*1 territory, reluctant and that leave remained in may
some Ohio for a majority of the
time after the Tribe left (ROA 456-57; 459; pp. Vol.
the area.
464-65.) also There is evidence that the
remaining members continued to Tribe (ROA by treaty.
hunt on land ceded Vol. 465.) none p. But of this evidence upon fishing rights,
touches Tribe’s nor the. any effort
does the Tribe make to make a
connection this between evidence and the understanding
Tribe’s of their usufructu- Further,
ary rights. none of expert
evidence examines the Tribe’s understand-
ing fishing rights of the Tribe’s in relation occupy
to the their right to the ceded land. evidence,
Given this dearth it is impossi- parse right
ble to the Tribe’s to occupancy usufructuary rights,
from their or to raise genuine of material issue fact on the Thus, believe,
issue. on the record be- us,
fore we are bound Williams. SCOTT, Plaintiff-Appellant,
James M.D., AMBANI, Faghih-
Nitin Ardeshir
nia, M.D., Molly Sullivan, M.D., Aud- M.D., Antonini, Defendants-Ap-
berto
pellees. 08-1671.
No.
United Court of Appeals, States Circuit.
Sixth March
Submitted: Aug.
Decided and Filed: *3 Subhi,
ON BRIEF: B. Loretta Hack- ney Bean, PLC, Grover Hoover & East Lansing, Michigan, Chapman, Ronald W. Koester, Kimberly A. Chapman and Asso- ciates, P.C., Hill, Michigan, Bloomfield Kraus, Foster, Swift, Richard C. Collins & Smith, P.C., Lansing, Michigan, Appel- Scott, Louis, lees. James Charles St. Michigan, pro se. COOK, SILER,
Before: McKEAGUE, Judges. Circuit SILER, J., opinion delivered the court, COOK, J., joined. in which McKEAGUE, 649-50), (pp. J. delivered a separate opinion concurring in part and dissenting part.
OPINION SILER, Judge. Circuit Scott, prisoner James serving who is sentence, defendants, life alleges all of physicians, them were deliberately indifferent to his medical needs in connec- tion with prostate his treatment can- cer. filed Defendants motions to dismiss pursuant to Rule and motions for summary judgment. The district court dismissed Scott’s claims all defen- affirm dants. We the district judg- court’s Ambani, ment as Faghihnia, to Drs. Sullivan, judgment vacate the as to Dr. Antonini, proceed- and remand for further ings. would not receive radiation AND PROCEDURAL
FACTUAL alleges vesicle. that ad- BACKGROUND his seminal cancer testing showed ditional informed Scott was March that, prostate but nonethe- confined pros- had an elevated that he Dr. Ambani less, exposed to his seminal vesicle was (PSA), indicating a antigen tate-specific radiation treatment. cancer. Ambani prostate possibility not find biopsy but did performed complete treatment was Once Scott’s recommended that cancer. An- he was referred to Dr. August regular physician up with his Scott follow his health for side effects tonini to monitor year. one approximately *4 2006, February In from the radiation. pursue to addi- that Dr. Ambani refused reported to Dr. Antonini that he was Scott cancer. He also testing prostate tional developed in and had a hard great pain comply Dr. Ambani failed to alleges that lump. Dr. Antonini denied testicular of Corrections Michigan Department refer him back to Dr. request to Scott’s (MDOC) him to requiring directives policy prescribe pain and also refused to Sullivan care clinic” and to in a “chronic place Scott Instead, medication. Dr. Antonini re- As a therapeutic on a diet. place him him to another doctor for a colonos- ferred result, that he suffered dis- claims Scott copy. dy- he could “thinking that tress from delay a experienced from cancer” ing 2006, a May In Scott saw nurse because con- for his receiving proper in eyelid a on his and was still in lump he had pre- also refused to Dr. Ambani dition. pain lump. from his testicular The great to treat Scott’s low- pain medication scribe problems to nurse communicated Scott’s pain. er back Antonini, but he said that he did not facility to another was transferred pain time to examine Scott. His Faghihnia the care of Dr. and came under dissipated. eventually February 2002 until from October 2006, a colo- In June Scott underwent Faghihnia was deliber- alleges that Dr. He colonoscopy indicated that noscopy. The medical needs ately to his indifferent of radio- screening previous pain in his was the result him annual health denying an 2002, refusing requests for additional effects from cancer treatment. logical side denying 2006, him lab work testing, cancer August In Dr. Antonini examined screening. 2003 an ul- lump testicular and ordered Scott’s trasound. The ultrasound indicated screening October 2004 annual Scott’s cyst a that had burst. lump was PSA level. He also revealed an elevated upper thigh in his complained January complaint Scott filed his result, he was referred lower back. As in their The defendants are named In biopsy. Dr. Ambani for second back to and, capacities and official individual performed the January Sullivan, of Dr. were em- exception prostate cancer. biopsy which revealed by or under contract with MDOC. ployed Sullivan, then referred to was employed the Univer- Sullivan oncologist, for treatment. radiation Michigan. sity of that for to Dr. Sullivan indicated granted Faghih- Drs. The district reasons, to under- he did not wish religious dismiss, to Antonini’s motion nia and might affect his go any treatment which summary judgment, motion for Sullivan’s him if told fertility. Dr. Sullivan to dismiss. and Dr. Ambani’s motion only prostate, in the he was located cancer (6th Cir.2005). plaintiff OF REVIEW “A STANDARD has reason injury to know of his when he should have novo This court uses a de standard it through the rea- discovered exercise of reviewing a district court’s dismissal when diligence.” Turner, sonable Sevier v. either complaint pursuant of a Rule (6th Cir.1984). 262, 273 F.2d 56(c) or Federal Rules Rule Kottmyer v. of Civil Procedure. See district court con correctly (6th
Maas, Cir.2006); cluded that Scott’s claim Am- Streicher, F.3d Ciminillo Cir.2006). bani accrued un and is therefore timely. In Dr. Ambani refused reviewing a dismissal under requests testing further cancer 12(b)(6), allegations Rule all com therapeutic and for According treatment. true, and plaint should be taken as complaint, it was this denial which liberally is to be construed to experience caused Scott mental party the motion opposing favor emotional distress regarding the uncer Lucas, dismiss. Westlake v. F.2d tainty diagnosis. of his This mental and *5 (6th Cir.1976); Elliot 858 Davis H. Co. v. emotional distress forms the of basis Co., Ltd,., F.2d Caribbean Utils. 513 against Ambani, Scott’s claim and (6th Cir.1975). of 1182 “Dismissals com very Scott was aware of this distress at or plaints rights under the civil statutes are near the time which Dr. Ambani refused Westlake, with special scrutinized care.” requests. Similarly, Scott’s Dr. Ambani’s F.2d at 858. 537 alleged to comply prison pro failure DISCUSSION requiring cedures Scott placed to be program chronic care due to his elevated Dr. Ambani A. reasonably PSA level should have been dismissing In Scott’s deliberate indiffer- known to Scott or near the time of the Ambani, against claim ence the district Schickel, denial. See Hermansen v. 202 concluded that the claim arose in (6th Cir.1999) F.3d 268 that (concluding was, therefore, untimely. Scott prisoner’s cause of action for deliberate challenge does not the conclusion that indifference accrued on the date that he whatever events in 2002 occurred are care, was denied medical though even by limitations. barred the statute of In- full injury extent his was not known stead, he challenges the district court’s later). until conclusion that the complaint con- an allegation tain Ambani that Dr. denied that argues Scott the district court erred pain Scott medication in 2005. when it that complaint concluded failed allege to that Dr. Ambani denied Scott parties
Both that agree pain medication in argument 2005. His subject three-year claims are to a statute without In merit. the section of com- of limitations. Comp. See Mich. Laws “Facts,” plaint entitled Scott lays out the 600.5801(10); § Perry, 412 v. F.3d Wolfe surrounding events his Cir.2005) encounter with 713-14 (applying Michi Ambani in March 2002. that alleges Scott gan’s three-year statute of limitations to a (1) claim). requests § Dr. Ambani denied his In brought actions under (2) § cancer testing, additional to begins statute of limitations refused to (3) in a plaintiff place run when the Scott chronic care program, knows or has reason injury to know of the request placed that is basis of denied Scott’s to be aon Burks, (4) Kelly diet, the action. therapeutic pre- refused to untimely. process lower trative because it was medication for Scott’s pain scribe griev- that thigh pain. contends the denial his upper back and Scott improper it was ance was because filed also Janu- complaint states The he medical records. soon after received his performed a second ary Dr. Ambani referred February biopsy Prison Reform Act Litigation Under the No- for treatment. Scott to Dr. Sullivan (PLRA), prison litigation brought of 1995 biop- second in the discussion of the where § may only under U.S.C. sy of the referral does in the discussion or brought prisoner after a has exhausted medi- requesting pain either Scott mention available administrative remedies. See refused medication being pain or cation 1997e(a) (“[n]o § action shall be U.S.C. in 2005. respect brought prison conditions title, or titled, under section of this the section law, by ... Action, prisoner Federal until I,” makes other Count “Cause of avail- such administrative remedies as are indifference claim deliberate exhausted”). Dr. Amba- able are Dr. Ambani. deliberately ni to Scott’s indifferent “Proper demands com exhaustion by denying requests needs medical with an and oth pliance agency’s deadlines refusing to testing cancer additional procedural critical no ad er rules because prescribe pain medication for Scott’s lower system effectively judicative can function thigh pain. only alle- upper back and imposing orderly without some structure gation regarding Dr. Amba- made the course of its proceedings.” on Wood medication prescribe ni’s refusal *6 90-91, Ngo, v. 548 U.S. 126 S.Ct. ford refusal in March alleges that the occurred (2006). 2378, 165 L.Ed.2d In Wood- Therefore, deliberate indif- 2002. Scott’s Supreme ford, pris the Court held that a claim, upon insofar as it is based ference § 1983 action oner’s must dismissed prescribe Dr. Ambani’s refusal to failure exhaust to administrative remedies
medication, refus- referring must be to the grievance the de underlying where was allegedly al occurred in March 2002. which untimely the though as even claim nied claim against Since Scott’s applica not have been the would barred 2002, it should have been accrued of ble statute limitations. Woodford brought by comply order to satisfy a prisoner that cannot makes clear three-year the statute of limitations. Scott fil requirement by PLRA exhaustion the Therefore, the 2007. the filed untimely ing procedurally an or otherwise untimely. claim is grievance. Id. at defective administrative 83, 126 S.Ct. B. Faghihnia Dr. Here, grievance against Scott’s granted The district court rejected Faghihnia untimely during as motion to on the basis Faghihnia’s dismiss Therefore, process. un- the administrative to
that failed exhaust his administra Scott Woodford, he exhaust der failed to grievance Scott a tive remedies. filed administrative remedies. Faghihnia contending that Dr. the Amendment Faghihnia Eighth violated Dr. Antonini C. health failing give to Scott an annual appeals the district court’s screening from 2002 to Feb care October dismissal of deliberate indifference grievance ruary 2004. He did not file his against Dr. Antonini under grievance against Dr. claim Rule until 2006. The Pro- adminis- of the Federal Rules of Civil Faghihnia during was denied the Nevertheless, that An- painful. The district concluded hard and cedure. claims were not time-barred provide these tonini not did Scott with medi- However, it properly were exhausted. pain. cation to treat the In May Dr. Antonini’s motion to dismiss granted reported when to the that the nurse allegations that on the basis lump causing him pain, was still severe indifference. rise to the level of deliberate Antonini said he did not to have time was erroneous. Dismissal lump, examine the and he did not do so August until prisoner adequately
A
has
a
he
stated
cause of action “when
severity
Given the
of Scott’s
med-
prior
prison authorities
denied reason
condition,
ical
a
provide pain
refusal
to
requests for medical treatment
able
and to
medication
examine his testicular
of an
need for such attention
face
obvious
lump for three months could
trier
lead a
exposed
the inmate
to
thereby
where
is
of fact to conclude that prison officials ex-
suffering
tangible
or the
undue
threat
posed
suffering
“undue
or the
Westlake,
injury.”
residual
537 F.2d at
tangible
injury.”
threat of
residual
See
inquiry
prison
860. The
into whether
Westlake,
(“Whether
F.2d at
860 n. 4
official acted with deliberate indifference
prisoner
has
unduly by
suffered
the fail-
objective
subjective
an
com
has both
ure to provide medical treatment
to be
is
ponent.
McCrary,
Comstock v.
determined
view of the totality of the
(6th Cir.2001).
693, 702
to satisfy
order
In making
circumstances.
this determi-
objective component,
prisoner
the
trier
nation the
should consider
of fact
show that the
must
medical need
“suffi
practicalities
including
the situation
ciently
(quoting
serious.”
Id.
702-03
injury,
pos-
extent
the realistic
Brennan,
825, 834,
Farmer
U.S.
treatment,
sibilities of
possible
and the
(1994)).
S.Ct.
S.Ct. 1970. alleges that Dr. vio Sullivan rights lated his constitutional by treating Construing light the vesicle against seminal re wishes most favorable to Scott accepting and all infertility. in sulting Dr. a Sullivan filed allegations true, factual as has suffi- summary judgment arguing motion for ciently stated a claim that Dr. Antonini that she not a was state actor there and knowledge had of Scott’s serious medical fore cannot be held liable under 42 U.S.C. and was deliberately needs indifferent to 1983, § alleged and the not facts do those needs. Scott as of Feb- 2006, support of ruary Dr. a claim deliberate Antonini aware that indifference. was had been recently pros- for district concluded that treated Dr. Sulli cancer, tate and had van a leg severe back and was not state actor and dismissed as lump well as a testicular that was the against claim her. We affirm. by any de have been of could treated the
The relevant standard
un
acted
termining
oncologists
whether
Sullivan
with medical
radiation
staff
law
on “the
of state
focuses
der color
just
privileges.
happened
Sullivan
State,
among
physi
the
the
relationship
physician
who provided
treatment.
Atkins,
v.
prisoner.” West
cian and the
such, Dr. Sullivan
not performing
As
was
42, 55-56,
108 S.Ct.
U.S.
as a state
in her
her duties
actor
treatment
(1988).
determining
wheth
L.Ed.2d
against
claim
of Scott
dismissal of the
law,
er a
acted under color of state
doctor
proper.
her was
func
is
physician’s
factor
“the
primary
in
AFFIRMED
in
part, VACATED
system,
pre
tion
the state
not the
within
pro-
and REMANDED
further
part,
at
employment.”
cise
of his
Id.
terms
claim
ceedings in
connection with
S.Ct.
only.
Dr. Antonini
employed by
was
the Uni-
Dr. Sullivan
public university,
a
as
Michigan,
of
versity
McKEAGUE,
Judge, concurring
Circuit
medical
oncologist.
a
held
radiation
She
part
dissenting
part.
Hospital
at W.A. Foote
privileges
staff
fully
affirming
I concur
the district
Jackson, Michigan. She had no contractu-
judgment
Drs.
court’s
as to
Ambani and
al
or
relationship
MDOC Correctional
Sullivan,
As to
Faghihnia.
would
Her
and treatment
Medical Services.
care
judgment on
other
affirm
a basis
than
including any prisoners
of
patients,
all
University Michigan
actor. The
state
of
required
at
may
which
have
treatment
university
public
and therefore
state
by
were
her
Hospital,
determined
Foote
Tarkanian,
actor. NCAA
488 U.S.
experience,
independent
training,
own
(1988).
192, 109 S.Ct.
F.2d n. As this sitting en explained banc