UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANK LEE GARRETT,

Plaintiff-Appellant,

v.

DIANE ELKO, RN; MARY ANNE

No. 95-7939

ALVIG, in her capacity as Personal

Representative of Olav H. Alvig,

M.D.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-95-494-R)

Argued: June 4, 1997

Decided: August 12, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion. Judge

Williams wrote a dissenting opinion.

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COUNSEL

ARGUED: Claudia Theda Salomon, MAYS & VALENTINE, Richmond, Virginia for Appellant. Peter Duane Vieth, WOOTEN &

HART, P.C., Roanoke, Virginia, for Appellees. ON BRIEF: George
A. Somerville, MAYS & VALENTINE, Richmond, Virginia for

Appellant. L. Thompson Hanes, WOOTEN & HART, P.C., Roanoke,

Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Frank Garrett, an inmate at the Dillwyn Correctional Center in Virginia, filed a pro se complaint in district court seeking monetary and

injunctive relief under 42 U.S.C. § 1983. Garrett claims that the prison's medical personnel violated his eighth amendment rights by failing to provide him with adequate medical treatment for his hernia.

The defendants, the estate of Olav Alvig, M.D., and Diane Elko, R.N.,

moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to

state a claim, and Garrett filed a response. The district court granted

the defendants' motion. Because Garrett should be afforded an opportunity to amend his complaint, we vacate and remand with instructions to appoint counsel.

I

We review de novo a dismissal for failure to state a claim. Meaige

v. Hartley Marine Corp., 925 F.2d 700, 702 (4th Cir. 1991). A dismissal for failure to state a claim should be upheld only if it appears

that the plaintiff can prove no set of facts that would entitle him to

relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When reviewing

a motion to dismiss, we assume the facts alleged in the complaint are

true, McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir.

1996), and we construe the allegations in the light most favorable to

the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When

reviewing a pro se complaint, federal courts should examine carefully

the plaintiff's factual allegations, no matter how inartfully pleaded, to

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see whether they could provide a basis for relief. Gordon v. Leeke,

574 F.2d 1147, 1151 (4th Cir. 1977); Boag v. MacDougall, 454 U.S.

364, 365 (1982); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In

addition, in order to determine whether the claim of a pro se plaintiff

can withstand a motion to dismiss, it is appropriate to look beyond the

face of the complaint to allegations made in any additional materials

filed by the plaintiff. Gordon, 574 F.2d at 1149-51.

After the defendants moved to dismiss, Garrett filed a response to

the motion, a motion for summary judgment, an affidavit, and copies

of grievances he had filed with the prison. We look to these materials,

along with the complaint, to piece together the alleged facts underlying Garrett's claim.

II

Garrett uses a wheelchair and is diabetic. While in prison, he developed a hernia by pushing himself in the wheelchair. Although he

alleges that he has a hiatal hernia, the appellees assert that his medical

records indicate a ventral or incisional hernia. The distinction is

immaterial for present purposes. Since at least 1991, Garrett has complained about the pain caused by the hernia and has sought treatment,

including surgery. Although he has been examined by various physicians, none have attempted surgery despite his complaints of intense

pain, anxiety, and limited mobility. The basis of Garrett's claim here

is that the medical staff ignored his complaints and delayed surgery

for several years, and, as a result, the hernia has now grown too large

for surgery. This lack of timely treatment has left Garrett in an unfortunate predicament in which he faces the possibility of death whether

or not he undergoes surgery.

Sometime in 1994, Garrett was taken to a facility in Greenville to

have surgery, but after he arrived the attending physician canceled the

procedure without giving him an explanation. In 1995, Garrett asked

Elko why the surgery had not been performed in Greenville. After

checking his medical records, Elko told him that the doctor had

decided not to perform surgery both because the procedure is classified as "elective" and because he is diabetic.

Also in 1995, Alvig examined Garrett. Alvig told Garrett that he

would recommend surgery. Over a month later, after Garrett made

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additional inquiries and complaints, he was sent to a specialist. After

examining Garrett, the specialist concluded that, although corrective

surgery would have been possible earlier, surgery at that time would

jeopardize the patient's life due to the hernia's large size. At the time,

the hernia measured nine by nine by four inches. In addition, Garrett

was told that he might die if the hernia "flips" or ruptures.

III

In the defendants' motion to dismiss, they argued that Garrett

failed to state an actionable claim. They asserted that the facts he

alleges do not demonstrate deliberate indifference to a serious medical condition, but rather show at best that he disagrees with his doctors' medical judgments. Additionally, they contend Garrett's

allegations do not suggest that either of them, both of whom first

treated Garrett in 1995, engaged in any improper conduct.

The district court granted the defendants motion. The court found

that Garrett's claim amounted to one of mere negligence and that the

denial of "elective" surgery cannot amount to a deprivation of necessary medical treatment.

In order for Garrett to state an eighth amendment claim, he must

allege facts that show the prison's medical staff acted with deliberate

indifference to his serious medical needs. Estelle v. Gamble, 429 U.S.

97, 104 (1976). In other words, he must allege both that his medical

needs were objectively serious and that the medical staff acted with

deliberate indifference to those needs. See Wilson v. Seiter, 501 U.S.

294, 298 (1991).

Construed liberally, Garrett's allegations state a prima facie eighth

amendment violation. As the district court concluded, Garrett's medical needs are serious. According to his allegations, he suffers from a

large hernia that has caused him severe pain and limited his mobility

since 1991. It now threatens his life. Garrett has also alleged that the

medical staff acted with deliberate indifference. He states that the

attending physicians refused for several years to perform or authorize

the surgery necessary to address his condition. Garrett reports that the

specialist determined that, although corrective surgery would have

been possible earlier, the hernia has become inoperable as a result of

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the delay. In addition, Garrett alleges that the surgery was delayed, in

part, because the prison classified the procedure as"elective."

Contrary to the view adopted by the district court, prison officials

cannot avoid eighth amendment liability for denying a prisoner treatment necessary to address a serious medical need simply by labeling

the treatment "elective." Johnson v. Bowers, 884 F.2d 1053, 1056 (8th

Cir. 1989); Monmouth County Correctional Institutional Inmates v.

Lanzaro, 834 F.2d 326, 348 n.32 (3d Cir. 1987); Delker v. Maass, 843

F. Supp. 1390, 1399 (D. Or. 1994). Otherwise, prison officials could

evade effective judicial review of eighth amendment claims by using

a label. Delker, 843 F. Supp. at 1398. Instead, proper eighth amendment inquiry should involve looking beyond labels and examining the

substance of the claim presented.

IV

Although Garrett has alleged that the attending medical personnel

were deliberately indifferent to his serious medical needs, he failed to

name those personnel, except Alvig and Elko, as defendants. The

defendants contend that the materials Garrett submitted in response to

the motion to dismiss demonstrate that neither Alvig nor Elko violated Garrett's rights. Alvig and Elko first treated Garrett in 1995.

They argue that Elko did not have the authority to recommend surgery and therefore cannot be responsible for any delay. They also

argue that Alvig did not delay Garrett's treatment. They point out that

he referred Garrett to a specialist within a few months of their first

meeting.

Based on the fragmentary record before the court, it is unclear

exactly what roles the present defendants played in Garrett's treatment. If Elko and Alvig's estate are named in an amended complaint,

they can reassert the same arguments on remand and provide affidavits or other evidence to support their position.

As the defendants point out, Garrett's claims, if any, may be

against the personnel who preceded Alvig and Elko. When a pro se

litigant "has alleged a cause of action which may be meritorious

against a person or persons unknown, the district court should afford

him a reasonable opportunity to determine the correct person or per-

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sons against whom the claim is asserted, advise him how to proceed

and direct or permit amendment of the pleadings to bring that person

or persons before the court." Gordon, 574 F.2d at 1152-53.

V

We remand to the district court with instructions to allow Garrett

to amend his complaint and to appoint counsel to assist him. Gordon,

574 F.2d at 1152-53.

VACATED AND REMANDED

WILLIAMS, Circuit Judge, dissenting:

I dissent. First, I believe that Diane Elko and the estate of Dr. Olav

H. Alvig should be dismissed from the case. According to Garrett's

opposition to defendants' motion to dismiss, Elko, the chief nurse and

administrator of the medical staff at Dillwyn Correctional Center, did

no more than inform Garrett "that surgery to repair is `elective' and

that the prison did not provide `elective' procedures." (J.A. at 19.)

Garrett further explained, in an attachment to his motion for summary

judgment, that "Nurse Elko[ ] reviewed my medical records and her

reply was: my surgery was `elective,' and because I am also a diabetic, prison doctors at Greenville [sic] Medical[ ] would not do the

needed surgery." (J.A. at 45.) There is no allegation that Elko had the

authority to approve, recommend, or deny surgery. Rather, Garrett

alleges only that Elko informed him, at his request, of the decision

made by her superiors.

Similarly, Garrett alleges only that Alvig told him"that [the hernia]

is to [sic] big now to do surgery."1 (J.A. at 40.) Even if Garrett could

make out an Eighth Amendment claim for the initial denial of surgery

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1 In a different document, Garrett claims that Alvig recommended surgery and referred Garrett to a specialist. The specialist, in turn, concluded

that the hernia had grown too large to be safely treated. The majority

apparently accepts this version of events, which, in my view, is even less

supportive of Garrett's Eighth Amendment claim. It would strain credulity to sustain a claim under the Eighth Amendment against a doctor who

recommended the very surgery now sought by Garrett.

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when the hernia was small enough to be safely corrected, it is undisputed that Alvig did not examine Garrett until the hernia had grown

to its present size. Therefore, even though Garrett may now have a

"serious medical need," see Estelle v. Gamble, 429 U.S. 97, 104

(1976), it cannot seriously be maintained that Alvig acted with "deliberate indifference," id. In our circuit,"[t]o establish that a health care

provider's actions constitute deliberate indifference to a serious medical need, the treatment must be so grossly incompetent, inadequate,

or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

Here, Garrett's present condition is unchallenged-- surgery would

endanger his life. I, for one, am unwilling to countenance a rule establishing that a physician's decision to decline to perform a lifethreatening procedure is sufficiently "incompetent, inadequate, or

excessive" to satisfy this standard. Consequently, I disagree with the

majority's assertion that "it is unclear exactly what roles [Alvig and

Elko] played in Garrett's treatment." Ante at 8. On the contrary, it is

clear that Alvig and Elko played only a limited role in Garrett's treatment, and that role did not violate the Eighth Amendment.

Second, the relaxed pleading requirements applicable to pro se

complaints should not be allowed to rescue Garrett's action. As for

the claims against Elko and Alvig, Garrett has been furnished adequate opportunity to amend his complaint and develop the factual

allegations. Most importantly, on the same day that defendants'

motion to dismiss was filed, the district court issued the notice

required under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),

informing Garrett that his action might be dismissed if he failed to

respond. Garrett did respond, by filing a motion for summary judgment with a memorandum in support, an affidavit, and several exhibits. In my view, the Roseboro notice, coupled with Garrett's extensive

response, fully satisfied the district court's obligation to afford Garrett

an opportunity to particularize his allegations. Moreover, I believe

that remand to allow Garrett to add additional defendants is unwarranted. As recently noted by this court, we should"remain cautious

not to `transform the district court from its legitimate advisory role to

the improper role of an advocate seeking out the strongest arguments

and most successful strategies for a party.'" Strickler v. Waters, 989

F.2d 1375, 1389 (4th Cir. 1993) (quoting Beaudett v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). Here, I believe that

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the majority comes perilously close to forcing the district court to

exceed its "legitimate advisory role," and I would decline to afford

Garrett yet another opportunity to rectify his defective complaint.2

Third, even assuming the propriety of remand to allow Garrett to

further tinker with his complaint, I believe it is inappropriate to direct

the district court to appoint counsel. In Gordon v. Leeke, 574 F.2d

1147 (4th Cir. 1978), we held that "[i]f it is apparent to the district

court that a pro se litigant has a colorable claim but lacks the capacity

to present it, the district court should appoint counsel to assist him."

Id. at 1153. Later, in Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.

1984), we made clear that the source of the authority to appoint counsel in a § 1983 action was 28 U.S.C.A. § 1915(d) (West 1994) (now

amended and renumbered as 28 U.S.C.A. § 1915(e)(1) (West Supp.

1997)). When Whisenant was decided, § 1915(d) provided that "`[t]he

court may request an attorney to represent any such person unable to

employ counsel.'" Whisenant, 739 F.2d at 163 n.3 (quoting old

§ 1915(d)). Subsequently, however, Whisenant was abrogated by

Mallard v. United States Dist. Court, 490 U.S. 296 (1989), which

held that § 1915(d) does not authorize compulsory appointment of

counsel. Id. at 298; see also Ivey v. Harney, 47 F.3d 181, 185 (7th Cir.

1995) ("We know from [Mallard] that a court may not order even a

member of its bar to donate services to a plaintiff in an action under

42 U.S.C. § 1983."). Therefore, to the extent the majority relies on

Gordon in ordering the district court to appoint counsel, it is in error.

At most, the district court may be ordered to "request" counsel to represent Garrett.

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2 Although the issue is not, and should not be, before us, I am compelled to note that Garrett's potential claims against other, as-yet

unnamed defendants will likely be barred by the statute of limitations.

Because § 1983 does not explicitly provide its own statute of limitations,

we borrow the personal injury statute of limitations from the relevant

state. See Wilson v. Garcia, 471 U.S. 261, 266-69 (1985). Virginia

applies a two-year statute of limitations to personal injury claims. See

Va. Code Ann. § 8.01-243(A) (Michie 1992); see also Lewis v. Richmond City Police Dept., 947 F.2d 733, 735 (4th Cir. 1991). Garrett filed

his complaint on May 24, 1995, yet he alleges that he first complained

about the hernia in 1991. Therefore, any of his potential claims against

unnamed defendants that arose before May 24, 1993, are likely barred by

the limitations period.

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In any event, we also explained in Whisenant that the district

court's power to "appoint" -- now "request" -- counsel is discretionary, and that the district court abuses this discretion in declining to

appoint counsel only when the "indigent plaintiff presents exceptional

circumstances." See Whisenant, 739 F.2d at 163. The majority mentions neither constraint, but instead simply inserts into the last paragraph of its opinion an order for the appointment of counsel. Because

I am convinced that Garrett's claim was not colorable, that Garrett

had the capacity to present his claim, and that these are not "exceptional circumstances," I am also convinced that the district court did

not abuse its discretion in declining to request the assistance of counsel.

In short, Garrett's claims against Elko and Alvig are fully developed and clearly inadequate, and should therefore be dismissed. I

would also decline to remand the case to allow Garrett to amend his

complaint to add additional defendants. Finally, I would not direct the

district court to "request," much less "appoint," counsel to assist Garrett on remand.

Accordingly, I dissent.

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