Estate of Richie Majors v. Roger Gerlach

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 28, 2020
• Docket: 19-1457
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0438n.06

Case No. 19-1457

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 28, 2020 ESTATE OF RICHIE MAJORS, deceased; ) DEBORAH S. HUNT, Clerk RE’SHANE LONZO, in her capacity as the ) Personal Representative of the Estate of Richie ) Majors, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Plaintiffs-Appellants, ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN v. ) ) ROGER A. GERLACH; ROBERT L. PREVO; ) HEIDI SMITH; RENE C. VIVES; HEIDI L. ) OPINION HERMAN; SAVRITHI KAKANI; JOHN ) R.SOLOMONSON; KAREN S. RICH; JOEL A. ) EVERTSEN; DORINA A. BLOHM; THOMAS ) LANORE; SUSAN HOWARD, in their individual ) and official capacities, ) ) Defendants-Appellees, )

BEFORE: MERRITT, CLAY, and BUSH, Circuit Judges.

CLAY, Circuit Judge. Plaintiffs—Richie Majors’ estate and sister—appeal from the

district court’s orders dismissing several Defendants and granting summary judgment for the

remaining Defendants in this civil rights lawsuit. Plaintiffs claim that rather than treat Majors’

multiple sclerosis while he was incarcerated in Michigan prison, Defendants—several of the

doctors, physician’s assistants, and nurses who evaluated Majors—were deliberately indifferent to

his serious medical needs for over four and a half years, in violation of the Eighth Amendment’s Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

prohibition on cruel and unusual punishment. For the reasons set forth below, we AFFIRM IN

PART and REVERSE IN PART the district court’s orders. Because a portion of Plaintiffs’ claims

are barred by the applicable statute of limitations and because the nurses who treated Majors are

entitled to qualified immunity, we AFFIRM the district court’s dismissal of Defendants Gerlach,

Smith, and Prevo and its grant of summary judgment for Defendants Solomonson, Rich, Everett,

and Blohm. But because there is a genuine issue of material fact as to whether the physician’s

assistants who treated Majors were deliberately indifferent to his serious medical needs, we

REVERSE the district court’s grant of summary judgment in favor of Defendants Kakani and

LaNore.

BACKGROUND

In March 2010, Richie Majors (a.k.a. James Fullove) began serving a prison sentence in

Michigan. During intake procedures, he informed Michigan Department of Corrections

(“MDOC”) medical staff that he had been diagnosed with and treated for multiple sclerosis (“MS”)

during a prior term of incarceration with the Minnesota Department of Corrections (“MNDOC”).

He had been treated with Interferon beta-1a (“Interferon”) injections, which can slow the

progression of MS. Although Majors’ treatment had some interruptions, Majors generally received

Interferon injections twice a week while in MNDOC custody.

In Michigan, Majors was first incarcerated at the Richard A. Handlon Correctional Facility,

where Defendant Dr. Roger A. Gerlach evaluated his MNDOC medical records. While Gerlach

gleaned that MNDOC had diagnosed Majors with MS based on a 2005 MRI and spinal tap, he was

skeptical of Majors’ diagnosis. During the time that Gerlach treated Majors—July 2010 through

December 2012—Gerlach did not prescribe Interferon to Majors. Nor did he order a diagnostic

test to confirm Majors’ MS diagnosis or monitor the disease’s progress. In October 2010, Majors

-2- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

allegedly experienced an MS relapse. He reported tingling sensations, numbness in his extremities,

and a gait with a diminished range of motion. In August 2011, Majors experienced a second MS

relapse: his left foot was dragging, he began to stumble, and his left side felt much weaker than his

right. Two nurses who treated Majors, Nurse Defendants Heidi Smith and Robert Prevo, allegedly

ignored Majors’ requests for treatment following this second relapse.

In December 2012, Majors was transferred to the Gus Harrison Correctional Facility. From

that time through July 2014, he was cared for by Defendant Savithri Kakani, a physician’s

assistant. Like Gerlach, Kakani reviewed Majors’ medical records, knew that he had been

receiving Interferon injections for MS while in MNDOC custody, and was aware of his MS

relapses. Also like Gerlach, Kakani neither treated Majors with Interferon nor ordered a diagnostic

test to confirm his diagnosis. Nurse Defendant John Solomonson allegedly ignored Majors’

multiple requests for treatment and did not intervene with Kakani to secure medication for his MS.

In July 2014, Majors was transferred to the West Shoreline Correctional Facility. There,

his condition steadily deteriorated: his speech was consistently slurred, he suffered from fatigue

and weakness in his facial muscles, he lacked eye coordination, and his left foot continued to drag.

He experienced several muscle spasms throughout his body, and both his balance and gait were

compromised. He required a wheelchair or walker to move around, could no longer remember

basic words, could not maintain his own hygiene, and had extensive memory loss. In September

2014, in response to these dire symptoms, Defendant physician’s assistant Thomas LaNore

presented Majors’ case to Corizon Health Medical Director Keith Papendick.1 Papendick approved

an MRI that confirmed Majors’ MS diagnosis, over four years after Majors first informed MDOC

1 Both Defendants Kakani and LaNore, at all relevant times, were employees of Corizon Health, Inc., a prison healthcare contractor.

-3- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

medical staff of his condition. This led LaNore to prescribe weekly Interferon injections beginning

in October 2014.

Despite resuming Interferon treatment, Majors’ condition continued to decline throughout

2015: he lost coordination and endurance, could no longer use his wheelchair on his own, could

not clean himself following bowel movements, and could not dress or shower independently. In

April 2015, MDOC transferred him to the St. Louis Correctional Facility. In September 2015, St.

Louis staff discovered Majors lying on his cell floor in a puddle of his own urine and feces while

breathing shallowly. Majors was then hospitalized and diagnostic tests revealed highly advanced

MS damage to his brain. He was discharged in October 2015, but suffered a relapse in November

2015 and again in in February 2016. MDOC ultimately granted Majors medical parole. Records

indicate that Majors had regressed to sucking his thumbs and consuming his own feces. Majors

was ultimately sent to a Detroit nursing home where he died of MS complications on June 19,

2016.

On October 14, 2016, Plaintiffs filed the present lawsuit against Majors’ MDOC medical

providers under 42 U.S.C. § 1983 for violating his Eighth Amendment right to be free from cruel

and unusual punishment. An amended complaint was filed on March 21, 2017. The Eighth

Amendment claim was brought as two counts: Count I was against several of the MDOC nurses

who treated Majors: Prevo, Smith, Vives, Herman, Solomonson, Rich, Evertsen, and Blohm

(collectively, the “Nurse Defendants”). Count II was against the physician’s assistants and medical

doctors who treated Majors: Dr. Gerlach, physician’s assistant Kakani, physician’s assistant

LaNore, and Dr. Howard (collectively the “Physician Defendants”). A separate count for wrongful

death under Michigan law was brought against all Defendants.

-4- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

Physician Defendants Gerlach and LaNore moved to partially dismiss the complaint on

timeliness grounds while Physician Defendant Kakani moved to be dismissed from the case

because Plaintiffs failed to properly plead their wrongful death claim against her. The court granted

the motion in part and denied it in part. It found that the relevant statute of limitations barred all

claims against Defendants that arose from injuries that occurred prior to May 20, 2013. Thus,

Gerlach was dismissed from the case and the claims against Kakani and LaNore were limited. The

court also dismissed Nurse Defendants Smith and Prevo in light of the applicable limitations

period.

On March 18, 2019, the district court granted summary judgment to the remaining

Defendants on Plaintiffs’ Eighth Amendment and wrongful death claims.2 The district court found

that Plaintiffs had not presented any genuine issues of material fact as to the whether the remaining

Defendants exhibited deliberate indifference in treating Majors. This timely appeal followed.

DISCUSSION

A. The Applicable Statute of Limitations

The district court partially granted Defendants’ motion to dismiss the complaint because it

was filed outside of the applicable statute of limitations. This is a matter of law that we review de

novo. Zappone v. United States, 870 F.3d 551, 555 (6th Cir. 2017). In § 1983 actions, “state law

determines which statute of limitations applies” while “federal law determines when the statutory

period begins to run.” Harrison v. Michigan, 722 F.3d 768, 772–73 (6th Cir. 2013). Moreover,

2 The remaining Defendants were physician’s assistants LaNore and Kakani, and nurses Solomonson, Rich, Evertsen, and Blohm. The district court had previously dismissed Dr. Howard without prejudice, because Plaintiffs failed to properly serve her within ninety days of the complaint being filed. Plaintiffs have not raised any arguments pertaining to that decision and have therefore forfeited any appeal of Howard’s dismissal. Additionally, Plaintiffs noted in their appellate brief that they stipulated to the dismissal without prejudice of Nurses Vives and Herman, and that they “decline . . . to pursue the claims against them on appeal.” Appellants’ Br. at 9 n.2. These claims are therefore abandoned.

-5- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

§ 1983 actions “are best characterized as tort actions for the recovery of damages for personal

injury and . . . federal courts must borrow the statute of limitations governing personal injury

actions from the state where the § 1983 action was brought.” Cooey v. Strickland, 479 F.3d 412,

416 (6th Cir. 2007). Pursuant to this framework, we have held that § 1983 claims in Michigan are

subject to a three-year statute of limitations. Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986)

(per curiam); see also Mich. Comp. Laws § 600.5805(2) (“[T]he period of limitations is 3 years

after the time of the death or injury for all actions to recover damages for the death of a person or

for injury to a person or property.”). Moreover, we have held that “the statute of limitations period

begins to run when the plaintiff knows or has reason to know that the act providing the basis of his

or her injury has occurred.” Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996). “[W]e look to

the event that should have alerted the typical lay person to protect his or her rights.” Trzebuckowski

v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003). In the present case, the injury alleged is

Majors’ worsening MS, brought on by the alleged failures of Gerlach, Prevo, and Smith to treat

him with Interferon or order diagnostic tests.

Because Majors’ estate is bringing this case, we must also examine if Majors’ claim

survived his death. We have held that the forum state’s law determines whether a § 1983 claim

survives an individual’s death. See Crabbs v. Scott, 880 F.3d 292, 294 (6th Cir. 2018). In Crabbs,

a § 1983 claimant died before his claim could be resolved and the district court denied his mother’s

motion to be substituted as plaintiff. Id. at 294. We reversed because § 1983 claims “are best

characterized as personal injury actions” and Ohio law provides for the survival of personal injury

claims. Id.

In the present case, Plaintiffs were entitled to bring claims that would not have been time-

barred had Majors attempted to bring them while he was alive. Mich. Comp. Laws § 600.5852(1)

-6- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

(“If a person dies before the period of limitations has run or within 30 days after the period of

limitations has run, an action that survives by law may be commenced by the personal

representative of the deceased person at any time within 2 years after letters of authority are issued

although the period of limitations has run.”). And under Michigan’s statute of limitations, Majors

could have brought claims that accrued within three years of the date of filing. Combined with the

thirty-day grace period provided by Michigan’s survivorship statute, this means that Plaintiffs’

claims that accrued three years and thirty days before Majors died were timely.

Majors died on June 19, 2016, and therefore, the accrual date the district court set—May

20, 2013—is accurate. As such, the district court properly permitted the claims against Kakani,

LaNore, and the Nurse Defendants that accrued on or after May 20, 2013 to proceed, while

dismissing those claims prior to the date and dismissing Gerlach, Smith, and Prevo from the suit.3

Plaintiffs’ reliance on an unpublished decision of this Court, Ruiz-Bueno v. Maxim

Healthcare Services, Inc., 659 F. App’x 830 (6th Cir. 2016), is misplaced. The injury at issue was

the pretrial detainee’s death itself, and so the statute of limitations did not begin to run until the

plaintiffs had access to an internal investigative report that detailed the circumstances surrounding

his death, as that event allowed the plaintiffs to discover their cause of action. Id. at 834.4 And

because the detainee’s death was the injury, he could not have filed a claim while he was alive.

But in the present case, as in Crabbs, Majors was aware of his injury—Defendants’ failure to treat

him and the resulting exacerbation of his MS—well before the time of his death. As shown by his

3 While the claims were properly dismissed, evidence from before May 20, 2013, may be admissible with respect to Plaintiffs’ claims against the remaining Defendants. See Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 483 (6th Cir. 1987) (“The decision whether to admit evidence is based on its relevancy and probativeness, not on whether the evidence is derived from events that occurred prior to a certain time period.” (citation omitted)). 4 There was also no suggestion in Ruiz-Bueno that the decedent, who had a mental illness and died less than a month after entering the jail, should have brought suit regarding his medical care prior to his death.

-7- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

various complaints and requests for treatment to prison medical staff, Majors knew of Defendants’

refusal to treat his illness and of the resulting need to “protect his . . . rights.” Trzebuckowski, 319

F.3d at 856.5

Plaintiffs alternatively argue that even if the statute of limitations was correctly calculated

by the district court, the court should have permitted additional, limited discovery on whether the

limitations period should have been tolled under Michigan’s mental incapacity provision. See

Mich. Comp. Laws § 600.5851(1). But Plaintiffs did not raise this argument until their motion for

reconsideration of the partial dismissal of their complaint.

Plaintiffs styled their motion as a “motion for reconsideration pursuant to E.D. Mich. L.R.

7.1(h)(3),” R. 46, Mot. for Reconsideration, PageID # 383, and our holdings indicate that motions

for reconsideration generally may not raise new issues. See Dean v. City of Bay City, Mich., 239

F. App’x 107, 111 (“A motion for reconsideration based on Rule 59(e) or Rule 60(b) is not the

proper vehicle for asserting a new claim for the first time.”); Sault Ste. Marie Tribe of Chippewa

Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (holding that parties may not use Rule 59(e)

motions to “raise arguments which could, and should, have been made before judgment issued”

(quoting FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992))).

Plaintiffs were in possession of Majors’ MDOC medical records when the complaint was

filed and when Defendants moved to dismiss based upon the statute of limitations. Those records

clearly evinced his declining mental health due to his MS relapses. The possibility of Majors’

5 Plaintiffs do not contend on appeal that Majors’ death was an independent injury that triggered a new three-year statutory period under Michigan personal injury law. Admittedly, the death of the original plaintiff in Crabbs was unrelated to the underlying § 1983 claim and the original plaintiff had already filed his § 1983 claim by the time he died, whereas in the present case, Majors’ death is closely related to his MS treatment (or lack thereof) and he did not file a lawsuit before passing away. We leave for another day whether the death of a § 1983 plaintiff can constitute a separate “injury” in cases where their death is an alleged result of the defendants’ conduct.

-8- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

mental incapacity was obvious. Even if Plaintiffs required further discovery or expert analysis to

fully argue that Majors was mentally incapacitated during his incarceration, Plaintiffs have not

demonstrated why this argument could only be raised after the district court partially granted

Defendants’ motion to dismiss. Therefore, the district court did not err in denying Plaintiffs’

motion for reconsideration.

B. Summary Judgment for the Remaining Defendants

Standard of Review

We review the district court’s order granting summary judgment to the remaining

Defendants de novo. Wathen v. Gen. Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). To be entitled

to summary judgment, the movant must have demonstrated that there was no genuine dispute as

to any material fact, thereby entitling it to judgment as a matter of law. Fed. R. Civ. P. 56(a). A

“material” fact is one that “might affect the outcome of the suit under the governing law,” and a

genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We examine the

facts in the light most favorable to the nonmoving party and draw all reasonable inferences

therefrom in its favor. See Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Importantly, a court

may not “weigh the evidence and determine the truth of the matter” in deciding a motion for

summary judgment. Anderson, 477 U.S. at 249. But if the evidence is “merely colorable” or “not

significantly probative,” then “summary judgment may be granted.” Id. at 249–50.

Analysis

The Eighth Amendment to the Constitution prohibits “cruel and unusual punishments.”

The Supreme Court has held that “deliberate indifference to serious medical needs of prisoners

-9- Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). And “deliberate

indifference to a prisoner’s serious illness or injury states a cause of action under [§] 1983.” Id. at

105.

Deliberate indifference claims contain an objective component and a subjective

component. The objective component requires that the deprivation of medical treatment be

“sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); accord Farmer v. Brennan,

511 U.S. 825, 834 (1994). We have held that a “sufficiently serious” medical need is a medical

condition that has been “diagnosed by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention.” Santiago v.

Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir.

2008)).

We have generally held that when a deliberate indifference claim is based on a delay in

treatment, rather than the failure to treat at all, the plaintiff must “place verifying medical evidence

in the record to establish the detrimental effect of the delay in medical treatment.” Santiago,

734 F.3d at 590 (quoting Napier v. Madison Cty., 238 F.3d 739, 742 (6th Cir. 2001)). In Santiago,

because the plaintiff had received some treatment—in the form of medication for a skin condition

that caused him severe pain and limited his mobility, as well as a wheelchair and cane—he needed

to present verifying medical evidence establishing the detrimental effect of the delay in receiving

the specific additional treatment he wanted. Id. at 590–91. His failure to do so meant he could not

satisfy the objective component. Id. at 591. Furthermore, we have more recently observed that

“when an inmate has received on-going treatment for his condition and claims that this treatment

was inadequate, the objective component of an Eighth Amendment claim requires a showing of

- 10 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

care ‘so grossly incompetent, inadequate, or excessive as to shock the conscience or to be

intolerable to fundamental fairness.’” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018)

(quoting Miller v. Calhoun Cty., 408 F.3d 803, 819 (6th Cir. 2005)).6

While meeting the requirement for verified medical evidence “will often require ‘expert

medical testimony,’” id. (quoting Anthony v. Swanson, 701 F. App’x 460, 464 (6th Cir. 2017)),

evidence in a prisoner’s medical records can suffice in some cases, see Cobb v. Pramstaller, 475

F. App’x 575, 580 (6th Cir. 2012); see also Jackson v. Gibson, 779 F. App’x 343, 346 (6th Cir.

2019).

Alternatively, even without such verified medical evidence, a plaintiff can “establish the

objective component by showing that the prison . . . provided treatment ‘so cursory as to amount

to no treatment at all.’” Rhinehart, 894 F.3d at 737 (quoting Dominguez v. Correctional Med.

Servs., 555 F.3d 543, 551 (6th Cir. 2009)); see also Terrance v. Northville Reg’l Psychiatric Hosp.,

286 F.3d 834, 843–44 (6th Cir. 2002) (“When the need for treatment is obvious, medical care

which is so cursory as to amount to no treatment at all may amount to deliberate indifference.”

(quoting Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989))). In Mandel, the Eleventh Circuit

held that a physician’s assistant’s failure to inform his superior or a medical doctor of a prisoner’s

injured leg constituted deliberate indifference. 888 F.2d at 789. And in Darrah v. Krisher, 865 F.3d

361, 370 (6th Cir. 2017), we reversed the grant of summary judgment for a physician because the

plaintiff demonstrated a genuine dispute as to whether medication used to treat his condition—

6 We did not say in Miller that the objective component requires a showing of grossly inadequate medical care with respect to claims of inadequate treatment, but instead we held that doing so provides a way for an inmate to establish deliberate indifference separate from the “mixed objective and subjective standard” established in Farmer. See Miller, 408 F.3d at 819. It is therefore unclear why we included this language as part of the objective component in Rhinehart. And cases like Santiago did not do so. See 734 F.3d at 590 (articulating the objective component). This ambiguity in our doctrine notwithstanding, Plaintiffs have conceded that this is an element of the objective component in inadequate care claims. Appellants’ Reply Br. at 12–13.

- 11 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

Methotrexate—was “so ineffective . . . that it was essentially the equivalent of no treatment at all.”

And “[a]lthough the record indicate[d] that [defendant doctor] monitored Darrah for infections

during the period that he was on Methotrexate, the question of whether it was reasonable to

continue to keep him on a drug that had proven ineffective and whether that course of treatment

constituted deliberate indifference [was] a question best suited for a jury.” Id.

Moreover, prior to these cases we had already indicated that although in situations “[w]here

a prisoner has received some medical attention and the dispute is over the adequacy of the

treatment, federal courts are generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law . . . in some cases the medical attention

rendered may be so woefully inadequate as to amount to no treatment at all.” Westlake v. Lucas,

537 F.2d 857, 860 n.5 (6th Cir. 1976) (citing Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970)).

And in Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011), we relied on the distinction

drawn in Westlake to affirm the grant of summary judgment for prison medical officials who

treated an inmate’s neck and toe injuries. The prisoner received thorough treatment, including

prompt examinations, an x-ray and soft cervical collar for his neck, neck surgery, and an x-ray and

tape for his toe. Id.

Because the Eighth Amendment prohibits cruel and unusual punishments rather than

conditions, the Supreme Court has also required that claimants meet a subjective component.

Farmer, 511 U.S. at 837. This subjective component requires a prisoner to demonstrate that prison

officials had a “sufficiently culpable state of mind” in denying them medical care, namely one that

amounts to deliberate indifference to their serious medical need. Wilson, 501 U.S. at 297; accord,

e.g., Alspaugh, 643 F.3d at 169. Under our case law, deliberate indifference means “something

- 12 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

more than mere negligence,” but may be shown “by something less than acts or omissions for the

very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835.

Ultimately, an official must have known of and disregarded “an excessive risk to inmate

health or safety.” Farmer, 511 U.S. at 837. She “must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw

the inference.” Id. We have emphasized that “[k]nowledge of the asserted serious needs or of

circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate

indifference.” Horn by Parks v. Madison Cty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). A

prison official can escape liability by showing that they “responded reasonably to the risk, even if

the harm ultimately was not averted.” Farmer, 511 U.S. at 844. Yet, we have held that “[a]

government doctor has a duty to do more than simply provide some treatment to a prisoner who

has serious medical needs; instead, the doctor must provide medical treatment to the patient

without consciously exposing the patient to an excessive risk of serious harm.” LeMarbe v.

Wisneski, 266 F.3d 429, 439 (6th Cir. 2001). And a plaintiff “need not show that a prison official

acted or failed to act believing that harm actually would befall an inmate; it is enough that the

official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer,

511 U.S. at 842.

With these principles in mind, we now consider the claims against each Defendant in turn.

- 13 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

i. The Physician Defendants7

1. Savithri Kakani

Defendant physician’s assistant Kakani evaluated and treated Majors from December 2012

through July 2014. Plaintiffs allege that Kakani’s failures to either confirm Majors’ MS diagnosis

or prescribe Interferon injections to remedy his symptoms and arrest the progress of his disease

constitute deliberate indifference. The district court held that “in 2013, Majors’ medical need was

not objectively serious” because Kakani concluded that Majors was in remission, and so “this can

be neither a situation where a physician diagnosed a condition mandating prompt treatment, nor

where a lay person would recognize that Majors needed care.” R. 170, Dist. Ct. Order,

PageID # 3110. Therefore, the court held that Plaintiffs needed to present “verifying medical

evidence in the record to establish the detrimental effect of the delay in medical treatment.” Id.

(citing Santiago, 734 F.3d at 590). Namely, evidence proving that the delay in performing

diagnostic tests or treating Majors’ MS exacerbated his condition or caused additional pain and

suffering.8

The district court erred because a reasonable jury could find that Majors’ need for treatment

was “obvious”—he had a documented diagnosis of MS and history of both Interferon and steroid

7 The fact that Defendants Kakani and LaNore are physician’s assistants, rather than physicians, does not absolve them liability. Although it was Corizon Medical Director Papendick who ultimately authorized Majors’ MRI, this Court has considered deliberate indifference claims against physician’s assistants who allegedly did not request an MRI. See Palmer v. Wagner, 3 F. App’x 329, 330 (6th Cir. 2001) (affirming grant of summary judgment for physician’s assistant because the record showed he did request an MRI). And LaNore himself was able to prescribe Interferon after Majors’ MRI established the severity of his MS. Defendants also do not claim that their positions immunize them from liability for deliberate indifference even if Majors could meet the objective and subjective components of the Eighth Amendment test. 8 The parties focus on the appropriateness of treating Majors with Interferon, but his prison medical records indicate that he was also treated with steroids while in Minnesota’s prison system. And one of Defendants’ experts notes that intravenous steroids can help increase recovery time during a relapse. R. 113-7, Expert Report of Chakrapani Ranganathan, PageID # 1251. Thus, steroids were an available option to treat Majors as well.

- 14 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

treatment—and that the treatment rendered by Kakani was “so cursory as to amount to no treatment

at all,” Terrance, 286 F.3d at 843–44, thereby satisfying the objective component, Rhinehart, 894

F.3d at 737. Rather than treat Majors’ MS symptoms or even request an MRI to monitor his

disease, Kakani did nothing beyond evaluate him in May 2013 and record her notes. Yet a May

21, 2013, treatment note reveals that she personally knew that Majors had been diagnosed with

MS in 2005, had been previously treated with Interferon, and that his last recorded MRI was in

June 2008. R. 119, MDOC Records, PageID # 1475. And while Majors felt “good” and reported

“no issues” at that appointment, id., Majors complained to Kakani about his MS on several other

occasions, including when he appears to have relapsed. In January 2013, he complained about “not

receiving services . . . about his MS” and that as a result “he is managing the best he can.” R. 141-

7, MDOC Records, PageID # 2192. In February 2013, he “report[ed] signs and symptoms

consistent with MS,” and in March 2013, he complained about not receiving any MS treatment,

including Interferon injections. Id. at 2189–90. A June 2013 evaluation reported that Majors’ MS

has caused “a significant loss of functioning for him emotionally and physically” and that “[h]e

easily tires, has difficulty walking and feels that his memory has significantly deteriorated due to

the MS.” Id. at 2176. The only hint of an explanation for Kakani’s minimal response to these

complaints was provided by her after she evaluated Majors personally in May 2013. She noted that

“[patient] has [diagnosis] of ms not on meds looks like in remission.” Id. at 2188. Her follow-up

action was to request Minnesota prison medical records detailing Majors’ 2008 MRI and neurology

consultation.

Majors’ treatment is at least—if not more—deficient than that received by the plaintiff in

Darrah. Kakani did not even seek to determine if her approach of not treating Majors was working

because she never sought an MRI for him. In Darrah, the defendant physician at least prescribed

- 15 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

medication in an attempt to treat the plaintiff’s condition. 865 F.3d at 370. The important link

between the two cases, however, is that in both the defendant’s course of treatment was ineffective

and the defendant disregarded the plaintiff’s complaints of symptoms. See also Dominguez, 555

F.3d at 551 (finding genuine issue as to whether treatment was so cursory as to amount to no

treatment at all because inmate was returned to non-air conditioned cell despite suffering from heat

stroke). Moreover, Majors’ treatment sharply differed from that rendered in Santiago—where we

required verified medical evidence—because the plaintiff’s skin condition and mobility issues

were being addressed with multiple medications, a cane, and a wheelchair. 734 F.3d at 590–91;

see also Rhinehart, 894 F.3d at 739 (finding that “this is not a case involving cursory treatment

amounting to no treatment at all” because the plaintiff received multiple diagnostic tests, pain

medications, a referral to a specialist, and was given a “recognized” medication for his condition).

In the present case, Kakani ignored Majors’ MS. She did not request an MRI to confirm his

diagnosis nor treat his MS with Interferon or relapses with steroids. And because Kakani did not

ascertain how far his MS had progressed, her conclusion that he “looks like [he is] in remission”

in May 2013 could not be validated. As such, a reasonable jury could find that her course of

treatment was “so cursory as to amount to no treatment all.” Terrance, 286 F.3d at 843.9

The district court correctly found that the objective component was met with respect to

Majors’ condition in 2014. The court accurately cited to several “kites” (i.e., missives sent by

9 Even if verified medical evidence were required in this case, Plaintiffs have shown a genuine issue as to the detrimental effect of the delay. See Santiago, 734 F.3d at 590. Because medical records can constitute verified medical evidence, see Cobb, 475 F. App’x at 575, and because these records show that Majors had MS and that it progressed unabated while Kakani failed to monitor his condition or treat it, Plaintiffs have met the objective component. As the Defendants’ own expert attests, while MS cannot be cured it can be limited through prompt treatment—both during relapses and between them. R. 113-7, Expert Report of Chakrapani Ranganathan, PageID # 1251. Kakani’s failure to determine if resuming Interferon or steroid treatment was appropriate for Majors was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miller, 408 F.3d at 819.

- 16 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

Majors to prison medical staff) establishing that Majors regularly complained about his pain and

his MS. Such evidence undermined Kakani’s assumption that Majors was in remission while she

treated him. On April 21, 2014, Majors complained of MS symptoms and requested medication

for them. On April 24, 2014, Majors complained again. On May 4, 2014, Majors once more

reiterated his complaint and request for treatment. In light of these kites the seriousness of Majors’

MS was manifest in 2014. As such, a reasonable jury could find that Plaintiffs meet the objective

component regarding Kakani’s treatment of Majors in 2014.

With respect to the subjective component, the district court found that in 2013, Kakani “did

not subjectively perceive facts from which to infer substantial risk to Majors.” R. 170, Dist. Ct.

Order, PageID # 3112. She believed he was in remission and her failure to ensure that he received

an MRI or further diagnostic testing does not amount to deliberate indifference because “Kakani

did not see any risk to Majors at the time.” Id. Then in 2014, she addressed any risk she perceived

by consulting with a physician and determining that Majors treatment plan did not need to change.

These determinations ignore the fact that the circumstances surrounding treatment can establish

the requisite substantial risk even if the prison official does not expressly acknowledge it. See, e.g.,

Horn, 22 F.3d at 660 (“Knowledge of the asserted serious needs or of circumstances clearly

indicating the existence of such needs, is essential to a finding of deliberate indifference.”)

(emphasis added). It was known to Kakani that Majors suffered from MS, that he was periodically

relapsing while in MDOC custody, and that he was directly requesting treatment he had previously

received for years.

While Kakani need only have “responded reasonably to the risk,” Farmer, 511 U.S. at 844,

she needed to “do more than simply provide some treatment,” LeMarbe, 266 F.3d at 439. She

needed to treat him “without consciously exposing [Majors] to an excessive risk of serious harm.”

- 17 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

LeMarbe, 266 F.3d at 439. His worsening symptoms under Kakani’s care suggest that she failed

to prevent such exposure. She only reviewed his chart and records, scheduled follow-up

appointments with him, and arranged for a consultation with an optometrist. The most substantive

action she took was to consult a doctor about his MS. But all that record notes is that “pt not on

any meds for ms discussed with md the other day.” R. 119, MDOC Records, PageID # 1485. It is

silent as to what was discussed, who the doctor was, and why his treatment plan was left unchanged

despite Majors’ preexisting symptoms and recent complaints of relapse. This treatment failed to

address his chronic MS. Without diagnostic testing, neither Kakani nor her supervising physician

could be sure that Majors was in remission, let alone that the decision to not prescribe any MS-

specific treatment was reasonable. See Farmer, 511 U.S. at 843 n.8 (holding that a prison official

may not escape liability for deliberate indifference “if the evidence showed that he merely refused

to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences

of risk that he strongly suspected to exist”).

In light of these deficiencies in treating Majors, summary judgment was improperly granted

for Defendant Kakani. A reasonable jury could find that because of Majors’ medical history and

contemporaneous MS symptoms, Kakani “(1) ‘subjectively perceived facts from which to infer

substantial risk to the prisoner,’ (2) ‘did in fact draw the inference,’ and (3) ‘then disregarded that

risk.’” Santiago, 734 F.3d at 591 (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.

2001)). She knew from his records that he had MS, had been treated with Interferon and steroids

before, and was aware of his requests to resume Interferon treatment. Cf. LeMarbe, 266 F.3d at

440 (finding subjective component met where a doctor was aware of bile leak in a prisoner’s

abdomen that “if not stopped immediately, would expose [prisoner] to a substantial risk of serious

harm; and that [the doctor] disregarded such risk by failing to take the actions he knew were

- 18 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

necessary to avoid the potentially serious harm to [prisoner]”). Kakani ignored the documented

signs of Majors’ MS in refusing to treat him or even request diagnostic testing. Both decisions

significantly delayed his treatment, exacerbated his symptoms, and allowed for the irreparable

progression of his debilitating disease. Cf. Farmer, 511 U.S. at 842 (“[I]t is enough that the official

acted or failed to act despite his knowledge of a substantial risk of serious harm.”).

Therefore, a reasonable jury could find that Plaintiffs’ claim against Kakani meets the

objective and subjective components and that she was deliberately indifferent to Majors’ serious

medical need.

2. Thomas LaNore

Physician’s assistant LaNore treated Majors from July 2014 through April 2015. Majors’

MDOC records from this time are replete with evidence of severe MS. He had muscle spasms, he

dragged his left foot, his speech was slurred, and his smile was uneven with a left-side droop.

LaNore himself noted that Majors was presenting with MS. And because of Majors’ MS-related

mobility problems, he was given a wheeled walker in August 2014. And on September 18, 2014,

LaNore successfully requested an MRI for Majors which re-confirmed his diagnosis and resulted

in the resumption of Interferon treatment the following month. The district court recognized that

Majors’ condition was sufficiently obvious, but because his need was addressed within a

reasonable time frame the objective component was not satisfied. See Mattox v. Edelman, 851 F.3d

583, 598 (6th Cir. 2017) (“‘[W]here a plaintiff’s claims arise from an injury or illness so obvious

that even a layperson would easily recognize the necessity for a doctor’s attention,’ the plaintiff

can meet the objective prong by showing ‘that he actually experienced the need for medical

treatment, and that the need was not addressed within a reasonable time frame.’” (quoting

Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir. 2004))). However, given the severity

- 19 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

of Majors’ condition his need for treatment was not necessarily addressed quickly enough. In

Blackmore, we held that the plaintiff’s medical need was not addressed “within a reasonable time

frame” because “after Blackmore suffered for two days, making unrelenting complaints and

vomiting, a nurse identified ‘classic signs of appendicitis’ and doctors performed

an appendectomy.” Blackmore, 390 F.3d at 900. Similarly, Majors suffered for two months while

at West Shoreline, waiting for the Corizon bureaucracy to finally take his complaints of MS

seriously, order the necessary testing, and provide him with severely delayed treatment. See also

Darrah, 865 F.3d at 369 (finding genuine issue where doctor did not treat plaintiff’s condition

with medication for three months after arrival at prison, despite the doctor being aware of the

plaintiff’s condition and need for medication).10

With respect to the subjective component, the district court found that LaNore did not

demonstrate deliberate indifference towards Majors’ condition. He sought to confirm Majors’

diagnosis by waiting for the receipt of certain Minnesota records from 2005. It was only after

discovering that the records did not exist that he requested an MRI to confirm Majors’ MS

diagnosis. The district court held that “LaNore repeatedly followed up with Majors’ care and

ensured that he received the appropriate testing and medication” and that waiting to confirm

Majors’ diagnosis before beginning the injections did not show “that he had a sufficiently culpable

state of mind.” R. 170, Dist. Ct. Order, PageID # 3117.

10 Defendants’ reliance on two experts reports stating that both LaNore and Kakani provided adequate care is misplaced. See R. 113-6, Expert Report of Randall Stoltz, PageID # 1232–48; R. 113-7, Expert Report of Chakrapani Ranganathan, PageID # 1249–59. For one, the district court did not consider the reports in granting summary judgment for Defendants nor rule on the merits of Plaintiffs’ motion to strike the reports. Thus, it is unclear if we can do so on appeal. See Anchor v. Linton, 230 F.3d 1357, 1357 n.1 (6th Cir. 2000) (table). More importantly, the expert reports are conclusory and provide no explanation for why the physician’s assistants were justified in declining to monitor Majors’ MS via an MRI or to resume his Interferon regimen or treat his relapses with steroids. The experts do not consider all of Majors’ requests for treatment or each of his complaints of relapse and do not explain why Kakani’s assumption that Majors was in remission in 2013 was well-founded.

- 20 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

In reaching this conclusion, the district court impermissibly “weigh[ed]” the evidence

before it. Anderson, 477 U.S. at 249. When Majors arrived at West Shoreline, he came with a

lengthy medical history indicating a prior diagnosis and treatment of MS, but a lack of recent

diagnostic monitoring or treatment. He also physically manifested clear signs of MS. Despite

Majors’ repeated kites complaining of his symptoms, LaNore did not evaluate him until August

12, 2014—a month after Majors arrived in West Shoreline. Moreover, LaNore delayed Majors’

treatment by another month after that, waiting for the non-existent Minnesota records before

asking Corizon Medical Director Papendick to approve Majors’ MRI.

We held in Blackmore that “[w]hen prison officials are aware of a prisoner’s obvious and

serious need for medical treatment and delay medical treatment of that condition for non-medical

reasons, their conduct in causing the delay creates the constitutional infirmity.” 390 F.3d at 899;

see also Jones v. Muskegon County, 625 F.3d 935, 944 (6th Cir. 2010) (finding a genuine issue as

to whether nurses who ignored inmate’s kites complaining of abdominal pain and possible cancer

were deliberately indifferent by delaying inmate’s evaluation by three months because of the

suspicion that he was “faking it”). LaNore has not provided a medical reason for the two-month

delay. He does not explain why the Minnesota records, which would have been approximately

nine years old at that point, were a necessary prerequisite to requesting an MRI to determine the

current status of Majors’ condition.11

Because of the progressive nature of MS, every day that Majors did not receive treatment

was a day that his disease continued without any intervention designed to slow or mitigate its

11 The record shows that Majors was rapidly scheduled for an MRI once LaNore sought it. LaNore met with Papendick on September 18, 2014, to request the procedure. On September 19, 2014, LaNore evaluated Majors and noted that Majors was scheduled for an MRI on September 29, 2014. R. 119, MDOC Records, PageID # 1533, 1543. The speed with which LaNore’s request was approved and fulfilled underscores how quickly Majors could have been treated previously.

- 21 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

effects. Therefore, a reasonable jury could find that LaNore was aware of a “substantial risk of

serious harm” to Majors and disregarded it. Farmer, 511 U.S. at 837. As such, Plaintiffs’ claim

against LaNore survives summary judgment.

ii. The Nurse Defendants

The Nurse Defendants raised a defense of qualified immunity to Plaintiffs’ Eighth

Amendment claims. To defeat this defense, Plaintiffs must demonstrate that the Nurse Defendants

(1) violated one of Majors’ constitutional rights that was (2) clearly established at the time the

violation occurred. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has

held that courts may address the questions of whether a right was violated or whether it was

established at the time of the violation in either order. Pearson v. Callahan, 555 U.S. 223, 236

(2009). The district court held that no violation occurred. Although this presents a difficult

question on appeal, because we find that the right alleged is not “so clearly established in a

particularized sense that a reasonable officer confronted with the same situation would have known

that his conduct violated that right,” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015), we

find that the Nurse Defendants are entitled to qualified immunity without deciding whether the

district court correctly found there to be no constitutional violation.

Plaintiffs contend that the Nurse Defendants “shirked their constitutional responsibility

when they documented Majors’s rapidly deteriorating health, without any mind towards their

independent duty to guarantee that his medical treatment comported with the Eighth Amendment.”

Appellants’ Br. at 49. This suggests that the Nurses Defendants should not have deferred to Kakani

or LaNore, and instead they should have exercised their own independent medical judgment and

more strenuously advocated for Majors to receive an MRI or Interferon treatment much sooner.

- 22 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

No case cited by Plaintiffs puts these nurses on-notice of their duty to do so nor of what events

would have triggered the performance of that duty.

For example, in Winkler v. Madison County, 893 F.3d 877, 894 (6th Cir. 2018), we held

that a nurse’s actions did not satisfy the subjective component of a deliberate indifference claim

where she “gathered information about [plaintiff’s] condition, provided it to a medical professional

qualified to evaluate him, and followed the directions of that medical professional.” Because the

nurse believed that the prisoner’s condition would be adequately treated by following those orders,

“there [was] no basis to find that she was subjectively aware of a substantial risk of harm to

[plaintiff’s] health.” Id. at 895.

That said, in Sours v. Big Sandy Regional Jail Authority, 593 F. App’x 478, 479 (6th Cir.

2014), we reversed the grant of summary judgment for a treating nurse whose failure to administer

insulin to a pretrial detainee for several days caused him to die from diabetic ketoacidosis. The

nurse had an established understanding of diabetes and familiarity with insulin treatment and was

expected by her supervising physician to administer insulin when appropriate, yet she wholly

failed to treat the detainee’s obviously life-threatening diabetic episode. Id. at 480–82. As a result,

we held that “[a] jury could find that [the nurse] consciously exposed Sours to an excessive risk of

serious harm by failing to arrange for insulin injections or medical care.” Id. at 486; see also Jones,

625 F.3d at 944 (finding nurses could be liable for deliberate indifference where they were aware

of plaintiff’s abdominal pain and cancer risk yet refused his calls for medical aid for months).

While Majors’ nurses may have been aware of his diagnosis and treatment history, there is

no evidence that they could have meaningfully influenced his course of treatment. Even after

taking the evidence in the light most favorable to Plaintiffs, the record before us indicates that all

the nurses could have done is essentially what they did do: inform their supervisors of Majors’

- 23 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

condition and complaints. The record does not contain evidence of the nurses’ scope of practice or

how they could have raised concerns about Majors to other prison medical officials.

Instead, the record aligns this case with Winkler, where we held that the plaintiff could not

satisfy the subjective component because the defendant nurse believed the plaintiff would be

treated for withdrawal by other medical providers. 893 F.3d at 895. Ultimately, there is no clearly

established law that the Nurse Defendants’ decision to defer to the judgment of their supervising

medical providers who had diagnostic and treatment authority “consciously expos[ed] [Majors] to

an excessive risk of serious harm.” LeMarbe, 266 F.3d at 439. As such, even if the Nurse

Defendants violated Majors’ constitutional rights, they are entitled to qualified immunity.12

iii. Wrongful Death Claim

After granting summary judgment for the remaining Defendants, the district court properly

dismissed Plaintiffs’ wrongful death action pursuant to Michigan law. This was because we have

held that “under Michigan precedent it is clear that a wrongful death action is derivative, rather

12 Other courts have more deeply explored how much nurses may defer to physicians and “[i]n an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law.” Ohio Civil Service Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988). Plaintiffs rely on three. See Hadix v. Caruso, 461 F. Supp. 2d 574, 598–99 (W.D. Mich. 2006) (finding nurses involved in health care at a state prison could be liable for deliberate indifference for “pattern and practice of non- treatment and uncoordinated treatment,” with fatal consequences in some instances); Perez v. Fenoglio, 792 F.3d 768, 779 (7th Cir. 2015) (finding plaintiff stated a claim against prison nurse for failing to suture his wound, provide pain medication, or ensure that he received adequate care, where no discovery had occurred regarding the extent of the nurse’s authority to treat the injury, the necessity of such treatment, or whether she had contacted supervisors to provide further treatment); Berry v. Peterman, 604 F.3d 435, 443– 44 (7th Cir. 2010) (finding that a prison nurse was not entitled to summary judgment on a deliberate indifference claim where the nurse ignored the prisoner’s complaints of dental pain, did not consult his supervising physician for several weeks, independently responded to the prisoner’s complaints, and a reasonable jury could find that the nurse could not justifiably rely on the judgment of physician who lacked dental training or experience). However, the factual circumstances of each of these cases are far too different from the case at bar to “point unmistakably to the unconstitutionality of the conduct complained of,” and so they do not alter our view of this Court’s case law. Ohio Civil Service Employees, 858 F.2d at 1177.

- 24 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

than independent, of a decedent’s underlying tort action.” Kane v. Rohrbacher, 83 F.3d 804, 805

(6th Cir. 1996). The parties do not argue otherwise.

Because we find that Defendants Kakani and LaNore were not entitled to summary

judgment on Plaintiffs’ Eighth Amendment claim, the wrongful death claims against them are

reinstated as well. For Defendants properly dismissed from the suit or for whom summary

judgment was correctly granted, the wrongful death claims remain dismissed as well.

CONCLUSION

For these reasons, we AFFIRM IN PART the district court’s orders and REVERSE IN

PART. We AFFIRM the part of the district court’s orders dismissing Defendants Gerlach, Smith,

and Prevo from the suit, limiting the claims against Defendants based upon the statute of

limitations applicable to Plaintiffs’ action, and granting summary judgment for the Nurse

Defendants. We REVERSE the part of the district court’s orders granting summary judgment for

Defendants Kakani and LaNore. The case is REMANDED to the district court for further

proceedings consistent with this opinion.

- 25 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

John K. Bush, Circuit Judge, concurring in part and dissenting in part. I join in

generally all of the majority’s opinion except for the reversal of the summary judgment granted to

the physician’s assistants, Savithri Kakani and Thomas LaNore.1 The evidence, perhaps, could

support a jury finding that these individuals committed medical malpractice; but, it does not rise

to the level that would permit a finding of deliberate indifference under the Eighth Amendment.

I. Physician Assistant Savithri Kakani

On November 29, 2012, Majors arrived at Gus Harrison Correctional Facility, where

Savithri Kakani is a medical provider. (MDOC Medical Records, R. 119, PageID 1472-1473;

Kakani Aff’d., R. 113-4, PageID 1223). Kakani’s contact with Majors during his time at Gus

Harrison Correctional Facility was relatively limited. The first time she had any involvement was

on December 8, 2012, when she entered a chart update with an order to schedule Majors for a

chronic care visit. (MDOC Medical Records, R. 119, PageID 1474, Kakani Aff’d.., R. 113-4,

PageID 1223). Kakani then met with Majors on May 21, 2013 for the scheduled chronic care visit.

(MDOC Medical Records, R. 119, PageID 1480; Kakani Aff’d. R.113-4 at PageID 1223). At that

appointment, Majors told Kakani that he had been diagnosed with multiple sclerosis (MS) and had

been “on the injections” in the past, but was not currently on any medication. (MDOC Medical

Records, R. 119, PageID 1482-84). Kakani documented on Majors’s medical charts that he “said

he feels good,” reported “no issues,” and was “not on any meds at this time,” noting ultimately

1 There is one additional minor point in the majority opinion with which I respectfully disagree. Footnote 6 of the majority opinion states that there was an ambiguity in the statement of the objective standard in Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018). With all due respect, I don’t see any ambiguity. Rhinehart quotes Miller v. Calhoun Cty., 408 F.3d 408 F.3d 803, 819 (6th Cir. 2005) as part of its discussion of the objective prong of the deliberate-indifference standard where an inmate had received on-going treatment for his condition. In Miller the prisoner failed to demonstrate deliberate indifference because he did not show that the care was “‘so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.’” Id. (quoting Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 844 (6th Cir. 2001)).

- 26 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

that he was in apparent remission. (MDOC Medical Records, R. 119, PageID 1475-1476; Kakani

Aff’d., R. 113-4, PageID 1223). At the end of the appointment, Kakani requested some additional

medical records that were not in Majors’s chart, including an MRI report and neurology consult

note from the Michigan Department of Corrections (MDOC). (Id.).

Nearly a year elapsed between this initial chronic care visit and Kakani’s next involvement

with Majors. Beginning in late April and May 2014, Majors begin sending kites complaining of

his MS, stating that he wanted medication. (MDOC Medical Records, R. 119, PageID 1477-1479;

1481). Specifically, on April 21, 2014, Majors sent a kite stating that because of his MS, he was

starting to have problems walking, and that he had no medication to prevent a relapse. This kite

was received by Nurse Defendant Solomonson, who commented “Thank you for the information.”

(Id. at 1477). Shortly thereafter, on April 24, 2014, Majors sent another kite, in which he

complained of his MS again, and stated that he wanted medication. (Id. at 1478). As similar to

the previous kite, this kite was received by Solomonson, who indicated that Majors’s request for

medication would be passed along to the main physician (MP). (Id.). On May 4, 2014, Majors

sent a third kite; this time, he explicitly requested Interferon beta 1a for his MS. (Id at 1479). To

this, Solomonson responded that Majors’s previous requests had been sent to the main physician

twice already, and “if they chose to set up appt[,] the MP will set this up. Continuing to kite will

not make this process faster.” (Id.).

On May 21, 2014, Kakani reviewed Majors’s chart, which then included an order for a

provider visit to take place on or about May 29, 2014. (MDOC Medical Records, R. 119, PageID

1480, Kakani Aff’d., R. 113-4, PageID 1224).

In follow-up to the order, on May 30, 2014, Kakani saw Majors for another chronic care

visit. (MDOC Medical Records, R. 119, PageID 1482). At this visit, Majors indicated that he just

- 27 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

wanted health care to be aware of his condition and history. Kakani noted Major’s comments to

this effect on his chart: “he said he just want[s] us to know about [his MS][.]”. (Id.). At the time,

Majors denied experiencing any gastrointestinal, genitourinary, cardiac, pulmonary, or neurology

symptoms. (Id.). Kakani also documented that Majors was not on any medications presently, and

had undergone a normal neurological examination. (Id.). Nonetheless, Kakani ordered an

optometry visit to evaluate Majors’s possible MS symptoms, and scheduled another chronic care

visit. (Id. at 1483-84; see also Kakani Aff’d., R. 113-4 at PageID 1224). Last, Kakani concluded

that there were no medical records available to confirm Majors's diagnosis. (MDOC Medical

Records, R. 119, PageID 1499). However, she wrote that she would review Majors’s paper chart.

(Id. at 1482-84; Kakani Aff’d, R. 113-4, PageID 1224).

On June 11, 2014, Kakani reviewed Majors's chart again. While doing so, she entered a

notation that she had consulted with a physician regarding Majors’s not taking any medications

and documented no changes to his treatment plan. (Id. at 1500; Kakani Aff’d. R.113-4 at PageID

1224). This entry was Kakani’s last contact with anything having to do with Majors. (Kakani

Aff’d. R.113-4 at PageID 1224).

The evidence of Kakani’s only limited involvement with Majors is insufficient to allow a

reasonable jury to find that Kakani acted with deliberate indifference. The proof might be enough

to find that she made a mistake in not confirming Majors’s MS diagnosis or prescribing any

medication. However, the record also reveals the absence of any medical records available for

Kakani’s review, Majors’s denial of symptoms associated with MS, and his denial of currently

taking any medication. Furthermore, Kakani consulted with a physician regarding Majors’s

condition and there was no indication that she failed to follow the physician’s instructions to her

regarding his treatment. In light of this evidence, which demonstrated that Kakani gave attention

- 28 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

to Majors and did not ignore his condition, it cannot be said that she “provided treatment ‘so

cursory as to amount to no treatment at all.’” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018)

(quoting Dominguez v. Correctional Med. Servs., 555 F.3d 543, 551 (6th Cir. 2009) (quoting

Terrance v. Northville Reg’l Psychiatric Hosp/. 286 F.3d 834, 843 (6th Cir. 2002)).

II. Physician Assistant Thomas LaNore

The same is the case for Thomas LaNore. His involvement with Majors was during the

course of only a little over two months. Nothing he did suggests disregard for the prisoner’s

condition, let alone the “criminal recklessness” necessary to impose Eighth Amendment liability.

Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013) (citing Farmer v. Brennan, 511 U.S. 825,

839-40 (1994)).

On July 15, 2014, Majors was transferred to West Shoreline Correctional Facility, where

LaNore was a medical provider. (MDOC Medical Records, R. 119, PageID 1486-87; LaNore

Aff’d., R. 113-5, PageID 1228). Less than one month later, in early August 2014, Majors sent a

kite requesting to see health care staff regarding his MS. Following the kite, Majors met with a

nurse, who documented his slow walk, which involved a slight drag of his left foot. The nurse

also documented Majors’s slurred speech and uneven smile that dropped on the left side. (MDOC

Medical Records, R. 119, PageID 1488-1492).

LaNore first saw Majors on August 12, 2014. (LaNore Aff’d., R.113-5 at Page ID 1228).

According to LaNore’s notes, Majors had “MS like presentation,” and had an abnormal

neurological examination, which included an ataxic gait and unstable heel walk. (MDOC Medical

Records, R. 119, PageID 1495, 1583). He noted that Majors was doing “fair,” and subsequently

scheduled a one-hour block of time on August 15, 2014 to review Majors’s chart. LaNore finished

his evaluation by writing that Majors had “not experienced much changes [sic] with his MS,” (id.

- 29 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

at 1494), and LaNore recognized that treatment would require approval from the Acting Chief

Medical Officer (ACMO), (id. at 1495; LaNore Aff’d, R. 113-5, PageID 1228).

Three days later, on August 15, 2014, LaNore performed a detailed review of Majors’s

chart. At this time, LaNore wrote on Majors’s chart that he “was Dx [diagnosed], apparently, with

MS in 2005. His MS was to have been Dx with MRI and cerebrospinal fluid assay. He was

referred to neurology . . . [t]he neurologist question [sic] the validity of the MS Dx.” (Id. at

1499). LaNore also wrote that Majors’s “MS remained stable and was treated with Rebif . . .

injections 2 times weekly while incarcerated in Minnesota.” (Id.). Nonetheless, as LaNore

concluded, many of the diagnostic test results that were necessary to confirm Majors’s MS

diagnosis were not in the records that MDOC had provided. (MDOC Medical Records, R. 119,

PageID 1499-1500, 1506; LaNore Aff’d,, R. 113-5, PageID 1228-29). Namely, as LaNore

observed, there were no records available regarding an “MRI Brain, Cspine or Tspine.” (Id.). An

MS diagnosis could not be confirmed without these records, LaNore wrote, so he ordered another

records release form for Majors to complete. (Id.).

Less than a month later, on September 12, 2014, LaNore received a response from

Hennepin County Medical Center regarding Majors’s request for a release of records from

February to December of 2005. (Id. at 1528). Hennepin County did not have any relevant records.

(Id.). LaNore then wrote in Majors’s chart a recommendation that the “custody” unit observe

Majors without his knowledge of their observation and that testing might be required to confirm

the MS diagnosis. (Id.).

Six days later, on September 18, 2014, LaNore spoke with Corizon’s utilization

management director, Dr. Keith Papendick. (Id. at 68; LaNore Aff’d., R.113-5 at Page ID

1229.). Dr. Papendick orally approved an MRI for Majors. (LaNore Aff’d., R.113-5 at Page ID

- 30 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

1229; MDOC Medical Records, R. 119, PageID 1535). LaNore submitted the “407” (consultation

request) and received written approval the same day. (LaNore Aff’d., R.113-5 at Page ID

1229). The record from this day also says that Majors was “[i]ncarcerated into MI facilities and

Tx [treatment] was with intermittent prednisone. There were orders for repeat MRI and LP [lumbar

puncture] by the Dr.” (MDOC Medical Records, R. 119, PageID 1536).

The next day, September 19, Majors visited LaNore, who noted that Majors was scheduled

for an MRI of his brain and spine on September 29. (Id. at 1543). LaNore noted that Majors had

a history of bi-weekly injections of Rebif while incarcerated in Minnesota, and that Majors might

elect to re-treat in this manner. (Id).

On September 23, 2014, LaNore wrote that Majors’s records lacked supporting evidence

for a diagnosis of MS. (Id. at 1550). He observed that Majors had been given approval for an

MRI, and that LaNore would await the results for additional therapy or consultations. (Id.).

On October 2, 2014, Dr. Richard Worel made a note in Majors’s chart that he had reviewed

the prisoner’s MRI and the findings were consistent with spinal cord and intracranial

demyelination. (Id. at 1558). Dr. Worel wrote that he had discussed this with LaNore, and LaNore

would address with a “request for appropriate meds for MS.” (Id.). LaNore documented this as

well, and said that he would request Rebif for Majors to take two to three times weekly. (Id. at

1560). LaNore submitted the request for Rebif to the ACMO that same day. (LaNore Aff’d.,

R.113-5 at Page ID 1230). The ACMO approved a different brand of Interferon beta-1a, Avonex,

on October 2. (Id.). The following day, LaNore ordered Avonex for Majors, and Majors began

taking this drug on October 7. (Id.; MDOC Medical Records, R. 199 at PageID 1571). After that,

LaNore had no further involvement in Majors’s care.

- 31 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

This evidence of LaNore’s conduct in the short period that he dealt with Majors does not

indicate deliberate indifference. LaNore promptly sought Majors’s medical records from

Hennepin County to confirm the MS diagnosis. Soon after he learned that those records were not

available, LaNore set into motion the process for Majors to receive an MRI. LaNore timely

reported his observations and recommendations to the physicians, he followed all of the

physician’s directions, and he did not delay in arranging for the medication that was

prescribed. LaNore’s actions were not “cursory.” Rhinehart, 894 F.3d at 737. To the contrary,

LaNore addressed Majors’s needs as he perceived them and as he was instructed to do by a

physician.

III. Application of the Deliberate-Indifference Standard

Respectfully, I do not believe the majority appropriately applies the “deliberate

indifference” inquiry to LaNore and Kakani. To the extent that those individuals made mistakes

in Majors’s care, that is all they were: mistakes. “Medical malpractice does not become a

constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97,

106 (1976). “In evaluating the quality of medical care in an institutional setting, courts must fairly

weigh the practical constraints facing prison officials.” DesRosiers v. Moran, 949 F.2d 15, 19 (1st

Cir. 1991). “When a prison doctor provides treatment, albeit carelessly or inefficaciously, to a

prisoner, he has not displayed a deliberate indifference to the prisoner's needs, but merely a degree

of incompetence which does not rise to the level of a constitutional violation.” Comstock v.

McCrary, 273 F.3d 693, 703 (6th Cir. 2001). No more demanding of a standard is applied to

physician’s assistants. This is particularly true here, given that LaNore and Kakani brought

Majors’s condition to the attention of their supervising physicians and followed the directions of

those physicians. Cf. Turner v. Frey, 166 F.3d 1215( 6th Cir. 1998) (table) (in granting summary

- 32 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

judgment to prison guards on Eighth Amendment claims arising from a prisoner’s death from a

seizure in jail, the court stated that “[i]t should be noted that the guards followed the directions of

the medical staff at all times”), cert. denied, 526 U.S. 1019 (1999).

“Where,” as is the case here, “a prisoner has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess

medical judgments and to constitutionalize claims which sound in state tort law.” Westlake v.

Lukas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Accordingly, “[a] doctor’s errors in medical

judgment or other negligent behavior do not suffice to establish deliberate indifference.”

Rhinehart, 894 F.3d at 738. “The doctor must have consciously exposed the patient to an excessive

risk of serious harm.” Id. at 738–39 (emphases in original) (citation and internal quotation marks

omitted). Stated another way, a medical provider will not be liable under the Eighth Amendment

if she or he provides reasonable treatment—even if the treatment is insufficient or even harmful.

Farmer, 511 U.S. at 838 (“[A]n official’s failure to alleviate a significant risk that he should have

perceived but did not, while no cause for commendation, cannot under our cases be condemned as

the infliction of punishment.”).

The physicians are no longer in this case because, as the majority correctly holds, the claims

against them are barred by the statute of limitations. But, this bar is no license to expand the scope

of liability for the physician’s assistants whose conduct falls within the limitations period. To

reiterate, they may be held liable only if they acted with a mental state “equivalent to criminal

recklessness.” Santiago, 734 F.3d at 591 (citing Farmer, 511 U.S. at 839–40 (internal quotation

marks omitted). For either Kakani or LaNore to be liable under this standard, the Estate must show

that she or he “subjectively perceived facts from which to infer substantial risk to [Richie Majors],

that [she or he] did in fact draw the inference, and that [she or he] then disregarded that risk” by

- 33 - Case No. 19-1457, Estate of Richie Majors, et al. v. Gerlach, et al.

failing to take reasonable measures to abate it. Comstock, 273 F.3d at 703 (citing Farmer, 511

U.S. at 837). My review of the record finds no such deliberate indifference—medical malpractice,

perhaps—but no Eighth Amendment violation.

I would therefore affirm the district court’s judgment in full, including the grant of

summary judgment to LaNore and Kakani.

- 34 -