EBEL, Circuit Judge.
Plaintiff-Appellant Horace Oxendine ("Oxendine") filed a lawsuit pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), on June 30, 1999, alleging that health care professionals (and various others who were later dismissed from the lawsuit
In his complaint, Oxendine alleged that Defendants Dr. Barry Kaplan, M.D., the prison physician, and Jose Negron, an assistant to Dr. Kaplan, were not qualified to perform an emergency re-attachment of Oxendine's right, middle-finger fingertip
After Oxendine twice amended his complaint pursuant to orders of the district court, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim on which relief can be granted.
Oxendine filed a timely notice of appeal of the district court's decision, and now argues that the district court improperly concluded that Defendants' conduct did not rise to the level of a constitutional violation.
STANDARD OF REVIEW
We have stated that "[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir.1999). In addition, "we must liberally construe the allegations of a pro se complaint." Id. Finally, we note that, in deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the complaint. See Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes"); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991) ("A written document that is attached to the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal.")
Reviewing the district court's decision to dismiss Oxendine's complaint for failure to state a claim de novo, see Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999), we find that Oxendine's complaint presents facts which, if true, could entitle him to relief under Bivens. We must therefore reverse the district court's judgment dismissing Oxendine's complaint for failure to state a claim.
Although Oxendine references the Due Process Clauses of the Fifth and Fourteen Amendments and argues that he was denied his "due process rights to adequate medical treatment," his complaint is more accurately characterized as an Eighth Amendment claim that Defendants' provision of inadequate medical treatment, and delay in obtaining specialized medical assistance when it was clear Oxendine's injury was worsening despite their efforts on his behalf, caused Oxendine substantial harm.
Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In keeping with the principle that government officials are generally afforded wide latitude when fulfilling their discretionary functions, see Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), however, in cases where prisoners allege that inadequate or delayed medical care violated their Eighth Amendment rights, it has been established that "[p]rison officials violate the Eighth Amendment [only] when they are deliberately indifferent to the serious medical needs of prisoners in their custody." Perkins, 165 F.3d at 811 (citing Estelle, 429 U.S. at 104-06, 97 S.Ct. 285). Eighth Amendment claims alleging inadequate or delayed medical care thus involve both an objective and a subjective component, such that we must determine both "whether the deprivation is sufficiently serious" and "whether the [government] official acted with a sufficiently culpable state of mind." See id. at 809.
In regard to the objective element, a medical need is considered "sufficiently serious" if the condition "has been diagnosed by a physician as mandating treatment or ... is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999) (citations and quotations omitted). We note, however, that "[d]elay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm." Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir.2000). As for the subjective element, we have stated that "a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, `by failing to take reasonable measures to abate it.'" Hunt, 199 F.3d at 1224 (quoting Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Whether the prison official had the requisite knowledge of a substantial risk to an inmate's health or safety "is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." See Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (citation omitted).
Accordingly, for Oxendine to properly set forth an Eighth Amendment claim on which relief may be granted, he must set forth facts demonstrating that his alleged medical need, in this case the need for an outside medical specialist, "was `sufficiently serious' to meet the objective element of the deliberate indifference test," Sealock, 218 F.3d at 1210, and that the
In his complaint, Oxendine states that, on March 14, 1999, after his fingertip was severed by his cell door, the guard on duty "rushed to the assigned room of inmate Oxendine and recovered the amputated portion of [Oxendine's] finger[,] which he promptly deposited in a container of ice for preservation." Oxendine was then taken to the infirmary, where officials paged Dr. Kaplan. Dr. Kaplan arrived approximately one hour later and, with the assistance of Jose Negron, surgically reattached the severed portion of Oxendine's finger to the remaining portion of Oxendine's finger. Oxendine was given Tylenol with codeine for the pain and sent back to his cell with instructions to return to the infirmary the next day. When Oxendine returned the next day, March 15, Dr. Kaplan examined and redressed the wound, noted in Oxendine's chart "tissue of reattached portion — viable", gave Oxendine more aspirin with codeine for the pain, and told Oxendine to "return to Health Services each successive day for the following two weeks."
According to the medical records attached to Oxendine's complaint, his finger was examined by a health care professional on the following dates: March 16, March 17, March 19, March 20, and March 22. On the first three of these days, Oxendine's medical chart reveals that prison health care professionals examined and redressed the wound, found the tissue to be viable, and told Oxendine to notify them if infection or other problems developed. On March 20, however, the notation reads, in part, "distal tip of finger black ... [r]eturn Monday to see Dr. Kaplan for F/U." This notation is signed "J. Brown, EMTP." On March 22, Oxendine's medical chart includes a notation from Dr. Kaplan, stating "some distal necrosis of skin seen."
We have no doubt that Oxendine's severed finger, reattachment thereof, and subsequent worsening of the wound due to decaying tissue presented a serious medical need for purposes of the Eighth Amendment. The question, then, is whether Oxendine alleged facts sufficient to support a claim that Defendants exhibited "deliberate indifference" to that need.
Accepting, as we must, all factual allegations contained in Oxendine's complaint as true and construing those allegations in the light most favorable to Oxendine, see Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir.1997), it appears that Dr. Kaplan did not obtain outside medical assistance to treat Oxendine's injury until at least March 29, 1999, and quite possibly much later. This inaction by Dr. Kaplan occurred despite Oxendine's repeated reports of discomfort and blackening skin tissue on his reattached finger, and despite signs recorded by health care personnel and by Dr. Kaplan himself, of which Dr. Kaplan was unquestionably aware no later than March 22, 1999, of necrosis of the distal skin tissue on Oxendine's reattached finger.
Assuming these facts are true, the alleged delay in obtaining specialized medical treatment meets the objective element of the deliberate indifference test. The ineffectiveness of Dr. Kaplan's reattachment and subsequent care of the severed finger, as evidenced by the blackening and necrifying tissue, was "sufficiently serious" because it was "so obvious that even a lay person would easily recognize the necessity for a doctor's attention." See Hunt, 199 F.3d at 1224. In addition, the delay in seeking specialized treatment apparently caused Oxendine substantial harm due to the fact that a specialist was not obtained until after a substantial portion of the reattached finger had already been lost to decay, and because Oxendine experienced considerable pain while the finger continued to rot. See Hunt, 199 F.3d at 1224 (stating that officials may be "held liable when [a] delay results in a lifelong handicap or a permanent loss"); Sealock, 218 F.3d at 1210 ("The pain and suffering imposed by Barrett's failure to get him treatment lasted several hours.... Certainly, not every twinge of pain suffered as a result of delay in medical care is actionable. The evidence in this case, however, establishes the objective element of the deliberate indifference test.").
In regard to the subjective portion of the deliberate indifference test, we find that Oxendine has alleged facts supporting an inference that Dr. Kaplan knew about and disregarded a substantial risk to Oxendine's
In addition, Oxendine alleged that Dr. Kaplan, assisted by Jose Negron, was not qualified to perform this particular surgery, but nevertheless performed the operation without seeking assistance from a specialized, qualified surgeon who would be capable of successfully reattaching Oxendine's finger. Again, taking Oxendine's allegations as true, we cannot say he has failed to state a claim upon which relief may be granted based upon the deliberate indifference of Dr. Kaplan and Jose Negron to Oxendine's serious medical needs.
This is not to say that Oxendine will prevail on his claim once the Defendants are given an opportunity to clarify and explain their actions in regard to Oxendine's medical treatment. But we are tasked with deciding only whether Oxendine has alleged sufficient facts to support a claim that he was denied adequate and timely medical care in violation of the Eighth Amendment, such that it would be improper to dismiss the complaint pursuant to Rule 12(b)(6). For the foregoing reasons, we find that he has done so. Accordingly, we REVERSE the decision of the district court and REMAND for further proceedings not inconsistent with this opinion.