Howard v. Smith , 87 F. App'x 309 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEROME ANTHONY HOWARD, 
Plaintiff-Appellant,
v.
MR. SMITH, Physician at Wallens
Ridge State Prison; S.K. YOUNG,
Warden at Wallens Ridge State  No. 03-6777
Prison; MS. MCCURRY, R.N. at
Wallens Ridge State Prison; JOHN
DOE, Corrections Officer at Wallens
Ridge State Prison,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CA-03-144-7)
Submitted: November 21, 2003
Decided: January 28, 2004
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part, vacated and remanded in part by unpublished per
curiam opinion.
COUNSEL
Jerome Anthony Howard, Appellant Pro Se.
2 HOWARD v. SMITH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jerome Anthony Howard appeals the order of the district court dis-
missing 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).
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 "be-
yond doubt" that Howard’s complaint fails to state a claim. See Gor-
don 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 doc-
tor did not examine him for eleven days, and the examination con-
sisted 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).
*Although a dismissal without prejudice is ordinarily not an appeal-
able order, see Domino Sugar Corp. v. Sugar Workers Local Union 392,
10 F.3d 1064, 1066-67 (4th Cir. 1993), the applicable statute of limita-
tions period has passed. See Va. Code Ann. § 8.01-243(a) (Michie 2000).
Thus, the order is effectively a final order.
HOWARD v. SMITH 3
Accordingly, we vacate the district court’s order as to the timely
filed claims and remand for further proceedings. We express no opin-
ion as to the proper ultimate disposition of Howard’s claims. We dis-
pense 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 IN PART;
VACATED AND REMANDED IN PART