Steven H. Goldblatt, Director, Suzy Chan Hung, William J. Nelson, Brian Heller, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for plaintiff-appellant.

David H. Bamburger, Piper & Marbury, Washington, DC, Glen K. Allen, Joseph J. Curran, Jr., Atty. Gen. of Maryland, Diane Krejsa, Asst. Atty. Gen., Baltimore, MD, for defendants-appellees.

Before RUSSELL and WIDENER, Circuit Judges, and SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

Plaintiff-appellant William Smith prosecutes this appeal from two adverse orders of the district court. As to defendant-appellee Barry, we find that Smith failed to perfect his appeal. Accordingly, we dismiss the appeal as to Dr. Barry. As to defendants-appellees Victor, Turner, Hall, Brown, Jackson, and Wilkins ("the six prison guards"), we find that Smith did perfect his appeal, but affirm the district court's direction of a verdict and entry of judgment in their favor on Smith's deliberate indifference claim.1I.

William Smith suffers from a painful psychogenic disorder that prevents him from walking. While incarcerated at the Maryland State Penitentiary, Smith brought this pro se action pursuant to 42 U.S.C. § 1983. Smith sued Commissioner of Corrections Jon Galley, Warden George Collins, staff psychologists Robert Ellis and Daniel Porecki, seven correctional officers (Commander Captain Carpenter, and the six prison guards: Sergeant R. Victor, Sergeant Arnold Turner, Officer R. Hall, Officer R. Brown, Officer Jackson, and Officer Wilkins), and a private physician, Dr. Wayne Barry. Smith alleged that defendants denied him the use of a wheelchair and thereby manifested their deliberate indifference to his medical needs, in violation of the Eighth Amendment.2

A private medical group, not the state, employed Dr. Barry. The district court accordingly concluded that Dr. Barry could not have acted under color of state law for purposes of section 1983.3 Therefore, by order dated December 26, 1984, the district court granted Dr. Barry's motion and dismissed him from the case.

The claims against the remaining defendants proceeded to trial before a jury. At the conclusion of Smith's case, the district court directed verdicts in favor of Galley, Collins, Carpenter, and the six prison guards on the deliberate indifference claim. The jury found that the psychologists Ellis and Porecki were deliberately indifferent to Smith's medical needs, and awarded Smith $15,000.00 in damages.4 On February 29, 1988, the judgment order was entered, reflecting the court's rulings and the jury's findings.

On March 4, 1988, Ellis and Porecki filed a motion for judgment notwithstanding the verdict. On March 22, 1988, Smith, proceeding pro se, filed a notice of appeal.5 By order entered April 14, 1988, the district court denied the psychologists' motion for judgment notwithstanding the verdict. Later, on May 4, 1988, Smith filed an "informal brief" in this court requesting "[a] new trial on all issues triable by Jury."

Relying on his informal brief as a notice of appeal,6 Smith seeks to challenge the district court's order dated December 26, 1984, which dismissed Dr. Barry as a defendant, and the part of the district court's February 29, 1988 order that entered judgment in favor of the six prison guards on the deliberate indifference claim. On November 29, 1990, we entered our opinion deciding that Smith's informal brief did not, indeed could not, substitute for a notice of appeal. Smith v. Galley, 919 F.2d 893, 895-96 (4th Cir.1990). Accordingly, we dismissed Smith's appeal. Id. at 896.

Reviewing our judgment, the Supreme Court specifically disagreed with our holding that the informal brief could not substitute for a formal notice of appeal. Smith v. Barry, --- U.S. ----, ----, 112 S. Ct. 678, 680, 116 L. Ed. 2d 678 (1992). The Court ruled that "[i]f a document filed within the time specified by Rule 4 [of the Federal Rules of Appellate Procedure] gives the notice required by [Federal] Rule [of Appellate Procedure] 3, it is effective as a notice of appeal." Id. at ----, 112 S.Ct. at 682. The Court, therefore, reversed our judgment and remanded the case for our further consideration of the question whether Smith's informal brief suffices as a notice of appeal under Federal Rule of Appellate Procedure 3(c). Id. at ----, 112 S.Ct. at 682-83.

When we first addressed this case, we noted but did not decide the threshold issue we confront on remand:7 whether Smith's informal brief satisfies the requirements of Federal Rule of Appellate Procedure 3(c).8

Federal Rule of Appellate Procedure 3(c) provides in part that "[t]he notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." Fed.R.App.P. 3(c). Courts liberally construe submissions under Rule 3. Smith v. Barry, --- U.S. at ----, 112 S. Ct. at 681; Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S. Ct. 2405, 2408-09, 101 L. Ed. 2d 285 (1988); Foman v. Davis, 371 U.S. 178, 181-82, 83 S. Ct. 227, 229-30, 9 L. Ed. 2d 222 (1962). If a "litigant's action is the functional equivalent of what the rule requires," Torres, 487 U.S. at 317, 108 S.Ct. at 2409, a court may find compliance with Rule 3. Though courts generously construe Rule 3, "noncompliance [therewith] is fatal to an appeal." Smith v. Barry, --- U.S. at ----, 112 S. Ct. at 682.

Appellees herein assert that Smith's informal brief fails to comply with Rule 3(c)'s command to "designate the judgment, order or part thereof appealed from." Rather, it simply asks for "[a] new trial on all issues triable by Jury." Liberally construing this language, we find it sufficient to sustain an appeal of the district court's directed verdict for the six prison guards on the deliberate indifference claim, but insufficient to sustain any appeal as to Dr. Barry.

Smith's informal brief does not refer directly to the February 29, 1988 judgment order directing a verdict for the six prison guards on Smith's deliberate indifference claim, and the brief fails to name any of the six prison guards. However, it does explicitly request "[a] new trial on all issues triable by Jury." Smith's deliberate indifference claim against the six prison guards went to trial before a jury. Liberally construed, as to the six prison guards, Smith's submission contains the functional equivalent of the specifications required by Federal Rule of Appellate Procedure 3(c). Therefore, we conclude that the informal brief suffices as a notice of appeal regarding Victor, Turner, Hall, Brown, Jackson, and Wilkins.

Having determined that Smith's informal brief suffices as a notice of appeal with respect to the six prison guards, we proceed to the merits of the appeal. Our review of the directed verdict on the deliberate indifference claim is limited to a determination of whether the evidence warranted submission of plaintiff's claim to the jury. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-01, 82 S. Ct. 1404, 1411-12, 8 L. Ed. 2d 777 (1962); Carroll v. Seaboard Air Line R.R. Co., 371 F.2d 903, 904 (4th Cir.1967). We view the evidence in the light most favorable to Smith and allow him the benefit of all reasonable inferences. Continental Ore Co., 370 U.S. at 697 n. 6, 82 S. Ct. at 1409 n. 6; Ryan v. Edwards, 592 F.2d 756, 759 (4th Cir.1979).

We agree with the district judge that the six prison guards were entitled to a directed verdict on Smith's deliberate indifference claim. Smith failed to provide a legally sufficient evidentiary basis for a reasonable jury to find in his favor. He offered no evidence that the six prison guards were in a position to act meaningfully in regard to his medical needs. His medical needs were addressed by the medical staff, two of whom the jury found to be indifferent and thus rendered a verdict against them for plaintiff. We therefore affirm the directed verdict and the judgment entered in favor of the six prison guards, appellees Victor, Turner, Hall, Brown, Jackson, and Wilkins, on Smith's deliberate indifference claim.

As to Dr. Barry, Smith's informal brief does not refer at all to the order dismissing Dr. Barry. It fails to name or even indirectly mention Dr. Barry. Again, the brief simply asks for "[a] new trial on all issues triable by Jury." Dr. Barry's dismissal was not an issue triable by jury. The district court's order dismissing Dr. Barry is dated December 26, 1984, more than three years before trial. Dr. Barry filed a motion to dismiss as a matter of law. The district court granted the motion as a matter of law. Even when given the liberal reading required by Smith v. Barry, Torres, and Foman, Smith's informal brief does not amount to the "functional equivalent" of a notice of appeal as to appellee Barry.9 As the brief fails to qualify substantively under Rule 3 as a sufficient notice of appeal as to Dr. Barry, Smith's appeal is unperfected to that extent. Thus, as to appellee Barry, the appeal is dismissed.10

In summary, with respect to the six prison guards, defendants-appellees Victor, Turner, Hall, Brown, Jackson, and Wilkins, we find that Smith's informal brief suffices as a notice of appeal. We further find, however, on the basis of the evidence presented at trial, that the district court properly directed a verdict in favor of the six prison guards on Smith's deliberate indifference claim. Accordingly, we affirm the entry of judgment for the six prison guards on the deliberate indifference claim.

We dismiss plaintiff-appellant Smith's appeal as to defendant-appellee Barry, on the ground that Smith's informal brief fails, as to Dr. Barry, to constitute the functional equivalent of a notice of appeal under Federal Rule of Appellate Procedure 3(c).

AFFIRMED IN PART AND DISMISSED IN PART.