                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0091n.06

                                           No. 17-5503


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JACK NEWBERRY                           )                                        FILED
                                        )                                  Feb 23, 2018
     Plaintiff-Appellee,                )                              DEBORAH S. HUNT, Clerk
                                        )
v.                                      )
                                        )                       ON APPEAL FROM THE
W.B. MELTON, SHANNON HARVEY, DEBBIE )                           UNITED STATES DISTRICT
DECK, ASHLEY DECK, RODNEY PHILLIPS, and )                       COURT FOR THE MIDDLE
OVERTON COUNTY, TENNESSEE               )                       DISTRICT OF TENNESSEE
                                        )
     Defendants-Appellants.             )
                                        )


BEFORE:        SUHRHEINRICH, SUTTON, and BUSH, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Plaintiff-Appellee Jack Newberry (“Newberry”) was

held in the Overton County Detention Facility (the “Jail”) from January 25, 2013, through March

12, 2014. He is epileptic and, as such, had many seizures while in the Jail. He claims that during

his time there, those seizures increased in frequency, intensity, and duration. Newberry further

claims that the Jail staff’s response to his worsening condition was constitutionally inadequate,

as judged by the rigors of the Eighth Amendment. On that basis, he filed a claim under 42 U.S.C.

§ 1983. The defendants—various employees of the Jail—filed a motion for summary judgment,

arguing that they were entitled to qualified immunity. The district court denied that motion and

this interlocutory appeal followed. Because Newberry has failed to show that these defendants

were deliberately indifferent to his condition, we reverse.
No. 17-5503
Newberry v. Melton, et al.

                                            I.     BACKGROUND

        In 2013, Jack Newberry was arrested on charges of intent to manufacture

methamphetamine and several related offenses. While awaiting trial on those charges, he was

held at the Jail.1 Newberry, an epileptic, has experienced grand mal seizures, also known as

tonic-clonic seizures, for most of his life. Newberry’s fellow inmates testified that during his

seizures, his eyes rolled back, his body arched into a U-shape, and he began to convulse, often

repeatedly banging his head on the ground.

        After being admitted to the Jail, the medical staff gave Newberry a physical examination.

Newberry informed the medical staff that he was epileptic and that he was taking Tegratol (an

anticonvulsant), Prozac (an antidepressant), Dexilant (an acid reflux medication), and potassium

supplements.

        The Jail has contracted with a separate medical services provider to give its inmates

medical care. Under this agreement, inmates have access to a nurse every day and access to a

physician once per week. If an inmate wishes to see a nurse for any reason, he fills out a “Sick

Call” and the nurse will see him the next time she is at the jail.

        During the course of his stay at the Jail, Newberry had lots of seizures. The parties

disagree over how many seizures he actually had—many were reported; however, Newberry

contends that he had numerous seizures that went undocumented. According to Newberry, his

seizures increased in severity and in frequency over the course of his time at the Jail. As the

district court summarized, Newberry’s complaint alleges that the Jail staff was deliberately

indifferent to his serious medical needs by failing to assist him during his seizures, failing to

provide basic first aid for his injuries resulting from seizures, failing to relocate him within the

1
  He pled guilty to these charges in August 2013 while incarcerated at the Jail and continued to serve his sentence
there until March 2014.

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Newberry v. Melton, et al.

prison (or to another facility entirely), and failing to send him to a doctor for further evaluation.

Newberry, more specifically, complained that he should have been given different medication

and that he was denied his potassium supplements.

       In his complaint, Newberry named six defendants: (1) Overton County; (2) W.B. Melton,

the Sheriff of Overton County; (3) Shannon Harvey, the Jail Administrator; (4) Rodney Phillips,

a corrections officer in the Jail; (5) Debbie Deck, one of the nurses serving the Jail; and (6)

Ashley Deck, another nurse serving the Jail. He sued defendants Melton, Harvey, and Phillips

(“Jail Defendants”) in both their official and individual capacities. The district court dismissed

the official capacity suits because Overton County was already a named defendant. The Jail

Defendants moved for summary judgment, arguing, among other things, that they were entitled

to qualified immunity and that Newberry’s complaint could not proceed because he had not yet

exhausted his administrative remedies, as required by the Prison Litigation Reform Act, 42

U.S.C. § 1997e(a). The district court denied the Jail Defendants’ motion, noting that there were

still unresolved issues concerning the “Defendants’ actions, job duties, and knowledge regarding

Newberry’s epilepsy,” rendering summary judgment inappropriate.

       The Jail Defendants appealed the denial of summary judgment on their qualified

immunity claims. The suit is still ongoing in the district court as to the remaining defendants.

                                      II.   JURISDICTION

       Newberry argues that this court lacks jurisdiction to hear the Jail Defendants’ appeal

because they have not conceded his version of the facts. He is correct that our jurisprudence

requires such an admission. Johnson v. Jones, 515 U.S. 304, 319-20 (1995); Brown v. Chapman,

814 F.3d 436, 444 (6th Cir. 2016) (“[T]he defendant appealing a denial of qualified immunity

must concede the plaintiff’s facts.”). But Newberry fails to indicate which facts the Jail


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Newberry v. Melton, et al.

Defendants have not conceded. Without any obvious factual disputes of this nature, we may

exercise jurisdiction over these claims. To the extent that there are any discrepancies or

ambiguities in the parties’ stories, we assume Newberry’s facts to be true, as is required under

our summary judgment standard. See Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 565 (6th

Cir. 2013). Taking Newberry’s factual assertions to be true, we answer only the legal question:

Does his story amount to a viable Eighth Amendment deliberate indifference claim?

       However, the Jail Defendants’ exhaustion argument is not ripe for our review. This is an

interlocutory appeal, specifically limited to the Jail Defendants’ claims of qualified immunity. A

district court’s denial of qualified immunity is a reviewable final order, see Mitchell v. Forsyth,

472 U.S. 511, 530 (1985), but the rejection of an exhaustion argument of this sort is not, see

Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th Cir. 2015). Accordingly, we only

consider the Jail Defendants’ claims of qualified immunity here.

                               III.   STANDARD OF REVIEW

       We review the district court’s denial of summary judgment on the claims of qualified

immunity de novo. Key v. Grayson, 179 F.3d 996, 999 (6th Cir. 1999). Summary judgment is

warranted where “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). If “a reasonable jury could return a verdict

for the nonmoving party,” summary judgment is not appropriate. Stoudemire, 705 F.3d at 565

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[W]e view all facts and

draw all reasonable inferences in the light most favorable to the nonmoving party.” Id. (citation

omitted). “In the qualified immunity context, ‘this usually means adopting . . . the plaintiff’s

version of the facts.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). In order to

withstand a motion for summary judgment based on a claim of qualified immunity, a plaintiff


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Newberry v. Melton, et al.

must “present evidence sufficient to create a genuine issue as to whether the defendant in fact

committed the acts that violated the law.” Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994).

                                        IV.     ANALYSIS

       A government official is entitled to qualified immunity and is thus shielded from § 1983

liability if his actions did not violate a clearly established constitutional right. Pearson v.

Callahan, 555 U.S. 223, 232 (2009). Accordingly, considering a claim of qualified immunity has

two steps: “(1) whether, considering the allegations in a light most favorable to the party injured,

a constitutional right has been violated, and (2) whether that right was clearly established.”

Richmond v. Huq, 879 F.3d 178, 196 (6th Cir. 2018) (quoting Estate of Carter v. City of Detroit,

408 F.3d 305, 310-11 (6th Cir. 2005)). We need only address the first inquiry here, as Newberry

has not adequately alleged a violation of his constitutional rights.

       Newberry contends that the Jail Defendants violated his Eighth Amendment rights. The

Eighth Amendment, which prohibits cruel and unusual punishment, grants prison inmates a

constitutional right to medical care. See U.S. Const. amend. VIII; Estelle v. Gamble, 429 U.S. 97,

104-05 (1976). In turn, “deliberate indifference to [a prisoner’s] serious medical needs” amounts

to an Eighth Amendment violation. Estelle, 429 U.S. at 104.

       Deliberate indifference claims must satisfy both an objective and a subjective component.

The objective component requires a plaintiff to show “the existence of a ‘sufficiently serious’

medical need.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting

Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The subjective component requires a plaintiff to

show that the defendant has “a sufficiently culpable state of mind in denying medical care.” Id.

(quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). This requires more than mere

negligence. Instead, a deliberate indifference claim must show that a state official “recklessly


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Newberry v. Melton, et al.

disregard[ed]” a “substantial risk of serious harm.” Comstock v. McCrary, 273 F.3d 693, 703

(6th Cir. 2001) (quoting Farmer, 511 U.S. at 836).

              A. Objective Component: Serious Medical Need

         The Jail Defendants first argue that Newberry’s claims must fail because he has not

alleged an objectively serious medical need. Specifically, they contend that Newberry must

present medical evidence confirming that the Jail’s treatment had some adverse effect on him. To

make this argument, the Jail Defendants rely on our decision in Napier v. Madison Cty., Ky., 238

F.3d 739 (6th Cir. 2001). It is true that, in Napier, we held an inmate complaining about a delay

in medical treatment “must place verifying medical evidence in the record to establish the

detrimental effect of the delay in medical treatment to succeed.” Id. at 742 (quoting Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)). Insofar as Newberry

complains about the Jail Defendants’ “failure to treat [his] condition adequately,” Napier applies,

and he failed to produce verifying medical evidence. Blackmore, 390 F.3d at 898. However,

“Napier does not apply to medical care claims where facts show an obvious need for medical

care that laymen would readily discern as requiring prompt medical attention by competent

health care providers.” Blackmore, 390 F.3d at 898 (emphasis added). Newberry’s condition—

characterized by frequent, often lengthy, and aggressive convulsions—is sufficiently obvious

that it does not require additional verifying medical evidence. Newberry’s seizures resulted in

bruises and cuts on his head, vomiting, and an inability to breathe. Those manifestations satisfy

this court that his condition is the type that would alert ordinary people as requiring medical

attention.2


2
  Perhaps for these reasons, other courts treat a complete failure to respond to epilepsy and seizures associated with
it as objectively serious medical needs without any analysis. See, e.g., Hudson v. McHugh, 148 F.3d 859, 863 (7th
Cir. 1998); Jolly v. Badgett, 144 F.3d 573, 573 (8th Cir. 1998); Vandermolen v. Chamberlin, No. 14-CV-06113,
2016 WL 4098656, at *4 (W.D. Ark. June 30, 2016).

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Newberry v. Melton, et al.

        For these reasons, Newberry satisfies the objective component of the deliberate

indifference analysis. That leaves only the subjective component of these claims, to which we

now turn.

               B. Subjective Component: Culpable State of Mind

                     1. W.B. Melton

        The Jail Defendants are each subject to liability only in their individual capacities. As

such, Newberry must allege facts indicating that Melton “at least implicitly authorized,

approved, or knowingly acquiesced in [some] unconstitutional conduct.” See Birrell v. Brown,

867 F.2d 956, 959 (6th Cir. 1989) (quoting Hays v. Jefferson Cty., Ky., 668 F.2d 869, 874 (6th

Cir. 1982)). There are no such facts in this record.

        Newberry has failed to present any facts suggesting that Melton was indifferent to his

medical needs, regardless of whether he knew about those needs. In his amended complaint,

Newberry claims that Melton “refused to provide assistance” to him and “failed to ensure that

[he] receive any medical treatment whatsoever.” But Melton was not responsible for patrolling

the prison and assisting prisoners in need, so his failure to physically assist Newberry cannot be a

basis for liability. Nor was Melton responsible for getting Newberry to seek treatment. Indeed,

the Jail encourages prisoners to seek out medical assistance and examinations independently

through the use of Sick Call forms. Moreover, if Newberry’s complaint is that he was denied

access to a physician (and that such a denial is somehow attributable to Melton), the record

plainly proves that he is incorrect, as he saw the physician—Dr. Deavers—more than once while

in the Jail.

        The only action that Melton took in this case was to deny Newberry’s appeal on a

grievance form wherein Newberry complained to Shannon Harvey that he was denied ibuprofen


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No. 17-5503
Newberry v. Melton, et al.

and a bag of ice after a seizure. Harvey responded to the grievance by explaining that it was

something Newberry needed to bring to the attention of the medical staff, and Melton reinforced

that opinion by signing the form when Newberry appealed. That action, alone, is insufficient to

show that Melton was deliberately indifferent to Newberry’s condition.

       Moreover, Newberry has not provided any evidence that Melton even knew that his

condition was worsening. He relies on two pieces of evidence to support the idea that Melton

was aware of his medical needs. The first was a grievance, filed on October 27, which alerted

Melton to the fact that Newberry had experienced a seizure. But that grievance, alone, did not

apprise Melton of the fact that Newberry felt his seizures were getting worse. The second is

Newberry’s testimony that his mother and sister tried to call Melton to complain about

Newberry’s treatment. But Newberry admits that his mother and sister were never able to get in

contact with Melton. Because there is no evidence to support the fact the Melton knew about

Newberry’s medical needs, he could not have been deliberately indifferent to them. See

Comstock, 273 F.3d at 703. For these reasons, Melton is entitled to qualified immunity

                   2. Shannon Harvey

       Similarly, Shannon Harvey is entitled to summary judgment on her qualified immunity

claim because Newberry has failed to show that she acted with a sufficiently culpable state of

mind. In his amended complaint, Newberry claims that Harvey “failed to ensure that Mr.

Newberry receive any medical treatment whatsoever.”         On appeal, Newberry narrows that

argument somewhat, claiming that Harvey was aware of his “deteriorating” health and that “he

should be transferred to a hospital” but that she “refused to verify underlying facts” and refused

to transfer him.




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Newberry v. Melton, et al.

       Harvey, as the Jail Administrator, was clearly aware of Newberry’s condition. She

received both inmate grievances and medical requests that alerted her to the fact that he was

having seizures. The question is whether, with that knowledge, she did or did not do anything

that demonstrated deliberate indifference to it.

       Newberry relies on a few interactions with Harvey to support his cause of action against

her. First, he claims that she denied his request to be moved to the Jail’s minimum security wing

on September 1, 2013. He was moved to the maximum security wing for showing his middle

finger to one of the cameras in the Jail. But, Newberry felt it was safer for him in minimum

security because there were cameras monitoring the inmates there. Moreover, there were more

inmates to keep an eye on him and larger cells that were safer for him when he did seize. Harvey

responded that minimum security was full, but that she would consider moving him in the future.

She never moved him back to minimum security, though. This does not amount to deliberate

indifference. The inmates in the maximum security wing were monitored, and the record shows

that Newberry, while in maximum security, was tended to when he did have seizures. Moreover,

Harvey ensured that he was in a two-man cell so that he had someone to help him when he was

seizing, and later placed him in a six-man cell. Nothing about these actions demonstrates

deliberate indifference to his medical needs.

       Next, Newberry claims that Harvey should have ensured that he received adequate

medical treatment for his worsening seizures. Specifically, he claims that after his cellmate

submitted a grievance claiming that Newberry had been seizing all weekend and that he had

stopped breathing a number of times, she did nothing to respond. Around this time period,

Harvey received three grievances related to Newberry. On October 13 and 15, she received

grievances from Newberry’s cellmate, Nicholas Franklin. On October 14, Newberry filed his


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Newberry v. Melton, et al.

own grievance. In response to each of these grievances, Harvey explained that she was not in

charge of medical treatment and that he should seek assistance from the medical staff. She also

reiterated that there was nothing she could do to prevent his seizures, and that they simply

wanted to keep Newberry safe while he was seizing. And Newberry actually saw a doctor on

October 16, the day after the last of these three grievances was filed. After a similar grievance

on October 27, Harvey again explained that it was the medical staff’s job to address his medical

complaints.

       Harvey’s actions in this context do not amount to deliberate indifference. As noted above,

the inmates are responsible for going to the doctor and are able to see a nurse every day, if they

so choose. Harvey knew that Newberry was seeing the medical staff and was justified in relying

on their medical decisions. See Smith v. Cty. of Lenawee, 505 F. App’x 526, 532 (6th Cir. 2012)

(“[I]f a prisoner is under the care of medical experts . . . a non-medical prison official will

generally be justified in believing that the prisoner is in capable hands.”) (quoting Spruill v.

Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).

       For these reasons, Newberry has failed to demonstrate that Harvey acted with a

sufficiently culpable mind and has thus failed to allege that she was deliberately indifferent to his

medical needs. Harvey is also entitled to qualified immunity.

                   3. Rodney Phillips

       Newberry’s claim against Phillips relates exclusively to one incident. While the precise

facts arising from that incident are unclear, we take Newberry’s version of it (or at least as much

as he has provided this court) to be true.

       On January 9, 2014, Newberry had a seizure in his cell in the maximum security wing.

He was alone in his cell at the time, having been disciplined for eating food in the common area.


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Newberry v. Melton, et al.

Phillips and two other officers responded to the incident. From this first seizure, Newberry

sustained various minor injuries—bruises and swelling. While the other two officers tended to

Newberry, Phillips called Nurse Debbie Deck, who told Phillips to move Newberry to a booking

cell where he could be more easily monitored. Phillips decided to move Newberry to the

booking cell by leaving him on his mat and dragging the mat to the cell. Once in the booking

cell, Phillips gave Newberry a second mat for additional support. Finally, he ordered a “medical

watch” whereby an officer was required to check on Newberry every ten to fifteen minutes and

report his status, in writing. Phillips had at least one more seizure while left in the booking cell,

and awoke from that seizure to find himself face-down on a drain in the floor, having injured his

eye.

       Nothing in that story gives rise to a viable deliberate indifference claim. While he did not

argue as much in his brief, Newberry claimed at oral argument that Phillips’s decision to drag

him on a mat was deliberately indifferent (and that, instead, he should have called 911). That

decision was eminently reasonable, though. Phillips explained that he chose the mat for fear that

Newberry might fall out of a wheelchair or that he could injure himself if strapped to a

backboard were he to seize again. And after transporting Newberry to the floor (rather than the

elevated bunk in the cell, which he could fall off of during a seizure) of the booking cell—where

it would be easier to monitor him more frequently—Phillips gave Newberry an extra mat for

support in the event that he did seize again. Further, he ordered a medical watch to be sure that

Newberry had frequent monitoring. These decisions, simply put, are reasonable attempts to

protect and help Newberry. Perhaps Newberry would have liked constant surveillance, rather




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Newberry v. Melton, et al.

than the periodic surveillance he received.3 But even if that is true, at most, it amounts to a claim

of negligence. To support a deliberate indifference claim, Newberry must demonstrate more than

negligence—he must show that Phillips “recklessly disregard[ed]” a risk of serious harm.

Comstock, 273 F.3d at 703. These facts do not rise to that level. Phillips responded to a difficult

situation and took actual affirmative steps to protect Newberry. Those actions cannot possibly

demonstrate deliberate indifference to Newberry’s medical needs. As such, Phillips is also

entitled to qualified immunity.

                                             V.     CONCLUSION

        At bottom, the Jail Defendants were coping with an imperfect situation. Newberry

suffered (and continues to suffer) from a chronic and unpredictable condition. The Jail

Defendants could not prevent or even anticipate his seizures; they could only hope to minimize

the resulting harms from those seizures. And this record demonstrates that they did exactly

that—they took reasonable steps to try to protect Newberry. Because Newberry has not alleged

conduct that can support the subjective component of a deliberate indifference claim for any of

these three defendants, they are entitled to qualified immunity. The district court’s denial of

summary judgment on this basis is REVERSED. The case is REMANDED for proceedings

consistent with this opinion.




3
  Or, he may argue (as he did at oral argument) that the Jail Defendants should have called 911 every time he had a
seizure. Newberry has offered no authority to support a claim that failing to call 911 in the event of an epileptic
seizure amounts to deliberate indifference. We cannot hold Phillips to a constitutional standard never before
articulated. See White v. Pauly, 137 S. Ct. 548, 552 (2017) (holding that a plaintiff must “identify a case where an
officer acting under similar circumstances as [the defendant] was held to have violated [the Constitution]” in order
to present a clearly defined constitutional right).

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