                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0049n.06

                                           No. 17-1566

                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Jan 25, 2018
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk
TIMOTHY FINLEY,                                  )
                                                 )
       Plaintiff–Appellant,                      )
                                                 )
v.                                               )
                                                      ON APPEAL FROM THE UNITED
                                                 )
                                                      STATES DISTRICT COURT FOR THE
ERICA HUSS, et al.,                              )
                                                      WESTERN DISTRICT OF MICHIGAN
                                                 )
       Defendants–Appellees.                     )
                                                 )
                                                 )

BEFORE:        DAUGHTREY, McKEAGUE, and BUSH, Circuit Judges.

       McKEAGUE, Circuit Judge.           Finley is a Michigan prisoner with several severe

psychiatric disorders. He claims that Huss and Schroeder, two prison wardens, violated his

rights under the Constitution and federal law by placing him in administrative segregation—

instead of a mental-health unit—after he swallowed a razor blade. Specifically, Finley raised

Eighth Amendment deliberate-indifference claims, procedural due process claims, and claims

under the Americans With Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). The district

court dismissed the complaint sua sponte under the Prison Litigation Reform Act (“PLRA”) prior

to service, holding that it failed to state a claim on which relief could be granted. Because Finley

can state an Eighth Amendment claim, we VACATE the dismissal of his complaint and

REMAND with instructions to grant leave to amend. The district court did not express a

reasoned opinion on anything besides the Eighth Amendment claim, and neither do we. Those

matters may be addressed on remand if they are included in Finley’s amended complaint.
No. 17-1566
Finley v. Huss

                                                I

       During his incarceration in a Michigan state prison, plaintiff Timothy Finley, a mentally

ill inmate suffering from bipolar disorder, borderline personality disorder, and antisocial

personality disorder, intentionally swallowed a razor blade. This was not new terrain for Finley,

who has a long history of self-harm and suicide attempts. In Finley’s own words:

       As of recent, from 8/30/16 to 10/05/16 Plaintiff has cut his arm open with a razor
       making at least 25 lacerations. I have swallowed 9 razors, been transfer[r]ed to
       Marquette General Hospital a total of five times, transfe[r]red to St. Francis in
       Esc[a]naba once, and put on a medical jet and flown to U. of M in Ann Arbor for
       emergency surgery. Ive had a total of four neck surgeries to remove a razor
       lodged in my throat on 9/1/16. Ive been hooked up to breathing machines to
       sustain life. Ive had 4 stomach surgeries as well to remove razors.

Additionally, Dr. Terry Meden, a psychiatrist, stated in his physician’s certificate that Finley

twice has attempted to hang himself.

       As a result of his illnesses, Finley has been prescribed various psychiatric and

antipsychotic medications and has been the subject of many discussions by prison officials and

physicians. Even so, Finley somehow gained access to a razor and swallowed it sometime in

September 2016. However, due to his mental state, he “refused the local hospital’s

recommendation to extract [the] razor from his esophagus. That razor became lodged.” As a

result, Finley was placed in administrative segregation (solitary confinement) pending a hearing.

Later, on September 12, 2016, Mandi Salmi, the mental-health professional primarily responsible

for Finley’s treatment in prison, filled out a “Misconduct Sanction Assessment” that noted that

Finley “is on the mental health caseload” and that “[p]rolonged segregation placement is likely to

deteriorate his mental health status.” Due to resulting complications from swallowing the razor,

Finley was airlifted to University of Michigan Hospital for surgery.         Upon his return to




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Finley v. Huss

Marquette Branch Prison on October 5, 2016, however, Finley again was placed in

administrative segregation.

       Michigan Department of Corrections Policy Directive § 04.05.120 on “Segregation

Standards” states unambiguously:

       A prisoner who is on an outpatient corrections mental health services active
       caseload or who is receiving special education services shall be classified to
       administrative segregation only after consultation with a Qualified Mental Health
       Professional, the Mental Health Unit Chief, and/or special education teacher to
       determine if the prisoner’s mental health needs or limitations can be met in
       administrative segregation . . . . [The Security Classification Committee] shall
       consider the prisoner’s need for correctional mental health services, including
       additional treatment and medication, in determining whether administrative
       segregation is the most appropriate placement. (Emphasis added.)

Nevertheless, Acting Deputy Warden Erica Huss did not consult Salmi or any other mental-

health physician prior to the hearing conducted on September 26, 2016, which officially assigned

Finley to administrative segregation.

       Acting under another Michigan Department of Corrections Policy Directive, Salmi later

recommended to a different Acting Deputy Warden (Sarah Schroeder) that Finley be transferred

to a mental-health unit. Schroeder agreed, which, under prison policy, required her to ensure the

prisoner’s transfer “as soon as possible but no later than three business days after receipt of the

recommendation.” Nevertheless, as of the date Finley signed his federal court complaint—

October 31, 2016—he remained in administrative segregation and had not been moved to the

prison’s mental-health unit. In fact, the district court noted that Finley was not transferred to the

mental-health unit until January 2017, more than three months after his initial placement in

administrative segregation.

       Finley’s pro se complaint named Huss and Schroeder as defendants, alleging deliberate

indifference to his serious medical needs, deprivation of liberty without due process, and


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Finley v. Huss

violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213, and the

Rehabilitation Act, 29 U.S.C. § 794. Initially, he sought preliminary and permanent injunctive

relief requiring him to be moved to a mental-health unit. After the prison moved him to a

mental-health unit in mid-January 2017, he withdrew his request for a preliminary injunction and

moved to amend his complaint so that he could add a claim for damages. Under the Prison

Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A(b)(1), and 42

U.S.C. § 1997e(c)(1), the district court reviewed the complaint and, sua sponte, dismissed the

action for failure to state a claim upon which relief could be granted. The court also denied leave

to amend, in obedience to our precedent barring district courts from granting leave to amend

when a prisoner’s claim fails under the PLRA. See, e.g., Benson v. O’Brian, 179 F.3d 1014,

1016 (6th Cir. 1999).

          Finley appealed, and he is now represented by counsel. In addition to urging reversal on

the merits, he asserts that the district court should have granted him leave to amend. Because we

agree that Finley adequately pleaded violations of the Eighth Amendment under 42 U.S.C.

§ 1983, we hold that the district court erred in dismissing his complaint. As a result, the PLRA

does not bar the amendment of Finley’s pleadings, and the district court should permit him to

submit an amended complaint under Rule 15(a). Because the district court said little about

Finley’s due process and ADA/RA claims, we express no opinion on the viability of those

claims.

                                                 II

          We review de novo an order dismissing a claim under the PLRA for failure to state a

claim. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). In conducting such a review, we

accept the plaintiff’s allegations as true, draw all reasonable inferences in favor of the plaintiff,


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No. 17-1566
Finley v. Huss

and construe the entire complaint in the light most favorable to the plaintiff. Bickerstaff v.

Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016) (citation omitted). Even so, a plaintiff still must

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Moreover, overlaying these principles in this case is the

well-recognized understanding that “[a] document filed pro se is ‘to be liberally construed,’ and

‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

                                                 A

       In his complaint, Finley claims that Huss and Schroeder were deliberately indifferent to

his medical needs. These allegations, if true, would state a claim under the Eighth Amendment.

       A deliberate-indifference claim has three elements. First, the prisoner must plead facts

showing that his ailment was sufficiently serious to warrant constitutional concern. Bays v.

Montmorency Cty., 874 F.3d 264, 268 (6th Cir. 2017). Second, he must show that the official in

question was subjectively aware of facts “from which the inference could be drawn that a

substantial risk of serious harm exist[ed].” Id. Third, he must plead that the official, in fact,

drew that inference, but disregarded the risk anyway. Id.

       Finley’s condition is obviously serious. In Bays, we held that a prisoner who described

“severe psychological symptoms” several days before committing suicide had adequately

satisfied this element. Finley swallowed a razor blade. That is more than enough to indicate a

severe psychological disorder. See Grabow v. Cty. of Macomb, 580 F. App’x 300, 307 (6th Cir.

2014) (holding that a plaintiff who exhibits suicidal tendencies during detention has satisfied this

element).


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No. 17-1566
Finley v. Huss

       Under the facts pleaded by Finley, it seems almost equally obvious that officials knew

that Finley was at a substantial risk of serious harm, and yet they consciously disregarded that

risk. The deputy wardens knew that the prison’s mental-health staff had diagnosed Finley with a

severe mental illness. Finley’s behavior had required hospitalization on more than one

occasion—including an airlift to the University of Michigan for emergency surgery. The mental-

health staff also told Huss and Schroeder that solitary confinement would only make this bad

situation worse, due to the sensory deprivation that accompanies that punishment. Indeed, prison

policy required Huss and Schroeder to follow certain procedures in these situations, and Finley

asserts that neither defendant adhered to these policies. Again, the facts in Bays were not nearly

this problematic, and yet the panel still found a jury question. Bays, 874 F.3d at 268–69; see also

Harris v. City of Circleville, 583 F.3d 356, 369 (6th Cir. 2009) (disregard of policy raises strong

suspicion of deliberate indifference).

       The district court nevertheless dismissed the complaint because Finley had received some

treatment in the form of antipsychotic drugs. Although officials can avoid constitutional liability

by addressing the inmate’s serious need, they cannot escape a deliberate-indifference claim by

fetching a band-aid if an inmate is hemorrhaging. See Bays, 874 F.3d at 269; Rouster v. Cty. of

Saginaw, 749 F.3d 437, 448 (6th Cir. 2014). Bays is instructive here. In that case, the defendant

nurse provided medication to the inmate and tried to fast-track the prisoner for more intensive

treatment. 874 F.3d at 270. But in light of the obvious risk that the prisoner would commit

suicide, the failure to treat, promptly, a condition that “all agree required immediate or near-

immediate care” precluded summary judgment. Id. The same is true here. Antipsychotic drugs

can only manage psychiatric disorders, not cure them. And if the prison psychiatrist states that




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Finley v. Huss

solitary confinement will exacerbate a mental-health disorder, claiming that medication makes it

permissible is a little like bandaging a person’s broken leg but then taking away his crutches.

       We also disagree with the district court’s apparent belief that Finley is not entitled to the

Eighth Amendment relief because the actions of the defendants in this case were not as egregious

as those in Easley v. Nixon-Hughes, No. 1:06cv863, 2009 WL 237733 (S.D. Ohio, Jan. 29,

2009). In Easley, the plaintiff alleged “that on one occasion he was placed on a suicide watch

and attempted suicide while the officer assigned to monitor him slept. He further allege[d] that

another corrections officer refused to summon mental health personnel and told Plaintiff to hang

himself.” Id., 2009 WL 237733, at *1. After citing Easley, the district court in this case

dismissed Finley’s Eighth Amendment claim because Finley did not “claim that he was

encouraged to commit suicide or given the opportunity to do so by untrained corrections

officers.” But a prisoner need not allege the worst-case scenario in order to get past the PLRA’s

screening system.

       At this early stage, we cannot agree with the district court that Finley has failed to state

an Eighth Amendment claim. This is particularly true because Finley was proceeding pro se at

the time. Although he may not ultimately prevail, his complaint should be allowed to proceed

past the PLRA’s filtering mechanism. For that reason, the district court should also grant Finley

leave to amend, since the PLRA’s bar to amendment has no vitality when the prisoner states a

valid claim. See O’Brian, 179 F.3d at 1016.

                                                 B

       Finley also raised constitutional due process claims and disability-discrimination claims

under federal law. However, in dismissing the complaint, the district court did not address these




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Finley v. Huss

claims in any meaningful fashion. Because we vacate the dismissal of Finley’s complaint and

remand with leave to amend, those issues are not ripe for our review.

                                               III

         Finley has alleged facts stating an Eighth Amendment deliberate-indifference claim; the

district court should have permitted him to pursue it. Therefore, we VACATE the district

court’s dismissal of the complaint and REMAND the case with instructions to grant leave to

amend.




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No. 17-1566
Finley v. Huss

        MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and dissenting in

part.

        I concur in the majority’s holding that Timothy Finley alleged sufficient facts in his pro

se complaint to state an Eighth Amendment claim of deliberate indifference against defendants

Erica Huss and Sarah Schroeder. Consequently, I also concur in the majority’s recognition that,

on remand, Finley should be allowed to amend his complaint to bolster any other claims he

wishes to assert.

        Unlike the majority, however, I would hold that Finley already has alleged sufficient

facts to allow him, at this early stage of this litigation, to proceed further with his serious

allegations of violations of the Due Process Clause and of the Americans with Disabilities Act.

I thus respectfully dissent from any implication that the district court was justified in dismissing

those additional claims of wrongdoing.




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