RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Scicluna v. Wells et al. No. 02-2117 ELECTRONIC CITATION: 2003 FED App. 0350P (6th Cir.) File Name: 03a0350p.06 LAW OFFICE OF NEDRA D. CAMPBELL, Southfield, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

ALFRED R. SCICLUNA, X RONALD LEE GILMAN, Circuit Judge. Alfred Scicluna, a Michigan prisoner, brought suit against two physicians and Plaintiff-Appellee, - a corrections officer for the alleged violation of his rights - - No. 02-2117 under the Eighth Amendment to the United States v. - Constitution. Dr. Paul Harvey, Dr. Richard Huff, and > Corrections Officer Felix Carrizales filed separate motions for , summary judgment based upon the doctrine of qualified HARRY G. WELLS et al., - Defendants-Appellants. - immunity. The defendants now appeal the district court’s denial of their motions, arguing that the record provides no N basis for Scicluna’s allegations that they were deliberately Appeal from the United States District Court indifferent to his serious medical and security needs. For the for the Eastern District of Michigan at Detroit. reasons set forth below, we AFFIRM the judgment of the No. 99-70376—Avern Cohn, Senior District Judge. district court.

Argued: September 12, 2003 I. BACKGROUND

Decided and Filed: October 2, 2003 A. Factual background

Before: MERRITT, MOORE, and GILMAN, Circuit Scicluna suffered a fractured skull as the result of an Judges. unprovoked attack on April 20, 1992 that was orchestrated by Eugene O’Sullivan, Scicluna’s codefendant in the criminal _________________ trial that resulted in their imprisonment. At the time of the attack, Scicluna and O’Sullivan were both inmates at the COUNSEL Muskegon Correctional Facility (MCF) in Muskegon, Michigan. Scicluna contends that Carrizales, his Resident ARGUED: John L. Thurber, OFFICE OF THE ATTORNEY Unit Manager and counselor at MCF, demonstrated deliberate GENERAL, Lansing, Michigan, for Appellants. Nedra D. indifference by taking no action to transfer either Scicluna or Campbell, LAW OFFICE OF NEDRA D. CAMPBELL, O’Sullivan to a different facility, even though Carrizales had Southfield, Michigan, for Appellee. ON BRIEF: John L. been told by Scicluna that the two inmates had a hostile Thurber, OFFICE OF THE ATTORNEY GENERAL, relationship and that keeping them together at MCF was in Lansing, Michigan, for Appellants. Nedra D. Campbell, violation of Michigan Department of Corrections (MDOC)

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regulations concerning “known conflict situations.” Scicluna argues that Harvey demonstrated deliberate Carrizales, on the other hand, argues that he was unaware of indifference to his serious medical needs by failing to any conflict between Scicluna and O’Sullivan and therefore examine him until 20 days after he arrived at JCF, despite could not have demonstrated deliberate indifference to the papers calling for an “immediate neuro consult.” Harvey safety of Scicluna by failing to address the conflict situation. contends that the record provides no basis for finding deliberate indifference on his part because Scicluana offered Following the attack, Scicluna was brought to a community no evidence that Harvey even knew that Scicluna was at JCF hospital in Muskegon for emergency neurosurgery. He was prior to May 26, 1992. treated by a civilian physician, who removed a portion of his skull and recommended continued treatment, including a B. Procedural background crainioplasty to replace the removed portion. Rather than authorize further surgery, Huff, MCF’s Medical Director, Scicluna filed suit pursuant to 42 U.S.C. § 1983, “which recalled Scicluna from the community hospital. Huff provides for a private right of action against any person who, examined Scicluna on April 27, 1992, after which Huff under color of state law, violates another person’s federal prescribed the anti-seizure drug Dilantin. Following a second rights.” Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir. examination on May 5, 1992, Huff transferred Scicluna to 1992). Harvey, Huff, and Carrizales filed separate motions Kinross Correctional Facility (KCF) in Kincheole, Michigan for summary judgment based upon the doctrine of qualified for a neurosurgical consultation. Because KCF did not have immunity. The district court denied the motions on the basis the facilities needed to treat Scicluna, he was transferred to that Scicluna has raised genuine issues of material fact that the G. Robert Cotton Correction Facility (JCF) in Jackson, could not be resolved on summary judgment. This timely Michigan on the following day. Scicluna contends that Huff appeal followed. demonstrated deliberate indifference to his serious medical needs by transferring him to a facility that Huff knew was not II. ANALYSIS equipped to treat him. In response, Huff argues that he believed that KCF was equipped to treat Scicluna and that A. Standard of review none of his actions constituted deliberate indifference. This court reviews the denial of qualified immunity in an Scicluna arrived at JCF on May 6, 1992, with paperwork action brought under 42 U.S.C. § 1983 de novo. Klein v. calling for an immediate neursurgical consultation. But he Long, 275 F.3d 544, 550 (6th Cir. 2001). “[F]or an was not examined by Harvey until May 26, 1992. Harvey, interlocutory appeal to be appropriate, a defendant seeking after determining that Scicluna’s level of Dilantin was toxic qualified immunity must be willing to concede to the facts as and that his skull was recently fractured, lowered his Dilantin alleged by the plaintiff and discuss only the legal issues raised levels and arranged to have Scicluna transferred to the Earnest by the case.” Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir. C. Brooks Correctional Facility (LRF) in Muskegon, 1999). We will therefore accept Scicluna’s allegations as true Michigan for a neurosurgical consultation. Scicluna arrived for purposes of this interlocutory appeal and view all facts at LRF, which is in the same complex as MCF, on August 5, and reasonable inferences in the light most favorable to him. 1992, and was again placed under the care of Huff. No. 02-2117 Scicluna v. Wells et al. 5 6 Scicluna v. Wells et al. No. 02-2117

B. Doctrine of qualified immunity suffice. See Fed. R. Civ. P. 56(C) (stating that the “pleadings, depositions, answers to interrogatories, and admissions on The doctrine of qualified immunity shields from liability file, together with the affidavits” are considered in for civil damages those officials whose “conduct does not determining whether there is a genuine issue as to any violate clearly established statutory or constitutional rights of material fact). Viewing the evidence in the light most which a reasonable person would have known.” Harlow v. favorable to Scicluna establishes that Carrizales was told that Fitzgerald, 457 U.S. 800, 818 (1982). We evaluate a O’Sullivan presented a serious threat to the safety of Scicluna, defendant’s claim of qualified immunity by determining and that, in knowing disregard of MDOC regulations, whether (1) a constitutional violation occurred, (2) the right Carrizales took no action to segregate the two inmates even violated was clearly established, and (3) “the plaintiff has though he was conscious of the risk that his failure to act alleged sufficient facts, and supported the allegations by imposed upon Scicluna. sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly Carrizales argues, alternatively, that no reasonable established constitutional rights.” Williams v. Mehra, 186 government official in 1992 could have known that failure to F.3d 685, 691 (6th Cir. 1999) (en banc). follow up on general information pertaining to an inmate- housing conflict situation would expose the official to Scicluna contends that the defendants violated a clearly liability. But Carrizales, according to Scicluna, had before established constitutional right when they showed deliberate him far more than general information concerning the indifference to his serious medical and safety needs. Such conflict. Both Scicluna and his sister had allegedly informed conduct is prohibited by the Cruel and Unusual Punishment Carrizales that O’Sullivan posed a specific threat to Scicluna. Clause of the Eighth Amendment. Estelle v. Gamble, 429 In addition, MDOC had issued directives requiring the U.S. 97, 104 (1976). To show that he was subjected to such segregation of former codefendants, such as Scicluna and deliberate indifference, Scicluna need not prove that the O’Sullivan, because of the risk of assault, and had warned defendants had the “express intent to inflict unnecessary officials that they could be found personally liable for not pain,” but only that their conduct demonstrated a level of following MDOC policy. Scicluna, consequently, “was a “obduracy and wantonness” greater than simple “inadvertence member of an identifiable group of prisoners for whom risk or error in good faith . . . .” Whitley v. Albers, 475 U.S. 312, of assault was a serious problem . . . .” Marsh v. Arn, 937 319 (1986). F.2d 1056, 1062 (6th Cir. 1991) (contrasting the plaintiff in Marsh, who was not a member of an identifiable risk group, C. Carrizales’s motion with the plaintiff in Walsh v. Mellas, 837 F.2d 789 (7th Cir. 1988), who was a member of such an identifiable group). Scicluna testified in his deposition that he told Carrizales of the conflict situation with O’Sullivan and of the relevant “If the law was clearly established, the immunity defense MDOC regulations. Carrizales, however, claims that the ordinarily should fail, since a reasonably competent public record fails to support a finding of deliberate indifference official should know the law governing his conduct.” because there is no documentary evidence supporting Harlow, 457 U.S. at 818-19. A constitutional right is clearly Scicluna’s deposition testimony. But documentary evidence established where “a reasonable official would understand is not essential to overcome a motion for summary judgment. that what he is doing violates that right.” Anderson v. Other sources of evidence, such as deposition testimony, may Creighton, 483 U.S. 635, 640 (1987). In light of these legal No. 02-2117 Scicluna v. Wells et al. 7 8 Scicluna v. Wells et al. No. 02-2117

principles and the facts as asserted by Scicluna, the district the denial of such aid constitutes the deprivation of court did not err in denying Carrizales’s motion for summary constitutional due process.”). Based upon the present record, judgment on qualified immunity grounds. the district court did not err in denying Huff’s motion for summary judgment on qualified immunity grounds. D. Huff’s motion E. Harvey’s motion Huff argues in his brief that he believed that Scicluna would receive all necessary medical treatment at KCF when Harvey claims that the record does not support a finding of he transferred Scicluna there in May of 1992. But he offered his deliberate indifference because there is no evidence that no affidavit in support of this assertion. Scicluna, on the he was even aware that Scicluna was at JCF between May 6 other hand, testified under oath that Huff knew that KCF and May 26 of 1992. In the absence of an explanation for the officials would be unable to treat his condition. Viewing all delay, however, a reasonable inference arises that Harvey reasonable inferences in the light most favorable to Scicluna purposefully ignored the emergency-treatment report as the nonmovant, a genuine issue of material fact exists as to specifying that Scicluna required an “immediate neuro whether Huff knew that he was transferring Scicluna to a consult.” Viewing the facts and drawing all reasonable facility that was unable to treat his injury. inferences in the light most favorable to Scicluna, a genuine issue of material fact exists as to whether Harvey’s three- Huff argues, alternatively, that even if his decision to week delay constituted deliberate indifference. transfer Scicluna to KCF constituted deliberate indifference, the constitutional right violated was not clearly established by Harvey argues, alternatively, that even if his failure to treat 1992. But “a right can be clearly established even if there is Scicluna at JCF constituted deliberate indifference, the no case involving ‘fundamentally similar’ or ‘materially constitutional right violated was not clearly established by similar’ facts” if the premise of a prior case alerts officials to 1992. Before 1992, however, the Supreme Court had the “clear applicability” of the legal principle to “a subsequent established in Estelle that deliberate indifference to a set of facts.” Feathers v. Aey, 319 F.3d 843, 850 (6th Cir. prisoner’s serious medical condition constitutes a violation of 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 743 the Eighth Amendment. 429 U.S. at 104. Knowingly waiting (2002)). Deliberate indifference to a prisoner’s serious three weeks to examine a prisoner referred to one’s care for medical condition was known to be a violation of the Eighth urgent attention is conduct that a reasonable prison official in Amendment’s right to be free from cruel and unusual 1992 should have known would subject him to personal punishment long before 1992. See Estelle v. Gamble, 429 liability. Based upon the present record, the district court did U.S. 97, 104 (1976) (holding that “deliberate indifference to not err in denying Harvey’s motion for summary judgment on serious medical needs of prisoners” is “proscribed by the qualified immunity grounds. Eighth Amendment”). Transferring a prisoner in need of urgent medical attention to a facility that the official knows is III. CONCLUSION unable to provide the required treatment is conduct that would alert a reasonable person to the likelihood of personal For all of the reasons set forth above, we AFFIRM the liability. See Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th judgment of the district court that denied the defendants’ Cir. 1972) (“[W]here the circumstances are clearly sufficient motions for summary judgment. to indicate the need of medical attention for injury or illness,