UNPUBLISHED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Vacated and remanded with instructions by unpublished opinion.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 Broad-
water joined. Judge Williams wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Scott William Kezman, KAUFMAN & CANOLES, Nor-
folk, Virginia, for Appellant. Carlyle Randolph Wimbish, III,
SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

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 Powha-
tan Correctional Facility in Virginia (Powhatan). Creech's action
alleged that he was subjected to cruel and unusual punishment in vio-
lation 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 Sur-
gery Clinic).1 Creech had undergone oral surgery at MCV's Oral Sur-
gery 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
_________________________________________________________________
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 reinstate-
ment 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 closed-
mouth position referred to in the medical field as intermaxillary fixa-
tion.

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
_________________________________________________________________
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 dis-
charge 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-
_________________________________________________________________

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 sus-
tained 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 Powha-
tan'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 classifi-
cation 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 appoint-
ment 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 appoint-
ment 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 Sur-
gery 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
_________________________________________________________________

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 cal-
led a "Consultation Form," which accompanies the patient to the appoint-
ment 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 post-
operative 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 fixa-
tion. 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 testi-
fied during his pre-trial deposition that, when he examined Creech on
January 11, 1990, enough of the elastics keeping Creech in intermax-
illary 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
_________________________________________________________________
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 Sur-
gery Clinic for that appointment where he was seen by an oral sur-
geon, 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 Constitu-
tion to be free from cruel and unusual punishment by being deliber-
ately 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 pro-
longed intermaxillary fixation.9
_________________________________________________________________
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 judg-
ment 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 chal-
lenges 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 deter-
mine 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., 

, 1249 (4th Cir. 1996), cert. denied , 

(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[ ]." 

may neither substitute our judg-
ment 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 

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
_________________________________________________________________
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, 

, 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 sen-
tencing judge," but extends to "`the treatment a prisoner receives in
prison and the conditions under which he is confined.'" Rish v.
Johnson, 

, 1096 (4th Cir. 1997) (quoting Helling v.
McKinney, 

, 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 indif-
ferent to his serious medical needs. See Amos v. Maryland Dept. of
Public Safety & Correctional Services, 

, 610 (4th Cir.
1997).

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

. 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
. . . ." 

(quoting Strickler v. Waters, 

, 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 

(stating that "the `deliber-
ate indifference' standard recognizes a constitutional violation where
prison officials know of and disregard an objectively serious condi-
tion, medical need, or risk of harm."); Shakka v. Smith, 

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

A. The Objective Component.

The question of whether Creech met his burden of offering suffi-
cient evidence, when viewed in the light most favorable to him, to sat-
isfy 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 consti-
tuted 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 treat-
          ment 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 objec-
tive 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 cor-
rect 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 limita-
tion 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 intermaxil-
lary 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 medi-
cal need, if obvious, from the very fact that it was obvious. Cf.
Farmer v. Brennen, 

, 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, includ-
ing 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 obvi-
ous medical need of sufficient seriousness, he "may not escape liabil-
ity if it is shown, for example, that he merely refused to verify
`underlying facts that he strongly suspected to be true,' which, if veri-
fied, 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, 

, 105 (4th Cir. 1995)
(quoting 

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 evi-
dence: (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 Octo-
ber 5, 1990 by Dr. Nguyen that Creech be seen at MCV's Oral Sur-
gery 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
_________________________________________________________________
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 Jan-
uary 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 Consulta-
tion Form for Creech during this period of time.

Viewing this evidence in the light most favorable to Creech, a rea-
sonable jury could find that Dr. Nguyen knew that Creech had a seri-
ous 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 post-
operative care, but failed to take steps to confirm his suspicion. See

. 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 rea-
sonable 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 mid-
December 1990 and early January 1991. Critically, the record con-
tains 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 expe-
dite 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 con-
sult with a particular specialist, (J.A. 141), the jury could have reason-
ably 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 post-
operative 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 sur-
geon 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 pre-
vent 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 reason-
able 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-
_________________________________________________________________
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 indiffer-
ence. See 

on to characterize Dr. Nguyen's actions
as reasonable when considered in context. See 

so characterizing, the dissent misses the crucial point that as of mid-
December 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 knowl-
edge 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 condi-
tional grant of Dr. Nguyen's motion for a new trial pursuant to Fed-
eral 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 condition-
          ally 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 

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 post-
operative care, the fact that Creech did not file a grievance form request-
ing 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 immobiliz-
ing 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 post-
operative 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., 

, 1014 (4th Cir. 1997), cert. denied , 

(1998),
recognizing that we are permitted to weigh the evidence and consider
the credibility of the witnesses, see Poynter v. Ratcliff, 

,
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, 

, 1380 (4th
Cir. 1990). A closer degree of scrutiny is warranted to protect the liti-
gant's Seventh Amendment right to a jury trial. See 

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 condition-
ally 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 Sur-
gery Clinic.

On that issue, the jury heard essentially an equal amount of con-
flicting 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 state-
ments.

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 sub-
stance 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., 

, 103
(2d Cir. 1997) (holding that when a party amends his or her deposi-
tion 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 them-
selves 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 con-
sistent with Dr. Nguyen's deposition testimony that on January 11,
1991, the elastic bands holding Creech's jaw in intermaxillary fixa-
tion 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 magis-
trate 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 judg-
ment 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, 

(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 treat-
ment 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 objec-
tively serious human need. See Johnson v. Quinones, No. 97-2392,

, at *3 (4th Cir. May 12, 1998). Second, the plaintiff
must prove that the prison official subjectively had a "sufficiently cul-
pable state of mind." Wilson v. Seiter, 

, 298 (1991). The
state of mind requirement is met when the prisoner proves that the
prison official acted with deliberate indifference. See Johnson, 

, 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." 

. 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., 

, 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, 

(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 rea-
sonable fact-finder could conclude that Dr. Nguyen both knew of his
need for follow-up care at the MCV oral surgery clinic and also con-
sciously disregarded that need. We agree with the majority that suffi-
cient evidence was presented at trial from which a reasonable fact-
finder could conclude that Dr. Nguyen knew that Creech needed to
return to MCV.

I take issue, however, with the majority's analysis of the "disre-
gard" portion of the deliberate indifference test. The Supreme Court
has stated in reference to the disregard prong of the deliberate indif-
ference 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." 

. I believe that the reasonableness
of a prison official's actions must be assessed in context. See 

(stating that an assessment of a prison official's men-
tal 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 con-
sulted 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 appoint-
ment 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, 

, 852 (4th Cir. 1990) (noting that in § 1983 case the profes-
sional 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 call-
ing MCV directly and were instructed on several occasions to sched-
ule appointments through the appointment clerks. Dr. Harland also
testified that on occasion when a patient had an acute potentially life-
threatening 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 indicat-
ing 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 over-
due 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 deliv-
ery 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 unrea-
sonably to Creech's condition. Although there was testimony during
trial that prison doctors would occasionally call MCV directly for spe-
cialist 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 res-
cheduled 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 noti-
fied 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 appoint-
ment. Security concerns often preempted "medical runs." Testimony dur-
ing 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 con-
tains 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 microman-
age 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 , 

, 296 (1991)
(addressing a more generalized unconstitutional conditions of confine-
ment claim).

                    23