                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 10a0276n.06
                                                                                          FILED
                                           No. 09-5983                                May 05, 2010
                                                                                 LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


BILLY JOSEPH FRENCH,                               )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
DAVIESS COUNTY, KENTUCKY; DAVID                    )    WESTERN DISTRICT OF KENTUCKY
OSBORNE, Individually, and in his official         )
capacity as the Daviess County Jailer; JOHN        )
AND JANE DOES, NOS. 1, 2, AND 3,                   )
Individually and in their official capacity as     )
officers and employees of the Daviess County       )
Detention Center; CAROL BYRD, ARNP;                )
WILLIAM SCOT CHAPMAN, MD,                          )
                                                   )
       Defendants-Appellees.




BEFORE:        MERRITT, COLE, and COOK, Circuit Judges


       MERRITT, Circuit Judge. This is a prison medical malpractice case in which the prisoner,

Billy French, claims under 42 U.S.C. § 1983 that the defendants violated the Eighth Amendment

Cruel and Unusual Punishment standard; namely, that the defendants were “deliberately indifferent

to his serious medical needs” by purposely disregarding a known risk of harm while he was

incarcerated at the Daviess County Detention Center. See Estelle v. Gamble, 429 U.S. 97, 104

(1976)(“deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary

and wanton infliction of pain’”) for the standard of care required for this Constitutional tort. More
No. 09-5983
French v. Daviess County, Kentucky, et al.

specifically, he claims that the defendants, all staff of the detention center, were deliberately

indifferent by placing him on a Valium detoxification protocol instead of providing him with his

prescription Xanax and by denying him prescription Lorcet pills for chronic back pain. We affirm

the District Court’s grant of summary judgment which we review de novo. See Hamby v. Neel, 368

F.3d 549, 556 (6th Cir. 2004). Taking the material facts in the prisoner’s favor, the primary issues

are (1) whether French even had a serious medical need for the Lorcet prescription, and (2) whether

the substitution of the Valium detoxification protocol for the Xanax prescription amounted to a

“wanton infliction of pain.” After carefully reviewing the entire record, we find that French’s Eighth

Amendment rights were not violated.

       The Cruel and Unusual Punishment Clause of the Eighth Amendment guarantees federal

inmates the right to adequate medical care, and the Fourteenth Amendment extends this right to

inmates incarcerated by the states. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Like all

intentional torts, a claim for prison medical malpractice has two distinct elements: injury to the

prisoner’s objective interest – in this case, his “serious medical needs” – and the subjective intent

of jail officials, defined in this case as the “wanton infliction of pain.” To satisfy the subjective

intent element, we have said that a prisoner in French’s situation must allege facts that show that the

state actor “subjectively perceived facts from which to infer substantial risk to the prisoner, that he

did in fact draw the inference, and that he then disregarded the risk.” Comstock v. McCrary, 273

F.3d 693, 703 (6th Cir. 2001).

       French did not have a serious medical need for narcotic pain medication; and, consequently,

we need not discuss whether the denial of Lorcet was a “wanton infliction of pain.” At no time did

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French v. Daviess County, Kentucky, et al.

a physician “mandate” narcotic pain medication, such as Lorcet, for French’s treatment, and French’s

need for Lorcet was not obvious to jail officials. While French had a prescription for Lorcet at the

time of his incarceration, when jail nurses contacted French’s primary physician to confirm the

prescription, the doctor’s office only informed the nurses as to French’s blood thinning medication.

Further, the emergency room doctor who treated French for alleged seizures did not prescribe

narcotic pain medication for French, despite stating that he would have if medically necessary.

Likewise, Dr. Allen, a physician at the psychiatric center French was later transferred to, did not

prescribe narcotic pain medication, though he stated that he would have if medically necessary. As

to the obviousness of the need for Lorcet, French never completed a medical request form

complaining of back pain. (District Ct. R. 110, Exhibit 8.) He did not provide jail officials at the

time of his incarceration with a prescription or any other verifying documents to support his claim

that he needed or had a prescription for narcotic pain medication, and he did not allege on the intake

form that he was experiencing back pain. (District Ct. R. 84, Exhibit 10.) French has failed to show

that he had a serious medical need for narcotic pain medication at the time of his May 2007

incarceration; and, therefore, jail officials did not deliberately disregard a known risk.

       With regard to French’s claim for Xanax, French may have had a serious medical need for

Xanax, or something like it, but jail officials did not wantonly inflict pain on French by placing him

on a Valium detoxification protocol to wean him off of Xanax. Xanax is a highly addictive

medication, which can cause serious withdrawal symptoms like seizures and delirium if discontinued

abruptly. French v. Daviess County, Ky., No. 4:07CV-105-M, 2009 WL 1766928, at * 3 (W.D. Ky.

June 23, 2009). French alleges that the detoxification protocol caused him to have no fewer than

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French v. Daviess County, Kentucky, et al.

seven seizures, although the nature, duration, or effect of the seizures is not alleged. (French Br. at

7). Courts have found withdrawal symptoms to qualify as a serious medical need. See, e.g., Mayo

v. County of Albany, No. 09-1745-cv, 2009 WL 4854022, at *2 (2d Cir. Dec. 17, 2009) (heroin and

alcohol withdrawal); Sylvester v. City of Newark, 120 F. App’x 419, 423 (3d Cir. 2005) (acute drug

withdrawal); Foelker v. Outagamie County, 394 F.3d 510, 513 (7th Cir. 2005) (methadone

withdrawal). Consequently, we will assume that French had a serious medical condition arising out

of his apparently strong addiction to Xanax.

       Despite French’s serious medical need for Xanax, jail officials did not have a sufficiently

culpable state of mind when deciding to place him on a detoxification protocol. French’s experts

have stated that removing him from Xanax “cold turkey” could have serious consequences, but no

“cold turkey” action was taken here. (District Ct. R. 25, Exhibit 4.) Instead, Valium was used to

gradually wean French from Xanax. Valium and Xanax are both benzodiazepines. (Chapman Br.

at 7.) Courts have found Xanax detoxification protocols, using such substitutes, to be constitutional.

See Chatham v. Adcock, 334 F. App’x 281, 288-89 (11th Cir. 2009); Burdette v. Butte County, 121

Fed. App’x 701, 702 (9th Cir. 2005) (prison doctor’s decision to taper an inmate off of Xanax does

not qualify as deliberate indifference to a serious medical need); see also Thomas v. Webb, 39 F.

App’x 255, 256 (6th Cir. 2002) (finding that jail official’s refusal to provide Xanax was not

deliberately indifferent when inmate had history of substance abuse).

       Further, Dr. Troost, the emergency room doctor who treated French for his seizures, stated

that Valium is the equivalent of Xanax and that the jail’s detoxification program should have

remedied any withdrawal symptoms. (Troost Dep. at 20); see also Burdette, 121 F. App’x at 702 (9th

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French v. Daviess County, Kentucky, et al.

Cir. 2005) (noting that similar tapering-off program presented only a slight statistical risk of serious

side effects). Where the question is one of administering a highly addictive drug on a continuing

basis in the prison setting, the prison staff should have some discretion; and we do not think that the

Valium substitute meets the standard of an “unnecessary and wanton infliction of pain” under

Estelle v. Gamble. “Where a prisoner has received some medical attention and the dispute is over

the adequacy of the treatment, federal courts are generally reluctant to second guess medical

judgments and to constitutionalize claims that sound in state tort law.” Graham ex rel. Estate of

Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004).

       In addition to claiming that jail officials were deliberately indifferent in their direct care,

French has also stated a claim against them in their supervisory individual capacities for the “no-

narcotics” and “no-Xanax” policies that they allegedly adopted. At least one lower court has held

that summary judgment for a jail was inappropriate when the jail utilized a written, blanket policy

forbidding prescribed narcotics, Estate of Clutters v. Sexton, No.1:05cv223, 2007 WL 3244437 at

*10 (S.D. Ohio Nov. 2, 2007). But it is undisputed that here there is no written policy forbidding

the dispensing of narcotic pain medication. French acknowledges that the jail dispensed narcotic

pain medication to inmates on at least two occasions, which belies his assertion of a blanket policy.

(French Br. at 4) In sum, the record indicates that French was denied his pain medication based on

a reasoned, individualized medical determination.

       French also alleges the existence of a “no Xanax” policy at the jail. Even if such a policy

exists, French has failed to show that such a policy was unconstitutional as applied to him. The

emergency room doctor who treated French following his seizures stated that French’s medical

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French v. Daviess County, Kentucky, et al.

records back to 2005 supported the inference of a “very abusive relationship” with drugs,

specifically, benzodiazepines (e.g., Xanax). While under other circumstances a prisoner might

establish that this Valium detoxification protocol is unconstitutional, the facts of this case do not

support such a claim because the protocol as applied to French – given his history of drug abuse –

did not give rise to a rise to a “wanton infliction of pain.” The material facts indicate that the doctors

and prison staff were attempting to act in the best interests of the prisoner and did not disregard his

well-being or make any significant mistake by disregarding a known risk of injury.

         Finally, French brings a § 1983 claim against Daviess County and against Osborne, Byrd and

Chapman in their official capacities. The claims against Osborne, Byrd and Chapman in their

official capacities are equivalent to claims against Daviess County itself. Matthews v. Jones, 35 F.3d

1046, 1049 (6th Cir. 1994). This Court must determine under § 1983 “(1) whether plaintiff’s harm

was caused by a constitutional violation, and (2) if so, whether the city is responsible for that

violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). Because French did

not suffer a constitutional violation, the County cannot be found liable under § 1983. Further, there

is no evidence that the County was the moving force behind the alleged policies or decisions of its

medical employees.

         In conclusion, jail officials were not able to obtain reliable information that French needed

narcotic pain medication or Xanax. Officials instead made reasoned, individualized determinations

as to French’s care, such as placing him on a detoxification protocol and transporting him to the

hospital. Consequently, jail officials were not deliberately indifferent to French’s serious medical

needs.

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       Accordingly, the judgment of the District Court is affirmed.




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