                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0768n.06
                          Filed: October 17, 2006

                                           05-3617

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


THOMAS A. SHADE,                               )
                                               )
       Plaintiff-Appellant,                    )
                                               )
v.                                             )    ON APPEAL FROM THE UNITED
                                               )    STATES DISTRICT COURT FOR THE
CITY OF MIDDLETOWN, OHIO, et al.,              )    SOUTHERN DISTRICT OF OHIO
                                               )
       Defendants-Appellees.                   )



       Before: KEITH, MERRITT, and DAUGHTREY, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiff, Thomas Shade,

appeals from the district court’s grant of summary judgment to the City of Middletown,

Ohio, and to various individual defendants involved in the arrest, incarceration, and medical

treatment of Shade.       Specifically, the plaintiff contends that the defendants were

deliberately indifferent to his medical needs while he was held in jail, that the district court

erred in failing to grant his motion to amend his complaint to substitute named defendants

for “John Doe” defendants, and that the district court should have exercised jurisdiction

over his state law medical malpractice claim. We find no reversible error and affirm.


       The relevant facts of this case were adequately presented in the district court’s

memorandum order granting summary judgment to the defendants and need not be
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Shade v. City of Middletown

repeated in detail here. In broad terms, the record indicates that Shade apparently

contracted an undiagnosed case of West Nile Virus at some point before he was

incarcerated in the city jail in August 2002. He had left work early on August 26, suffering

from a high fever, nausea, and vomiting. When he was arrested on an outstanding warrant

the following day, he told booking officers that he was not feeling well from the effects of

a cold, and he was given a medical slip. Officials at the jail contacted a nurse practitioner,

Nancy Hogan, who attended Middletown jail inmates under the supervision of Dr. George

Kaiser. She gave instructions for his overnight care and then came to the jail to examine

him shortly after noon the next day. She noted at that time that he was running a fever of

102.7 degrees and had been vomiting, and she gave him medicine to ameliorate both

conditions.


       Hogan treated Shade over the next two days, preliminarily diagnosing the cause of

his fever as gastroenteritis or a possible kidney infection. During this period, his fever was

gradually reduced to 99.1 degrees, and the nausea was brought under control. However,

in the early morning hours of August 30, Shade’s condition worsened, and at 5:00 a.m.,

he was taken to the hospital emergency room by squad car. He remained in a coma for

30 days, under treatment for what was ultimately identified as West Nile Virus, and

suffered permanent disabilities as the result of the disease.


       Shade filed a civil rights complaint under 42 U.S.C. § 1983 against the City of

Middletown, the chief of police, the arresting “John Doe” officers, and three “John Doe”


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members of the jail personnel, two of whom were later identified as Dr. Kaiser and Nurse

Hogan.    The district court eventually granted the defendants’ motion for summary

judgment, finding that the individual defendants had not been deliberately indifferent to the

plaintiff’s serious medical needs, that the plaintiff’s injuries were not the result of city policy

and, therefore, that the plaintiff had failed to establish a constitutional violation. The court

declined to rule on the plaintiff’s state law action for medical malpractice. The plaintiff now

appeals the district court’s judgment, which we review de novo. See Ciminillo v. Streicher,

434 F.3d 461, 464 (6th Cir. 2006).


       As is now well-established, a plaintiff seeking relief pursuant to 42 U.S.C. § 1983

must demonstrate not only that he was deprived of a constitutional right, but also that the

deprivation occurred under color of state law. See Adickes v. S.H. Kress & Co., 398 U.S.

144, 150 (1970). Because § 1983 is not itself a source of substantive rights, however, a

plaintiff must identify specific constitutional sources for such claims. See Graham v.

Connor, 490 U.S. 386, 393-94 (1989).


       In this case, the plaintiff asserts that the constitutional right abridged by the

defendants is the right of pretrial detainees not to be subjected to punishment prior to an

adjudication of guilt. See, e.g., Bell v. Wolfish, 441 U.S. 520, 534 (1979). The Sixth Circuit

has consistently held that the Eighth Amendment’s cruel and unusual punishment analysis

used by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is applicable,

through the Fourteenth Amendment, to pretrial detainees. See Danese v. Asman, 875


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Shade v. City of Middletown

F.2d 1239, 1243 (6th Cir. 1989). Thus, “jail officials violate the due process rights of their

detainees if they exhibit a deliberate indifference to the medical needs of the detainees that

is tantamount to an intent to punish.” Id.


       The test of whether such a constitutional violation occurred has both an objective

and a subjective component. “The objective component requires that the deprivation

alleged must be ‘sufficiently serious.’” Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.

1997) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “To satisfy the subjective

requirement, [the plaintiff] must show that the [defendants] had ‘a sufficiently culpable state

of mind.’” Id. This subjective deliberate indifference standard means “that a prison official

may be held liable . . . for denying humane conditions of confinement only if he knows that

inmates face a substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Farmer, 511 U.S. at 847. Thus, a plaintiff must show

that a government official “subjectively perceived a risk of harm and then disregarded it.”

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). Moreover, this burden is not

light; even “‘an 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.’” Id. (quoting Farmer, 511 U.S. at 838) (emphasis added in

Comstock).


       In this case, there can be little dispute that prolonged fever and vomiting by a pretrial

detainee presents a “sufficiently serious” situation. Shade has, therefore, established at


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Shade v. City of Middletown

least the objective criterion necessary to prove a constitutional violation. The facts

presented to the district court, however, fall short of showing that the defendants

“subjectively perceived a risk of harm and then disregarded it.” Although Nancy Hogan did

not come to the jail to see Shade until early in the afternoon on the day after his arrest, she

did make suggestions for his treatment when contacted by phone shortly after his initial

incarceration. Once she had examined the plaintiff, she began a course of medication and

observation that ultimately resulted in a drop in Shade’s fever from 102.7 degrees to 99.1

degrees and appeared to provide the plaintiff relief from the nausea and vomiting he had

been experiencing. Over the span of approximately 36 hours, Hogan also personally

examined or observed the plaintiff three times and, on a fourth occasion, had a correctional

officer check Shade’s temperature for her. She ran at least two urine tests on the plaintiff,

examined his ability to flex and move his head, and checked his blood pressure and heart

rhythms. Obviously, as events unfolded, it became clear that Hogan failed to diagnose

correctly that the plaintiff was suffering from West Nile Virus, a condition that is notoriously

difficult to diagnose in the absence of laboratory test results.


       But, it is also clear from the record that, contrary to the plaintiff’s allegations,

defendant Hogan did not callously ignore the serious medical condition from which Shade

was suffering. Instead, she closely monitored that condition and took reasonable steps to

address the outward manifestations of the illness.            Nevertheless, in an effort to

demonstrate the district court’s error in granting summary judgment to the defendants in

this matter, Shade argues that Hogan’s actions and alleged inactions can be equated with

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Shade v. City of Middletown

those of the defendants in Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004).

Blackmore, however, involved a situation in which a pretrial detainee complained for more

than 48 hours about severe, stabbing abdominal pains. See id. at 894. Despite the pleas

for medical assistance, the defendants in that case did not even summon a medical

professional to examine Blackmore. Instead, the sole treatment undertaken by correction

officers for more than two days was the simple dispensation of antacids to Blackmore. See

id.


       Even a cursory examination of the facts in Blackmore and their comparison with the

the medical treatment offered to Shade indicate the radical differences between these two

cases. Nurse Hogan’s diagnosis ultimately proved to be incorrect, but her treatment

represented a reasoned, good-faith effort to treat his symptoms. Defendant Hogan’s

actions clearly did not exhibit the recklessness or callous disregard for the plaintiff’s well-

being that was exemplified in Blackmore and in similar decisions finding § 1983 liability.

Indeed, the plaintiff has pointed to no evidence indicating that Hogan failed to take

reasonable measures to address the risks presented by Shade’s serious medical condition.


       The plaintiff’s arguments that Dr. Kaiser was deliberately indifferent to Shade’s plight

are likewise not supported by evidence in the appellate record. Shade faults Kaiser for not

personally examining the plaintiff either in jail or at the hospital and incorrectly states that

“nowhere is it documented that Nurse Hogan ever conferred with Kaiser regarding Shade.”

In fact, Kaiser’s deposition testimony is clear that he spoke with Hogan about the plaintiff’s


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Shade v. City of Middletown

condition no later than 7:00 a.m. on August 29, 2002. He further testified that he must

have later discussed the case with Hogan because “it would be unlikely that she would give

injections without calling me.” Kaiser’s reliance upon the expertise of his partner to

evaluate illnesses is not tantamount to an abandonment of his medical responsibilities to

the plaintiff, especially when the appellate record and the history of interaction between the

doctor and nurse practitioner indicate that the two professionals did indeed confer about

their patient and his treatment. The district court thus did not err in concluding that Kaiser

also was not deliberately indifferent to the plaintiff’s serious medical needs.


       Shade also seeks to impose liability upon the City of Middletown. Although § 1983

does apply to municipalities and local governments, see Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 690 (1978), we have consistently noted that such a defendant is “not . . . liable

for every misdeed of its employees and agents.” Meyers v. City of Cincinnati, 14 F.3d

1115, 1117 (6th Cir. 1994). Indeed, “‘municipal liability under § 1983 attaches where – and

only where – a deliberate choice to follow a course of action is made from among various

alternatives’ by city policymakers.” City of Canton v. Harris, 489 U.S. 378, 389 (1989)

(quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986) (Brennan, J.) (plurality

opinion)). Phrased differently, § 1983 liability will be imposed upon a municipality only

when the alleged injury results from “execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts . . . may fairly be said to

represent official policy.” Monell, 436 U.S. at 694. But, in this case, the plaintiff can point

to no “policy or custom” of the City of Middletown that would countenance, much less

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Shade v. City of Middletown

encourage, unconstitutional treatment of pretrial detainees. In the absence of such official

sanction of unconstitutional treatment, and given the fact that the actions of Hogan and

Kaiser cannot legitimately be considered deliberately indifferent to Shade’s plight, the

district court did not err in granting summary judgment to the city as well on this claim.


       Shade next asserts error in the district court’s failure to rule upon his motion to

amend his original complaint in order to replace the John Doe defendants with the names

of the individuals learned by the plaintiff during the discovery process. In addressing the

parties’ motions for summary judgment, however, the district judge clearly recognized that

the John Doe defendants were actually Officers Flack and Rogers of the Middletown Police

Department, Major Schwarber of the Middletown Police Department, Dr. Kaiser, and Nurse

Practitioner Hogan. The district court’s determination that no deliberate indifference was

shown toward Shade, the denial of the plaintiff’s summary judgment motion, and the

dismissal of all causes of action raised by Shade thus renders unnecessary a resolution

of the motion to amend.


       Finally, we find no abuse of discretion in the district court’s decision not to maintain

jurisdiction over the plaintiff’s state law claims.


       For these reasons, we AFFIRM the judgment of the district court.




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Shade v. City of Middletown

DAMON J. KEITH, Circuit Judge, concurring. I write separately because although I

agree that the district court did not err in determining that defendants’ acts or omissions

failed to rise to deliberate indifference, I disagree with the majority opinion’s

characterization of Nurse Nancy Hogan’s conduct as being “reasonable” or executed in

“good-faith.” See maj. op. at 5-6. Accordingly, I can only concur in the judgment.




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