Smith v. Duncil ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JACKIE RAY SMITH,
Plaintiff-Appellant,
v.
No. 95-8569
WILLIAM C. DUNCIL, Warden; ROY
WHITE, Hospital Administrator;
EARNEST HART, Dr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, District Judge.
(CA-95-54-2)
Submitted: October 15, 1996
Decided: November 5, 1996
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jackie Ray Smith, Appellant Pro Se. George Freeman, OFFICE OF
THE ATTORNEY GENERAL, Charleston, West Virginia; Peter
Gregory Zurbuch, Bridgette Rhoden Wilson, BUSCH & TALBOTT,
Elkins, West Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jackie Smith, a West Virginia prisoner, appeals the district court's
order granting Defendants summary judgment and denying relief on
his complaint filed under 42 U.S.C. § 1983 (1994). Smith's action
alleges that, following a skin test in 1995 which revealed that he had
been exposed to tuberculosis (TB), but did not have active TB, prison
personnel have been deliberately indifferent to his medical needs by
failing to provide him preventive medication which would help to
ensure that he does not develop active TB. The district court's order
grants the Defendants summary judgment "[f]or the reasons expressed
on the record," but we note that the record in this case contains no
transcript of the summary judgment hearing at which the court
expressed such reasons.
Because Smith has been granted in forma pauperis status, the gov-
ernment may provide him a free transcript if it is determined that his
appeal presents a "substantial question." See 28 U.S.C. § 753(f)
(1994). Appellants generally bear the burden of demonstrating non-
frivolity and substantiality. See Maloney v. E.I. DuPont de Nemours
& Co., 396 F.2d 939, 940 (D.C. Cir. 1967), cert. denied, 396 U.S.
1030 (1970). A "substantial question" has been held to be one that is
"reasonably debatable," Ortiz v. Greyhound Corp., 192 F. Supp. 903,
905 (D.Md. 1959), or one "where the law appears to be settled, but
where the appellant is able to show that his chances of changing the
law on appeal are strong." Lee v. Habib, 424 F.2d 891, 905 (D.C. Cir.
1970).
We conclude that Smith has failed to demonstrate a substantial
question justifying provision of a free transcript. It is apparent from
the record that the medical personnel at the prison where Smith
resides do not believe that Smith needs the treatment he seeks.
Smith's condition has been regularly monitored for any sign of active
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TB and, based on prison policy, such monitoring presumably will
continue. An inmate's disagreement with his physicians' prescribed
course of treatment does not state a claim under§ 1983 unless excep-
tional circumstances are alleged. See Wright v. Collins, 766 F.2d 841,
849 (4th Cir. 1985). Particularly since Smith has presented no evi-
dence tending to contradict the opinions of his physicians, we find no
exceptional circumstances in this case.
Accordingly, the order of the district court granting the Defendants
summary judgment is affirmed. In light of our disposition, we deny
Smith's motion for appointment of counsel. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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