NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0302n.06 No. 09-2353 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CHRIS BL OSS ER , Plaintif f-Appellant ,

v. T O D D G I L B E R T ; J A S O N T H O M A S CARPENTIER , Patrolmen and DENNIS M. LLOYD , Medica l Direc tor, Gene ssee County J ail, Defendants-A

ppellees

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT C OU RT FOR THE EASTERN DI STRI CT OF MI CHI GAN

O P I N I O N

BEFORE: BATCHEL DER, Chief Ju dge, COLE, an d GIBBONS, Circuit Jud ges. COLE, Circuit Judge. Pl aintiff-A ppellant Chris Blosser suffe red a tear in his biceps tendon when Def endants-A

ppellees Offic ers Todd Gilbert and J ason Thomas Carpentier p u ll e d h im th r oug h the window of an automobile afte r a high- speed chase

. Blosser instit uted t h is 42 U.S.C. § 1983 action ag ainst Gilbert and Carpentier for violation of his Four th Amendment rig ht to be fre e of excessive forc e and ag ainst Def endant- Appellee Doctor Dennis M. L loy d for failure to pursue timely and adequ at e m edical car e in violation of the Eig hth Amendment. Finding that Gilbert and Carpentier wer e entitled to qualified immunit y on the Four th Amendment claim and that Blosser ’s evidenc e could not, as a matter of law, establish an Eig hth Amendment violation, the district court
g rante d summary

judgme nt to all defenda

nts. W e AF F IRM

.No. 09-2353

Blosser v. Gilbert I. BACKG ROUND On Dec ember 27, 2005, Blosser drove his Chevrolet S-10 pickup truck to a veter inary clinic

to use the restroom. He picked up the key s to a Sierra pickup truck on the g round inside the clinic, and, without the owner ’s permission, drove off in the Sierra. After driving a couple miles, Blosser

rea liz ed that the vehicle was equipped with a fea ture known as OnStar, an elec tronic vehicle secur ity
sy stem that fac ilitated its t rac eability

. Blosser abandone d the vehicle, “hitched a ride” back to his truck (whi ch was still parke d next to the veter inary clinic), and drove awa y . After he had driven about a mile, Blosser noticed a police car pull up beside him. He rea liz ed that the office r wanted him

to pull over, but he kept driving , even afte r the office r turned on the lights and sirens, beca use he did

not want to be arr ested. I n his attempt to evade the office r, Blosser exceede d the speed limit , failed

to stop at sever al stop signs, and drove the wrong way down a one-w ay street. Blosser continued his flig ht attempt despite separ ate collisions with a para medic vehicle and a police cruiser

. Finally , as he was enter ing a fre ewa

y on-ra mp, Blosser ’s truck collided with a police cruiser , spun out, and was box ed in by

other police cruiser s. At that point, sever al police office rs, including Gilbert and Carpentier , approa ched Blosser ’s vehicle with their g uns draw n. The office rs issued conflicting commands. Offic er Gilbert order ed Blosser to r aise his ha

nds; w ithout looking around or toward the police office rs, Blosser raised his hands until they touched the roof of the truck. Blosser does not reme mber if he looked down at his lap, but the office rs contend that he did. Then, Carpentier scre amed at Blosser to “exit y our vehicle.” Blosser moved his left hand toward the truck door handle. As his ha nd was near the bottom of the window, Gilbert g rabbe d his arm and pulled it throu g h the window. Carpentier also g rabbe d - 2 -No. 09-2353

Blosser v. Gilbert Blosser ’s arm, and toge ther the office rs beg an to pull Blosser throug h the window. As they pulled, Blosser’s thighs came into contac t with the steering whee l, cre ating resistanc e. Gilbert and Carpentier

pulled Blosser

out of the truck throug h the window and slammed him onto his back on the hood of a police car , wher e Gilbert secur ed Blosser by executing a “wr ist lock” and “straig ht arm bar” on him. Gilbert then took Blosser to the g round fac e first, an unknown office r planted his knee in Blosser ’s back, and Blosser was handcuf fed behind his back. Blosser was then pulled to his fee t by the handc uffs. The office rs place d Blosser in Carpentier ’s police car , wher e Blosser complained of pain in his left arm. After some time, Blosser was transporte d to the hospital, wher e he was trea ted by Dr. Eric Ba rac h. Dr. Ba

rac h diag nosed Blosser with a tear in the long- head left biceps tendon, and told Blosser to make an appointment in the orthopedic clinic for the following Thursday , Dec ember 29. Dr. Ba rac h also presc ribed a sling for comfort, ice packs, and ibuprofen for pain. Emerg ency room staff provided a copy of the discharg e instructions to the police. Blosser was then taken to jail as a pretria l detainee

. On Dec ember 29, 2005, Blosser had a seizure. He was not taken to the orthopedic clinic for his scheduled a

ppointment, but ins tead sa w Dr. D ennis L loy d at the jail medical clinic on J anuar y 3, 2006, and J anuar

y 5, 2006. Blosser asser

ts that he told L loy d that he neede d to see an orthopedic
surg eon for surg ery and that L loy d replied that he was awa re of the discharg e instructions from the

emer g ency room. L loy d eventua lly ref err ed Blosser to the orthopedic specia list, Dr. Fe rnande z, on Fe bruar y 1, 2006, and Dr. Fe rnande z evalua ted Blosser on Fe bruar y 9 , 2 0 0 6

. Dr. Fe rnande z presc ribed phy sical thera

py for Blosser ’s arm and wrote in his trea tment notes that “this patient has - 3 -No. 09-2353

Blosser v. Gilbert been explained about being delay ed on his biceps tendon rupture which is g ener ally not trea ted if this patient does not have very high phy sical or athletic demand.” Blosser asser ts that he would have had
surg ery to repa ir his tendon had he be en take n to the orthopedic c linic on schedule. 1 Blosser subsequently filed a § 1983 suit ag ainst Gilbert, Carpentier , and L loy d in the United States District Court for the Easter n District of Michig an. L loy d moved to dismiss on April 9, 2008, fo r lack of evidenc e. The district court construed the motion as one for summary jud gm en t an d
g rante d it on Marc h 31, 2009. Meanw hile, on J anuar y 23, 2009, Gilbert and Carpentier moved for
summary judgme nt on qualified immunit y g roun d s . The district court g rante d this motion on September 29, 2009. B losser timely appea led. II. ANALYSIS A. Standard of

Review This Court revie ws a district court’s g rant of summary judgme n t d e novo. Gen. Motors C o r p
. v. L a n a r d Toys, Inc. , 468 F.3d 405, 412 (6th Cir. 2006). A moving party is entitled t o summary judgme nt “if the pleading s, depositions, answe rs to interrog atories, and admissions on file, toge ther with the aff

idavits, if a

ny , ‘show that ther e is no g enuine issue a s to any materia l fac t and that the m ovant i s enti t l ed to a judgment as a matter of l aw.’ ” Binay v. Bettendorf , 601 F.3d 640, 646 (6th Cir. 2010) (quoting Fe d. R. Civ. P. 56(c) ). The moving party bear s the burden of proving

Blosser also alleg es that Dr. Fe rnande z told him that he could not opera te on Blosser ’s arm 1 beca use of the delay , and st ated, “[i ]f y ou would have s howed up on time I could have fix ed y our arm.” L loy d prese nts a letter from Dr. Fe rnande z stating that he would not have opera ted on the arm even if he had examined Blosser immediately

. All of this evidenc e i s i n admissible hear say , the mag istrate judg e did not rely on it, and we do not re ly

on it here. - 4 -No. 09-2353

Blosser v. Gilbert that no g enuine issue of materia l fac t exis ts, but it can discharg e that burden by showing “that there is an absenc e of evidenc e to support the nonmoving party ’s case .” Benne tt v. City of Eastpointe , 410 F.3d 810, 817 (6th Cir. 2005) (interna l quotation marks omitted). I n revie wing a summary judgme nt motion, this Court vie ws the evidenc e and the infere nces the ref rom “in the lig ht most favorable to the non-moving party .” Id. (citing Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986)). Blosser bring s his claims under 42 U.S.C

. § 1983. To succe ed on a § 1983 claim, B losser must demonstrate that a person acting under c olor of state la w “de prived him of rig hts, privilege s, or i mmuniti es secured by the C onstitut ion or t he laws of t he United States.” Benne tt , 410 F.3d at 817. I t is undisputed that Gilbert and Carpentier , as police office rs, and L loy d, as a prison officia l,

acte d under color of state law. The dispute thus cente rs around whether Blosser suffe red a violation of his constitutional rights. B. Fourt h Am endm ent Claim Blosser alleg es that Gilbert and Carpentier used excessive forc e in seizing him, while Gilbert and Carpe ntier asse rt that they are entitled to qualified immunity for their actions. 1. Qualified Immunity Qualified immunit y shields “g overnme nt officia ls perf orming d iscretionar

y functions

. . . fr o m l iability for civil damag es insofar as their conduct does not violate clea rly established statutory or constitutiona l ri gh t s of which a rea sonable person would have known.” Harlow v. Fit

zgerald , 457 U.S. 800, 818 (1982). Once the defendants raise a qualifi ed i m m u n i t y d ef en s e, “it is the plaintiff’s burden to prove that the state officia ls are not entitled to quali fi ed immunit y .” Ciminil lo v. Streicher , 434 F.3d 461, 466 (6th Cir. 2006). We a pply a two-step test to - 5 -No. 09-2353

Blosser v. Gilbert qualified immunit y claims in excessive forc e case s, deter mining bot h wh et h er , based upon the applicable law, a constitutional violation has occur red, and whether that violation involved a clea rly established constitutional rig ht. Schreibe r v. Moe , 596 F.3d 323, 3 2 9 (6th Cir. 2010); Grawey v. Drury , 567 F.3d 302, 309 (6th Cir. 2009) (explaining that the third step often employ ed in qualified immunit y case s is redunda nt as applied to excessive forc e case s). A constitutional “rig ht is clea rly established if the contours o f t h e ri g ht are sufficie ntly clea r that a rea sonable officia l would understand that what he is doing violates that rig ht.” Schreibe r , 596 F.3d at 329. We may exercise

our discretion in deter

mining which part of the test should be addre ssed first. Pearson v. Callahan ,

--- U.S.---, 129 S. Ct. 808, 818 (2009).

2. Exc essive F

orce We analy ze excessive forc e claims under an “objec tive rea sonablene ss” standard, Slusher v. Carson , 540 F.3d 449, 455 (6th Cir. 2008), which “depe nds on the fac ts and circ umstances of eac h

case viewed from the perspe ctive of a rea sonable office r on the scene and not with 20/20 hindsight,” Fox v. DeSoto , 489 F.3d 227, 236 (6th Cir. 2007). I n our analy sis, we must also allow “for the fac t that police office rs are often forc ed to make split-second judgme nts—in circ umstances th a t a r e te n se,

uncer tain, and rapidly evolving —about the amount of forc e that is nece ssary i n a p ar ticular situation.” Graham v. Connor , 490 U.S. 386, 396-97 (1989). I n Graham , the Supreme Court held the following fac tors rele vant to the rea sonablene ss inqu i ry : “the sever ity of the crime at issue, whether the suspect poses an immediate threa t to the safe ty of the office rs or others, and whether [t he suspect] is actively

resisting arr est or attempting to evade arr est by flig ht.” Id. at 396.

- 6 -No. 09-2353

Blosser v. Gilbert Gilbert and Carpentier asser t, corr ectly , that this case is simil ar to Dunn v. Matatall , 549 F.3d 348 (6th Cir. 2008). I n Dunn , an office r attempted to stop the plaintiff for a traff ic violation. Id. at 350. The plaintiff did not stop, but led the office r on a two-minute car chase at speeds in excess of fifty miles per hour, dr iving throug h stop signs, passing vehicles dr iving in the opposite dire ction, and executing a number of turns at high speed. Id. at 350-51. The plaintiff eventua lly stopped and followed the office r’s instructions to drop his key s outside the vehicle and put his hands in the air. Id. at 351. The office r then instructed the plaintiff to unlock the do o r an d gra b b ed o ne of the plaintiff’s hands. Id. After the plaintiff unlocked the door, the office r opene d it and beg an to pull the plaintiff throug h the open door, order ing him to g et out of the car . Id. The plaintiff y elled, “my seatbe lt, my seatbe lt,” indicating that the seatbe lt was preve nting him from exit ing. Id. An o t h er police office r ar

rived, the se atbelt was unf astene d, the plaintiff stated, “ I ’m coming , I ’m coming ,” and the two office rs pulled the plaintiff from the car . Id. As the plaintiff was being pulled out, one of the off icer s lost his g rip and the pla intiff fell, fr actur ing his fe mur. Id. at 351-52. We held that no constitutional violation occur red beca use “the Offic ers acte d rea sonably in attempting to neutra liz e a perc eived threat by phy sically removing [t he plainti ff] fr o m h i s v ehicle afte r he led [t he office r] on a car chase and then appea red to ref use the Offic ers’ commands to e x it the car .” Id. at 354. We emphasized that, althoug h the stop beg an as a “mer e traff ic rela ted offe nse,” the cr ime at issue could not be c hara cter ized as such bec ause of the plaintiff’s initiation of a hig hspeed chase

. Id. Fur t her, we rea soned that the plaintiff’s evasion and rec kless driving justified a highe r level of suspicion and made i t rea sonable for the office rs “to be appre hensive that [t he plaintiff] may

have a wea pon in the car

. . . or that the c ar may be used as a w eapon.” Id. Finally , - 7 -No. 09-2353

Blosser v. Gilbert
t h i s Court held that the initial evasion and the difficulty g etting the plaintiff from the car made i t

rea sonable for the office rs to still consider the plaintiff resistant, even though the statement that he

was coming “ma y [ h ave] indicate[d] that he had decide d to exit the vehicle on his own,” and the difficulty pulling him from the c ar ha d likely been c aused by

the sea tbelt. Id. at 354-55. Gilbert and Carpentier wer e confr onted with a situation virtually indisti ng uishable from the

one in Dunn

. L ike Dunn , the initial crime at issue in this case (the unlawful driving awa y of a motor vehicle) was arg uably not very sever e. Ho we v er , like the pl aintiff in Dunn , instead of comply ing with an office r’s command to stop his vehicle, Blosser continued to drive, violating numerous traff ic laws, including speeding , driving throug h stop signs and r ed li g hts, and driving the wrong way on

a one-w ay street. Blosser ’s car cha s e wa s even more dang erous than the one in Dunn : Despite colliding with a para

medic vehicle and a state-police car , Blosser did not stop driving until he struck a police c ar a

nd was boxed in by

other police vehicles. Given the dang erousne ss of Blosser ’s attempt at evasion, the office rs wer e also justified in believing that Blosser might pose an immediate threa t to their safe ty and the safe ty of others. He had alre ady exhibi ted a disreg ard for safe ty and willingness to use his vehicle as a wea pon. Fur thermore ,

as in Dunn , his evas i o n sug g ested that he may have had something to hide—this, combined with Blosser ’s arm movement and possible g lancing at his la p, made it re asonable for the of fice rs to be
appre hensive that Blosser may have a weapon i n the t ruck. Fi n all y , here , as i n Dunn , the officers experience d resistanc e when pulling Blosser from the truck that, though it was likely cause d by the steering whee l, the office rs could rea sonably have perc eived as purposef ul resistanc e nece ssitating

a highe r level of forc e. Thus, considering the Graham fac tors and the totality of the circ umstances, - 8 -No. 09-2353

Blosser v. Gilbert it was as objectively rea sonable here as it was in Dunn for the office rs t o remove Blosser forc ibly from the truc k. Cf. Dunn , 549 F.3d a t 355. Howeve r, there is one distinction from Dunn

. I n this cas e, the office rs did not open the driver’ s door but instead pulled Blosser throug h the driver- side window of his truc k. Whil e it wa s

o b j ec t ively rea sonable under the circ umstances to remove Blosser from the truck, forc ibly i f

nece ssary , we need no t d et er m i n e whether the office rs’ actions in pulling Blosser throug h the window ac t ually violated Blosser ’s constitutional rig hts, beca use those rig hts wer e not clea rly established. I t is not enoug h for a plaintiff t o point to “the g ener al proposition that use of forc e is

contra ry to the Four

th Amendment if it is ex cessive under objective standards of re asonable ness”; qualified i m m u n i t y requires “the rig ht the officia l is alleg ed to have violated” to be “‘c lear ly established’ in a more particula rized, and hence more rele vant, sense.” Lyons v. City of Xenia , 417 F.3d 565, 572 (6th Cir. 2005) (quoting Brosseau v. Haugen , 543 U.S. 194, 198 (2004)) (intern al quotation marks omitted). This is beca use qualified immunit y “prote ct[s] office rs from the sometimes ‘hazy border betwee n excessive and acc eptable forc e.’” Saucier v. Katz , 533 U.S. 194, 206 (2001), overruled on other grounds by Pearson , 129 S. Ct. 808; accord Brosseau , 543 U.S. at 198. The key inquiry is whether the contours of t he right were sufficiently clea r at the t ime that a

rea sonable off

icer would know that his conduct wa s unlawful. Saucier , 533 U.S. at 202. Although Dunn was not in place at the time of the office rs’ actions here , it does establish that,

as of 2006, a plaintiff under simil ar circ umstances had no constitutional rig ht not to be forc ibl y

remov ed from his car . Be cause Blosser has not asser ted any chang e in the law, then, it could not have been clea

rly established in 2005 that forc ibly re m o v i n g Blosser from the car violated his - 9 -No. 09-2353

Blosser v. Gilbert constitutional rig hts. Thus, the only question is, y et ag ain, whether the fac t that the office rs remove d Blosser through the window chang es our analy sis. Even if we wer e to hold that it does, and that the office rs’ actions here wer e unrea sonable, the office rs could not have had fair notice that their conduct

was unlawful. Cf. Brosseau , 543 U.S. at 198. This Court has hear d very few case s wher e a plaintiff has been remove d from a car throug h the window, and has never sug g ested that this action is per se

unrea sonable. Cf. Tallman v. Elizabethtow n Police Dep’t , 167 F. App’x 459, 468 (6th Cir. 2006) (Clay , J ., dissenting) (ar g uing that it was unrea sonable for an office r to continue to point his g un at the suspect when the office r “sug g ested it would have been ‘ver y possible’ to remove [t he suspect] from the car by way of the open passeng er window”)

. Be cause the border betwee n pulling a suspect from his car and pulling him from his car through the window is “hazy ” enoug h that the contours of
any rig ht to be fre e from the latter could not have been “suff iciently clea

r,” cf. Saucier , 533 U.S. at 202, 206, Gilbert and Car pentier a re e ntitled to qualified immuni ty

. Finally , to the extent Blos s er ar g ues that the office rs’ handcuf fing of him constituted excessive forc e, we find the office rs’ actions objectively rea sonable. Although this Court has
sug g ested that ha

ndcuff ing a suspect behind the back in the fac e of a “seve re and obvious me dical injury ” constitutes excessive forc e, see Dixon v. Donald , 291 F. App’x 759, 762-63 (6th Cir. 2008), the evidence does not support the assertion that Blosser ’s arm injury was obvious. Unlike Dixon , in which the plaintiff a sked to be ha ndcuff ed in front of hi s torso, stated t hat he wa s disabled, and showed the office r sever e scar ring on his torso, Blosser does not asser t that he informed the office rs that he was injured befor e they handcuf fed him or that his injury was visible. I nstead, he claims that the office rs knew he was ser i o usly injured beca use, when they pulled on his arm, there was an - 10 -No. 09-2353

Blosser v. Gilbert audible popping s o u n d and he went limp. There is a question of fac t about whether the office rs
actua lly hear d the popping sound; how ever , even if they did, the re is no rea son to believe that they should have, on their own, connec ted that popping sound to a serious injury that would be ag g rava ted by handcuf fing Blosser

behind his back. For the above rea sons, Gi l b er t and Carpentier are entitled to qualified immunit y and the district court did not err

in gr anting their motion for summary judgme nt. C. Eighth Ame ndme nt Claim Blosser ’s final claim is that L loy d exhibi ted delibera te indiffe re n ce to his serious medical needs by failing timely and adequa tely to provide medical car e for his injured arm. L loy d asser ts that Blosser ’s evidenc e does not e stablish an Eig hth Amendment violation. Blosser was protec ted by the Eig hth Amendment throug h the Due Process Clause of the Four teenth Amendment beca

use he was a pretria l detainee at the time of the incident. See Thompson

v. Cnty. of

Medina , 29 F.3d 238, 242 (6th Cir. 1994). Prison officia ls violate the Eig hth Amendment wh en they exhibi t “deliber ate indiffer ence . . . to a prisoner’ s serious medical needs.” Id. at 24 4 (citing Estelle v. Gamble , 429 U.S. 97, 104 (1976))

. To establish a claim for delibera te indiffer ence ,

a plaintiff must show “both an objective and subjective component: (1) a su ff i ci en tly g rave depriva tion, such as serious medic al nee ds; and (2) a sufficie ntly culpable state of m ind.” Brooks

v. Celeste , 39 F.3d 125, 127-28 (6th Cir. 1994). Be cause we find that Blosser has failed to establish

a ser ious medical nee d, we ne ed not re ach the subjective c omponent. A plaintiff may

establish the serious medic al nee ds require ment in one of two way s. First,

a medical need is sufficie ntly serious if it is “so obvious that even a lay person wo u ld easily - 11 -No. 09-2353

Blosser v. Gilbert

rec og nize the nece ssity for a doctor’s attention.” Blackm ore v. Kalamazoo Cnty. , 390 F.3d 890, 897 (6th Cir. 2004). This is ba sed on the premise that, if the need for medic al trea tment is so obvious , “the delay alone in providing medical care cre ates a substantial risk of ser ious harm.” Id. at 899. Second, if the medical need is less obvious, its seriousness i s ev al uated by the eff ect of delay in

trea tment. I f a “‘de liberate indiffer ence ’ claim is based on the pr ison’s failure to treat a condition adequately ,” id. at 897 (empha sis added) , it is in the second cate go ry and a plaintiff must “plac e verify ing me dical evidenc e in the rec ord to establish the detrimenta l effe ct of the de lay in medical

trea tment,” id. at 898 (quoting Napier v. Madison Cnty. , 238 F.3d 739, 742 ( 6th Cir. 2001)). Blosser ’s claim is square ly in the second cate g ory , despite h i s arg uments to the contra ry . Blosser relies on Johnson v. Karnes , 398 F.3d 868 (6th Cir. 2005), to establish that his medical needs

m et t he obviousness standard. I n Johnson , we held that the plaintiff’s medical needs m et t h e seriousness require ment under either test, stating that completely sever ed tendons wer e “a condition that almost any lay person would rea liz e to be serious.” Id. at 874. Blosser ’s case looks at first blush

to be very simil ar to Johnson

. Howeve r, on closer revie w, it is actua lly distinguishable i n al l important respe cts. The obviousness standard ref ers to a doctor’s attention, and th u s i s p rimarily applicable to claims of denial or delay of any medical treatment rather t h an cl ai ms that a plainti ff

was denied or delay ed in rec eiving a specific type of medical trea tment. Compare Napier , 238 F.3d

at 742 (ana ly

zing under eff

ect- of-de lay standard where a s pecif ic trea tment—a dialy sis

a p p o in tm e n t— w a s mi s s e d), with Johnson , 398 F.3d at 871-72 (ana ly zing under both stan d a

r d s w h e r e plaintiff’s wound not chec ked reg ularly or examined by a doctor), and Blackm ore , 390 F.3d at 899 (ana ly zing under obviousness standard wher e plaintiff was place d in observa tion cell but not - 12 -No. 09-2353

Blosser v. Gilbert examined by a medical profe ssional for two day s). The most troubling aspec t of Johnson was that the plaintiff was denied virtually all medical car e during the thirty -one day s he was in custody

. See Johnson , 398 F.3d at 871-72. Although a nurse periodica lly g ave him the antibiotics the emer g ency room doctor had presc ribed, the plaintiff was not g iven any pain medication, the bandag es on his arm

wer e only chang ed once, his wound was not chec ked on any reg ular basis, his sutures (which should have been remove d afte r seven day s) wer e order ed not to be remove d, he was only able to speak with a doctor once, and t he doctor did not even perfor m a “full scale exam.” Id. Bl o s s er , on the ot her hand, was reg ularly examined by the m edica l staff at the prison and re ceive d his pain m edica tion, monitoring, and car e—he just was not sent to the specia list rig ht awa y . Blosser ’s claim is thus that the prison failed to trea t the condition adequately , and he must provide verify ing medical evidenc e of the detrimental eff

ect of the delay to succe ed. See Blackm ore , 390 F.3d at 898; Napier , 238 F.3d at 742. Be cause Blosser has not provided any such evidenc e, his claim fails under the eff ect- of-de lay standard. Blosser alleg es that his ruptured biceps tendon is now inopera ble as a result of the delay

. He arg ues that, had he seen the orthopedic specia list on J an u ar y 5 , 2 006, as direc ted by the

emer g ency room disc h ar ge instructions, he would have rec eived surg ery to repa ir the ruptured tendon. He points to the emer g ency room discharg e instructions, which state: “[y ]ou have a tear in the long head of the biceps tendon. Nee d to make a [si c] appointment in the orthopedic Clini c next thursday ,” and presc ribe a sling, ice packs, and ibuprofen for pain, and to Dr. Fe rnande z’s trea tment note, which states: “this patient has been explained about being delay ed on his biceps tendon rupture which is g ener ally not tr eate d if this pa tient doe s not have very high phy sical or athletic demand.” - 13 -No. 09-2353

Blosser v. Gilbert This evidenc e does not establish that Blosser would have rec eived s u rge ry had he visited Dr. Fe rnande z earlier. I

n fac t, Dr. Ferna

ndez’s statement t hat s uch ruptures are “g ener ally not trea ted if this patient does not have very high phy sical or athletic demand,” sug g ests that surg ical repa ir was any thing but a fore g one conclusion. As t h e d istrict court aptly stated, “[n] o medical evidenc e 2 indicates that Plaintiff require d surg ery , that Plaintiff was considere d a candida te for surg ery by any of his trea ting phy sicians, or that any delay in making an appoint ment in the orthopedic clinic harme d Plaintiff.” (Dist. Ct. Docket No. 88, a t 9.) There is further evidenc e that Blosser had a seizure on Dec ember 29, 2005. L loy d arg ues that the seizure problem makes it even less likely that Blosser would have been a candida te for surg ery . There would be a g enuine issue of materia l fac t as to whether Blosser was a ctually a candida te for
surg ery had Blosser submitt ed even a shred of admissible evidenc e that he was a candida te, but he has simply failed to meet his evidentiar y burden on this cl aim. Cf. Napier , 238 F.3d at 742. As such, Blosser has not estab l ished a serious medical need and his Eig hth Amendment claim

nece ssarily

fails.

To bridg e this g ap, Blosser attests to statements that doctors Ba rac h and Fe rnande z alleg edly 2 made to him about the need for surg ery and how he would have rec eived surg ery had he visited the specia list on time. L loy d arg ues that these statements are inadmissible hear say , and cannot be relied upon at the summary judgme nt stag e, while Blosser asser ts that th e s t at ements fall under the exception in Fe d. R. Evid. 803(4), statements for the purpose of med i ca l diag nosis or trea tment. L loy d is corr ect; the statements are not admissible under Rule 803(4) beca use that exception “applies only to statements made by the one actua lly seeking or rec eiving medical trea tment.” Field v. Trigg Cnty. Hosp., Inc. , 386 F.3d 729, 736 (6th Cir. 2004). As such, we have not relied upon the statements. - 14 -No. 09-2353

Blosser v. Gilbert III. CONCLUSION For the fore g oing r easons, we AF F IRM the district court’s g rant of summary judgme nt to all defe ndants.

- 15 -