* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 Prentice was never served and did not make an appearance in the district court. He thus

was not a party to the suit. See Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987); United States v.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30744

Summary Calendar

ROY A VANDERHOFF

Plaintiff-Appellant

v.

RANDY PRENTICE, Medical Director of Avoyelles Correctional 

Center; ALFONSO PACHECO, Individually and In His Official 

Capacity as a Medical Doctor at Avoyelles Correctional Center

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:05-CV-309

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Proceeding through counsel, Roy Vanderhoff, a former inmate at the Avoyelles

Correctional Center (ACC), filed a 42 U.S.C. § 1983 complaint against Randy Prentice, the

medical director of the ACC, and Dr. Pacheco, a medical doctor at the ACC, alleging

deliberate indifference to a serious medical condition.1 The district court dismissed the

United States Court of Appeals

Fifth Circuit

F I L E D

September 12, 2007

Charles R. Fulbruge III

Clerk
No. 06-30744

Texas Educ. Agency, 679 F.2d 1104, 1105 n.1 (5th Cir. 1982).

2

complaint for failure to state a claim under FED. R. CIV. P. 12(b)(6). Vanderhoff timely

appealed.

This court reviews a district court’s dismissal for failure to state a claim pursuant to

Rule 12(b)(6) de novo. Abraham v. Singh, 480 F.3d 351, 354 (5th Cir. 2007). The

plaintiff’s allegations are accepted astrue and the dismissal will be upheld “only if it appears

that no relief could be granted under any set of factsthat could be proven consistent with the

allegations.” Id.

To prove an Eighth Amendment claim, a plaintiff must set forth facts showing

deliberate indifference to a serious medical need. See Lawson v. Dallas County, 286 F.3d

257, 262 (5th Cir. 2002). Deliberate indifference requires actual knowledge and conscious

disregard of the risk of harm to the plaintiff. Id. It cannot be inferred from a prison official’s

mere failure to act reasonably. Id. at 262-63. In Lawson, id. at 263, a finding of deliberate

indifference wasmade where the defendants had “actual knowledge” that a paraplegic inmate

had decubitus ulcers yet failed to follow the instructions of hospital doctors regarding

treatment of the condition.

Vanderhoff alleged that Pacheco was made aware of his back condition when he

inquired about a scheduled appointment with the orthopedic specialist. Vanderhoff also

alleged that Pacheco told him that surgery “costs too much.” “Under certain circumstances,

allegations of deliberate indifference may be shown when prison officials deny an inmate

recommended treatment by medical professionals.” Payne v. Lynaugh, 843 F.2d 177, 178

(5th Cir. 1988). It is not yet apparent beyond doubt that Vanderhoff could prove no set of

facts consistent with his complaint that would allow him relief. Accordingly, the judgment

is VACATED and the case is REMANDED to the district court for further proceedings.