                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0410n.06

                                           No. 16-3444
                                                                                      FILED
                                                                                 Jul 14, 2017
                           UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

ADRIAN ANTHONY,

          Plaintiff-Appellant,
v.
                                                      ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
SHANNON SWANSON, et al.,
                                                      NORTHERN DISTRICT OF OHIO
          Defendants-Appellees.




BEFORE:          BOGGS, CLAY, and SUTTON, Circuit Judges.

          CLAY, Circuit Judge. Plaintiff Adrian Anthony filed suit pursuant to 42 U.S.C. § 1983

alleging a violation of his Eighth Amendment rights against Defendants Dr. Shannon Swanson

and Dr. Daniel Cherry. Plaintiff’s suit alleged that Dr. Swanson and Dr. Cherry were deliberately

indifferent to Anthony’s medical needs during his incarceration as a prisoner by the State of

Ohio. The district court granted summary judgment on behalf of Dr. Swanson and Dr. Cherry,

and Anthony now appeals. For the reasons set forth below, we AFFIRM the district court’s

decision.

                                        BACKGROUND

     I.   Factual background

          Anthony was incarcerated in Ohio prison facilities from December 23, 2010 to August 4,

2014. Prior to his incarceration, Anthony was diagnosed with prostate cancer. Consequently,
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during his incarceration, he received multiple sessions of external-beam-radiation therapy. As a

result of this treatment, Anthony experienced rectal bleeding and chronic abdominal pain,

leading physicians at the Lorain Correctional Institution to diagnose him with radiation

proctitis—also known as radiation poisoning. In April 2011, Anthony was transferred to the

Lake Erie Correctional Institution, at which time he came under the care of Dr. Swanson. Dr.

Cherry, as the regional medical director, supervised Dr. Swanson.

        In May 2011, Anthony was seen by Dr. Rajnikant Patel, an outside physician at the

Ashtabula County Medical Center, who diagnosed him with severe radiation proctitis of the

rectum and recommended treatment with prednisone, a steroid. Anthony’s condition did not

abate despite regular use of the steroidal cream. During a follow-up visit in November 2011, Dr.

Patel recommended colostomy surgery as a last resort to relieve Anthony’s symptoms. A

colostomy is a surgical procedure in which portions of the bowel are removed and the remaining

bowel system is diverted to a pouch—a colostomy bag—allowing stool to exit outside of the

body. Anthony states that he informed Dr. Swanson about the recommendation.

        At this juncture, Anthony and Dr. Swanson’s narratives diverge. According to Dr.

Swanson, she advised Anthony against the surgery because she did not believe it to be medically

necessary. Instead, she suggested conservative treatment options. Based on her account of

events, Anthony concurred with her assessment and declined the surgery.1 Conversely, Anthony

claims that Dr. Swanson did not order the surgery because “her hands were tied. She told me that

her supervisors would not let her do anything.” (R. 36-2, Anthony Decl., PageID # 525).

Additionally, Anthony alleges that he never refused surgery.




        1
          Dr. Cherry submitted an affidavit averring that he never provided hands-on medical treatment to Anthony,
but nonetheless stated that he concurred with Dr. Swanson’s decision to opt for a more conservative treatment plan.

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       There is no dispute that Anthony continued to be seen and treated by Dr. Swanson

throughout his term of incarceration. Dr. Swanson and other medical personnel responded to his

on-going health grievances. His blood and urine were regularly tested to monitor his condition.

He attended cancer clinic checkups. He was allowed to be seen by an outside provider who

ordered bloodwork and other tests. Dr. Swanson continued to order medical “lay-ins” for

Anthony. She renewed his long-term restrictions, including no standing for longer than fifteen

minutes. She prescribed anti-reflux medication and pain pills. And she continued to prescribe

prednisone. However, at no point did Dr. Swanson seek surgical intervention for Anthony.

Anthony was released from prison in July 2013 and currently resides in Canton, Ohio. He

continues to suffer from pain and rectal bleeding, but claims that he has been unable to undergo

surgery because of financial difficulties.

 II.   Procedural History

       On January 23, 2014, Anthony filed a complaint in the United States District Court for

the Northern District of Ohio against Dr. Swanson and Dr. Cherry. Defendants, Dr. Swanson and

Dr. Cherry, filed separate motions for summary judgment disputing Anthony’s Eighth

Amendment claim. On March 31, 2016, the district court granted summary judgment in favor of

both Defendants. Anthony thereafter filed a timely notice of appeal.

                                             DISCUSSION

  I.   Standard of Review

       This Court reviews de novo the district court’s grant of summary judgment. Rouster v.

Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014). Summary judgment is appropriate when “the

movant shows that 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). This Court must consider “whether the



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evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251–52 (1986). In determining whether there is a “genuine issue for trial,” this

Court interprets the facts and draws all reasonable inferences therefrom in favor of the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

 II.   Analysis

       Anthony brought a claim under 42 U.S.C. § 1983, alleging a violation of his Eighth

Amendment rights. To state a claim under § 1983, a plaintiff must set “forth facts that, when

construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws

of the United States; (2) caused by a person acting under the color of state law.” Burley v.

Gagacki, 729 F.3d 610, 619 (6th Cir. 2013) (citation omitted). Neither party disputes that Dr.

Swanson and Dr. Cherry acted under color of state law; rather, the question raised on appeal is

whether Anthony suffered an unconstitutional deprivation of his right to medical care.

       Anthony contends that Dr. Swanson and Dr. Cherry exhibited deliberate indifference to

his serious medical needs by declining to schedule the colostomy surgery that was recommended

by a physician from outside the prison system. The Supreme Court has held that “deliberate

indifference” to the serious medical needs of prisoners constitutes the “unnecessary and wanton

infliction of pain, proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104

(1976) (citation omitted). To establish this type of claim, a prisoner must show that the

defendants were not only “aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists” but also the defendants must in fact draw the inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words, a deliberate-indifference claim




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has both an objective and subjective component. Mattox v. Edelman, 851 F.3d 583, 597 (6th Cir.

2017).

         To satisfy the “objective” prong of a deliberate-indifference claim, a plaintiff must show

that his medical needs were “sufficiently serious.” A serious medical need is “one 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.” Harrison v. Ash, 539 F.3d 510,

518 (6th Cir. 2008) (quoting Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 (6th Cir. 2004)).

After making the requisite objective showing, Plaintiff must then demonstrate that: (1) “the

official being sued subjectively perceived facts from which to infer substantial risk to the

prisoner”; (2) the official “did in fact draw the inference”; and (3) the official “then disregarded

that risk.” Rouster, 749 F.3d at 446 (citation omitted).

         As a threshold matter, there is a dispute in the record concerning whether Anthony

elected to undergo more conservative treatment in lieu of the colostomy surgery. Dr. Swanson

submitted an affidavit averring that Anthony declined colostomy surgery. Conversely, Anthony

submitted an affidavit attesting that he desired the surgery but Dr. Swanson refused to authorize

it. While this Court “does not find facts,” at the summary judgment stage, this Court must

determine whether the district court correctly found there were no “genuine disputes of material

fact that should go to a jury.” Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381 (6th Cir.

2017). A dispute over a material fact cannot be “genuine” unless a reasonable jury could return a

verdict for the nonmoving party. Cockrel v. Shelby Cty. Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.

2001). And although Anthony points to a factual dispute that exists in the record, we do not find

this dispute genuine because even if we credit Anthony’s version of the facts, his Eighth

Amendment claim still fails.



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       It should be reiterated that not “every claim by a prisoner that he has not received

adequate medical treatment states a violation of the Eighth Amendment.” Terrance v. Northville

Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002) (quoting Estelle, 429 U.S. at 105).

“In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs. It is only such indifference

that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id.

(citation omitted). As previously stated, this Circuit recognizes two distinct methods for

establishing the objective component of an Eighth Amendment claim. A medical need may be

sufficiently serious if it “so obvious that even a lay person would easily recognize the necessity

for a doctor’s attention.” Blackmore, 390 F.3d at 897 (citation omitted). This stems from the

premise that, if the need for medical treatment is so obvious, “the delay alone in providing

medical care creates a substantial risk of serious harm.” Blosser v. Gilbert, 422 F. App’x 453,

460 (6th Cir. 2011) (quoting Blackmore, 390 F.3d at 899). However, if a medical need is less

obvious, its seriousness is evaluated under a different standard: the effect of delay in treatment.

See id. And the “effect of the delay standard” requires the submission of verifying medical

evidence to establish “the detrimental effect of the delay in medical treatment.” Santiago v.

Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citation omitted). A prisoner’s allegation that a prison

has failed to treat his condition adequately falls into the second category of cases, and thus, is

evaluated under the effect-of-delay standard. See Blackmore, 390 F.3d at 897–98; Napier v.

Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001)).

       There is no dispute between the parties that Anthony suffers from a serious medical

condition that necessitates medical care. Nor is there any dispute that Anthony received some

treatment for his condition while incarcerated. Rather, the gravamen of Anthony’s complaint



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concerns the sufficiency of his treatment. Anthony allegedly desired a more aggressive treatment

than he received—a colostomy operation. But a desire for additional or different treatment does

not by itself suffice to support an Eighth Amendment claim. See Mitchell v. Hininger, 553 F.

App’x 602, 605 (6th Cir. 2014); Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)

(“Where a prisoner alleges only that the medical care he received was inadequate, ‘federal courts

are generally reluctant to second guess medical judgments.’”) (citation omitted)). This is

particularly the case when a plaintiff fails to provide expert medical testimony—either in the

form of an affidavit or through depositions—showing the medical necessity for such a treatment.

Anthony has not presented any medical testimony from which this Court may conclude that his

symptoms would have been alleviated by a colostomy. Nor has any expert testified as to the

inadequacy of the treatments he did receive at the hands of Dr. Swanson. The absence of such

medical testimony is fatal to Anthony’s claim under our precedents. For example, in Santiago v.

Ringle, this Court held that medical testimony was required because Santiago did “not allege that

he received no medical treatment . . . . Instead, [he] complain[ed] that he was delayed in

receiving a specific type of medical treatment.” 734 F.3d at 591. Similarly, in Blosser v. Gilbert,

we held that a prisoner could not prevail on his Eighth Amendment claim when he provided no

medical evidence that he required surgery or that the prison’s delay in scheduling surgery

harmed him. 422 F. App’x at 461. The requirement that a plaintiff with a complex diagnosis such

as Anthony’s provide expert testimony as to the proper treatment acknowledges that this Court

lacks the requisite medical expertise to properly evaluate whether Anthony’s claim has merit. As

in the context of medical-malpractice cases, almost all of which require testimony from a

medical expert, the facts of this case are far too difficult for a fact-finder to determine, without

the benefit of expert testimony, that Anthony’s condition not only required treatment in the form



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of a colostomy, but that the failure to provide such treatment amounted to deliberate indifference,

constituting a constitutional deprivation.

         Notwithstanding the lack of medical evidence in the record, Anthony argues that his

claim should be submitted to a jury because his medical condition was sufficiently obvious so as

to require medical attention. While Anthony is correct that his medical condition was obvious,

and as such, required treatment, the obviousness standard does not apply in cases where the

prisoner claims that the treatment he received was inadequate. As this Court explained in

Blosser, 422 F. App’x at 460, the “obviousness standard . . . is primarily applicable to claims of

denial or delay of any medical treatment rather than claims that a plaintiff was denied or delayed

in receiving a specific type of medical treatment.” Id. Anthony claims that he was denied a

specific type of treatment—a colostomy. Consequently, Anthony must present a medical expert

who can speak to the necessity of such a treatment and evaluate it vis-à-vis the treatment he

received. Because Anthony has not come forward with such medical testimony, his claim cannot

succeed as a matter of law. 2

                                                CONCLUSION

         For the aforementioned reasons, we AFFIRM the district court’s decision.




         2
           A supervisory defendant must be either personally involved in the constitutional violation or there must be
a causal connection between a supervisor’s act and the alleged constitutional violation. Doe v. City of Roseville,
296 F.3d 431, 440 (6th Cir. 2002). Because it is undisputed that Dr. Cherry did not participate directly in Anthony’s
medical care nor has any causal connection been alleged, the claim against him is ordered dismissed. 

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