UNPUBLISHED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.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion. Judge
Williams wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Claudia Theda Salomon, MAYS & VALENTINE, Rich-
mond, 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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Frank Garrett, an inmate at the Dillwyn Correctional Center in Vir-
ginia, filed a pro se complaint in district court seeking monetary and
injunctive relief under 42 U.S.C. § 1983. Garrett claims that the pris-
on's medical personnel violated his eighth amendment rights by fail-
ing 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 oppor-
tunity to amend his complaint, we vacate and remand with instruc-
tions to appoint counsel.

I

We review de novo a dismissal for failure to state a claim. Meaige
v. Hartley Marine Corp., 

, 702 (4th Cir. 1991). A dis-
missal 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, 

, 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., 

, 327 (4th Cir.
1996), and we construe the allegations in the light most favorable to
the pleader. Scheuer v. Rhodes, 

, 236 (1974). When
reviewing a pro se complaint, federal courts should examine carefully
the plaintiff's factual allegations, no matter how inartfully pleaded, to

                     2
see whether they could provide a basis for relief. Gordon v. Leeke,

, 1151 (4th Cir. 1977); Boag v. MacDougall, 

, 365 (1982); Haines v. Kerner, 

, 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. 

.

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 underly-
ing Garrett's claim.

II

Garrett uses a wheelchair and is diabetic. While in prison, he devel-
oped 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 com-
plained about the pain caused by the hernia and has sought treatment,
including surgery. Although he has been examined by various physi-
cians, 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 unfor-
tunate 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 classi-
fied 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

                     3
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 medi-
cal condition, but rather show at best that he disagrees with his doc-
tors' 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 neces-
sary 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, 

, 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, 

, 298 (1991).

Construed liberally, Garrett's allegations state a prima facie eighth
amendment violation. As the district court concluded, Garrett's medi-
cal 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

                     4
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 treat-
ment necessary to address a serious medical need simply by labeling
the treatment "elective." Johnson v. Bowers, 

, 1056 (8th
Cir. 1989); Monmouth County Correctional Institutional Inmates v.
Lanzaro, 

, 348 n.32 (3d Cir. 1987); Delker v. Maass, 

, 1399 (D. Or. 1994). Otherwise, prison officials could
evade effective judicial review of eighth amendment claims by using
a label. 

. Instead, proper eighth amend-
ment 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 vio-
lated Garrett's rights. Alvig and Elko first treated Garrett in 1995.
They argue that Elko did not have the authority to recommend sur-
gery 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 treat-
ment. If Elko and Alvig's estate are named in an amended complaint,
they can reassert the same arguments on remand and provide affida-
vits 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-

                     5
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." 

.

V

We remand to the district court with instructions to allow Garrett
to amend his complaint and to appoint counsel to assist him. 

.

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 dia-
betic, 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
_________________________________________________________________
1 In a different document, Garrett claims that Alvig recommended sur-
gery 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 credu-
lity to sustain a claim under the Eighth Amendment against a doctor who
recommended the very surgery now sought by Garrett.

                    6
when the hernia was small enough to be safely corrected, it is undis-
puted 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, 

, 104
(1976), it cannot seriously be maintained that Alvig acted with "delib-
erate indifference," 

establish that a health care
provider's actions constitute deliberate indifference to a serious medi-
cal need, the treatment must be so grossly incompetent, inadequate,
or excessive as to shock the conscience or to be intolerable to funda-
mental fairness." Miltier v. Beorn, 

, 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 estab-
lishing that a physician's decision to decline to perform a life-
threatening 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 treat-
ment, 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 ade-
quate 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, 

(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 judg-
ment with a memorandum in support, an affidavit, and several exhib-
its. 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 unwar-
ranted. 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, 

, 1389 (4th Cir. 1993) (quoting Beaudett v. City of
Hampton, 

, 1278 (4th Cir. 1985)). Here, I believe that

                     7
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, 

(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."

in Whisenant v. Yuam, 

, 163 (4th Cir.
1984), we made clear that the source of the authority to appoint coun-
sel 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.'" 

n.3 (quoting old
§ 1915(d)). Subsequently, however, Whisenant was abrogated by
Mallard v. United States Dist. Court, 

(1989), which
held that § 1915(d) does not authorize compulsory appointment of
counsel. 

also Ivey v. Harney, 

, 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 rep-
resent Garrett.
_________________________________________________________________
2 Although the issue is not, and should not be, before us, I am com-
pelled 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, 

, 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. Rich-
mond City Police Dept., 

, 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.

                    8
In any event, we also explained in Whisenant that the district
court's power to "appoint" -- now "request" -- counsel is discretion-
ary, and that the district court abuses this discretion in declining to
appoint counsel only when the "indigent plaintiff presents exceptional
circumstances." See 

. The majority men-
tions neither constraint, but instead simply inserts into the last para-
graph 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 "excep-
tional circumstances," I am also convinced that the district court did
not abuse its discretion in declining to request the assistance of coun-
sel.

In short, Garrett's claims against Elko and Alvig are fully devel-
oped 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 Gar-
rett on remand.

Accordingly, I dissent.

                    9