358 F. App'x 412
4th Cir.
2009

UNITED STATES of America, Plaintiff-Appellee, v. Willie Edward BARNES, a/k/a Big Will, Defendant-Appellant.

No. 09-4363

United States Court of Appeals, Fourth Circuit

Dec. 23, 2009

412

time the complaint on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (citations omitted); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Banos v. O‘Guin, 144 F.3d 883, 885 (5th Cir. 1998). An appellate court reviews de novo a district court‘s interpretation of § 1915(g) and related legal conclusions. Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

Smith alleged in his complaint that Carrie Mayes, the Director of Nurses at his institution, will not provide care for his hepatitis C disease and other liver diseases, and for a “severely painful inguinal hernia“, acute edema, and for a “severely painful” herniated disk in his spine, unless he acknowledges the name “Smith” instead of the name “X“. Taking Smith‘s allegations as true, we find he sufficiently established he is in imminent danger of serious physical injury. See Ciarpaglini, 352 F.3d at 330-31 (complications arising from a switch in medication); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002) (mouth infection due to lack of dental care); Gibbs v. Cross, 160 F.3d 962, 965-66 (3d Cir. 1998) (headaches and other symptoms as a result of dust and lint exposure).

Because we find Smith sufficiently alleged in his complaint that he was under imminent danger of serious physical injury with respect to the denial of medical treatment, we vacate in part the district court‘s order and remand with instructions that Smith be permitted to proceed forth on that claim without prepayment of filing fees. Because Smith‘s remaining claims do not affect his risk for serious physical injury, we affirm the court‘s order in part with respect to those claims.

Accordingly, we affirm in part and vacate in part and remand with instructions that Smith be permitted to proceed under the PLRA without prepayment of fees as to his claim that he is being denied medical treatment because he insists on using the name “X“. 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 IN PART, VACATED IN PART, AND REMANDED.

Stephen D. Herndon, Wheeling, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Willie Barnes pled guilty, pursuant to a plea agreement, to one count of possession with intent to distribute more than fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). The district court sentenced Barnes to 327 months’ imprisonment. Barnes now appeals, claiming that the district court erred in denying his motions to withdraw his guilty plea. We affirm.

Because Barnes was represented by counsel, the district court was not required to consider Barnes’ pro se letter filed on February 9, 2009, as a motion to withdraw his plea. See United States v. Vampire Nation, 451 F.3d 189, 206 n. 17 (3d Cir. 2006) (holding district court is within its authority to disregard pro se motions from a counseled party).

Further, even if the letter had been construed as a motion to withdraw Barnes’ guilty plea, such a motion lacked merit. “There is no absolute right to withdrawal of a guilty plea.” United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (citing United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991)). The defendant bears the burden of showing a “fair and just reason” for the withdrawal of his guilty plea. Fed. R. Crim. P. 11(d)(2)(B). “[A] properly conducted Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn.” United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003). With these standards in mind, we have reviewed the record on appeal and conclude that Barnes failed to present a fair and just reason that his guilty plea should be withdrawn.

Barnes also alleges that the district court abused its discretion in denying his pro se, post-sentencing motion to withdraw his plea. After a defendant has been sentenced, the district court has no authority to grant a motion to withdraw a guilty plea. Fed. R. Crim. P. 11(e); United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). The only vehicles to challenge the validity of the plea after sentencing are by direct appeal or in a collateral attack. Id. Accordingly, the district court did not abuse its discretion in denying this motion.

We therefore affirm the district court‘s judgment. 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.