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Claims May Be Found Within Content Of Complaint

A Virginia State Prisoner, Jerome Howard appealed the district court's
dismissal of his claim of deliberate indifference to a medical need for
failure to state a claim. Howard was housed on the second tier even with
his clubbed foot. Howard fell and either broke or dislodged a bone for
which the prison doctor did not examine him for 11 days. The examination
consisted of viewing Howard from a window in the cell door. Howard also
makes additional claims happening more than two years before he made his
claims which were barred by the applicable statute of limitation.

On de novo review, the Fourth Circuit Court of Appeals reversed the
deliberate indifference claims finding the could not conclude "beyond
doubt" that the liberally construed complaint fails to state the claim of
deliberate indifference. See: Howard v. Smith, 87 Fed. Appx. 309 (4th Cir.

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Related legal case

Howard v. Smith

JEROME ANTHONY HOWARD, Plaintiff-Appellant, v. MR. SMITH, Physician at Wallens Ridge State Prison; S.K. YOUNG, Warden at Wallens Ridge State Prison; Ms. MCCURRY, R.N. at Wallens Ridge State Prison; JOHN DOE, Corrections Officer at Wallens Ridge State Prison, Defendants-Appellees.

No. 03-6777


87 Fed. Appx. 309; 2004 U.S. App.

November 21, 2003, Submitted
January 28, 2004, Decided

SUBSEQUENT HISTORY: On remand at, Summary judgment granted by, Complaint dismissed at Howard v. Smith, 2005 U.S. Dist. (W.D. Va., Mar. 22, 2005)

PRIOR HISTORY: Appeal from the United States District Court for the Western District of Virginia, at Roanoke. (CA-03-144-7). James C. Turk, Senior District Judge.

DISPOSITION: Affirmed in part, vacated in part and remanded.

COUNSEL: Jerome Anthony Howard, Appellant Pro se.

JUDGES: Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Jerome Anthony Howard appeals the order of the district court dismissing without prejudice pursuant to 28 U.S.C. § 1915A (2000) his suit under 42 U.S.C. § 1983 (2000) for failure to state a claim. * This court reviews de novo a district court's § 1915A dismissal. De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003); Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002).

* Although a dismissal without prejudice is ordinarily not an appealable order, see Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993), the applicable statute of limitations period has passed. See Va. Code Ann. § 8.01-243(A) (Michie 2000). Thus, the order is effectively a final order.

Howard's claims accruing more than two years before he filed suit are barred by the applicable statute of limitations. As to these claims, we affirm on the reasoning of the district court. See Howard v. Smith, No. 7: 03-CV-00144 (W.D. Va. Apr. 29, 2003).
Turning to Howard's remaining claims, we cannot conclude "beyond doubt" that Howard's complaint fails to state a claim. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Howard asserts that he was housed on the second tier notwithstanding his clubbed foot, which made traversing the stairs hazardous. He also contended that after a fall in which he broke or dislodged a bone, the prison doctor did not examine him for eleven days, and the examination consisted only of viewing Howard through a window in his cell door. Liberally construing Howard's complaint, we find that he has alleged that prison officials were deliberately indifferent to an objectively serious medical need sufficient to preclude summary dismissal under § 1915A. See Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (providing standard).
Accordingly, we vacate the district court's order as to the timely filed claims [**3] and remand for further proceedings. We express no opinion as to the proper ultimate disposition of Howard's claims. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court [*311] and argument would not aid the decisional process.