NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0391n.06 No. 10-2089 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DAL L AS COBB S, Plaintiff-Appellee ,

v. GEORGE PRAMS TAL L ER, Chief Medica l Offic er, Michig an Depa

rtment of Correc tions, Def endant- Appellant, and CRAI G HUTCHI

NSON, Doctor , et al ., Def endants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : BATCHEL DER, Chief J udg e; COL E and COOK, Circ uit J udg es. COOK, Circuit J udg e. Def endant- Appellant Dr. Geor g e Pramstaller, the Chief Medica l Offic er of the Michig an Depa rtment of Correc tions, appea ls the district court’s denial of his motion f o r s u mm a r y judg ment based on qualified immunit y . Plaintiff-Appellee Dallas Cobbs broug ht a c iv il rig hts action ag ainst Pramstaller under 42 U.S.C. § 1983, alleg ing that Pramstaller violated his Eig hth Amendment rig hts by delay ing c atar act- remova l sur g ery on his left ey e for

four y ear s. We

reve rse the district c ourt’s dec ision. I

.No. 10-2089

Cobbs v. Pramstaller, et al. Cobbs is an inmate in the custody of the Michig an Depa rtment of Correc tions (“ MDOC”). I n J uly 2004, doctors diag nosed Cobbs with cata rac ts in both of his ey es. I n Augus t 2 0 0 4 , Dr. Ghulam Dast gi r, an ophthalmologist, remove d the cata rac t from Cobbs’s rig ht ey e, but prison officia ls denied corr ective surg ery for Cobbs’s left ey e un t i l Fe b ru ary 2008. Be tween 2004 and 2008, Cobbs met with Dr. Dastg ir and sever al optometrists, all of whom rec ommended that Cobbs underg o cata

rac t-remova l surg ery on his left ey e. Notwithstanding these rec ommendations, prison officia ls, including Pramstaller, withheld appr o v a l o f th e s u r g e r y . I n N ovember 2007, Cobbs broug ht this lawsuit seeking decla ratory , injunctive, and monetar y relief

. During this period, Pramstaller serve d as Chief Medica l Offic er of the Michig an Depa rtment of Correc tions. As Chie f M edical Offic er, Pramstaller heade d the Medica l Service s Advisory C o mmitt ee (the “Medic al Commi ttee”) , a panel of phy sicians that overse es the authoriz at i o n o f

m ed i ca l proce dures for prison inmates. Whil e head of this committee, Pramstaller twice deni ed Cobbs cata

rac t-remova l surg ery on his left ey e. Cobbs claims that Pramstaller’s denials violated the Eig hth Amendment’s prohibition of cr uel and unusua l punishment. A. The Medic al-Claims Review Proce ss Surg ical remova l is the only trea tment for cata rac ts. Be cause prison doctors cannot authorize

or perf orm cata rac t surg ery them s el ves, doctors seeking surg ery for their patients must submit a reque st for off- site “spec ialty car e.” Doctors submit these reque sts to a “networ k provider,” in this

case , Correc tional Medica l Service s, I nc. (“CMS”), a private health-ma nag ement company hired by the State of Michig an to scre en reque sts agai nst approve d Michig an Depa rtment of Correc tions criter ia. - 2 -No. 10-2089

Cobbs v. Pramstaller, et al. Once a doctor submits a reques t , C M S wi l l either (1) approve, (2) deny , or (3) “pend” the reque st

. “P ending ” a reque st suspends the decision while CMS awa its supplemental information from the reque sting doctor. Only supervising phy sicians at CMS can deny reque sts. I f CMS denies

a reque st and a doctor disag ree s with t h e d en i al, he may appea l to the MDOC reg ional medical

o ff i ce r. The duty of initiating the appea ls proce ss belong s to the disag ree ing phy sician. After a doctor a ppeals, a n MDOC reg ional office r ensur es the c ompleteness of the prisoner’ s medical file and for war ds the ca se to the chie f medica l office r—in this case, Pra mstaller. The usual prison-medica l-req u est protocol proce eds as follows: Pramstaller rec eives the reque st and medical file, which he prese nts for a decision at the Medica l Commi ttee’s next monthly meeting . I n addition to Pramstaller, the Medica l Comm ittee includes four MDOC Reg ion al Medica l Direc tors, [and] a couple of phy sicians from the Depa rtment of Communi ty Hea lth that wer e psy chiatrists.

. . . And there was the state-wide CMS Medica l Dir e c to r , th e CM S M e d ic a l D ir e ctor for Utiliz ation Review, and . . . an A ssociate CMS Medical Dire ctor. T h i s team of phy sicians revie ws doctors’ appea ls and attempts to rea ch a consen s u s o n whether to approve the reque sted trea tment. I f the committee cannot rea ch a consensus, Pramstaller holds the ultimate authority to approve reque s ts. After deciding , the committee provides a memorandum explaining its decision to the appea ling phy sician. An invitation to resubmit reque sts if circ umstances c hang e or more information bec omes ava ilable ac companies e ach de nial. B. Cobbs’s Request for Cataract-Remov al Surgery Cobbs’s reque st for cata

rac t-remova l surg ery ran this course twice befor e CMS approve d his surg ery in ear ly 2008. The Medica l Commi ttee, heade d by Pramstaller, denied Cobbs’s reque st for - 3 -No. 10-2089

Cobbs v. Pramstaller, et al. the surg ery in October 2004 and denied a reque st for an off- site ophthalmology consultation in April 2006. We rec ount below the repe ated reque sts, denials, and ultimate approva l of Cobbs’s cata rac tremova l surg ery

in 2008. I n Aug ust 2004, Dr. Dastg ir, Cobbs’s ophthal mologist, remove d a cata rac t from Cobbs’s rig ht ey e and rec ommended that Cobbs underg o surg ery on his left ey e to remove another , less sever e cata rac t. A month later, Dr. Piper, a phy sician at the Ry an Correc tional Fa cility , reque sted that CMS authorize left-e y e surg ery for Cobbs, noting Dr. Dastg ir’s rec ommendation. The utiliz ation-re view unit at CMS “pende d” Dr. Piper’s reque st and forwa rded Cobbs’s claim to the Medica l Commi ttee. A few wee ks later, in October 2004, the Medica l Commi ttee met and considered C o bbs’s reque st for surg ery . Wh en t h e Medica l Commi ttee revie wed his claim, Cobbs had 20/70 vision without corr ection in his rig ht ey e and 20/70 vision with corr ection in h i s l ef t

. W h en exposed to g lare , vision in his left ey e was much wor s e— 20/400—and Cobbs’s medical rec ords descr ibed a “dense posterior sub-ca

psular cata

rac t.” Prior to his rig ht-ey e surg ery , Cobbs complained of double

v i s i o n . After revie wing Cobbs’s rec ord, the Medica l Commi ttee denied his reque st for surg ery ,

n o t i n g that the “dec ision was based on the documentation that was submitt ed with this reque s t

. Should other information become available , the [Medical Commi ttee] will be happy to re- evalua te.” Both Pramstal l er ’s and CMS’s denial of the reque st relied on the medical judgme nt that, alt h o u gh d et eriorated vision in one ey e would aff ect periphe ral vision and depth perc eption, a cata rac t did not war

rant trea tment unless it impaired the prisoner’ s overa ll visual ac u i t y . I n Pramstaller’s w ords,

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Cobbs v. Pramstaller, et al. [H] aving monocular vision does not put any body at a risk for any

thing. People who have monocular visi on are allowed to drive automobil es; the onl y t h i n g I ’m awa re of that they

cannot do with monocular vision is work as a pilot. Cobbs met with two differ ent optometrists in Marc h and May of 2005. I n May 2005, Cobbs met with Dr. Connolly , who noted Cobbs’s left-e y e cata rac t and reque sted an off- site ophthalmology evalua tion as a prer equisite to cata rac t-remova l surg ery . CMS denied the reque st, citing the Medica l Commi ttee’s pr evious denial, a nd Dr. Connolly

did not appeal the de cision. I n Dec ember 2005, Cobbs met with a new o p t o m et rist, Dr. McGrath. After examining Cobbs, McGrath also conclude d that “catara ct surg ery [was] neede d.” By this time, vision in Cobbs’s le ft ey e dete riorate d to 20/600. Notes from McGr ath’s De cembe r 2005 examination also

rema rk on Cobbs’s “trouble with depth perc e p ti on” and mention that Cobbs had “wa lked into objects

on his le ft side.” CMS denied the reque st, a g ain citing the Medica l Committee’s previous denial. McGrath did not appeal the de cision to the Medical Committee. I n Marc h 2006, Cobbs met with McGrath a se cond time. Once ag ain, McGrath c oncluded that Cobbs neede d cata

rac t surg ery and reque sted approva l for an ophthalmology consultation from CMS, noting that Cobbs suffe red from a “dense cata rac t,” that Cobbs risked developing g laucoma, and that Cobbs h ad 2 0 / 2 0 vision in his rig ht ey e and 20/600 vision in his left ey e. Ag ain, CMS denied McGrath’s reque st, citing the Medica l Commi ttee’s previous denial. This tim e, M cGrath appea led his reque st for an ophthalmology co n s u l t at ion to the Medica l Commi ttee. I n the form appea ling his denied reque st, McGra th noted that “surg ery [wa s ] ad v i sed to preve nt seconda ry

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Cobbs v. Pramstaller, et al. g laucoma” and that Cobbs “nee d[ed] cata rac t surge ry

—hy perma ture cata

rac t surg ery is more complicated a

nd there is [ a] risk of [secondary] glauc oma.” On April 25, 2006, Pramstaller an d t he Medica l Commi ttee met and deeme d an ophthalmology consultation for cata rac t remova l unnece ssary . Th ey did, howeve r, respond to McGrath’s conce rns reg arding g laucoma by issuing a direc tive to “monitor closely for incr ease in in te r ocular pressure and resubmit [t he reque st] if pressure incre ases.” Ag ain, the M e d ic a l Co mm it te e invited Cobbs’s phy sician to resubmit his reque st if Cobbs’s condition chang ed. After the April 2006 denial, no doctor appea led anothe r d enied reque st to the Medica l Commi ttee. Cobbs’s vision continued to deter iorate, a n d Co b b s c o n ti nued to send healthca re reque st forms descr ibing the worsening condition of his left ey e. I n J uly 2006, Dr. Piper, Cobbs’s primary

car e phy sician, ag ain reque sted that Cobbs be sent to an ophthalmologist, but CMS ag ain denied his reque st. Dr. Piper did not appea l the denial to the Medic al Commit tee. I n Aug ust 2006, Dr. Cook, another optometri s t , ex ami ned Cobbs, reque sted surg ery , and sug g ested that Cobbs wea r a patch over his left ey e to offse t the eff ects of his now-monocula r vision. Cook marke d the reque st “urg ent”; noted that Cobbs had an “opaque /white pupil”; and war ned that the hy perma turity of the cata

rac t could “pre clude the use of phacoe mulsification,” a technique used in cata rac t-remova l surg ery . Cobbs saw optometrists ag ain in Dec ember 2006 and April 2007, and both optometrists reque sted cata rac t surg ery for Cobbs. Rely ing on the Medica l Commi ttee’s denial, CMS denied the doctors’ reque sts. Despite providing g rave descr iptions of Cobbs’s condition, none of the doctors appea led CMS’ denials to Pramstaller and the Medica l Commi ttee. Throug hout this

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Cobbs v. Pramstaller, et al. period, Cobbs continued to file va rious health car e reque sts and g rieva nces c omplaining a

bout his condition, to no avail. I n October 2007, Cobbs filed this lawsuit. Pramstaller unsucce ssfully moved for summary judgme nt on Cobbs’s claims ag ainst him, contending that his only involvement with the denial of Cobbs’s medical reque sts was attendanc e at the two Medi ca l Commi ttee meeting s at which the Medica l Commi ttee deni ed Cobbs’s reque sts for surg ery . Pramstaller, along with other MDOC defe ndants, have twice more moved for summary j u d gment, asser ting qualified immunit y . Eac h time, the district court has adopted the mag istrate judge ’s rec ommendation to reje ct the defe ndants’ claims of qualifie d immunit y . Three months after f

iling his lawsuit, Cobbs met with another optometrist, the opt ometrist reque sted surg ery , and CMS approve d the reque st the following wee k. As Cobbs’s doctor predic ted, Cobbs’s cata

rac t-remova l require d a follow up surg ery due to complications cause d by the surg ery ’s delay

. Cobbs has since fully rec overe d his sight; acc ording to the last entry in Cobbs’s medical

rec ords, his left-e y e vision is now 20/25. I I

. A. Standard of Review We revie w de novo the denial of qualified immuni ty in an ac tion broug ht under 42 U.S.C. § 1983. See Scicluna v. W ells , 345 F.3d 441, 444 (6th Cir. 2003). “[F]or an interlocutory appea l to be appropriate, a defendant seeking qualified im munity must be will ing to conce de to the f ac t s as alleg ed by the plaintiff and discuss only the leg al issues raised by the case .” Id. (quoting Shehee v.

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Cobbs v. Pramstaller, et al. Luttr ell , 199 F.3d 295, 299 (6th Cir. 1999)). Thus, we acc ept all of Cobbs’s alleg ations as true and view all fa cts and re asonable infere nces in the lig ht most favorable to him. Id. at 444-45. B. Analysis Pramstaller asser

ts entitlement to qualified immunit y . “Unde r the doctrine of q u alified immunit y , ‘g overnme nt officia ls perf o rm ing discretionar

y functions g ener ally are shielded from liability for civil damag es i nsofar as t heir conduct does not violate clearly established st atutory or constitutional rig hts of which a rea sonable person would have known.’” Phillips v. Roane Cnty., Tenn. , 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982))

. Once the defe ndants raise a qualified immunit y defe nse, “it is the plaintiff’s burden to prove that the state officia ls are not entitled to qualified immunit y .” Ciminil lo v. Streicher , 434 F.3d 461, 466 (6th Cir. 2006). We apply a two-step test to qualified immunit y claims in deliberate-indiffe renc e case s, deter mining (1) whether , based upon the applicable law, a constitutional violation has occur red; and (2) whe ther that violation involved a c lear ly established constitutional rig ht. Phillips , 534 F.3d at 538. Cobbs c o n te n d s th a t Pr a ms ta ll e r a c te d w it

h d e li berate indiffer ence toward his serious medical needs in violation of t he Eighth Amendment’s prohibiti on of cruel and unusual punishment. See Estelle v. Gam b l e, 4 2 9 U. S

. 97, 104 (1976). Cobbs must prove two elements to preva il on this claim: First, Cobbs must show that he suffe red from a “suff iciently serious” medical need. Farmer

v. Brennan , 511 U.S. 8 2 5 , 8 34 (1994). Second, Cobbs must show that Pramstaller acte d with “a sufficie ntly

culpable sta te of mind”—spec ifically , “one of deliberate indiffer ence to inmate health or saf ety .” Id. (interna l quotation marks omitted). - 8 -No. 10-2089

Cobbs v. Pramstaller, et al. 1. Serious Medic al Need A medical need is sufficie ntly serious if the need is “so obvious that even a lay person would easily rec og nize the necessity for a doctor’s attention.” Blackm o r e v. Kalamazoo Cnty. , 390 F.3d 890, 897 (6th Cir. 2004) (quoting Gaudreault v. Municipality of Salem , 923 F.2d 203, 208 (1st Cir. 1990). For obvious medical needs left completely untrea ted, “the delay alone in providing medical

car e cre ates a substantial ri s k o f serious harm.” Id. at 899. By contra st, wher e a “‘de liberate indiffer ence’ cl ai m is based on a prison’s failure to trea t a condition adequately ” or on “a deter mination by me dical personne l that medical trea tment was unnece ssary ,” a plaintiff must “plac e verify ing me dical evide nce in the r ecor d to establish the detrimental eff ect of the delay

in medical trea tment.” Blackm ore , 390 F.3d at 897-98 (empha sis added) (citing Napier v. Madison Cnty. Ky. , 238 F.3d 739, 742 ( 6th Cir. 2001)); see also Blosser , 422 F. App’ x at 460. Thoug h Cobbs waited four y ear s for cata rac t-re m o v al surg ery , he met reg ularly with optometrists and ophthalmologists during this period. Ultimately , Cobbs rec eived cata rac t-remova l surg ery in both ey es and he conce des that h e h as since “fully rec overe d his sight.” Acc ording ly , Cobbs cannot claim that prison officia l s d en i ed h i m any trea tment; rathe r, Cobbs arg ues that his doctors should have pursued a more a g g ressive c ourse of trea tment for his left-e y e catara ct. Cobbs points to a varie ty of harms that re s ulted from the delay in his trea tment. Among these, Cobbs c laims tha

t the delay cause d a more complicated and risky proce dure, nece ssitating a second surg ery . Evidence in Cobbs’s medical rec ords su p p o rt s t h i s claim: Dr. Dastg ir, the ophthalmologist who remove d Cobbs’s cat a r a c t, noted that delay

ing surg ery until a cata

rac t become s hy perma ture can complicate surg ery . Dastg ir pointed out that Cobbs’s post-surg ery “wound did not - 9 -No. 10-2089

Cobbs v. Pramstaller, et al. p ro p er l y h ea l and leake d, likely beca use of the leng th of the surg ery to remove his hy per- mature cata rac t” and noted that th e “l ea k i n g wound” require d “additional sutures during a follow up opera tion.” Viewing the fac ts in the light most favor able to Cobbs, this medical evidenc e demonstrates

a ser ious medical nee d. 2. Deliberate I

ndifference Th e question rema ins whether Pramstaller’s sustained denial of Cobbs’s doctors’ requests for su rge ry am o u n t ed to deliberate indiffer ence . See Farmer , 511 U.S. at 838. To establish

s u b je c ti v e c u lp a

b il it y , Co b bs must demonstrate that Pramstaller’s conduct evidenc ed “deli b e r a te n e s s tantamount to an intent to punish.” Hicks v. F r ey , 9 9 2 F.2d 1450, 1455 (6th Cir. 1993) (quoting Mo l t o n v. City of Cleveland , 839 F.2d 240, 243 (6th Cir. 1988)). “[A] prison officia l cann o t b e found liable under the Eig hth Amendment for denying an inmate humane conditions of confine ment unless the officia l knows of and disreg ards an excessive risk to inmate health or safe ty ; the officia l must both be awa

re of fac ts from wh i ch t h e i n fe renc e could be drawn that a substantial risk of serious har

m exi sts, and he must also drawthe infer ence .” Farmer , 511 U.S. at 837. “B eca use . . . prison officia ls who lacke d knowledg e of a risk cannot be said to have inflicted punishment,” id. at 843, the question of what Pramstaller and the Medica l C o m m i ttee knew is para mount. On that score , even vie wing the fa cts in the light most favor able to Cobbs, we cannot char g e Pramstaller with knowledg e of the entirety of Cobbs’s medical file. At oral arg ument, Cobbs’ s co u n sel admitted that the entire medical file did not acc ompany eac h appea l; rathe r, the

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Cobbs v. Pramstaller, et al. Reg ional Medica l Direc tor furnished the committee with only “the mo st rec ent documents” in a prisoner’ s medical file. I t may be true, as Cobbs arg ues, that Pramstaller and the Medica l Commi ttee should have co n d ucted a more searc hing review of C obbs’s medical file. But to hold Pramstaller

acc ountable for portions of the file that he should hav e revie wed—but did not—would repla ce the require ment that Pramstaller actua lly “be awa re” of a risk of serious harm with a standard closer to neg lige nce. Id. at 834; see a l so id. at 835 (“[D]eliberate indiffer ence require s more than mere neg lige nce.” ). The mag istrate judge ’s repor t and rec ommendati o n , wh i ch the district court adopted, misapplied the law by gro u n d i n g its conclusion about Pramstaller’s subjective culpability on Pramstaller’s failure to asser t that he was unawa

re of Cobbs’s needs. Pramstaller does not bear the burden of demonstrating that he was “unaw are ”; rather, the “plaintiff bears the onerous burden of proving [an] officia l’s subjective knowledg e.” Comstock v. McCrary , 273 F.3d 693, 703 (6th Cir. 2001). Also problematic, the mag istrate judge ap p ar ently combed the entire medical rec ord for evidenc e of delibera te indiffer ence without pa rsing it to deter

mine what Pramstaller actua lly knew when de ny ing Cobbs’s c laims. We tighten the fra

me for our revie w, focusing on what Cobbs shows that Pramstaller actua lly knew. On this point, the rec ord is murky

. Much of the leng thy fac tual backg round conce rn volley s of claims and denials, but Cobbs highlig hts no evidenc e of Pram s t al l er’ s involvement in these exchang es. Simi larly , Cobbs de votes a larg e portion of his br ief to disc ussing complaints made in pris o n healthca

re reque sts, or “kites.” Acc ording to undisputed evidenc e in the rec ord, howeve r, kites did not reac h the re cord tha t Pramstaller’s Medic al Commit tee r eviewe d. - 11 -No. 10-2089

Cobbs v. Pramstaller, et al. Ag ain, when questioned at oral arg ument about Pramstaller’s knowledg e, Cobbs’s c ounsel specula ted t hat “the only

thing [ the M edica l Commi ttee] ever looked at was the last optometrist’s exam.” Our revie w of the rec ord likewise does not y ield a definitive answe r, but we can infer that the M edica l Commi ttee relied on the fo rm s t h at trea ting phy sicians us ed to appea l to the M edica l Commi ttee—“CHJ” forms—as well as rec o r d s o f th e p atient’s most rec ent optometry examinations. Wit h these princ iples and conc lusions in m ind, we turn to Pramstaller’ s subjective culpa bility

. We can winnow Cobbs’s alleg ations ag ainst Pramstal l er t o three separ ate acts: (1) Pramstaller’s October 2004 denial of Cobbs’s reque st for surg ery to remove his left-e y e cata rac t; (2) P ra m s taller’s April 2006 denial of Cobbs’s reque st for an ophthalmology consult; and (3) Pramstaller’s November 2007 rea ction to the fil ing o f t h i s lawsuit—moving to dismiss instead of authorizing Cobbs’s surg ery . We examine Pramstaller’s subjective c ulpability for e ach e vent. a. Oc tober 2004 De nial The Medica l Commi ttee first denied Cobbs’s reque st for left-e y e cata rac t surg ery on October 26, 2004. Thoug h the Medica l Commi ttee memorandum denying surg ery does not detail its rea sons for deny ing Cobbs’s 2004 claim, the rec ord compels the concl u s i o n that the Medica l Commi ttee denied surg ery beca

use Cobbs enjoy ed g ood overa ll visual acuity following his r ight- ey e surg ery . I n g ener al, Pramstaller believed that delay ing cata rac t-remova l surg ery posed “minimal” risk when

a prisoner had g o o d o v er al l vision. Prison officia ls thus looked to a prisoner’ s “over all visual acuity ”— t h ei r corr ecte d vision using both ey es—whe n deter mining whether to g rant cata rac t surg ery . At the time, Cobbs’s enjoy ed overa ll vision of 20/70 without corr ection in his rig ht ey e, and 20/70 vision wit h corr ection in his left. - 12 -No. 10-2089

Cobbs v. Pramstaller, et al. Pramstaller i d enti fied sever al conditions war ranting surg ery despite g ood overa ll vision: wher e a prisoner suffe rs from a “posterior subcapsular cata rac t” that “ca

uses g lare ,” a “discre pancy ” in vision, or g laucoma. Cobbs arg ues that notes from a J u l y 2 0 0 4 v i s i t with Dr. Dastg ir, his ophthalmologist, should have apprised the Medica l Commi ttee that he suffere d from two of these three condi t i o n s—g lare and a discrepa ncy in vision. Cobbs stresses that these notes would have aler ted Pramstaller to Cobbs’s nee d for surg ery had Pramstaller

revie wed them. But Cobbs offe rs

no evidenc e that Pramstaller was awa re of Dastg ir’s notes. At oral arg ument, when asked whether Cobbs’s appea ls to the Medica l Commi ttee prese nted Pramstaller with these notes, Cobbs’s counsel admitted, “We don’t know; they don’t ever tell us what they had.” Fur ther, doctors remove d Cobbs’s rig ht-ey e cata

rac t afte r the J uly examination, and none of Cobbs’s post-surg ery examination repor ts mentions double vision or g lare

. Dra wing ever y fac tual infere nce in Cobbs’s favor , as we must, we conclude that Cobbs fails to demonstrate Pramstaller’s awa rene ss of fac ts from which he could infer that a substantial risk of ser ious harm exist ed in Octobe r 2004. b. April 2006 Denia l I n April 2006, Pramstaller and the Medica l Commi ttee denied Dr. McGrath’s reque st to schedule Cobbs for a consultation with an ophthalmologist as a prelude to cata rac t surg ery . The

rec ord sug g ests that the Medica l Commi ttee denied the ophthalmology consultation afte r revie wing forms that Dr. Mc Gra th prepa red f ollowing a

Marc h 2006 examination of Cobbs. McGrat h ’s 2006 reque st descr ibed C obbs’s deter iorating left ey e and the risks of delay ing surg ery . The reque st, which McGra th orig in al l y s u b m i tted to CMS, war ned that Cobbs suffe red from a “dense cata

rac t” and r isked deve loping g laucoma, a nd rec orded Cobbs’s vision as 20/20 in - 13 -No. 10-2089

Cobbs v. Pramstaller, et al. his rig ht ey e and 20/600 in his left ey e. After CMS denied McGrath’ s reque st, he appealed to the Medica l Commi ttee, noting that “[s] urg ery [was] advised to preve nt seconda ry g laucoma. No view of lens/retina possible to chec k ey e health.” McGrath further rema rked that Cobbs “ n e e d [e d ] c a tara ct surg ery —hy perma ture cata

rac t surg ery is more complicated.” Finally , McGrath noted that “if [catara ct surg ery

was] denied, monthly

[i ntraoc ular pre ssure c heck] advised.” Pramstaller and the Medica l Commi ttee ag ain found cata rac t remova l unneces s ar y , but heede d McGrath’s war

ning about g laucoma and the need to monitor pressure . A direc tive to “monitor closely for [an] incre ase in interocula r pressure and resubmit if pressure increases”

acc ompanied the Medica l Commi ttee’s denial of Cobbs’s cata rac t-remova l surg ery . Ag ain, the Medica l Comm ittee invited Cobbs’s doctors to resubmit his request if his condition cha ng ed. Cobbs fails to show that this denial wa s any thing other than the product of considere d medical judgme nt. Be fore deny ing the claim, Pramstaller met with the Medica l Commi ttee, a g roup

o f phy sicians, and the g roup discussed the nece ssity of trea tment. Acc ording to Pramstaller, the Medica l Commi ttee an d he believed that delay ing cata rac t-remova l surg ery

—in the absenc e of conditions like gla

re or double vision—posed “minimal” risk. Cobbs points out that the differ ence in acuity betwee n his two ey es—20/20 and 20/600—constituted a “discre pancy” in vision that P ra mstaller admits war rante d surg ery . But a discrepa ncy in vision is more than a differ ence in acuity betwee n ey es; rathe r, a “discre pancy ” in vision ref ers to a differ ence that “cr eate s a disparity in the visual corte x and makes it difficult for the brain to per ceive vision.” The re sult is doubl e vision, a condition that impairs overa ll sight.

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Cobbs v. Pramstaller, et al. The ey e car e that Cobbs actua lly rec eived further belies the notion that Pramstaller acte d with delibera te indiffer ence toward Cobbs’s health. During the rele vant time period, Cobbs reg ularly met with ophthalm ologists and optometrists. When a doctor did mention a condition that potentially qualified Cobbs for cata rac t-remova l surg ery

—such as M cG ra th’s war ning about g laucoma in 2006—the Medica l Commi ttee responde d by order ing that doctors monitor the condition. Finally , both of the Medica l Commi ttee’s denials invited doctors to resubmit reque sts if addi ti o n a l fac ts came to light, making clea

r that its denial relied only on documents submitt ed with the doctors’ reque sts. c. Oc tober 2007 L awsuit L ast, Cobbs contends that filing this lawsuit in October 2007 should have p ro m p ted Pramstaller to revie w his file and authorize the cata rac t-remova l surg ery . I nstead of immediately g ranting Cobbs’s surg ery , Pramstall er m oved for summary judgme nt, noting that his only involvement with the denial of Cobbs’s claims wa s h i s attendanc e at two Medica l Commi ttee meeting s at which the Medica l Commi ttee denied Cobbs’s reque st for surg ery . But Cobbs offe rs no

rea son why filing this lawsuit should have compelled P ramstaller to by pass t he ordinary medi ca lreque st-authorization proce dure. Cobbs continually saw phy sicians afte r the second d enial of his claim, and Pramstaller’s denial s i n v i t ed Cobbs’s phy sicians to resubmit their reque sts if Cobbs’s condition worsene d. Thoug h Cobbs’s condition did wo rsen, his phy sicians elec ted not to pursue Medica l Commi ttee revie w afte r the Medica l Commi ttee’s second denial. Cobbs saw an optometrist three months after f

iling his lawsuit, and CMS approved his surg ery the wee k afte r this visit

. Finally , Cobbs did rec eive cata rac t remova l s u rge ry , on both ey es, in 2004 and 2008. At bottom, “fe dera l courts are g ener ally reluc tant to second g uess” medical judgme nts like Pramstaller - 15 -No. 10-2089

Cobbs v. Pramstaller, et al. and the Me dical Committ ee’ s decision to delay trea tment. Alspaugh v

. McConnell , 643 F.3d 162, 169 (6th Cir. 2011) (quoting W estlake v. Lucas , 537 F.2d 857, 860 n.5 (6th Cir. 1976)). Whil e Cobbs’s need for the second operation seems evident in h i ndsight, we cannot conclude that Pramstaller’s decisions to delay surg ery co n s t i tuted deliberate indiffer ence in light of his limit ed knowledg e. I I I

. For these rea sons, we REVERSE the district court’s denial of Pramstaller’s m o t ion for summary judgme nt based on qua lified immunit y .

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Cobbs v. Pramstaller, et al. COL E, Circuit J udg e, dissenting. I ag ree with t h e majority that Cobbs has shown that he suffe red from a serious medical need. Howeve r, I believe the district court was corr ect in concluding that the rec ord establishes that Pramstaller acte d with deliberate indiffer ence to that need. There fore , I respe ctfully

dissent. There is no dispute that Pramstaller appre ciated the signific ance of having , in eff ect, a nonfunctional ey e. I n his deposition, Pramstaller was prese nted with a varie ty of hy pothetical scena

rios involving an individual with a cata rac t in one ey e. I n sever al place s, Prams t al l er s t ated that the proper medical decision was to pe rfor m the surg ery . For example, Pra mstaller was asked whether the fac t that Cobbs had one functioning “g ood ey e” afte r his orig inal surg ery would remove the need for surg ery

on the bad e y e. Pramstaller answe red: Well [t he vision in the g ood ey e] does not indicate or counter indicate, but it’s one of the fac tors that is ta

ken into c onsideration

. . . The other thing is y ou have someone who is, has 20/20 vision in the first cata rac t ey e, b u t t h e second cata rac t ey e is 20/400, and y ou can' t s ee a thing out of that ey e, the disparity in the visual corte x makes it difficult, so we w ould probably do the ca tara ct, also. (De p. of Pramstaller, Dist. Ct. Docke t No. 106-10, at 57:19 - 58:5.) The majority notes corr ectly that p o o r visual acuity must be combined with collater al consequence s, such as g lare , from the defi ci t in order to trig g er the need for surg ery . I n addition, Pramstaller does say t h at t h e 2 0 / 4 00 rea ding

wou l d n o t i m mediately trig g er surg ery if there was the possibili ty that the g lare was cause d by artificia l lenses. (De p. of Pramstaller, Dist. C t

. Docke t No. 106-10, at 64:8-15.) Take n toge ther, Pramstaller’s te stimony

is that a patient with (1) vision in the bad ey e of 20/400 or worse; and (2)

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Cobbs v. Pramstaller, et al. suffe ring from collate ral c onsequenc es such a s g lare ; occur ring (3) whe ther or not a

rtificial lense s

wer e wor n, could expect to have sur g ery on the bad e y e. As of Octo b er 2 0 0 4 , t h e time of t he first denial, C obbs’s vision in his left ey e was 20/400 with g lare , and as of November 2005 his vision in the left ey e was 20/600. (Medica l Records, Dist. Ct. Docke t No. 106-5, at 12-13; McGrath Dep., Dist. Ct. Docke t No

. 1 0 6 -8 , at 49:9-14.) I t is undisputed that Cobbs h ad the qualify ing collater al conseque nces, such as g lare cause d by the cata rac t, in addition to the poor acuity during this time period. ( See Dep. of Pramstaller, Dist. Ct. Docke t No. 106-10, at 56:7-23.) Fur thermore , the medical rec ords from 2005 and 2006 make clea r that Cobbs’s vision problems wer e independe nt of the prese nce of artificia l lens es. (Medica l Records, D ist. Ct . Docke t No. 106-5, at 34, 36.) T hus, as of the sec ond denial of sur g ery in 2006, Pramstaller (1) had medical rec ords in front of him that stated that Cobbs’s vision in his left ey e was

worse than 20/400, with g lare , even without artificia l l en ses; (2) rec og nized (at least as of his deposition) that this should have trig g ere d an approva l of the surg ery ; and y et (3) denied the surg ery reque st. This meets all three of the e lements of the deliberate indiffer ence established in our case law. See, e .g., Jones v . Muske gon Cnty. , 625 F.3d 935, 941 ( 6th Cir. 2010) I n that light, I cannot ag ree with the majority that the dec ision not t o order surg ery in 2006 repr esents “conside red medical judgme nt.” (Maj. Op. at 16.) I see no way to square Pramstaller’s testimony , descr i b i n g t h e appropr iate course of trea tment for a patient in Cobbs’s circ umstances, with the trea tment Pramstaller actua lly order ed for Cobbs. Thus, under the standards articula ted by Pramstaller himself, there was no leg it i m ate rea son not to order the surg ery for Cobbs afte r April 2006. That Pramstaller did not do so constitutes deliberate indiffer ence . - 18 -No. 10-2089

Cobbs v. Pramstaller, et al. The majority notes that Pramstaller d i d order opthamologic al monitoring of Cobbs for potential g laucoma durin g t his period. This is beside the point. Glaucoma and cata rac ts are two unrela ted ey es diseases, and Cobbs’s claim is for deliberate indiffer ence toward his c atar acts. The only rea son the two wer e linked in Cobbs’s case is that Cobbs’s cata rac ts made it impossibl e to conduct the normal g laucoma examinations. Conceding that Pramstaller acte d proper ly in order ing the extra examinations for g laucoma, proper car e for one condition does not e x cuse improper car e for a nother, unre lated condition. For the above rea sons, I would aff irm the judg ment of the district cour t a nd allow Cobbs’s

case to proce ed to trial on the mer its.

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