James M. JOHNSON II; Christie R. Johnson; James M. Johnson III, a minor child by and through his parent, natural guardian, and next friend James M. Johnson II; Jhovan T. Johnson, a minor child by and through his parent, natural guardian, and next friend James M. Johnson II, Plaintiffs-Appellants, v. Jim KARNES, Franklin County Sheriff; Franklin County Board of County Commissioners; Vincent Spagna, M.D.; EMSA Correctional Care, Inc.; John Does 1-10, Defendants-Appellees.
No. 03-4200
United States Court of Appeals, Sixth Circuit
Submitted: Nov. 2, 2004. Decided and Filed: Feb. 25, 2005.
398 F.3d 868
IV.
For the foregoing reasons, we conclude that the maximum allowable attorney fees under the PLRA should be based on the amount authorized by the Judicial Conference, not the amount actually paid to court-appointed counsel under the CJA. Accordingly, the maximum allowable hourly rate for attorney fees under the PLRA is $169.50, or 150% of $113. The judgment of the district court is REVERSED and the case REMANDED so that the district court may award attorney fees to the plaintiffs based on an hourly rate no greater than $169.50.
Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
MOORE, J., delivered the opinion of the court, in which EDMUNDS, D.J., joined. GIBBONS, J. (pp. 877-79), delivered a separate dissenting opinion.
OPINION
MOORE, Circuit Judge.
Plaintiff-Appellant James M. Johnson II (“Johnson“) severed several tendons in his right hand immediately prior to his detention in the Franklin County Jail. After his release, Johnson brought this suit under
I. BACKGROUND
We take the facts of this case in the light most favorable to Johnson, the party opposing the summary judgment motion. Sometime after dark on October 5th or 6th, 1998, Johnson severely cut his hand after tripping on a concrete stoop and falling at least partway through a glass door at the residence of his then-girlfriend, now-wife and co-plaintiff, Christie R. Johnson. Johnson called 911, and both an ambulance and a police car were dispatched
to the scene. As Johnson was bleeding severely, medical personnel brought him out to the ambulance and bandaged his wound. While the medical personnel were caring for him, the police discovered that there was an outstanding warrant for Johnson‘s arrest.2 Johnson was then transferred from the ambulance to the police car, and taken to the emergency room of St. Ann‘s Hospital.
At the time of his deposition, Johnson did not have a good memory of what took place during that emergency room visit. However, he did remember a female doctor telling him that his tendons had been completely severed, that he was to return for surgery in three to seven days3 (because the tendons needed some time to harden before surgery was performed),
Johnson was transferred from St. Ann‘s Hospital to the Franklin County Jail, apparently later that same night or early the next morning. His initial medical screening form, dated October 6, 1998, bears the notation “See Hosp. Report” in response to a question about obvious medical problems. J.A. at 79 (Initial Medical Screening). After the initial medical evaluation, it may have been “a couple of days,” J.A. at 159 (Johnson Dep.), before Johnson even had the opportunity to speak to a nurse. After this, a jail nurse came periodically to give Johnson antibiotics that had been prescribed by one of the emergency room doctors but did not give him any painkillers. During the entire period Johnson was at the jail (a period of 31 days, including the day he entered and the day of his release), the bandages on his arm were changed only once. The jail nurses did not check the wound on any regular basis. Although he is not completely certain, Johnson stated that he believed he had the opportunity to speak with a doctor only once during his entire period of confinement.
During his confinement, Johnson submitted at least two “kites” (medical request forms) and one social service call card. The first medical request form, dated October 13, 1998, describes Johnson‘s medical problem as:
EAR INFECTION, EXTREME PAIN IN LEFT EAR. ALONG WITH EXTREME PAIN IN RIGHT HAND. SEVERED TENDONS NEED SURGERY TO [illegible, but possibly “RECONNET” (sic)] TENDONS.
J.A. at 95. A notation at the bottom, in a different handwriting and apparently dated November 4, 1998, reads “To be seen 11/11/98 by Dr. Aziz.” J.A. at 95. This notation appears in a section marked “FOR STAFF USE ONLY” and appears to be signed by “T. Hairston RN.” J.A. at 95. The second medical request form, dated October 28, 1998, describes Johnson‘s problem as:
THE SAME PROBLEM THAT I‘VE HAD SENSE (sic) I‘VE BEEN HERE (10/5/98), SEVERED TENDONS IN
MY RIGHT HAND THAT I‘VE BEEN NEEDING SURGERY ON, THAT NO ONE HERE SEEMS TO CARE ABOUT! HELLO, I‘M IN EXTREME PAIN.
J.A. at 96. There is no staff notation on the medical request form dated October 28, 1998. The social services call card, dated October 23, 1998, begins:
SOCIAL SERVICES REQUEST AGAIN FOR MEDICAL ATTENTION, INMATE HAS NEEDED SURGERY FOR QUITE SOME TIME NOW (10/5/98)[.] INMATE HAS PUT IN CALL CARDS AND MEDICAL SLIPS ON NUMEROUS OCCASIONS SEEKING AN URGENCY IN THIS MATTER. THE INMATE IS LOOKING AT PERM[A]N[E]NT LOSS OF USE OF RIGHT HAND DUE TO SEVERED TENDONS IN HIS RIGHT HAND WHICH HE NATURALLY IS (RIGHT HANDED).
J.A. at 97-98. After discussing several issues more directly related to a social services request, it ends with the statement “INMATE IS CLOSE TO HAVING A NERVOUS BREAKDOWN. PLEASE HELP BEFORE IT‘S TO[O] LATE.” J.A. at 98. In addition to Johnson‘s own efforts, one or more members of Johnson‘s family were also trying to contact jail personnel about Johnson‘s medical situation.
At the time of Johnson‘s confinement, medical services at the jail were contracted out to EMSA. Dr. Spagna, an EMSA employee, served as “medical director of the Franklin County jail and workhouse.” J.A. at 253 (Spagna Dep.). Dr. Spagna testified in his deposition that Johnson‘s medical request forms would have been reviewed first by the nurses, and only transferred to Dr. Spagna if the nurses determined that there was a problem worthy of his attention.4
In his deposition, Dr. Spagna asserted that it was his understanding that Johnson‘s tendon “was not severed as much as it was injured,” and that “[n]o one ever mentioned severed meaning complete break.” J.A. at 273 (Spagna Dep.). He further noted that he had not seen the October 13, 1998, medical request form, the October 28, 1998, medical request form, or the social services call card. Dr. Spagna did not “have any independent recollection of actually doing a full scale exam on [Johnson],” J.A. at 274-75 (Spagna Dep.), but on the basis of documents in Johnson‘s records Dr. Spagna admitted that he “must have seen him” on October 16, 2004. J.A. at 282-84 (Spagna Dep.). When asked about an order, apparently dated October 23, 1998, ordering that Johnson‘s sutures not be removed until after Johnson had seen a certain plastic surgeon,5 Dr. Spagna explained that he “didn‘t want to guess” whether the sutures might actually have been holding Johnson‘s tendons together. J.A. at 286 (Spagna Dep.). Dr. Spagna also stated the he had an informal “curbside consult[],” J.A. at 292, with an orthopedist, Dr. Won Song,
Johnson was discharged from the facility on November 5, 1998. He immediately sought surgery, but the initial operation was unsuccessful. A second surgery was successful in reconnecting the tendons, but this did not restore Johnson to anything near full use of his right hand. Johnson, who was thirty-two years old on the date of his deposition, can no longer make a fist. He has full use of his thumb, but his use of each of the four fingers on his right hand is severely impaired. He can no longer write normally with his right hand, which was his dominant hand prior to these events. He could type prior to his injury, but he can now only “peck” with the injured hand. Although once very athletic, he can no longer lift weights or participate in sports.
II. ANALYSIS
A. Jurisdiction and Standard of Review
As Johnson sued under
B. Dr. Spagna
1. Element One: Deprivation of a Federal Right
a. The Right to Adequate Medical Care in Prison
Johnson alleges the violation of one federal right: the constitutional right to adequate medical care during pretrial confinement. The right to adequate medical care is guaranteed to convicted federal prisoners by the Cruel and Unusual Punishment Clause of the Eighth Amendment, and is made applicable to convicted state prisoners and to pretrial detainees (both federal and state) by the Due Process Clause of the Fourteenth Amendment. See Estelle v. Gamble, 429 U.S. 97, 101-02, 104-05 (1976); DeShaney v. Winnebago County Dep‘t of Soc. Servs., 489 U.S. 189, 198 (1989); Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003); see also Bell v. Wolfish, 441 U.S. 520, 545 (1979) (“Afortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted
b. Components of an Adequate Medical Care Claim
A claim for the deprivation of adequate medical care “has two components, one objective and one subjective.” Id. “To satisfy the objective component, the plaintiff must allege that the medical need at issue is ‘sufficiently serious.‘” Id. at 702-03 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (emphasis added). “To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.” Id. at 703 (emphasis added).
(i) Objective Component: Sufficiently Serious Medical Need
“Where the seriousness of a prisoner‘s need[] for medical care is obvious even to a lay person,” this obviousness is itself sufficient to satisfy the objective component of the adequate medical care test. Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004). However, if the need involves “minor maladies or nonobvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate must “place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment.” Napier v. Madison County, Kentucky, 238 F.3d 739, 742 (6th Cir. 2001). We conclude that Johnson‘s need qualifies as serious under either requirement.
First, Johnson‘s medical need is quite obvious. His medical request forms stated that his tendons were completely severed—a condition that almost any lay person would realize to be serious. The bandages on his arm and his explanation of how the injury occurred were not inconsistent with this statement. Accordingly, his medical need qualifies as obvious under Blackmore.
Second, Johnson attached an affidavit from Elizabeth B. Lottes, D.O., to his memorandum opposing the summary judgment motion. In her affidavit, Dr. Lottes, who treated Johnson during his emergency room visit, stated that she had “diagnosed Mr. Johnson‘s injury as a laceration of the interior aspect of his right wrist, including laceration to the first, second, and third extensor tendons.” J.A. at 333. She further stated “[t]hat it is common medical knowledge, which should be known to every medical practitioner, that severed tendons must be repaired in a timely manner,
(ii) Subjective Component: Knowledge and Disregard
To satisfy the subjective component of the adequate medical care test, an inmate must demonstrate that the official in question “subjectively perceived a risk of harm and then disregarded it.” Comstock, 273 F.3d at 703. This is the deliberate indifference standard. See Farmer, 511 U.S. at 837. We have explained that “[t]he requirement that the official have subjectively perceived a risk of harm and then disregarded it is meant to prevent the constitutionalization of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment.” Comstock, 273 F.3d at 703. Accordingly, “[w]hen a prison doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner‘s needs, but merely a degree of incompetence which does not rise to the level of a constitutional violation.” Id.
However, it is not necessary for a plaintiff to “show that the official acted ‘for the very purpose of causing harm or with knowledge that harm will result.‘” Id. (quoting Farmer, 511 U.S. at 835). Put simply, “deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id. (quoting Farmer, 511 U.S. at 836).
Although the burden to prove subjective knowledge is “onerous,” it “is subject to proof by ‘the usual ways.‘” Id. (quoting Farmer, 511 U.S. at 842). It is “permissible for reviewing courts to infer from circumstantial evidence that a prison official had the requisite knowledge.” Id. The subjective knowledge standard does not allow “a prison official [to] ‘escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.‘” Id. (quoting Farmer, 511 U.S. at 843 n. 8).
In this case, Johnson has demonstrated a genuine issue of material fact as to both aspects of the subjective component of the adequate medical care test. First, in regard to actual knowledge, the medical request forms Johnson filled out stating that his tendons were severed, together with Dr. Spagna‘s testimony about the circumstances under which information on the medical status of inmates would be conveyed to him, were sufficient to establish a genuine issue of material fact as to
Several factual observations lend support to such a finding. Dr. Spagna admits that he saw Johnson at least once, on October 16—just three days after Johnson submitted a form noting that he had severed tendons. Dr. Spagna then issued a written order in the case on the same day that Johnson submitted a social services call card—an event which at least suggests that Dr. Spagna might have been made aware of the contents of the social services call card. Finally, Johnson filed yet another medical request form on October 28—twelve days after Dr. Spagna initially saw him, and five days after the social services call card. Based on Dr. Spagna‘s testimony about the way medical forms were processed,10 a reasonable jury could conclude that Dr. Spagna was not being truthful or accurate when he stated that he had not seen the medical request forms and did not know that Johnson‘s tendons were in fact severed. Accordingly, the district court erred when it concluded that “no evidence suggests that Dr. Spagna knew that Mr. Johnson‘s tendons were completely severed.” J.A. at 24 (Dist. Ct. Op.).11
Second, as to disregard of that risk, the combination of the Lottes Affidavit‘s statement about the risks inherent in delayed tendon surgery; Dr. Spagna‘s failure to schedule Johnson for prompt surgery; Dr. Song‘s inability to remember speaking with Dr. Spagna in regard to Johnson‘s injury; Johnson‘s testimony about his problems in receiving treatment; and Johnson‘s medical request forms very explicitly stating his need for prompt surgery is sufficient to demonstrate a genuine issue of material fact as to whether Dr. Spagna disregarded that risk.
2. Element Two: Action Under Color of State Law
The Supreme Court has explicitly held that
3. Conclusion as to Dr. Spagna
Johnson has established a genuine issue of material fact as to whether Dr. Spagna deprived him of a constitutional right, and Dr. Spagna acted under color of state law. Accordingly, we must reverse the district court‘s grant of summary judgment in favor of Dr. Spagna.12
1. Amenability of Each Entity to Suit
A suit against Sheriff Karnes in his official capacity13 is permissible under
2. Policy or Custom
It is clear that “a municipality cannot be held liable [under
Johnson has not introduced sufficient evidence to demonstrate a genuine issue of material fact as to whether his injury was the result of an actual policy or custom, either of the County Defendants or EMSA. Accordingly, we must affirm the district court‘s decision granting summary judgment in favor of these defendants.
III. CONCLUSION
The district court‘s decision to grant summary judgment in favor of Sheriff Karnes, the Franklin County Commissioners, and EMSA is AFFIRMED; its decision to grant summary judgment in favor of Dr. Spagna is REVERSED, and the case is REMANDED to the district court for further proceedings not inconsistent with this opinion.
GIBBONS, Circuit Judge, dissenting in part.
I agree with that part of the majority‘s decision affirming the district court‘s decision to grant summary judgment in favor of Sheriff Karnes, the Franklin County Commissioners, and EMSA. I also agree that Johnson has satisfied the objective component of the test governing his claim
The majority states that “the medical request forms Johnson filled out stating that his tendons were severed, together with Dr. Spagna‘s testimony about the circumstances under which information on the medical status of inmates would be conveyed to him, were sufficient to establish a genuine issue of material fact as to Dr. Spagna‘s knowledge of Johnson‘s fully severed tendons.” This is incorrect. The mere fact that Spagna described “the circumstances under which information on the medical status of inmates would be conveyed to him” does not at all bear on the issue of whether Spagna actually knew of any risk to Johnson‘s health. After all, Spagna testified that he would not see these forms unless nursing personnel passed them along to him. There is no evidence indicating that nursing personnel had in fact passed Johnson‘s forms along to Spagna. Spagna testified that he had not seen them. Without any basis in the record, the majority explicitly suggests that Spagna was lying. Even if Johnson‘s forms conveyed “obvious urgency,” this urgency would not by itself mean that a jury could reasonably infer that Spagna knew of Johnson‘s injury, contrary to the majority‘s intimations. In fact, the evidence indicates that Spagna was responsive to Johnson‘s medical needs, as Spagna saw them. He arranged to make an appointment for Johnson with a plastic surgeon per the after-care instructions given by the hospital that had originally seen Johnson. He also testified that he consulted with an orthopedist when Johnson‘s appointment was delayed to ensure that the time frame for Johnson‘s treatment was acceptable.
The majority cites no relevant evidence to support its suggestion that there was a genuine issue of material fact as to whether Spagna knew of and disregarded the risk in delaying Johnson‘s medical care. For example, the majority points out that Dr. Song was unable to remember whether he spoke with Spagna about Johnson, but it does not explain how this is a basis for finding that Spagna knew of and disregarded a risk of serious harm to Johnson. Likewise, the fact that Lottes described the risks inherent in delayed tendon surgery in her affidavit says nothing about whether Spagna knew of and recklessly disregarded a substantial risk of serious harm to Johnson.
The majority recognizes that a “plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment.” Id. at 703. Even though Johnson makes no such showing, the majority nonetheless finds that Johnson met his burden. “When a prison doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner‘s needs, but merely a degree of incompetence which does not rise to the level of a constitutional violation.” Id. Spagna may or may not have performed negligently or incompetently, but no reasonable juror could find that he violated Johnson‘s constitutional rights, at least not on the evidence produced in connection with the summary judgment motion. In sum, the district court was correct in its
For these reasons, the facts of this case do not support the majority‘s determination that Johnson presented evidence sufficient to demonstrate that Spagna “subjectively perceived a risk of harm and then disregarded it.” Id. While I agree with the majority that the district court did not err in granting summary judgment to Sheriff Karnes, the Franklin County Commissioners, and EMSA, I would also affirm the district court‘s judgment with respect to Spagna.