1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0350P (6th C ir.) File Name: 03a03 50p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
A LFRED R. S CIC LUNA ,

Plaintiff-Appellee,

v.

H ARRY G. W ELLS et al., Defenda nts-Appe llants. X - - - -
> , - - N No. 02-2117

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-70376—Avern Cohn, Senior District Judge.

Argued: September 12, 2003
Decided and Filed: October 2, 2003

Befor e: MERRITT, MOORE , and GI LMAN , Circuit Judges.

_________________ COUNSEL

ARGUED: John L. Thurber, OFFICE OF THE ATTORNEY GEN ER AL, Lans ing, Michigan, for Appe lla n ts. Nedra D. Campbell, LAW OFFI CE OF NEDRA D. CAM PBE LL, Southfield, Michigan, for Appellee. ON BRI EF: Jo hn L. Thurber, OFF ICE O F TH E AT TOR NEY GEN ER AL, Lansing, Michiga

n, for Ap

pellants . Ned ra D. Cam pbell, 2 Scicluna v. W ells et al. No. 02-2117

LAW OFFICE OF NEDRA D. CAM PBE LL , S outhfield, Michigan, for Appellee.

_________________ OPINION

_________________ RON ALD LEE GI

LMAN, Circuit Judge. Alfred Scicluna,
a Michigan prisoner, brought suit against two physicians and
a corr ections office

r for the allege d violation

of his rig

hts unde rthe Eighth Amendment to the United States Constitution. Dr. Paul Har vey, Dr. Richard Huff, and Corrections Officer Fe lix Carrizales filed separate motions for summary judgmen t base d upon the doctrine of qualified im mu ni ty. The d efen dants now appeal the district court’s denial of their motions, arguing that the record p rovides no basis for Scicluna’s al lega tions that t hey were de liberate ly indifferent

to his serious medical and security ne eds. For the
reasons set forth below, we AFFIR M th e judgment of the district c ourt.
I. BACKGROUND

A. Factual backgr ound
Scicluna suffer ed a fra ctured skull as t

he res ult of an unprovoked

attack on April 20, 1992 that was orchestrated by Eugene O’Sulliva

n, Scicluna’s code fendant i n th e criminal trial that r esulted in their imprisonment. At the time of the attack, Scicluna and O’Sullivan were both inmates at the Muskegon

Correct ional Fa cility (MCF) in

M uskegon, Michigan. Scicluna

contends t ha t Carrizales, his Resident Unit Manager an d counse lor at MCF , demonstr ated del iberate indifference by taking no a ctionto transfer either Scicluna or O’Sullivanto a d if

fe re nt fa ci li ty, even

though Carrizales had been told by Scicluna that

the tw o inmates had a hosti le relation ship and that keeping them toget her at MCF was in violation of Michig an Depa rtme n t of Corre ctions (MD OC)No. 02-2117 Scicluna v. W ells et al. 3

regulations concerning “known confl ict situa tions. ” Carrizale s, on the other hand, argues that he was unaware of any conflic t betwee

n Sciclu na and O’Sullivan and therefore could not ha ve de monstrated deliberate indifference to the safety of Scicluna by fa

iling to address the conflict situation. Following the attack, Scicluna was brough t to a commu

nity hospital i n Muskegon for emergenc y neurosurg ery. He

was treated by a civilian phy

sician, who removed

a portion of his skull and re comme nded c onti nued t reatm ent, i nclud ing a crainio plast y t o replace the removed portion. Rather than auth orize further sur ge ry, Huff, MCF’s Medical Director, recalled Scicluna from the community hospital. Huff examined Scicluna on April 27, 1992, after which Huff prescribed

the anti-seizure drug Dilantin. Following a second examination on May 5, 1992, Huff tran sferre d Scicluna to KinrossCorrectional Facility (KCF) in Kincheole, Michigan for a neuros urgica l consulta tion. Be cause K

CF did nothave the facilitie s needed

to treat Sc icluna, he was tra nsferr ed to the G. Robert Cotton Correction Facility (JCF) in J ack son, Michigan on th e f ol lo wi ng da y. Scicluna

contends that Huff demonstrated

deliber ate i ndifference to his serious medical needs by transfer

ring him to a facility

that Huff knew was not
e qu ipped to treat him. In response, Huff a rgues that he believed that KCF was equipped to treat Sciclu na and that none of his actions constituted deliberate indifference.

Scicluna arrived at JCF on May 6, 1 992, with paperwork calling for an im mediate neursurgical consultation. But he
wa s no t e xa mi ne d b y Ha rv ey u nt il Ma y 26 , 1 99 2. Ha rv ey, after determining that Scic luna’s le vel of Dil antin was

toxic and that his sku

ll was re cently

fractu red, low ered his

Dilantin levels and arranged to have Scicluna transferred to the Earnest C. Brooks Correctional Fac ili ty ( LRF) in Muskegon, Michigan for a neurosurg ical consultation. Scicluna arrived at LRF, which isin the same complex as MCF, on August 5, 1992, and was again placed under the care of Huff. 4 Scicluna v. W ells et al. No. 02-2117

Scicluna ar gu es th at Ha rv ey d e monstrate d deliber ate indiff erence to hi s seri ous m edical needs by failin g t o examine him until 20 d ay s after he arriv ed at JCF, d espite pape rs cal ling for an “immediate neuro consult.” Harve y contend s that the record provides no basis for finding deliber ate indiffer

ence on his part because Scicluana offere d
no evidence that Harvey

even knew tha t Scicluna was at JCF prior to May 26, 1992.

B. Proc edural bac kground

Sciclun a fi led suit pursuant to 42 U.S.C. § 1983, “which provides for a private right of action ag ainst any person who, under color of state law, v iolat es another person’s federal rights.” Hardin v. Straub , 954 F.2d 11 93, 1 198 (6th Cir. 1992). Harvey , Huff, and Carrizales filed separate m otions for summary judgme

nt based upon the doctrine of qualified im mu ni ty. The district court denied the motions on the basis that Scicluna has rais ed gen

uin e issues of material fact that could not be re solved on s

ummary ju d gment. T

his timely appeal followed.

II. ANALY SIS

A. Standard of review

This court reviews the d enial of qualified immunity in an actionbrought under 42 U.S.C. § 1983 de novo. Klein v. Long , 2 75 F.3d 544, 550 (6th Cir. 2001). “[F]or a n interlocutory

appe al t o be appropriate, a defendant see king qualified immunity must be willing to concede to the facts as alleged by the plaintiff

and discu ss only the leg al issues raised by the case .” Sheheev. Luttrel l , 199 F.3d 295, 299 (6th Cir. 1999). We willtherefore accept Scicluna’s a llegations as true for purposes of this interlocutory a pp eal a nd view a

ll facts and reasona ble infe rences in the lig ht most favora ble to him.No. 02-2117 Scicluna v. W ells et al. 5

B. Doctrine of qualified immunity

The doctrine of qualified immunity shiel ds fr om liability for civil damages those off

icials whose “conduct does not violate clearly e stablished

statutory or constitutional rights of which a rea sonable person would have known.” Harlow v. Fitzgeral d
, 457 U.S. 800, 818 (1982). We ev alua te a defendant’s claim of qu ali fied immunity by determining whether (1) a constitutiona

l v iol ation occurred, (2) the right violated was cl e arly established, a nd (3) “the plaintiff has alleged suff icien t facts, and supported the allegations by sufficient evidence, to indicate that what the official allege dly did was obje ctively

unreasonable in l ight of t he clea rly established

constitutional rights.” Will iams v . Mehra , 186 F.3d 685, 691 (6th Cir. 1999) (en banc).

Scicluna contends that the d

efenda nts violate d a clea

rly established

constitutional right when they showed de liberate indif ferenc e to his serious medical and safety needs. Such conduct is prohibited by the Cruel and Unusu al Punishment Clauseof the Eighth Amendment. Estelle v . Gamble , 429 U.S. 97, 104 (1976). To show that he was subjected to such delib erate indiffer ence, Sc icluna ne ed not prove that t h e defenda nts had the “express intent to inflict unnecessary pain,” but only that the ir con duct demonstrated a level of “obd uracy and wantonne ss” grea ter than simple “inadvertence
or error in good faith . . . .” Whitl ey v. Alb ers , 475 U.S. 312, 319 (1986).

C. Carrizales’s motion

Scicluna testified in his deposition that he told Carrizales of the conflict situation with O’Sullivan and of the relevan t MDOC regulations. Carrizales, however, claims that the record fails to support a finding of deliberate indi fference because there is no documentary evidence supporting Scicluna’s deposition testimony. But documentary evidence is not essen

tial to overcome a motion for summary judgmen t. Other sources of evidence, such asdeposition testimony, may 6 Scicluna v. W ells et al. No. 02-2117

suffice. See Fed. R. Ci

v. P. 56(C)(stating

that the “ pleading s, depositions, answers to interrogator ies , and admissions on fi le, togethe

r with the

affida vits” are consider

ed in determiningwh et her there is a genuine issue as to any material fact). Viewi ng t h e eviden ce in the light most favora ble to Scicluna establishes that Carrizales was told that O’Sullivanpresented a

serious threat to the safety of Scicluna, and that, in kn owing d isrega rd of MDO C regul ations, Carrizales took

no act ion to segregate the two inmates eve n thou gh he was conscious of the risk that his failure to a c t imposed upon Scicluna.

Car rizales argues, alternatively, that no reasonab l e government

official in 1992 could have knownthat fail ure to follow up on general information pertaining to a ninmat ehousing conflict situationwoul d expose the officia l to li ab il it y. But Carr

iz ales, a ccording to Scicluna, had before him far more

than ge neral in formati on concerning the conflic t. Both Scicluna and his sister had allegedly informed Carrizales that

O’Sullivan posed a specific threat to Scicluna. Inaddi tion, MDOC had issued directives requiring the segregation

of form er codefendants, such as Scicluna and O’Sulliv an, because of the risk of assault, and had war ned officia ls that they

could be f

ound per sonally

lia bl e for not following MDOC pol icy. Scicluna , conseq uently, “was a member of an i dentifia

ble gro up of pris oners for whom risk of assault was a serious problem . . . .” Marsh v. A rn , 937 F.2d 1056, 1062 (6th Cir. 1991) (co ntrasti ng the p laintiff in Marsh , who was

not a member of an identifiable risk group, with the plaintiff in Walsh v. Mellas , 837 F.2d 789 (7 th Cir

. 1988), who was a member of such an identifiable g roup).

“If the law w as clea

rly established, the immunity defense ordinar ily should fail, since a reasonabl y compete nt public official should know the l aw g overning his conduct.” Harlow
, 457 U.S. at 818 -19. A constitutiona l right is clearly established

where “a reasonable off ici a l would understand t hat whathe is doing violates that right.” Anderson v. Creighton
, 483 U.S. 635, 640 (1987). Inlight of these legalNo. 02-2117 Scicluna v. W ells et al. 7

principles and the facts as asserted by Sc icluna, the district court did not er r in denying Carrizales’s motion for summary judgment on qualified immunity g rounds.

D. Huff’s motion

Huff argues in his brief that he believed that Sci cluna would receive all necessary

medical t reatmen t at KCF when he transferred Scicluna

there in May of 1992. But he offered
no af fidav it in support of this assertion. Scicluna, on the other hand, testified under oath that Huff kne

w that KCF officia ls would be unable to treat his condition. Viewing all
reasona ble inferences in the light most favorable to Scicluna
as the nonmovan

t, a gen uine issue of mater ial fact exists as to whether Huff knew that he was tran sferring Scicluna to a fa ci li ty t ha t w as un ab le to tr ea t h is in ju ry.
Huff argue s, altern

atively , that eve

n if his d ecisio n to transfer Scicluna to KCF constitute d deliber ate indifference, the constitutional right violated was not clearly e stablished by 1992. But “a right can

be clea rly established even

if there is
no cas e involvin

g ‘fund amentall y si milar’ or ‘materi ally similar’ facts” if the premise of a prior c ase alerts of

ficials t o the “clear applicability

” of the legal

principle to “a subsequent set of fa cts.” Fea thers v. Aey , 319 F.3d 843, 850 (6th Cir. 2003 ) (quot ing Hope v. Pelzer , 536 U.S. 730, 741, 743 (2002)). Deliberate indifference to a prisone r’s seri ous medical condition was known to be a violation o f the Eig

hth Amendment’s right to be free from cruel a nd unusual punishmentlong before 199 2

. See Este lle v. Gam ble , 429 U.S. 97, 104 (1976) (holding that “deliberate indiffere nce to serious medical needs of prisoners” is “p ro scribed by the Eighth Amendmen

t” ) . Transferring a prisoner in nee d of urgent medical a ttention to

a facili ty that the of

ficial kn ows is unable to provide the requ

ired tre atment is c onduct tha t would alert a reasonable person to the likelihood o f pe rsonal li ab il it y. See Fitzk

e v. Shappell, 468 F.2d

1072, 1076

(6th Cir. 1972) (“[W]here the circumstances areclearly suf ficient to indicate the need

of medic al attent

ion for in jury or illness
, 8 Scicluna v. W ells et al. No. 02-2117

the denial o f such aid constitutes the deprivation of constitutional due process.”). Based upon the present record, th e district court did not err in denying Huff’s motion fo r summary judgme

nt on qualified immunity grounds. E. Harvey’s motion Harvey claims that the record does not support a finding of his deliberate indifference bec ause there is no evidence that he was even aware that

Scicluna was at JCF between May 6 and May 26 of 1992. I

n the absence of an explanation for the de la y, however, a reasonable infere nce arises that Harvey purposef ully ignored the emergenc y-trea tment re por t specifying

that Scicluna require d a n “immediate neuro consult.” Viewing the fa c ts and dra wing al l reasonable inferences in the lig

ht most favorable

to Scicluna, a

genuine issue of mater

ial fact exists as towh ether Harvey ’s threeweek delay

constituted deliberate indifference. Harvey argue s, alterna

tively , that eve

n if his failure to treat Scicluna at JCF constituted deliberate indifference, the consti t utional right violated was not clearly established by 1992. Before 1992, however, the Supreme Court had established

in Estelle that deli

berat e indifference to a prisoner’s serious medical condition constitutes a violation of the Eighth Amendment. 429 U.S. at 104. Knowingly waiting three weeks to examine a prison er re ferred to one’s care for urgent attention is conduct

that a re asonable

prison of ficial in 1992 should have known would subject him to personal li ab il it y. Based upon

the present

record , the distr

ict cour t did noterr in deny

ing Harvey ’s motion for summary judgme nt on qualified immunity grounds.

III. CONCL USION

Fo r all of the reasons set forth above, we AFFIRM th e judgment of the district court that de niedthe defe ndants’ motions for

summary judgmen t.