Brisbow v. Gordon ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HERMAN BRISBOW,
Plaintiff-Appellant,
v.
JAMES GORDON, JR., Director;
No. 98-6487
WILLIE J. BAMBERG, Deputy
Director; VUNETIA B. DOZIER, Chief
of Security; THELMA GLOVER, Head
Nurse,
Defendants-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Matthew J. Perry, Jr., Senior District Judge.
(CA-97-729-4-10BE)
Submitted: June 16, 1998
Decided: July 8, 1998
Before WIDENER and MURNAGHAN, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Herman Brisbow, Appellant Pro Se. Norma Anne Turner Jett,
EARLY & NESS, Bamberg, South Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Herman Brisbow appeals from the district court's order adopting a
magistrate's report in part and rejecting it in part and dismissing his
42 U.S.C. § 1983 (1994) complaint. We affirm the district court's
order, based on alternative reasoning.
We review the district court's decision to grant the Defendants'
motion to dismiss de novo. See Flood v. New Hanover County, 125
F.3d 249, 251 (4th Cir. 1997). We accept the factual allegations in
Brisbow's complaint and construe those facts in the light most favor-
able to him. See id. We may affirm the district court's dismissal only
if it appears beyond doubt that Brisbow can prove no set of facts in
support of his claim that would entitle him to relief. See Rogers v.
Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989).
On appeal, Brisbow argues that the Defendants were deliberately
indifferent to his serious medical needs in violation of his constitu-
tional rights under the Fourteenth Amendment. The Defendants
moved to dismiss below, and a magistrate judge recommended grant-
ing this motion in relation to two of the four Defendants. Because
Brisbow failed to object to that recommendation after being advised
that failure to object could waive appellate review of a court order
based upon the recommendation, he has waived appellate review as
to dismissal of these two Defendants. See Wright v. Collins, 766 F.2d
841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140(1985). As to the remaining two Defendants, a nurse and a security
guard, we also affirm, but based upon grounds different from the dis-
trict court's.
It is undisputed that the Defendants deferred to the medical judg-
ment and advice of a medical doctor in determining appropriate test-
ing, treatment, and medication to be given to Brisbow. Because
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Brisbow has not named this doctor as a defendant, and because the
remaining Defendants made no decisions regarding Brisbow's alleged
denial of treatment, but rather only followed this doctor's orders, we
find that Brisbow's complaint was properly dismissed as to them as
well. While deliberate indifference may be demonstrated by reckless
disregard of a substantial risk of danger known to the Defendants or
which should have been known, see Miltier v. Beorn, 896 F.2d 848,
851-52 (4th Cir. 1990), Brisbow failed to make such a showing, even
when the record is construed in the light most favorable to him.
Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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