NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0049n.06 No. 17-1566

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT TIMOTHY FINLEY, Plaintiff–Appellant,

v. ERICA HUSS, et al., Defendants–Appellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, McKEAGUE, and BUSH, Circuit Judges. McKEAGUE, Circuit Judge. Finley is a Michigan prisoner with several severe psychiatric disorders. He clai ms that Huss and Schroeder, two prison wardens, violated his rights under the Constitution and federal law by placing him in administrative segregation— instead of a mental-health unit—af ter he swallowed a razor blade. Specifically, Finley raised Eighth Amendment deliberate-indifference claims , procedural due process claims, and claims under the Americans With Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). The district court dismissed the complaint su a sponte under the Prison Litigation Reform Act (“PLRA”) prior to service, holding that it failed to state a claim on which relief could be granted. Because Finley can state an Eighth Amendment claim, we VACATE the dismissal of his complaint and REMAND with instructions to gran t leave to amend. The distri ct court did not express a reasoned opinion on anything besides the Eighth Amendment claim, and neither do we. Those matters may be addressed on remand if they ar e included in Finley’s amended complaint.No. 17-1566 Finley v. Huss

-2- I During his incarceration in a Michigan state prison, plaintiff Timot hy Finley, a mentally ill inmate suffering from bipolar disorder, bor derline personality diso rder, and antisocial personality disorder, intentionally swallowed a razo r blade. This was not new terrain for Finley, who has a long history of self-harm and suic ide attempts. In Finley’s own words: As of recent, from 8/30/16 to 10/05/16 Pl aintiff has cut his arm open with a razor making at least 25 lacerations. I have sw allowed 9 razors, been transfer[r]ed to Marquette General Hospital a total of five times, transfe[r]red to St. Francis in Esc[a]naba once, and put on a medical jet and flown to U. of M in Ann Arbor for emergency surgery. Ive had a total of f our neck surgeries to remove a razor lodged in my throat on 9/1/16. Ive been hooked up to breathing machines to sustain life. Ive had 4 stomach surg eries as well to remove razors. Additionally, Dr. Terry Meden, a ps ychiatrist, stated in his physic ian’s certificate that Finley twice has attempted to hang himself. As a result of his illnesses, Finley has been prescribed various psychiatric and antipsychotic medications and ha s been the subject of many disc ussions by prison officials and physicians. Even so, Finley somehow gained access to a razor and swallowed it sometime in September 2016. However, due to his mental state, he “refused the local hospital’s recommendation to extract [the] razor from hi s esophagus. That razor became lodged.” As a result, Finley was placed in ad ministrative segregation (solitary confinement) pending a hearing. Later, on September 12, 2016, Mandi Salmi, the mental-health profe ssional primarily responsible for Finley’s treatment in prison, filled out a “Misconduct Sanction Assessment” that noted that Finley “is on the mental health caseload” and that “[p]rolonged segregation placement is likely to deteriorate his mental health status.” Due to resulting complications from swallowing the razor, Finley was airlifted to Univer sity of Michigan Hospital for surgery. Upon his return toNo. 17-1566 Finley v. Huss

-3- Marquette Branch Prison on October 5, 2 016, however, Finley again was placed in administrative segregation. Michigan Department of Corrections Policy Directive § 04.05.120 on “Segregation Standards” states unambiguously: A prisoner who is on an outpatient correct ions mental health services active caseload or who is receiving special education services shall be classified to administrative segregation only after consultation with a Qualified Mental Health Professional, the Mental Health Unit Ch ief, and/or special education teacher to determine if the prisoner’s mental hea lth needs or limitations can be met in administrative segregation . . . . [The Security Classification Committee] shall consider the prisoner’s need for correcti onal mental health services, including additional treatment and medication, in determining whether administrative segregation is the most appropriate placement. (Emphasis added.) Nevertheless, Acting Deputy Warden Erica Huss did not consult Salmi or any other mentalhealth physician prior to the hearing conducted on September 26, 2016, which officially assigned Finley to administra tive segregation. Acting under another Michigan Department of Corrections Policy Directive, Salmi later recommended to a different Acting Deputy Warden (Sarah Schroeder) that Finley be transferred to a mental-health unit. Schroeder agreed, wh ich, under prison policy, requi red her to ensure the prisoner’s transfer “as soon as possible but no late r than three business days after receipt of the recommendation.” Nevertheless, as of the da te Finley signed his fe deral court complaint— October 31, 2016—he remained in administrative segregation and had not been moved to the prison’s mental-health unit. In fact, the district court noted that Finley was not transferred to the mental-health unit until January 2017, more than three months after his initial placement in administrative segregation. Finley’s pro se complaint named Huss and Schroeder as defendants, alleging deliberate indifference to his serious medical needs, depr ivation of liberty with out due process, andNo. 17-1566 Finley v. Huss

-4- violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213, and the Rehabilitation Act, 29 U.S.C. § 794. Initially, he sought preliminary and permanent injunctive relief requiring him to be moved to a mental -health unit. After th e prison moved him to a mental-health unit in mid-January 2017, he withdrew his request for a preliminary injunction and moved to amend his complaint so that he coul d add a claim for damages. Under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1), the district court reviewed the complaint and, sua sponte , dismissed the action for failure to state a claim upon which relief could be granted. The court also denied leave to amend, in obedience to our precedent barring district courts from granting leave to amend when a prisoner’s claim fails under the PLRA. See, e.g. , Benson v. O’Brian , 179 F.3d 1014, 1016 (6th Cir. 1999). Finley appealed, and he is now represented by counsel. In addition to urging reversal on the merits, he asserts that the district court s hould have granted him leave to amend. Because we agree that Finley adequately pleaded viola tions of the Eighth Amendment under 42 U.S.C. § 1983, we hold that the district co urt erred in dismissing his compla int. As a result, the PLRA does not bar the amendment of Finley’s pleadings , and the district court should permit him to submit an amended complaint under Rule 15(a). Because the district court said little about Finley’s due process and ADA/RA claims, we express no opinion on the viability of those claims.
II We review de novo an order dismissing a claim under the PLRA fo r failure to state a claim. Brown v. Bargery , 207 F.3d 863, 867 (6th Cir. 2000). In conducting such a review, we accept the plaintiff’s allegations as true, draw all reasonable inferences in favor of the plaintiff,No. 17-1566 Finley v. Huss

-5- and construe the entire complaint in the light most favorable to the plaintiff. Bickerstaff v. Lucarelli , 830 F.3d 388, 396 (6th Cir. 2016) (citation om itted). Even so, a plaintiff still must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Moreover, overlayin g these principles in this case is the well-recognized understanding th at “[a] document filed pro se is ‘to be liberally construed,’ and
‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus , 551 U.S. 89, 94 ( 2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)). A In his complaint, Finley claims that Huss and Schroeder were delib erately indifferent to his medical needs. These allegations, if true , would state a claim under the Eighth Amendment. A deliberate-indifference claim has three elemen ts. First, the pris oner must plead facts showing that his ailment was sufficiently serious to warrant constitutional concern. Bays v. Montmorency Cty. , 874 F.3d 264, 268 (6th Cir. 2017). Second, he must show that the official in question was subjectively aware of facts “from which the inference could be drawn that a substantial risk of serious harm exist[ed].” Id. Third, he must plead that the official, in fact, drew that inference, but di sregarded the risk anyway. Id. Finley’s condition is obviously serious. In Bays , we held that a prisoner who described “severe psychological symptoms” several days before committing suicide had adequately satisfied this element. Finley swallowed a razor blade. That is more than enough to indicate a severe psychological disorder. See Grabow v. Cty. of Macomb , 580 F. App’x 300, 307 (6th Cir. 2014) (holding that a plaintiff who exhibits suicidal tendencies duri ng detention has satisfied this element).No. 17-1566 Finley v. Huss

-6- Under the facts pleaded by Finley, it seems almost equally obvious that officials knew that Finley was at a substantial risk of serious harm, and yet they consciously disregarded that risk. The deputy wardens knew that the prison’s mental-health sta ff had diagnosed Finley with a severe mental illness. Finley’s behavior had required hospitalization on more than one occasion—including an airlift to the University ofMichigan for emergency surgery. The mentalhealth staff also told Huss and Schroeder that solitary confinement w ould only make this bad situation worse, due to the sensory deprivation that accompanies that punishment. Indeed, prison policy required Huss and Schroeder to follow certain procedures in these situations, and Finley asserts that neither defendant adhered to these policies. Again, the facts in Bays were not nearly this problematic, and yet the pa nel still found a jury question. Bays , 874 F.3d at 268–69; see also Harris v. City of Circleville , 583 F.3d 356, 369 (6th Cir. 2009) (dis regard of policy raises strong suspicion of deliberate indifference). The district court nevertheless dismissed the complaint because Finley had received some treatment in the form of antipsy chotic drugs. Although o fficials can avoid constitutional liability by addressing the inmate’s serious need, they cannot escape a deliberate-indifference claim by fetching a band-aid if an inmate is hemorrhaging. See Bays , 874 F.3d at 269; Rouster v. Cty. of Saginaw , 749 F.3d 437, 448 (6th Cir. 2014). Bays is instructive here. In that case, the defendant nurse provided medication to the inmate and trie d to fast-track the prisoner for more intensive treatment. 874 F.3d at 270. But in light of the obvious risk that the prisoner would commit suicide, the failure to treat, promptly, a condition that “all ag ree required immediate or nearimmediate care” precluded summary judgment. Id. The same is true here. Antipsychotic drugs can only manage psychiatric disorders, not cure them . And if the prison ps ychiatrist states thatNo. 17-1566 Finley v. Huss

-7- solitary confinement will exacerbate a mental-health disorder, claiming that medication makes it permissible is a little like ba ndaging a person’s broken leg but th en taking away his crutches. We also disagree with the distri ct court’s apparent be lief that Finley is not entitled to the Eighth Amendment relief because the actions of the defenda nts in this case we re not as egregious as those in Easley v. Nixon-Hughes , No. 1:06cv863, 2009 WL 237733 (S.D. Ohio, Jan. 29, 2009). In Easley , the plaintiff alleged “that on one o ccasion he was placed on a suicide watch and attempted suicide while the officer assigned to monitor him slept. He further allege[d] that another corrections officer refuse d to summon mental he alth personnel and told Plaintiff to hang himself.” Id. , 2009 WL 237733, at *1. After citing Easley , the district court in this case dismissed Finley’s Eighth Amendment claim because Finley did not “claim that he was encouraged to commit suicide or given the opportunity to do so by untrained corrections officers.” But a prisoner need not allege the worst-case scenario in order to get past the PLRA’s screening system. At this early stage, we cannot agree with the district court that Finley has failed to state an Eighth Amendment claim. This is particularly true because Finley was proceeding pro se at the time. Although he may not ulti mately prevail, his complaint should be allowed to proceed past the PLRA’s filtering mechanism. For that reason, the district court should also grant Finley leave to amend, since the PLRA’s bar to amendmen t has no vitality when the prisoner states a valid claim. See O’Brian , 179 F.3d at 1016.
B Finley also raised constitutional due proce ss claims and disability -discrimination claims under federal law. However, in dismissing the comp laint, the district cour t did not address theseNo. 17-1566 Finley v. Huss

-8- claims in any meaningful fashion. Because we vacate the dismissal of Finley’s complaint and remand with leave to amend, those issu es are not ripe for our review.
III Finley has alleged facts st ating an Eighth Amendment deliberate-indifference claim; the district court should have permitted him to pursue it. Therefore, we VACATE the district court’s dismissal of the complaint and REMAND the case with instructions to grant leave to amend.No. 17-1566 Finley v. Huss

-9- MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and dissenting in part. I concur in the majority’s holding that Ti mothy Finley alleged sufficient facts in his pro

se complaint to state an Eighth Amendment clai m of deliberate indiffere nce against defendants Erica Huss and Sarah Schroeder. Consequently, I also concur in the majority’s recognition that, on remand, Finley should be allowed to amend his complaint to bolster any other claims he wishes to assert. Unlike the majority, however, I would hold th at Finley already has alleged sufficient facts to allow him, at this early stage of this litigation, to proceed further with his serious allegations of violations of the Due Process Clause and of the Americans with Disabilities Act. I thus respectfully dissent from any implication th at the district court was justified in dismissing those additional claims of wrongdoing.