       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Scicluna v. Wells et al.                    No. 02-2117
    ELECTRONIC CITATION: 2003 FED App. 0350P (6th Cir.)
                File Name: 03a0350p.06                    LAW OFFICE OF NEDRA D. CAMPBELL, Southfield,
                                                          Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

 ALFRED R. SCICLUNA,              X                         RONALD LEE GILMAN, Circuit Judge. Alfred Scicluna,
                                                          a Michigan prisoner, brought suit against two physicians and
            Plaintiff-Appellee, -                         a corrections officer for the alleged violation of his rights
                                   -
                                   -  No. 02-2117         under the Eighth Amendment to the United States
           v.                      -                      Constitution. Dr. Paul Harvey, Dr. Richard Huff, and
                                    >                     Corrections Officer Felix Carrizales filed separate motions for
                                   ,                      summary judgment based upon the doctrine of qualified
 HARRY G. WELLS et al.,            -
       Defendants-Appellants. -                           immunity. The defendants now appeal the district court’s
                                                          denial of their motions, arguing that the record provides no
                                  N                       basis for Scicluna’s allegations that they were deliberately
      Appeal from the United States District Court        indifferent to his serious medical and security needs. For the
     for the Eastern District of Michigan at Detroit.     reasons set forth below, we AFFIRM the judgment of the
   No. 99-70376—Avern Cohn, Senior District Judge.        district court.

              Argued: September 12, 2003                                      I. BACKGROUND

          Decided and Filed: October 2, 2003              A. Factual background

  Before: MERRITT, MOORE, and GILMAN, Circuit                Scicluna suffered a fractured skull as the result of an
                    Judges.                               unprovoked attack on April 20, 1992 that was orchestrated by
                                                          Eugene O’Sullivan, Scicluna’s codefendant in the criminal
                  _________________                       trial that resulted in their imprisonment. At the time of the
                                                          attack, Scicluna and O’Sullivan were both inmates at the
                       COUNSEL                            Muskegon Correctional Facility (MCF) in Muskegon,
                                                          Michigan. Scicluna contends that Carrizales, his Resident
ARGUED: John L. Thurber, OFFICE OF THE ATTORNEY           Unit Manager and counselor at MCF, demonstrated deliberate
GENERAL, Lansing, Michigan, for Appellants. Nedra D.      indifference by taking no action to transfer either Scicluna or
Campbell, LAW OFFICE OF NEDRA D. CAMPBELL,                O’Sullivan to a different facility, even though Carrizales had
Southfield, Michigan, for Appellee. ON BRIEF: John L.     been told by Scicluna that the two inmates had a hostile
Thurber, OFFICE OF THE ATTORNEY GENERAL,                  relationship and that keeping them together at MCF was in
Lansing, Michigan, for Appellants. Nedra D. Campbell,     violation of Michigan Department of Corrections (MDOC)

                            1
No. 02-2117                      Scicluna v. Wells et al.     3    4     Scicluna v. Wells et al.                     No. 02-2117

regulations concerning “known conflict situations.”                  Scicluna argues that Harvey demonstrated deliberate
Carrizales, on the other hand, argues that he was unaware of       indifference to his serious medical needs by failing to
any conflict between Scicluna and O’Sullivan and therefore         examine him until 20 days after he arrived at JCF, despite
could not have demonstrated deliberate indifference to the         papers calling for an “immediate neuro consult.” Harvey
safety of Scicluna by failing to address the conflict situation.   contends that the record provides no basis for finding
                                                                   deliberate indifference on his part because Scicluana offered
   Following the attack, Scicluna was brought to a community       no evidence that Harvey even knew that Scicluna was at JCF
hospital in Muskegon for emergency neurosurgery. He was            prior to May 26, 1992.
treated by a civilian physician, who removed a portion of his
skull and recommended continued treatment, including a             B. Procedural background
crainioplasty to replace the removed portion. Rather than
authorize further surgery, Huff, MCF’s Medical Director,              Scicluna filed suit pursuant to 42 U.S.C. § 1983, “which
recalled Scicluna from the community hospital. Huff                provides for a private right of action against any person who,
examined Scicluna on April 27, 1992, after which Huff              under color of state law, violates another person’s federal
prescribed the anti-seizure drug Dilantin. Following a second      rights.” Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir.
examination on May 5, 1992, Huff transferred Scicluna to           1992). Harvey, Huff, and Carrizales filed separate motions
Kinross Correctional Facility (KCF) in Kincheole, Michigan         for summary judgment based upon the doctrine of qualified
for a neurosurgical consultation. Because KCF did not have         immunity. The district court denied the motions on the basis
the facilities needed to treat Scicluna, he was transferred to     that Scicluna has raised genuine issues of material fact that
the G. Robert Cotton Correction Facility (JCF) in Jackson,         could not be resolved on summary judgment. This timely
Michigan on the following day. Scicluna contends that Huff         appeal followed.
demonstrated deliberate indifference to his serious medical
needs by transferring him to a facility that Huff knew was not                            II. ANALYSIS
equipped to treat him. In response, Huff argues that he
believed that KCF was equipped to treat Scicluna and that          A. Standard of review
none of his actions constituted deliberate indifference.
                                                                      This court reviews the denial of qualified immunity in an
   Scicluna arrived at JCF on May 6, 1992, with paperwork          action brought under 42 U.S.C. § 1983 de novo. Klein v.
calling for an immediate neursurgical consultation. But he         Long, 275 F.3d 544, 550 (6th Cir. 2001). “[F]or an
was not examined by Harvey until May 26, 1992. Harvey,             interlocutory appeal to be appropriate, a defendant seeking
after determining that Scicluna’s level of Dilantin was toxic      qualified immunity must be willing to concede to the facts as
and that his skull was recently fractured, lowered his Dilantin    alleged by the plaintiff and discuss only the legal issues raised
levels and arranged to have Scicluna transferred to the Earnest    by the case.” Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.
C. Brooks Correctional Facility (LRF) in Muskegon,                 1999). We will therefore accept Scicluna’s allegations as true
Michigan for a neurosurgical consultation. Scicluna arrived        for purposes of this interlocutory appeal and view all facts
at LRF, which is in the same complex as MCF, on August 5,          and reasonable inferences in the light most favorable to him.
1992, and was again placed under the care of Huff.
No. 02-2117                       Scicluna v. Wells et al.      5    6    Scicluna v. Wells et al.                     No. 02-2117

B. Doctrine of qualified immunity                                    suffice. See Fed. R. Civ. P. 56(C) (stating that the “pleadings,
                                                                     depositions, answers to interrogatories, and admissions on
   The doctrine of qualified immunity shields from liability         file, together with the affidavits” are considered in
for civil damages those officials whose “conduct does not            determining whether there is a genuine issue as to any
violate clearly established statutory or constitutional rights of    material fact). Viewing the evidence in the light most
which a reasonable person would have known.” Harlow v.               favorable to Scicluna establishes that Carrizales was told that
Fitzgerald, 457 U.S. 800, 818 (1982). We evaluate a                  O’Sullivan presented a serious threat to the safety of Scicluna,
defendant’s claim of qualified immunity by determining               and that, in knowing disregard of MDOC regulations,
whether (1) a constitutional violation occurred, (2) the right       Carrizales took no action to segregate the two inmates even
violated was clearly established, and (3) “the plaintiff has         though he was conscious of the risk that his failure to act
alleged sufficient facts, and supported the allegations by           imposed upon Scicluna.
sufficient evidence, to indicate that what the official allegedly
did was objectively unreasonable in light of the clearly                Carrizales argues, alternatively, that no reasonable
established constitutional rights.” Williams v. Mehra, 186           government official in 1992 could have known that failure to
F.3d 685, 691 (6th Cir. 1999) (en banc).                             follow up on general information pertaining to an inmate-
                                                                     housing conflict situation would expose the official to
  Scicluna contends that the defendants violated a clearly           liability. But Carrizales, according to Scicluna, had before
established constitutional right when they showed deliberate         him far more than general information concerning the
indifference to his serious medical and safety needs. Such           conflict. Both Scicluna and his sister had allegedly informed
conduct is prohibited by the Cruel and Unusual Punishment            Carrizales that O’Sullivan posed a specific threat to Scicluna.
Clause of the Eighth Amendment. Estelle v. Gamble, 429               In addition, MDOC had issued directives requiring the
U.S. 97, 104 (1976). To show that he was subjected to such           segregation of former codefendants, such as Scicluna and
deliberate indifference, Scicluna need not prove that the            O’Sullivan, because of the risk of assault, and had warned
defendants had the “express intent to inflict unnecessary            officials that they could be found personally liable for not
pain,” but only that their conduct demonstrated a level of           following MDOC policy. Scicluna, consequently, “was a
“obduracy and wantonness” greater than simple “inadvertence          member of an identifiable group of prisoners for whom risk
or error in good faith . . . .” Whitley v. Albers, 475 U.S. 312,     of assault was a serious problem . . . .” Marsh v. Arn, 937
319 (1986).                                                          F.2d 1056, 1062 (6th Cir. 1991) (contrasting the plaintiff in
                                                                     Marsh, who was not a member of an identifiable risk group,
C. Carrizales’s motion                                               with the plaintiff in Walsh v. Mellas, 837 F.2d 789 (7th Cir.
                                                                     1988), who was a member of such an identifiable group).
   Scicluna testified in his deposition that he told Carrizales of
the conflict situation with O’Sullivan and of the relevant             “If the law was clearly established, the immunity defense
MDOC regulations. Carrizales, however, claims that the               ordinarily should fail, since a reasonably competent public
record fails to support a finding of deliberate indifference         official should know the law governing his conduct.”
because there is no documentary evidence supporting                  Harlow, 457 U.S. at 818-19. A constitutional right is clearly
Scicluna’s deposition testimony. But documentary evidence            established where “a reasonable official would understand
is not essential to overcome a motion for summary judgment.          that what he is doing violates that right.” Anderson v.
Other sources of evidence, such as deposition testimony, may         Creighton, 483 U.S. 635, 640 (1987). In light of these legal
No. 02-2117                       Scicluna v. Wells et al.      7    8     Scicluna v. Wells et al.                      No. 02-2117

principles and the facts as asserted by Scicluna, the district       the denial of such aid constitutes the deprivation of
court did not err in denying Carrizales’s motion for summary         constitutional due process.”). Based upon the present record,
judgment on qualified immunity grounds.                              the district court did not err in denying Huff’s motion for
                                                                     summary judgment on qualified immunity grounds.
D. Huff’s motion
                                                                     E. Harvey’s motion
  Huff argues in his brief that he believed that Scicluna
would receive all necessary medical treatment at KCF when               Harvey claims that the record does not support a finding of
he transferred Scicluna there in May of 1992. But he offered         his deliberate indifference because there is no evidence that
no affidavit in support of this assertion. Scicluna, on the          he was even aware that Scicluna was at JCF between May 6
other hand, testified under oath that Huff knew that KCF             and May 26 of 1992. In the absence of an explanation for the
officials would be unable to treat his condition. Viewing all        delay, however, a reasonable inference arises that Harvey
reasonable inferences in the light most favorable to Scicluna        purposefully ignored the emergency-treatment report
as the nonmovant, a genuine issue of material fact exists as to      specifying that Scicluna required an “immediate neuro
whether Huff knew that he was transferring Scicluna to a             consult.” Viewing the facts and drawing all reasonable
facility that was unable to treat his injury.                        inferences in the light most favorable to Scicluna, a genuine
                                                                     issue of material fact exists as to whether Harvey’s three-
   Huff argues, alternatively, that even if his decision to          week delay constituted deliberate indifference.
transfer Scicluna to KCF constituted deliberate indifference,
the constitutional right violated was not clearly established by        Harvey argues, alternatively, that even if his failure to treat
1992. But “a right can be clearly established even if there is       Scicluna at JCF constituted deliberate indifference, the
no case involving ‘fundamentally similar’ or ‘materially             constitutional right violated was not clearly established by
similar’ facts” if the premise of a prior case alerts officials to   1992. Before 1992, however, the Supreme Court had
the “clear applicability” of the legal principle to “a subsequent    established in Estelle that deliberate indifference to a
set of facts.” Feathers v. Aey, 319 F.3d 843, 850 (6th Cir.          prisoner’s serious medical condition constitutes a violation of
2003) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 743                the Eighth Amendment. 429 U.S. at 104. Knowingly waiting
(2002)). Deliberate indifference to a prisoner’s serious             three weeks to examine a prisoner referred to one’s care for
medical condition was known to be a violation of the Eighth          urgent attention is conduct that a reasonable prison official in
Amendment’s right to be free from cruel and unusual                  1992 should have known would subject him to personal
punishment long before 1992. See Estelle v. Gamble, 429              liability. Based upon the present record, the district court did
U.S. 97, 104 (1976) (holding that “deliberate indifference to        not err in denying Harvey’s motion for summary judgment on
serious medical needs of prisoners” is “proscribed by the            qualified immunity grounds.
Eighth Amendment”). Transferring a prisoner in need of
urgent medical attention to a facility that the official knows is                         III. CONCLUSION
unable to provide the required treatment is conduct that would
alert a reasonable person to the likelihood of personal                For all of the reasons set forth above, we AFFIRM the
liability. See Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th          judgment of the district court that denied the defendants’
Cir. 1972) (“[W]here the circumstances are clearly sufficient        motions for summary judgment.
to indicate the need of medical attention for injury or illness,
