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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0350P (6th Cir.)

File Name: 03a0350p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ALFRED R. SCICLUNA,

Plaintiff-Appellee,

v.

HARRY G. WELLS et al.,

Defendants-Appellants.

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No. 02-2117

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-70376—Avern Cohn, Senior District Judge.

Argued: September 12, 2003

Decided and Filed: October 2, 2003 

Before: MERRITT, MOORE, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: John L. Thurber, OFFICE OFTHE ATTORNEY

GENERAL, Lansing, Michigan, for Appellants. Nedra D.

Campbell, LAW OFFICE OF NEDRA D. CAMPBELL,

Southfield, Michigan, for Appellee. ON BRIEF: John L.

Thurber, OFFICE OF THE ATTORNEY GENERAL,

Lansing, Michigan, for Appellants. Nedra D. Campbell,

2 Scicluna v. Wells et al. No. 02-2117

LAW OFFICE OF NEDRA D. CAMPBELL, Southfield,

Michigan, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Alfred Scicluna,

a Michigan prisoner, brought suit against two physicians and

a corrections officer for the alleged violation of his rights

under the Eighth Amendment to the United States

Constitution. Dr. Paul Harvey, Dr. Richard Huff, and

CorrectionsOfficerFelix Carrizales filed separate motions for

summary judgment based upon the doctrine of qualified

immunity. The defendants now appeal the district court’s

denial of their motions, arguing that the record provides no

basis for Scicluna’s allegations that they were deliberately

indifferent to his serious medical and security needs. For the

reasons set forth below, we AFFIRM the judgment of the

district court.

I. BACKGROUND

A. Factual background

Scicluna suffered a fractured skull as the result of an

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

Muskegon Correctional Facility (MCF) in Muskegon,

Michigan. Scicluna contends that Carrizales, his Resident

Unit Manager and counselor at MCF, demonstrated deliberate

indifference by taking no action to transfer either Scicluna or

O’Sullivan to a different facility, even though Carrizales had

been told by Scicluna that the two inmates had a hostile

relationship and that keeping them together at MCF was in

violation of Michigan Department of Corrections (MDOC)
No. 02-2117 Scicluna v. Wells et al. 3

regulations concerning “known conflict situations.”

Carrizales, on the other hand, argues that he was unaware of

any conflict between Scicluna and O’Sullivan and therefore

could not have demonstrated deliberate indifference to the

safety of Scicluna by failing to address the conflict situation.

Following the attack, Scicluna was brought to a community

hospital in Muskegon for emergency neurosurgery. He was

treated by a civilian physician, who removed a portion of his

skull and recommended continued treatment, including a

crainioplasty to replace the removed portion. Rather than

authorize further surgery, 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 transferred Scicluna to

Kinross Correctional Facility (KCF) in Kincheole, Michigan

for a neurosurgical consultation. Because KCF did not have

the facilities needed to treat Scicluna, he was transferred to

the G. Robert Cotton Correction Facility (JCF) in Jackson,

Michigan on the following day. Scicluna contends that Huff

demonstrated deliberate indifference to his serious medical

needs by transferring him to a facility that Huff knew was not

equipped to treat him. In response, Huff argues that he

believed that KCF was equipped to treat Scicluna and that

none of his actions constituted deliberate indifference.

Scicluna arrived at JCF on May 6, 1992, with paperwork

calling for an immediate neursurgical consultation. But he

was not examined by Harvey until May 26, 1992. Harvey,

after determining that Scicluna’s level of Dilantin was toxic

and that his skull was recently fractured, lowered his Dilantin

levels and arranged to have Scicluna transferred to the Earnest

C. Brooks Correctional Facility (LRF) in Muskegon,

Michigan for a neurosurgical consultation. Scicluna arrived

at LRF, which is in the same complex as MCF, on August 5,

1992, and was again placed under the care of Huff.

4 Scicluna v. Wells et al. No. 02-2117

Scicluna argues that Harvey demonstrated deliberate

indifference to his serious medical needs by failing to

examine him until 20 days after he arrived at JCF, despite

papers calling for an “immediate neuro consult.” Harvey

contends that the record provides no basis for finding

deliberate indifference on his part because Scicluana offered

no evidence that Harvey even knew that Scicluna was at JCF

prior to May 26, 1992.

B. Procedural background

Scicluna filed suit pursuant to 42 U.S.C. § 1983, “which

provides for a private right of action against any person who,

under color of state law, violates another person’s federal

rights.” Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir.

1992). Harvey, Huff, and Carrizales filed separate motions

for summary judgment based upon the doctrine of qualified

immunity. The district court denied the motions on the basis

that Scicluna has raised genuine issues of material fact that

could not be resolved on summary judgment. This timely

appeal followed.

II. ANALYSIS

A. Standard of review

This court reviews the denial of qualified immunity in an

action brought under 42 U.S.C. § 1983 de novo. Klein v.

Long, 275 F.3d 544, 550 (6th Cir. 2001). “[F]or an

interlocutory appeal to be appropriate, a defendant seeking

qualified immunity must be willing to concede to the facts as

alleged by the plaintiff and discuss only the legal issues raised

by the case.” Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.

1999). We will therefore accept Scicluna’s allegations as true

for purposes of this interlocutory appeal and view all facts

and reasonable inferences in the light most favorable to him.
No. 02-2117 Scicluna v. Wells et al. 5

B. Doctrine of qualified immunity

The doctrine of qualified immunity shields from liability

for civil damages those officials whose “conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). We evaluate a

defendant’s claim of qualified immunity by determining

whether (1) a constitutional violation occurred, (2) the right

violated was clearly established, and (3) “the plaintiff has

alleged sufficient facts, and supported the allegations by

sufficient evidence, to indicate that what the official allegedly

did was objectively unreasonable in light of the clearly

established constitutional rights.” Williams v. Mehra, 186

F.3d 685, 691 (6th Cir. 1999) (en banc).

Scicluna contends that the defendants violated a clearly

established constitutional right when they showed deliberate

indifference to his serious medical and safety needs. Such

conduct is prohibited by the Cruel and Unusual Punishment

Clause of the Eighth Amendment. Estelle v. Gamble, 429

U.S. 97, 104 (1976). To show that he was subjected to such

deliberate indifference, Scicluna need not prove that the

defendants had the “express intent to inflict unnecessary

pain,” but only that their conduct demonstrated a level of

“obduracyandwantonness” greater than simple “inadvertence

or error in good faith . . . .” Whitley v. Albers, 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 relevant

MDOC regulations. Carrizales, however, claims that the

record fails to support a finding of deliberate indifference

because there is no documentary evidence supporting

Scicluna’s deposition testimony. But documentary evidence

is not essential to overcome a motion for summary judgment.

Other sources of evidence, such as deposition testimony, may

6 Scicluna v. Wells et al. No. 02-2117

suffice. See Fed. R. Civ. P. 56(C) (stating that the “pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits” are considered in

determining whether there is a genuine issue as to any

material fact). Viewing the evidence in the light most

favorable to Scicluna establishes that Carrizales was told that

O’Sullivan presented a serious threat to the safety of Scicluna,

and that, in knowing disregard of MDOC regulations,

Carrizales took no action to segregate the two inmates even

though he was conscious of the risk that his failure to act

imposed upon Scicluna. 

Carrizales argues, alternatively, that no reasonable

government official in 1992 could have known that failure to

follow up on general information pertaining to an inmatehousing conflict situation would expose the official to

liability. But Carrizales, according to Scicluna, had before

him far more than general information concerning the

conflict. Both Scicluna and his sister had allegedly informed

Carrizales that O’Sullivan posed a specific threat to Scicluna.

In addition, MDOC had issued directives requiring the

segregation of former codefendants, such as Scicluna and

O’Sullivan, because of the risk of assault, and had warned

officials that they could be found personally liable for not

following MDOC policy. Scicluna, consequently, “was a

member of an identifiable group of prisoners for whom risk

of assault was a serious problem . . . .” Marsh v. Arn, 937

F.2d 1056, 1062 (6th Cir. 1991) (contrasting the plaintiff in

Marsh, who was not a member of an identifiable risk group,

with the plaintiff in Walsh v. Mellas, 837 F.2d 789 (7th Cir.

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

“If the law was clearly established, the immunity defense

ordinarily should fail, since a reasonably competent public

official should know the law governing his conduct.”

Harlow, 457 U.S. at 818-19. A constitutional right is clearly

established where “a reasonable official would understand

that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). In light of these legal
No. 02-2117 Scicluna v. Wells et al. 7

principles and the facts as asserted by Scicluna, the district

court did not err in denying Carrizales’s motion for summary

judgment on qualified immunity grounds. 

D. Huff’s motion

Huff argues in his brief that he believed that Scicluna

would receive all necessary medical treatment at KCF when

he transferred Scicluna there in May of 1992. But he offered

no affidavit in support of this assertion. Scicluna, on the

other hand, testified under oath that Huff knew that KCF

officials would be unable to treat his condition. Viewing all

reasonable inferences in the light most favorable to Scicluna

as the nonmovant, a genuine issue of material fact exists as to

whether Huff knew that he was transferring Scicluna to a

facility that was unable to treat his injury.

Huff argues, alternatively, that even if his decision to

transfer Scicluna to KCF constituted deliberate indifference,

the constitutional right violated was not clearly established by

1992. But “a right can be clearly established even if there is

no case involving ‘fundamentally similar’ or ‘materially

similar’ facts” if the premise of a prior case alerts officials to

the “clear applicability” of the legal principle to “a subsequent

set of facts.” Feathers v. Aey, 319 F.3d 843, 850 (6th Cir.

2003) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 743

(2002)). Deliberate indifference to a prisoner’s serious

medical condition was known to be a violation of the Eighth

Amendment’s right to be free from cruel and unusual

punishment long before 1992. See Estelle v. Gamble, 429

U.S. 97, 104 (1976) (holding that “deliberate indifference to

serious medical needs of prisoners” is “proscribed by the

Eighth Amendment”). Transferring a prisoner in need of

urgent medical attention to a facility that the official knows is

unable to provide the required treatment is conduct that would

alert a reasonable person to the likelihood of personal

liability. See Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th

Cir. 1972) (“[W]here the circumstances are clearly sufficient

to indicate the need of medical attention for injury or illness,

8 Scicluna v. Wells et al. No. 02-2117

the denial of such aid constitutes the deprivation of

constitutional due process.”). Based upon the present record,

the district court did not err in denying Huff’s motion for

summary judgment on qualified immunity grounds. 

E. Harvey’s motion

Harvey claims that the record does not support a finding of

his deliberate indifference because there is no evidence that

he was even aware that Scicluna was at JCF between May 6

and May 26 of 1992. In the absence of an explanation for the

delay, however, a reasonable inference arises that Harvey

purposefully ignored the emergency-treatment report

specifying that Scicluna required an “immediate neuro

consult.” Viewing the facts and drawing all reasonable

inferences in the light most favorable to Scicluna, a genuine

issue of material fact exists as to whether Harvey’s threeweek delay constituted deliberate indifference.

Harvey argues, alternatively, that even if his failure to treat

Scicluna at JCF constituted deliberate indifference, the

constitutional right violated was not clearly established by

1992. Before 1992, however, the Supreme Court had

established in Estelle that deliberate 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 prisoner referred to one’s care for

urgent attention is conduct that a reasonable prison official in

1992 should have known would subject him to personal

liability. Based upon the present record, the district court did

not err in denying Harvey’s motion for summary judgment on

qualified immunity grounds. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court that denied the defendants’

motions for summary judgment.