NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0138n.06

No. 16-5272 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT WILMER PAYNE, Plaintiff-Appellant,

v. SEVIER COUNTY, TENNESSEE, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges. KETHLEDGE, Circuit Judge. Wilmer Payne was incarcerated at the Sevier County Jail,

where he received medical treatment from First Me d, Inc., a County-hired healthcare contractor. In June of 2013, Payne began complaining of t ooth pain, headaches, and nosebleeds. First Med suspected he had an infected toot h and treated him with antibiotics. Over the next four months, however, Payne failed to get any better, despite the medication. First Med then sent him for a CT scan, which revealed he had oral cancer rather than an infection. Pa yne thereafter sued the County under 42 U.S.C. § 1983, arguing that Firs t Med’s medical personnel and the County’s correctional officers had been deliberately indiffere nt to his serious medical needs, and that the County was responsible for that indifference. Th e district court grante d summary judgment to the County. We affirm.No. 16-5272, Payne v. Sevier Cty., Tenn.

-2- I. On March 29, 2013, Payne arrived at the Sevier County Jail to serve a 39-week sentence

for misdemeanor domestic assault. Three months later, on June 7, Payne filed an Inmate Sick Call Request, complaining of a toothache. Virgin ia Mason, one of First Med’s licensed practical nurses, responded, informing him that he had been added to the rost er of inmates slated to see

First Med’s dentist. For the ne xt month and a half, Payne waite d without hearing anything about a dental appointment. On July 23, Payne filed a grievance with the prison, demanding that he be seen immediately because his pain had “intensi fied unbearably.” The correctional officer who received the grievance, Lieutenant Loveday, sent it to First Med. The next day, another LPN, Amy Williams, conducted the first of what would be nine examinations of Payne by First Med. She observed that his lower right jaw was “slightly red with [a] yellow raised area.” Williams suspected that Payne had an infected tooth and prescribed penicillin. Payne soon filed anot her Inmate Sick Call Request, re porting that his gums were red and swollen, and that his nose would not st op bleeding. Another LPN, Susan Peterson, examined Payne; finding no evidence of redness, sw elling, or nosebleeds, sh e denied his request for pain medication. Payne contin ued to receive antibiotics. Two days after seeing Peterson, Payne f iled a second grievance against First Med, complaining of cranial pressure, blurred visi on, and difficulty swallowing. Again, Loveday forwarded the grievance on to First Med. LPN supervisor Jessie Timbrook responded to Payne in writing, reiterating that Peterson had found nothing unusua l during her examination, and promising that Payne would see First Med’s dentist the next time he visited the jail. Payne asked Loveday why Loveday had not responded to Payne’s grievance himself. L oveday replied that heNo. 16-5272, Payne v. Sevier Cty., Tenn.

-3- was “overwhelmed” by other responsibilities and therefore “too busy” to address Payne’s grievance. Two weeks later, Williams and First Med’s dentist, Dr. Daniel Roberts, each examined Payne. During Williams’s exam, she observed a “rai sed pocket” on the roof of Payne’s mouth. Roberts did not document what he observed, but he prescribed another cycle of penicillin and three days’ worth of ibuprofen. Two days later, Payne asked to see Roberts again because he was still suffering from tooth pa in, headaches, and nosebleeds. The next day, Payne made a request for more pain relievers , which First Med denied. On September 12, another LPN, Sheri Cable, conducted First Med’s fifth examination of Payne. She observed that his pala te was still swollen, and prescribed him a new antibiotic. Six days later, First Med’s physician’s assistant, Tim Thomason, examined Payne. He found a lesion on Payne’s palate, switched Payne’s antibiotic a second time, and prescribed him an antiseptic mouth wash. On September 25, Payne visited Roberts a second time. Again, nothing in the record reveals what, if anything, the dentis t found. That same day, however, First Med scheduled Payne for a CT scan of his face and neck, to be taken October 7. On October 1, Payne filed his third grievan ce against First Med, complaining that he had not gotten any better despite the treatment he ha d received. Loveday again passed the complaint along to First Med. Another LPN, Dan Hartley, saw Payne twice in the next week. During the two visits, Hartley observed the following: a “ri ght next mass,” an “oral lesion,” and “prominent swelling with pockets of what appeared as white flesh or pus ” inside Payne’s nasal cavity. Hartley thought Payne might have a tumor, and told Thomason and Timbrook what he had

found.No. 16-5272, Payne v. Sevier Cty., Tenn.

-4- Timbrook then responded to Payne’s October 1 grievance, stating that First Med had examined Payne multiple times, prescribed him antibiotics and pain medication, and scheduled him for imaging. Payne responded by filing a f ourth grievance, listing his symptoms and accusing First Med of “dragging [its] feet” in treating him. Payne had his CT scan on October 7. Three da ys later, First Med received the results, which confirmed that Payne had an “aggressive soft tissue mass” in his nasal cavity that was “indicative of malignancy, possibly squamous cell carcinoma,” a form of cancer. An unidentified First Med employee fa xed the results to Thomason. Ov er the next five days, no one at First Med examined Payne or informed him wh at the scan had revealed. Payne then filed a fifth grievance on October 15, demanding to see the re sults for himself. That same day, he began experiencing uncontrollable noseble eds, and First Med sent him to the emergency room. There, an ER doctor told Payne for the first time that, a ccording to the CT scan, he likely had cancer. Payne was released early from prison, and has been receiving cancer treatment ever since. Payne thereafter brought this suit under 42 U.S.C. § 1983, claiming that the County, First Med, and individual employees of both entities had violated his Eighth Amendment right to medical care in jail. First Med and its employ ees reached a settlement agreement with Payne, but the County and its employees did not; inst ead, they moved for summary judgment. The district court granted the C ounty’s motion, holding that Payne had not identified any County custom or policy that had caused his injuries.No. 16-5272, Payne v. Sevier Cty., Tenn.

-5- II. We review the district court’s gr ant of summary judgment de novo. Smith v. City of Wyoming , 821 F.3d 697, 706 (6th Cir. 2016). To bring a successful § 1983 suit against the Co unty, Payne needed to prove not only that employees of the County or Firs t Med had been deliberately indi fferent to his serious medical needs, but that their indifference was dire ctly caused by a County custom or policy. Baynes v. Cleland, 799 F.3d 600, 620-21 (6th Cir. 2015). Here, the question is whether Pa yne has presented evidence cr eating a genuine issue as to whether a County custom or policy caused First Me d’s medical staff to treat him with deliberate indifference. Payne argues that he has identifi ed both a custom and a policy that harmed him. For § 1983 purposes, a “custom” is a “practice that, although not au thorized by written law or express municipal policy, is so permanent a nd well-settled” as to have the force of law. Cash v. Hamilton Cty. Dep’t of Adult Prob. , 388 F.3d 539, 543 (6th Cir. 2004). A plaintiff cannot establish a custom solely by pointing to the facts of his own case. Instead, he must “reach beyond” the alleged misconduct at issue, and show “several separate in stances” of similar

misconduct. Thomas v. City of Chattanooga , 398 F.3d 426, 433-34 (6th Cir. 2005). The custom that harmed Payne here, he says, is the County’s alleged practice of forwarding grievances against First Med to First Med itself. But Payne submitted no evidence that the County followed that putative custom wh en dealing with inmates other than Payne. Indeed, Payne’s only proof were his own five grievance forms, all submitted within a threemonth window. Per our decision in Thomas , five instances of alleged misconduct, over three months, all involving the plainti ff himself is not enough to prove a custom. 398 F.3d at 433-34. Moreover, as Payne himself points out, Lieutenant Loveday allegedly said that he forwardedNo. 16-5272, Payne v. Sevier Cty., Tenn.

-6- Payne’s grievances to First Med because he wa s “too busy” to address them himself. That suggests that the handling of Payne’s grieva nces was due more to Loveday’s personal circumstances than to a widespread custom. Payne has therefore failed to raise a genuine dispute that a custom caused his injuries. Payne also argues that he was harmed by one of the County’s written policies. For § 1983 purposes, not every directiv e issued by a county official constitutes a “policy.” Bd. of Cty. Comm’rs v. Brown , 520 U.S. 397, 404 (1997). Instead, a po licy must either be facially unconstitutional or reveal that pol icymakers were deliberately indifferent to the rights of those affected by the directive. Id. at 406-07. To establish deliberate indifference, a plaintiff generally needs to show that the policy has resulted in “prior unconstitutional actions,” but that policymakers have maintained the policy nonetheless. Miller v. Calhoun Cty ., 408 F.3d 803, 815 (6th Cir. 2005). In rare circumstances, however , a plaintiff can prove indifference simply by showing that a policy’s “unconst itutional consequences” should ha ve been “patently obvious” to the county. Connick v. Thompson , 563 U.S. 51, 64 (2011). According to Payne, the policy that harmed hi m is the County’s allege d practice of letting LPNs diagnose and treat inmates without any supervision from a doctor. That is a problem, Payne contends, because LPNs are not trained to diagnose and treat ailments on their own. As a threshold matter, the purported policy is not f acially unconstitutional. Just like a statute, a county policy is facially unconstitutional only if “t he [policy] is uncons titutional in all of its applications.” Cf. Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 (2008). And unsupervised LPNs can—and pres umably often do—provide constitutionally adequate medical care. Thus, to establish that the County’s use of LPNs constitutes a policy, Payne needed to prove that the prac tice amounts to deliberate indifference.No. 16-5272, Payne v. Sevier Cty., Tenn.

-7- Payne has not made that showing. He pr esented no evidence that the LPNs provided subpar treatment to anyone but him. He theref ore failed to demonstrate a pattern of “prior unconstitutional actions” caused by the purported policy. Miller , 408 F.3d at 815. Nor did he show that the County’s use of LPNs would obvi ously result in Eighth Am endment violations. Again, to violate the Eighth Amendment, a me dical professional must act with deliberate indifference, meaning that she mu st recognize and consciously disreg ard a substantial risk to an

inmate’s health. Wallin v. Norman , 317 F.3d 558, 562 (6th Cir. 2003). Payne has failed to present evidence that the County’ s putative policy would cause LPNs to act with that kind of indifference. He has therefore failed to prove th e existence of a County policy that harmed him.

* * * The district court’s judgment is affirmed.No. 16-5272, Payne v. Sevier Cty., Tenn.

-8- BERNICE BOUIE DONALD, Circuit Judge, c oncurring. While I agree with the majority that Mr. Payne has not made the requisite showing to support a finding of Monell liability, I find it necessary to emphasize that th is rule does not allow, nor does this Court condone, a municipality attempting to escape its constitutional duties by hiring a contractor to provide a fundamental serv ice without supervision. Mr. Payne argues that because Sevier County’s duty to provide adequate medical care to its inmates is non-delegable, it maintains responsibility for constitutional deprivations caused by its medical contractor’s policie s or customs. In making this argument, Mr. Payne relies on Ancata v. Prison Health Services, Inc , an Eleventh Circuit decision, in which the Court states in dicta that the county “remains liable for any constitutional deprivations caused by the policies or

customs” of the medical contractor. 769 F .2d 700, 705 (11th Cir. 1985). To refute this argument, Defendant Sevier County argued in briefing and at oral argument that a municipality may only be liable for the decisi ons of a contractor where the m unicipality “officially abdicated its right to review and influence the subordi nate’s decisions.” Appellee Br. 21 (citing Pembaur v. City of Cincinnati , 475 U.S. 469, 483). Sevier County assert s that under this rule, even where the municipality “granted an actor wide disc retion to perform a duty and was lax or even negligent in it supervis ion,” it will not be liable unless it has delegated its policy-making authority. Id. Sevier County is correct that “[s]imply going along with disc retionary decisions made by one’s subordinates . . . is not a delegation to them of the authority to make policy.” St. Louis v. Praprotnik , 485 U.S. 112, 130 (1988) (plura lity op). However, this precedent does not absolve municipalities of liability for actions of contracted medical providers. Nor does it relieve municipalities of their constitutional responsibilitie s as completely as Sevier County has arguedNo. 16-5272, Payne v. Sevier Cty., Tenn.

-9- here. A municipality may be liable for the decisi ons of a contractor not only where a supervising policymaker “expressly approved” a decision by a subordinate that was “cast in the form of a policy statement,” but also where “a series of decisions by a subor dinate official manifested a ‘custom or usage’ of which the supervisor must have been aware.” Praprotnik , 485 U.S. at 130 (citations omitted). As the majority opinion ma kes clear, Mr. Payne has not made a requisite showing that either a custom or policy attributab le to Sevier County caused his injury. However, this opinion should not be read to shield a municipality that attempts to discharge its constitutional duties by hiring contractors to provide fundament al services to those in the municipality’s care and then plac ing its head in the sand to re main oblivious to violations.