trial that prison doctors would occasionally call MCV directly for specialist referrals or to make special arrangments for an inmate with an

acute medical need, Dr. Nguyen met the standard of care described

by the experts as a matter of law. He wrote a note on Creech's chart

on November 26, 1990, the very day that Creech missed his MCV

follow-up appointment, stating that the appointment should be rescheduled as soon as possible. On November 26 Creech's condition

was not acute. The expert evidence establishes that in this situation

Dr. Nguyen had no duty to further inquire with the appointment clerks

to see whether the appointment had been made or when it was

scheduled,3 and he was entitled to rely upon the clerks to do their job

and schedule the follow-up appointment.

The majority contends that Creech was under Dr. Nguyen's care

from mid-December to mid-January, but that tells only half of the

story. Creech was under Dr. Nguyen's care only to the extent that he

was one of over 400 inmates in a highly transient population at the

Powhatan correctional facility reception center. Creech was never

_________________________________________________________________

3 In fact, due to the risk of escape, doctors at the prison were not notified that an appointment was scheduled until the day of the appointment.

Even if Dr. Nguyen had personally arranged a follow-up appointment at

MCV, he was powerless to ensure that Creech actually kept the appointment. Security concerns often preempted "medical runs." Testimony during trial indicated that if the facility were "locked down" for security

reasons, "medical runs" were cancelled.

 22
seen by Dr. Nguyen during this time period. Further, the record contains no suggestion that Creech filed a grievance form requesting

medical attention for his jaw at any time after November 29.

The majority's interpretation of deliberate indifference places upon

Dr. Nguyen the duty of taking extraordinary measures to micromanage both the care of one non-acute patient in a large prison population

and the administrative duties of the appointment clerks.4 Imposition

of such a duty is not supported by the evidence presented at trial.

The magistrate judge was correct when it determined, as a matter

of law, that Creech did not prove that Dr. Nguyen was deliberately

indifferent to his serious medical need for follow-up care at MCV. As

a result, I would affirm.

_________________________________________________________________

4 We note that an individual doctor should not be held liable for the

shortcomings of the system in which he operates. If the onus of Creech's

claim was that the system in place for handling inmate medical care was

constitutionally deficient, such a claim would be cognizable against the

warden or other management officials, not against the individual doctors

at the facility. See generally Wilson v. Seiter , 501 U.S. 294, 296 (1991)

(addressing a more generalized unconstitutional conditions of confinement claim).

 23