                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0536n.06

                                          No. 15-4088

                          UNITED STATES COURT OF APPEALS                             FILED
                               FOR THE SIXTH CIRCUIT                            Sep 15, 2016
                                                                            DEBORAH S. HUNT, Clerk
MARK C. BROOKES,                                        )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
MYRON SHANK, M.D.,                                      )       COURT FOR THE SOUTHERN
                                                        )       DISTRICT OF OHIO
       Defendant-Appellee.                              )
                                                        )
                                                        )



       Before: BATCHELDER and KETHLEDGE, Circuit Judges; and LEVY, District Judge.*

       LEVY, District Judge. Gregory Stamper, a former inmate in the Allen Correctional

Institution in Lima, Ohio, suffered from peripheral neuropathy that caused him prolonged pain,

numbness, and dizziness. He hanged himself on June 1, 2011, the day after Dr. Myron Shank,

his treating physician, cancelled an appointment that Stamper sought for his pain.

       Stamper’s Estate sued under § 1983, alleging that Dr. Shank was deliberately indifferent

to Stamper’s serious medical needs in violation of the Eighth Amendment. Dr. Shank moved for

summary judgment, which the district court granted on the grounds that the plaintiff failed to

show that Dr. Shank had acted with subjective deliberate indifference. We reverse and remand.




*
 The Honorable Judith E. Levy, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 15-4088, Brookes v. Shank


                                     I.      BACKGROUND

       Dr. Shank moved for summary judgment, so the evidence is considered and all

reasonable inferences drawn in the light most favorable to Stamper’s Estate. See Santiago v.

Ringle, 734 F.3d 585, 587 (6th Cir. 2013).

       Gregory Stamper first began experiencing pain, numbness, and tingling in his back,

hands, and feet in March 2008. His symptoms intensified and spread, and in April 2009,

Stamper was sent to the Ohio State University Medical Center where he was diagnosed with

generalized sensory and motor peripheral neuropathy. In June, Stamper continued to complain

of pain in his hands and the thoracic area of his back. In November, Stamper requested that all

future medical trips off site be cancelled because of the pain he experienced during transfer.

During this time, he was prescribed tramadol, an opioid painkiller used to treat moderate to

severe pain, gabapentin, a nerve pain and anticonvulsant medication, and indomethacin, an anti-

inflammatory pain medication.

       In August 2009, Stamper was investigated for misuse of medication when two pills were

discovered in his cell. Stamper stated that he had traded a bag of cookies for the pills, because

the medication he had been receiving was insufficient to treat his unbearable pain.

A disciplinary hearing was held, and the hearing officer concluded that Stamper had not

“cheeked” (i.e., had not pretended to swallow but instead held in his mouth) his prescribed

medication. The officer gave Stamper a verbal reprimand and recommended that Dr. Shank give

Stamper his medication in crushed or liquid form.

       Instead, Dr. Shank cancelled Stamper’s prescriptions for tramadol and gabapentin, and

prescribed him carbamazepine, an anticonvulsant and mood stabilizer used to treat pain, seizures,

and bipolar disorder. Stamper told Dr. Shank that only the tramadol and gabapentin had been



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No. 15-4088, Brookes v. Shank


effective at treating his pain. Dr. Shank wrote in Stamper’s medical file that “[h]e keeps

insisting that he is being ‘denied medical treatment’ because I offer alternative drugs. I also

pointed out that pain ‘hurts,’ but will not ‘hurt’ him.” In May 2010, Dr. Shank again prescribed

gabapentin on the condition that Stamper agree to be evaluated by recovery services.

       In March 2011, Dr. Shank contacted recovery services and was told that Stamper had not

been involved in any substance abuse programs. Dr. Shank then reviewed the notes from

Stamper’s meeting with recovery services in July 2010. According to the recovery services

screener, Stamper had no need for substance abuse treatment, which Dr. Shank testified was

noted in Stamper’s medical file. The screener also noted that Stamper said his pain was too great

to attend any meeting with regularity and observed that Stamper’s fingers were curled up as a

result of his pain. Dr. Shank again cancelled Stamper’s gabapentin prescription.

       On May 24, 2011, a nurse referred Stamper for an MRI and set up an appointment for

Stamper to see Dr. Shank due to Stamper’s continued complaints of pain. Stamper filed a Notice

of Grievance with the Health Care Administrator stating that it was too painful to travel off site

for an MRI without adequate pain medication. On May 31, 2011, Dr. Shank cancelled Stamper’s

appointment, writing that Stamper “has failed, misused, or been noncompliant [with] terms for

Rxs for pain. No other option available.” Stamper hanged himself the next day.

       After Stamper’s death, the warden of the Allen Correctional Institution revoked Dr.

Shank’s security clearance. The subsequent prison investigation of Dr. Shank resulted in a

finding that he had been deficient in the provision of medical care and had a propensity to

discontinue or change medication or treatment without effective communication and patient

education.




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No. 15-4088, Brookes v. Shank


       On July 26, 2011, Dr. Shank appeared before the State Medical Board of Ohio to address

disciplinary charges related to his private civilian medical practice. Dr. Shank argued to the

board that his standard for discontinuing narcotic medication due to misuse by prisoners was “far

more stringent” than the standards found in any of the medical literature. Dr. Shank was

disciplined for both overprescribing narcotics and continuing to prescribe narcotics to his civilian

patients whom he had reason to know were either selling or abusing the drugs.

       Dr. Shank testified during his deposition that Stamper told him that Stamper and

Stamper’s brother-in-law, a Mr. Stokes, had a plan to get money for Stamper’s estate by suing

Dr. Shank. According to Dr. Shank, the conversation was not documented because the Health

Care Administrator, Pam Neal, refused to give him Stamper’s file. However, Neal was no longer

employed at the prison at that time. LaShena Manley, the Health Care Administrator on the date

in question, said she did not refuse to give Dr. Shank Stamper’s file. To date, no Mr. Stokes

associated with Stamper has been identified or located.

       Stamper’s Estate sued under 42 U.S.C. § 1983, alleging in relevant part that Dr. Shank

violated Stamper’s Eighth Amendment right to receive adequate medical care for his serious

medical needs. The district court granted Dr. Shank’s motion for summary judgment on the

grounds that Stamper’s Estate failed to set forth sufficient evidence for a jury to find that Dr.

Shank acted with subjective deliberate indifference.

                                        II.    ANALYSIS

       Stamper’s Estate argues that Dr. Shank was deliberately indifferent to Stamper’s

excruciating pain. Under the Eighth Amendment, inmates have a right to adequate medical care

for their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The district

court held that Stamper’s medical condition objectively put him at a substantial risk of harm.



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No. 15-4088, Brookes v. Shank


The parties do not dispute this, so we do not disturb that holding. The issue is whether Stamper’s

Estate can prove that Dr. Shank acted with subjective deliberate indifference to Stamper’s

substantial risk of harm. See id. At the outset, we make clear that the “substantial risk of harm”

in this case is the risk that Stamper would be “exposed to undue suffering” due to his pain if

untreated. See Scott v. Ambani, 577 F.3d 642, 648 (6th Cir. 2009) (quoting Westlake v. Lucas,

537 F.2d 857, 860 (6th Cir. 1976)).

       To establish that Dr. Shank acted with subjective deliberate indifference, Stamper’s

Estate must “allege facts which, if true, would show that [Dr. Shank] subjectively perceived facts

from which to infer substantial risk to [Stamper], that [Dr. Shank] did in fact draw the inference,

and that he then disregarded that risk.” Harris v. City of Circleville, 583 F.3d 356, 368 (6th Cir.

2009). As for a defendant’s subjective knowledge, “a factfinder may conclude that a [defendant]

knew of a substantial risk from the very fact that the risk was obvious.” Id. Because of the two-

year statute of limitations in Ohio, this case boils down to whether Dr. Shank acted with

subjective deliberate indifference when he cancelled the appointment that Stamper sought for his

physical pain.

       First, a jury could conclude that Dr. Shank “subjectively perceived facts from which to

infer substantial risk to [Stamper].” Id. Dr. Shank knew that Stamper had been diagnosed with

peripheral neuropathy.     Even though Stamper refused to undergo additional diagnostic

procedures, such as another MRI, shortly before Dr. Shank cancelled his appointment, this was

years after Stamper’s peripheral neuropathy diagnosis. “[V]erifying medical evidence is not

required to state a claim for deliberate indifference where, as here, the seriousness of [a]

prisoner’s need for medical care is obvious . . . .” Blackmore v. Kalamazoo Cty., 390 F.3d 890,




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No. 15-4088, Brookes v. Shank


900 (6th Cir. 2004). There is sufficient evidence for a jury to find that Dr. Shank knew of facts

from which he could infer a substantial risk of harm to Stamper.

       Second, a jury could conclude that Dr. Shank “did in fact draw the inference.” Harris,

583 F.3d at 368. Dr. Shank prescribed serious pain medications to Stamper for a number of

years for his symptoms. And Dr. Shank noted, after discontinuing Stamper’s prescription for

tramadol and gabapentin, that he responded to Stamper’s complaints of severe pain by saying

“pain ‘hurts,’ but will not ‘hurt’ him.” Again, the issue is whether Dr. Shank could draw the

inference that Stamper would be “exposed to undue suffering” due to his pain. Scott, 577 F.3d at

648. There is sufficient evidence for a jury to find that Dr. Shank drew the inference that

Stamper was at such risk.

       Third, a jury could conclude that Dr. Shank then “disregarded that risk” by cancelling the

appointment with Stamper. Harris, 583 F.3d at 368. Over his years of treatment, Stamper told

Dr. Shank on a number of occasions that tramadol and gabapentin were essentially the only pain

medications that worked for him. When Dr. Shank cancelled the appointment, he knew that

Stamper was not on effective medications for his pain, yet concluded that “[n]o other option

[was] available.”

       There are different possible explanations as to why Dr. Shank cancelled the appointment.

Perhaps Dr. Shank knew that gabapentin was an effective medication but deliberately refused to

consider whether it was safe to prescribe. Or perhaps Dr. Shank reasonably believed that

Stamper’s pain was not unbearable or that prescribing Stamper gabapentin at medically

permitted levels would not be effective. It is not our place to decide which of these motivated

Dr. Shank.   There is sufficient evidence to permit a jury to conclude that Dr. Shank was




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No. 15-4088, Brookes v. Shank


motivated by the first, and thus recklessly disregarded the risk that Stamper would be “exposed

to undue suffering.” Scott, 577 F.3d at 648.

       Dr. Shank argues that he could not have been deliberately indifferent because Stamper

engaged in “drug seeking behavior.”       To be sure, courts have found that prison officials’

“[e]fforts to wean a prisoner off opiate or narcotic pain medication to which he has become

addicted are not an unconstitutional form of punishment but a medical judgment that the long-

term harms of addiction and abuse outweigh the short-term benefits of reduced subjective pain.”

Baker v. Stevenson, 605 F. App’x 514, 519 (6th Cir. 2015) (citing cases). But there is at the very

least a question of fact as to whether Dr. Shank was actually motivated by a sincere concern that

Stamper was a drug seeker.

       Dr. Shank conditioned Stamper’s receipt of gabapentin on Stamper’s agreeing to be

evaluated by recovery services. Stamper satisfied the condition, and Dr. Shank testified that he

reviewed the notes from the evaluation and cancelled Stamper’s prescription anyway. Dr. Shank

was not entitled to summary judgment on whether he was motivated by “a subjective, good-faith

belief” that Stamper was a drug abuser. Cf. id. A jury could find that Dr. Shank recklessly

disregarded the risk to Stamper when he cancelled his appointment, knowing that Stamper was

not on any effective medication at the time.

       Viewing the evidence in the light most favorable to Stamper’s Estate, a reasonable jury

could conclude that Dr. Shank “subjectively perceived facts from which to infer substantial risk

to [Stamper]”—that is, that Stamper would be subjected to undue suffering due to his pain if

untreated—“that he did in fact draw the inference, and that he then disregarded that risk.” See

Harris, 583 F.3d at 368; Scott, 577 F.3d at 648. He is not excused by stating that Stamper was a




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No. 15-4088, Brookes v. Shank


drug seeker when there is evidence that Dr. Shank was not actually motivated by this concern. It

is for the jury to decide whether Dr. Shank is credible.

                                     III.    CONCLUSION

       The district court’s judgment is reversed, and the case is remanded for further

proceedings consistent with this opinion.




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