                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0661n.06

                                           No. 08-3427                                    FILED
                                                                                      Sep 24, 2009
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


EILEEN L. KOSLOSKI,                                     )
Administratrix for the Estate of                        )
Daniel Kosloski, Deceased,                              )
                                                        )
       Plaintiff-Appellant,                             )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
v.                                                      )    THE NORTHERN DISTRICT OF
                                                        )    OHIO
                                                        )
DAN DUNLAP, LAKE COUNTY, OHIO,                          )
ANN TAKACS, CAROLYN BARBISH,                            )
DR. CARLA BASTER, and SEVEN                             )
UNKNOWN DEFENDANTS,                                     )

       Defendants-Appellees.


Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

       SILER, Circuit Judge. Eileen Kosloski appeals the district court’s grant of summary

judgment in favor of Dan Dunlap, Anne Takacs, Carolyn Barbish, Dr. Carla Baster, and Lake

County, Ohio (collectively “Defendants”), on her deceased son’s 42 U.S.C. § 1983 claims. We

review the district court’s order granting summary judgment de novo. Street v. Corrections Corp.

of Am., 102 F.3d 810, 814 (6th Cir. 1996). Finding no constitutional violation, we affirm the

judgment of the district court.

       A federal civil rights claim requires (1) that the conduct at issue be under color of state law

and (2) that the conduct cause a deprivation of a right secured by the Constitution or laws of the

United States. 42 U.S.C. § 1983. Defendants concede that, at all time pertinent to this suit, they
No. 08-3427
Kosloski v. Dunlap, et al.,

were acting under color of state law. Eileen Kosloski alleges that Defendants violated the Eighth

Amendment’s prohibition against cruel and unusual punishment through their deliberate indifference

to Daniel Kosloski’s serious medical needs during his time as a prisoner at the Lake County Jail.

       “[D]eliberate indifference to the serious medical needs of a prisoner constitutes ‘the

unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). An Eighth

Amendment claim has objective and subjective components. The objective component requires a

prisoner to show that his medical need was “sufficiently serious.” Comstock v. McCrary, 273 F.3d

693, 702 (6th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The subjective

component requires the prisoner to demonstrate that the official being sued had “a sufficiently

culpable state of mind in denying medical care.” Blackmore v. Kalamazoo County, 390 F.3d 890,

895 (6th Cir. 2004). A prison official cannot be found liable under the Eighth Amendment for

deliberate indifference to a prisoner’s serious medical needs unless at the time of the conduct: (1)

the official is aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and (2) the official actually draws the inference. Farmer, 511 U.S. at 837.

       Negligence, including medical malpractice, does not rise to the level of a constitutional tort

simply because the victim is a prisoner. Estelle, 429 U.S. at 106. When medical professionals

provide treatment, albeit carelessly or inefficaciously, to a prisoner, they have “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.” See Comstock, 273 F.3d at 703.



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No. 08-3427
Kosloski v. Dunlap, et al.,

       Eileen Kosloski’s claims against Takacs arise out of her son’s request for medical attention

on April 1, 2005. In the written request for medical attention, Daniel Kosloski informed Takacs, a

registered nurse, that he had blood in his stool and that he had “antartice” [sic]. Takacs met with

Daniel Kosloski that same day. She ascertained that Daniel Kosloski believed that he had

endocarditis. Daniel Kosloski explained that he thought he had the infection because he and his

girlfriend, who was being treated for infective endocarditis, shared needles while injecting heroin

together, and one of her doctors had told him that he should be tested for the infection. Daniel

Kosloski, however, did not have symptoms of endocarditis, and he indicated that he had never been

diagnosed or treated for the infection. Finding Daniel Kosloski’s outward appearance and skin to

be normal, Takacs returned him to the range, without further examination or referral to the jail

doctor. The meeting lasted approximately two minutes and concluded with Takacs telling Daniel

Kosloski to “quit wasting my time.”

       Because the parties do not dispute that endocarditis is an objectively serious condition,

Takacs’s subjective mental state is the determinative issue. Takacs decided not to refer Daniel

Kosloski for further examination because she thought he did not have endocarditis. She made this

assessment because of Daniel Kosloski’s lack of symptoms, past diagnosis, or previous treatment

for endocarditis. Takacs may have been negligent in failing to conduct a physical examination or

refer Daniel Kosloski to the jail doctor, but negligence is insufficient to support an Eighth

Amendment violation. Ford v. County of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008).

Because Takacs did not appreciate that a substantial risk of serious harm existed, she cannot be held



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Kosloski v. Dunlap, et al.,

personally liable, under the Eighth Amendment, for failing to diagnose and treat Daniel Kosloski’s

serious medical needs. See Farmer, 511 U.S. at 837.

       Eileen Kosloski’s claims against Barbish arise out her son’s three additional requests for

medical attention during his term of imprisonment. On April 11, 2005, Daniel Kosloski requested

a dentist appointment because of a broken tooth. On April 21, 2005, he requested that he be given

Motrin rather than Tylenol for his toothache, and, on May 24, 2005, he complained of fever and

vomiting. Barbish, a certified licensed practical nurse, responded promptly and in a reasonable

manner to each of these requests for medical attention from Daniel Kosloski.

       However, Barbish had no reason to believe Daniel Kosloski had a serious medical condition.

He did not mention to her the possibility that he had been exposed to endocarditis. Takacs did not

communicate with Barbish about her visit with Daniel Kosloski, and there is no evidence that

Barbish learned about Daniel Kosloski’s heightened risk of exposure to endocarditis from reviewing

his medical file. Barbish may have been negligent in failing to review Daniel Kosloski’s medical

file, but negligence is insufficient to support an Eighth Amendment violation. Ford, 535 F.3d at

495. Therefore, she was not deliberately indifferent to his serious medical needs. See Farmer, 511

U.S. at 837.

       Eileen Kosloski has forfeited her appeal of her § 1983 claims against Baster, the head of the

medical department at the Lake County Jail, and Dunlap, the Lake County Sheriff, because her

appellate brief gives only cursory treatment of those claims. See United States v. Sandridge, 385

F.3d 1032, 1035 (6th Cir. 2004). Moreover, they are without merit. Eileen Kosloski’s claims

against Baster and Dunlap are based on their respective supervisory positions. However, “[b]ecause

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Kosloski v. Dunlap, et al.,

§ 1983 liability cannot be imposed under a theory of respondeat superior, proof of personal

involvement is required for a supervisor to incur personal liability.” Miller v. Calhoun County, 408

F.3d 803, 817 n.3 (6th Cir. 2005). Neither Baster nor Dunlap had any level of personal involvement

in responding to Daniel Kosloski’s requests for medical attention or actual knowledge of his

heightened risk of exposure to endocarditis. Therefore, they cannot be held personally liable, under

the Eighth Amendment, for failing to meet Daniel Kosloski’s serious medical needs. See id.

       There is likewise no substance to Eileen Kosloski’s municipal liability claims against Lake

County, Ohio, which are based on a theory of respondeat superior that has been squarely rejected by

the Supreme Court. See Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978). Moreover, the

policy Eileen Kosloski identified as the basis for her municipal liability claims–the use of nurses to

triage inmate requests for medical care–has been previously upheld by this court in Graham v.

County of Washtenaw, 358 F.3d 377, 384 (6th Cir. 2004) (finding that it is not unconstitutional for

municipalities and their employees to rely on the medical judgments made by medical professionals,

including nurses, responsible for prisoner care). In addition, there is no evidence that the alleged

failure to meet Daniel Kosloski’s medical needs was anything other than an isolated incident. See

City of Canton v. Harris, 489 U.S. 378, 391(1989) (noting that there can be no municipal liability

where “an otherwise sound program has occasionally been negligently administered”). Indeed,

Eileen Kosloski’s counsel conceded that “had the medical personnel at the Lake County Jail

followed [their] own written policies and procedures [Daniel] Kosloski’s endocarditis would have

been appropriately diagnosed and treated before June 2, 2005.”

       AFFIRMED.

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Kosloski v. Dunlap, et al.,

       KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

Because I conclude that, viewing the evidence in the light most favorable to the plaintiff, a trier of

fact could reasonably infer that Defendant Takacs demonstrated deliberate indifference to a

substantial risk to Daniel Kosloski’s serious medical needs, I respectfully dissent.

       As the district court acknowledged, there was a fair amount of evidence suggesting that

someone in Takacs’s position would have known that Kosloski likely had endocarditis. For one, in

his affidavit, Kosloski explains that he told Takacs that his girlfriend suffered from the disease and

that they shared intravenous needles. This alone should have concerned Takacs given her familiarity

with endocarditis and the means by which it spreads. But even if Takacs failed to make this

connection, Kosloski explicitly told her that a physician had advised him to get tested for

endocarditis.

       This, of course, does not provide direct evidence that Takacs consciously disregarded the risk

that Kosloski had contracted endocarditis. But plaintiffs asserting Eighth Amendment claims may

rely upon “circumstantial evidence” from which the requisite culpable state of mind can be inferred.

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825,

842 (1994)), cert. denied, 537 U.S. 817 (2002). In particular, “‘a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that the risk was obvious.’” LeMarbe

v. Wisneski, 266 F.3d 429, 436 (6th Cir. 2001) (quoting Farmer, 511 U.S. at 842), cert. denied, 535

U.S. 1056 (2002). Here, a jury could find that the risk was indeed obvious. After all, it is one thing

negligently to overlook a symptom, but it is quite another to ignore a disease that is specifically



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Kosloski v. Dunlap, et al.,

identified by a patient and a previous doctor. Under such circumstances, it is difficult for Takacs

plausibly to claim that she did not know that Kosloski might be affected by the disease.

        Similarly, Kosloski’s affidavit indicates that Takacs ended her interview by telling Kosloski

to “quit wasting her time.” Record on Appeal (“ROA”) at 209 (Kosloski Aff. at 4). A jury might

understandably find such a statement to be quite callous. Indeed, when combined with the fact that

Takacs conducted nothing more than a “visual[] observ[ation]” which did not even involve checking

Kosloski’s temperature, ROA at 256 (Takacs Dep. at 15), a trier of fact might reasonably conclude

that Takacs was deliberately indifferent to a substantial risk to Kosloski’s serious medical needs.

        The majority summarily concludes, however, that Takacs honestly “thought [Kosloski] did

not have endocarditis . . . because of [his] lack of symptoms, past diagnosis, or previous treatment

for endocarditis.” Maj. Op. at 3. But a reasonable jury might attach little weight to the fact that

Kosloski had not yet been diagnosed with or treated for endocarditis. After all, the whole point of

his inquiry to Takacs was to determine whether he had endocarditis and then to obtain treatment for

it, and for a nurse to respond with nothing more than a cursory examination might very well be found

to constitute the kind of deliberate indifference to a serious medical need that the Eighth Amendment

prohibits.

        Of course, the majority may be right that Takacs had only the best intentions, and if they were

acting as the trier of fact they would be free to reach this conclusion. But the majority provides little

explanation as to why a different inference might not be equally reasonable, and I can find none.

Therefore, I would reverse the district court’s judgment with respect to Defendant Takacs and

remand for further proceedings. I respectfully dissent.

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