60 F.3d 837

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Jamie K.W. Brown appeals the district court’s 12(b)(6) dismissal of his pro se 42 U.S.C.1983 claim. Mr. Brown alleges that defendants violated his constitutional rights while he was incarcerated at Adair County Jail by disregarding a prison doctor’s repeated recommendations for medical treatment and by opening his mail from the district court. We affirm in part and reverse in part.

We review a district court’s disposition of a motion to dismiss de novo, Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir.), cert. denied, 115 S.Ct. 107 (1994), and therefore will not uphold dismissal of a claim unless “it appears that the plaintiff can prove no set of facts in support of the claim[ ] that would entitle him to relief.” Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994). We must accept the plaintiff’s factual allegations as true. Mascheroni v. Board of Regents, 28 F.3d 1554, 1560 (10th Cir.1994). While we review pro se pleadings, like Mr. Brown’s, under a more liberal standard, Jones v. Cowley, 28 F.3d 1067, 1069 (10th Cir.1994), we nonetheless must dismiss “conclusory allegations without supporting factual averments.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Mr. Brown alleged below that defendants evinced deliberate indifference to his serious medical needs in violation of the Eighth Amendment. The district court dismissed this claim, asserting that Mr. Brown presented only “conclusory allegations concerning his need for medical treatment.” We disagree.

Dr. Taylor treated Mr. Brown several times for hernia pain and repeatedly recommended that Mr. Brown undergo surgery to correct the hernia problem. Mr. Brown does not argue that he was denied medical care or that Dr. Taylor’s care was so inadequate as to be deliberately indifferent to his medical needs. Mr. Brown alleges that defendants knew about Dr. Taylor’s repeated recommendations for corrective hernia surgery and deliberately ignored this recommendation.

To state a viable Eighth Amendment deliberate indifference claim, a plaintiff must allege 1) that the prisoner’s medical needs are serious; and 2) deliberate indifference on the part of prison officials. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041 (1981). “A medical need is serious if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ ” Id. (citation omitted). Dr. Taylor repeatedly diagnosed Mr. Brown’s hernia problems and recommended surgery to repair the problems. Whether Mr. Brown’s hernia problem was sufficiently serious that surgery was mandated is a fact question that cannot be resolved solely on the basis of the pleadings.

“Deliberate indifference to serious medical needs is shown when prison officials have prevented an inmate from receiving recommended treatment.” Id. The Supreme Court recently held that prison officials must be subjectively aware of the risk to the inmate’s health in order to satisfy the deliberate indifference standard. Farmer v. Brennan, 114 S.Ct. 1970 (1994). Mr. Brown alleges that defendants specifically refused Dr. Taylor’s surgery recommendations. We can therefore infer that defendants were subjectively aware of Mr. Brown’s medical needs. This is not a case involving a mere difference of opinion between prison doctors and the inmate. See Ramos, 639 F.2d at 575; McCracken v. Jones, 562 F.2d 22, 24 (10th Cir.1977), cert. denied, 435 U.S. 917 (1978). This is a case where the prison medical staff repeatedly prescribed surgery to rectify a medical problem and prison officials with no medical training allegedly disregarded this recommendation. We hold that Mr. Brown raised fact issues regarding his claim and that the district court prematurely dismissed this claim. We therefore reverse the district court’s dismissal.

Mr. Brown also alleged that defendants violated his constitutional rights by opening mail from the district court. The district court rejected Mr. Brown’s argument and dismissed the claim. We affirm for substantially the reasons set forth in the district court’s order.

AFFIRMED in part, REVERSED in part.

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Paul K. Stevenson, a/k/a Paul King-Clark Stevenson (Stevenson), an inmate of the State of Oklahoma, appearing pro se and in forma pauperis, appeals from the district court’s order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254. The district court granted Stevenson’s request for a certificate of probable cause pursuant to 28 U.S.C. 2253.

Stevenson was sentenced on June 6, 1985, to a term of 30 years imprisonment, following a trial by jury. He was found guilty of first degree rape and forcible oral sodomy. He filed a timely Notice of Appeal, but for reasons unknown but not of his fault, the appeal did not proceed. Stevenson’s petition for habeas corpus herein was filed at least eight (8) years following his sentence.

In his habeas petition, Stevenson alleged that following his sentence, he advised the court that he wished to appeal his conviction, but his appeal was denied without fault on his part. His petition does not contain any allegations of state trial court error, but simply contends that he is entitled to post-conviction relief and/or a writ of habeas corpus directing his release unless his state court appeal be decided within ninety (90) days.

Following answer and responses, the matter was referred to Magistrate Judge Bana Blasdell who filed her Report and Recommendation on July 19, 1994, recommending that a conditional writ of habeas corpus be issued directing the release of Stevenson unless the State of Oklahoma should decide his appeal within sixty (60) days of the date of issuance of the writ. The magistrate judge’s recommendation relied substantially on the dictates of Harris v. Champion, 938 F.2d 1062 (10th Cir.1991) (Harris I), Harris v. Champion, 15 F.3d 1538 (10th Cir.1994) (Harris II), and Hill v. Reynolds, 942 F.2d 1494 (10th Cir.1991). The magistrate judge found that Stevenson had not asserted a colorable state claim showing any particularized prejudice, but that, nevertheless, on balance Stevenson had established under Barker v. Wingo, 407 U.S. 514 (1972), a due process violation as a result of the excessive delay in the state appellate process.

The district court adopted the Report and Recommendation of the magistrate judge and granted Stevenson a conditional writ of habeas corpus directing his release if the state had not decided his appeal within sixty (60) days of the court’s Order of August 22, 1994. (R., Vol. I, Tab 16). Thereafter, on November 7, 1994, the district court entered an Order dismissing Stevenson’s petition, finding that Stevenson’s conviction was affirmed by the Oklahoma Court of Criminal Appeals on September 19, 1994. Id., Tab 18.

On appeal, Stevenson contends that he was denied his right to appeal in a timely manner and he had ineffective assistance of counsel in the appellate process. He requests that this court apply a “litmus test” so that “the states will know that it is a denial of a fundamental right of the accused to spend almost a decade in prison for a crime that he may or may not have committed.” Stevenson seeks his discharge from custody. In none of his pleadings has Stevenson alleged any trial court errors, nor has he asserted his innocence.

We AFFIRM the district court’s order dismissing Stevenson’s petition for a writ of habeas corpus substantially for the reasons set forth in the district court’s orders of August 22, 1994, and November 17, 1994.