                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0291p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                                                 -
 JAMES SCOTT,
                                                 -
                              Plaintiff-Appellant,
                                                 -
                                                 -
                                                     No. 08-1671
           v.
                                                 ,
                                                  >
                                                 -
                                                 -
 NITIN AMBANI, M.D., ARDESHIR FAGHIHNIA,
                                                 -
 M.D., MOLLY SULLIVAN, M.D., AUDBERTO
                                                 -
 ANTONINI, M.D.,
                      Defendants-Appellees. -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
               No. 07-10459—Marianne O. Battani, District Judge.
                                 Submitted: March 5, 2009
                           Decided and Filed: August 18, 2009
                Before: SILER, COOK, and McKEAGUE, Circuit Judges.

                                    _________________

                                         COUNSEL
ON BRIEF: Loretta B. Subhi, HACKNEY GROVER HOOVER & BEAN, PLC, East
Lansing, Michigan, Ronald W. Chapman, Kimberly A. Koester, CHAPMAN AND
ASSOCIATES, P.C., Bloomfield Hill, Michigan, Richard C. Kraus, FOSTER, SWIFT,
COLLINS & SMITH, P.C., Lansing, Michigan, for Appellees. James Charles Scott, St.
Louis, Michigan, pro se.
         SILER, J., delivered the opinion of the court, in which COOK, J., joined.
McKEAGUE, J. (pp. 10-11), delivered a separate opinion concurring in part and dissenting
in part.
                                    _________________

                                         OPINION
                                    _________________

        SILER, Circuit Judge. James Scott, a prisoner who is serving a life sentence, alleges
that the defendants, all of them physicians, were deliberately indifferent to his medical needs



                                              1
No. 08-1671         Scott v. Ambani, et al.                                           Page 2


in connection with his treatment for prostate cancer. Defendants filed motions to dismiss
pursuant to Rule 12(b)(6) and motions for summary judgment. The district court dismissed
Scott’s claims against all defendants. We affirm the district court’s judgment as to Drs.
Ambani, Faghihnia, and Sullivan, vacate the judgment as to Dr. Antonini, and remand for
further proceedings.

                  FACTUAL AND PROCEDURAL BACKGROUND

        In March 2002, Scott was informed by Dr. Ambani that he had an elevated prostate-
specific antigen (PSA), indicating a possibility of prostate cancer. Dr. Ambani performed
a biopsy but did not find any cancer. Dr. Ambani recommended that Scott follow up with
his regular physician in approximately one year. Scott alleges that Dr. Ambani refused to
pursue additional testing for prostate cancer. He also alleges that Dr. Ambani failed to
comply with Michigan Department of Corrections (MDOC) policy directives requiring him
to place Scott in a “chronic care clinic” and to place him on a therapeutic diet. As a result,
Scott claims that he suffered distress from “thinking that he could be dying from cancer” and
experienced a delay in receiving proper treatment for his condition. Dr. Ambani also refused
to prescribe pain medication to treat Scott’s lower back pain.

        Scott was transferred to another facility and came under the care of Dr. Faghihnia
from October 2002 until February 2004. He alleges that Dr. Faghihnia was deliberately
indifferent to his medical needs by denying him an annual health screening in 2002, refusing
his requests for additional cancer testing, and denying him lab work at his 2003 screening.

        Scott’s annual screening in October 2004 revealed an elevated PSA level. He also
complained of pain in his upper thigh and lower back. As a result, he was referred back to
Dr. Ambani for a second biopsy. In January 2005, Dr. Ambani performed the biopsy which
revealed prostate cancer. Scott was then referred to Dr. Sullivan, a radiation oncologist, for
treatment.

        Scott indicated to Dr. Sullivan that for religious reasons, he did not wish to undergo
any treatment which might affect his fertility. Dr. Sullivan told him that if the cancer was
located only in the prostate, he would not receive radiation treatment to his seminal vesicle.
No. 08-1671         Scott v. Ambani, et al.                                            Page 3


Scott alleges that additional testing showed that his cancer was confined to the prostate but
that, nonetheless, his seminal vesicle was exposed to radiation treatment.

        Once Scott’s treatment was complete in August 2005, he was referred to Dr.
Antonini to monitor his health for side effects from the radiation. In February 2006, Scott
reported to Dr. Antonini that he was in great pain and had developed a hard testicular lump.
Dr. Antonini denied Scott’s request to refer him back to Dr. Sullivan and also refused to
prescribe pain medication. Instead, Dr. Antonini referred him to another doctor for a
colonoscopy.

        In May 2006, Scott saw a nurse because he had a lump on his eyelid and was still in
great pain from his testicular lump. The nurse communicated Scott’s problems to Dr.
Antonini, but he said that he did not have time to examine Scott. His pain eventually
dissipated.

        In June 2006, Scott underwent a colonoscopy. The colonoscopy indicated that his
previous pain was the result of radiological side effects from cancer treatment. In August
2006, Dr. Antonini examined Scott’s testicular lump and ordered an ultrasound. The
ultrasound indicated that the lump was a cyst that had burst.

        Scott filed his complaint in January 2007. The defendants are named in their
individual and official capacities and, with the exception of Dr. Sullivan, were employed by
or under contract with MDOC. Dr. Sullivan was employed by the University of Michigan.

        The district court granted Drs. Faghihnia and Antonini’s motion to dismiss, Dr.
Sullivan’s motion for summary judgment, and Dr. Ambani’s motion to dismiss.

                                STANDARD OF REVIEW

        This court uses a de novo standard when reviewing a district court’s dismissal of a
complaint pursuant to either Rule 12(b)(6) or Rule 56(c) of the Federal Rules of Civil
Procedure. See Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006); Ciminillo v. Streicher,
434 F.3d 461, 464 (6th Cir. 2006).

        In reviewing a dismissal under Rule 12(b)(6), all allegations in the complaint should
be taken as true, and the complaint is to be construed liberally in favor of the party opposing
No. 08-1671         Scott v. Ambani, et al.                                               Page 4


the motion to dismiss. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976); Davis H. Elliot
Co. v. Caribbean Utils. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). “Dismissals of
complaints under the civil rights statutes are scrutinized with special care.” Westlake, 537
F.2d at 858.

                                        DISCUSSION

A. Dr. Ambani

        In dismissing Scott’s deliberate indifference claim against Dr. Ambani, the district
court concluded that the claim arose in 2002 and was, therefore, untimely. Scott does not
challenge the conclusion that whatever events occurred in 2002 are barred by the statute of
limitations. Instead, he challenges the district court’s conclusion that the complaint did not
contain an allegation that Dr. Ambani denied Scott pain medication in 2005.

        Both parties agree that Scott’s claims are subject to a three-year statute of limitations.
See Mich. Comp. Laws § 600.5801(10); Wolfe v. Perry, 412 F.3d 707, 713-14 (6th Cir.
2005) (applying Michigan’s three-year statute of limitations to a § 1983 claim). In actions
brought under § 1983, the statute of limitations begins to run when the plaintiff knows or has
reason to know of the injury that is the basis of the action. Kelly v. Burks, 415 F.3d 558, 561
(6th Cir. 2005). “A plaintiff has reason to know of his injury when he should have
discovered it through the exercise of reasonable diligence.” Sevier v. Turner, 742 F.2d 262,
273 (6th Cir. 1984).

        The district court correctly concluded that Scott’s claim against Dr. Ambani accrued
in 2002, and is therefore untimely. In 2002, Dr. Ambani refused Scott’s requests for further
cancer testing and for therapeutic treatment. According to the complaint, it was this denial
which caused Scott to experience mental and emotional distress regarding the uncertainty
of his diagnosis. This mental and emotional distress forms the basis of Scott’s claim against
Dr. Ambani, and Scott was aware of this distress at or very near the time in which Dr.
Ambani refused Scott’s requests. Similarly, Dr. Ambani’s alleged failure to comply with
prison procedures requiring Scott to be placed in a chronic care program due to his elevated
PSA level should reasonably have been known to Scott at or near the time of the denial. See
Hermansen v. Schickel, 202 F.3d 268 (6th Cir. 1999) (concluding that prisoner’s cause of
No. 08-1671          Scott v. Ambani, et al.                                            Page 5


action for deliberate indifference accrued on the date that he was denied medical care, even
though the full extent of his injury was not known until later).

        Scott argues that the district court erred when it concluded that the complaint failed
to allege that Dr. Ambani denied Scott pain medication in 2005. His argument is without
merit. In the section of the complaint entitled “Facts,” Scott lays out the events surrounding
his encounter with Dr. Ambani in March 2002. Scott alleges that Dr. Ambani (1) denied his
requests for additional cancer testing, (2) refused to place Scott in a chronic care program,
(3) denied Scott’s request to be placed on a therapeutic diet, and (4) refused to prescribe pain
medication for Scott’s lower back and upper thigh pain.

        The complaint also states that in January 2005, Dr. Ambani performed a second
biopsy and in February 2005, referred Scott to Dr. Sullivan for treatment. Nowhere in the
discussion of the second biopsy or in the discussion of the referral does Scott mention either
requesting pain medication or being refused pain medication by Dr. Ambani in 2005.

        In a section of the complaint titled, “Cause of Action, Count I,” Scott makes his
deliberate indifference claim against Dr. Ambani. Scott alleges that Dr. Ambani was
deliberately indifferent to Scott’s medical needs by denying his requests for additional cancer
testing and refusing to prescribe pain medication for Scott’s lower back and upper thigh pain.
The only allegation made by Scott regarding Dr. Ambani’s refusal to prescribe pain
medication alleges that the refusal occurred in March 2002. Therefore, Scott’s deliberate
indifference claim, insofar as it is based upon Dr. Ambani’s refusal to prescribe pain
medication, must be referring to the refusal which allegedly occurred in March 2002.

        Since Scott’s claim against Dr. Ambani accrued in 2002, it should have been brought
by 2005 in order to comply with the three-year statute of limitations. Scott filed the
complaint in 2007. Therefore, the claim is untimely.

B. Dr. Faghihnia

        The district court granted Dr. Faghihnia’s motion to dismiss on the basis that Scott
failed to exhaust his administrative remedies. Scott filed a grievance against Dr. Faghihnia
contending that Dr. Faghihnia violated the Eighth Amendment by failing to give Scott an
annual health care screening from October 2002 to February 2004. He did not file his
No. 08-1671           Scott v. Ambani, et al.                                         Page 6


grievance until 2006.      The grievance against Dr. Faghihnia was denied during the
administrative process because it was untimely. Scott contends that the denial of his
grievance was improper because it was filed soon after he received his medical records.

        Under the Prison Litigation Reform Act of 1995 (PLRA), prison litigation brought
under 42 U.S.C. § 1983 may only be brought after a prisoner has exhausted the available
administrative remedies. See 42 U.S.C. § 1997e (a) (“[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner . . . until such administrative remedies as are available are exhausted”).

        “Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548
U.S. 81, 90-91 (2006). In Woodford, the Supreme Court held that a prisoner’s § 1983 action
must be dismissed for failure to exhaust administrative remedies where the underlying
grievance was denied as untimely even though the claim would not have been barred by the
applicable statute of limitations. Woodford makes clear that a prisoner cannot satisfy the
PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective
administrative grievance. Id. at 83.

        Here, Scott’s grievance against Dr. Faghihnia was rejected as untimely during the
administrative process. Therefore, under Woodford, he failed to exhaust his administrative
remedies.

C. Dr. Antonini

            Scott appeals the district court’s dismissal of his deliberate indifference claim
against Dr. Antonini under Rule 12 (b)(6) of the Federal Rules of Civil Procedure. The
district court concluded that these claims were not time-barred and were properly exhausted.
However, it granted Dr. Antonini’s motion to dismiss on the basis that Scott’s allegations did
not rise to the level of deliberate indifference. Dismissal was erroneous.

        A prisoner has adequately stated a cause of action “when he alleges that prison
authorities have denied reasonable requests for medical treatment in the face of an obvious
need for such attention where the inmate is thereby exposed to undue suffering or the threat
No. 08-1671          Scott v. Ambani, et al.                                              Page 7


of tangible residual injury.” Westlake, 537 F.2d at 860. The inquiry into whether a prison
official acted with deliberate indifference has both an objective and subjective component.
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). In order to satisfy the objective
component, the prisoner must show that the medical need is “sufficiently serious.” Id. at
702-03 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). To satisfy the subjective
component, the prisoner must allege facts which show that the prison official had a
“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; Comstock, 273 F.3d at 703.
It must be shown that the official acted with reckless disregard for a substantial risk to the
prisoner, that he drew the inference, and that he disregarded the risk. Farmer, 511 U.S. at
836-37.

          Construing the complaint in the light most favorable to Scott and accepting all
factual allegations as true, Scott has sufficiently stated a claim that Dr. Antonini had
knowledge of Scott’s serious medical needs and was deliberately indifferent to those needs.
Scott alleges that as of February 2006, Dr. Antonini was aware that Scott had been recently
treated for prostate cancer, and had severe back and leg pain as well as a testicular lump that
was hard and painful. Nevertheless, Dr. Antonini did not provide Scott with medication to
treat the pain. In May 2006, when Scott reported to the nurse that the lump was still causing
him severe pain, Dr. Antonini said he did not have time to examine the lump, and he did not
do so until August 2006.

          Given the severity of Scott’s prior medical condition, a refusal to provide pain
medication and to examine his testicular lump for three months could lead a trier of fact to
conclude that prison officials exposed Scott to “undue suffering or the threat of tangible
residual injury.” See Westlake, 537 F.2d at 860 n.4 (“Whether a prisoner has suffered unduly
by the failure to provide medical treatment is to be determined in view of the totality of the
circumstances.     In making this determination the trier of fact should consider the
practicalities of the situation including the extent of the injury, the realistic possibilities of
treatment, and the possible consequences to the prisoner of failing to provide immediate
medical attention.”) (emphasis added).

          Since Scott has adequately stated a claim against Dr. Antonini for deliberate
indifference, the district court’s dismissal of the claim must be vacated.
No. 08-1671         Scott v. Ambani, et al.                                           Page 8


D. Dr. Sullivan

        Scott alleges that Dr. Sullivan violated his constitutional rights by treating his
seminal vesicle against his wishes resulting in infertility. Dr. Sullivan filed a motion for
summary judgment arguing that she was not a state actor and therefore cannot be held liable
under 42 U.S.C. § 1983, and that the alleged facts do not support a claim of deliberate
indifference. The district court concluded that Dr. Sullivan was not a state actor and
dismissed the claim against her. We affirm.

        The relevant standard for determining whether Dr. Sullivan acted under color of state
law focuses on “the relationship among the State, the physician and the prisoner.” West v.
Atkins, 487 U.S. 42, 55-56 (1988). In determining whether a doctor acted under color of
state law, the primary factor is “the physician’s function within the state system, not the
precise terms of his employment.” Id. at 56.

        Dr. Sullivan was employed by the University of Michigan, a public university, as a
radiation oncologist. She held medical staff privileges at W.A. Foote Hospital in Jackson,
Michigan. She had no contractual relationship with MDOC or Correctional Medical
Services. Her care and treatment of all patients, including any prisoners which may have
required treatment at Foote Hospital, were determined by her own training, experience, and
independent medical judgment. Neither MDOC nor Correctional Medical Services had any
influence, direction, or control over the care and treatment of any patient.

        In her role as a radiation oncologist providing care to Scott, Dr. Sullivan was not
exercising “any power possessed by virtue of state law.” West, 487 U.S. at 49. Dr.
Sullivan’s employment by the University of Michigan did not give her any additional
responsibilities or vest her with any additional authority that other physicians who treated
patients at Foote Hospital did not enjoy. As with any private physician, Dr. Sullivan
provided treatment and care to the patients at the hospital.

        Furthermore, Dr. Sullivan was able to treat Scott not because she was “clothed with
the authority of state law,” West, 487 U.S. at 49, but because she had medical staff
privileges at Foote Hospital. Upon referral by Dr. Ambani, a physician at the prison
hospital, Scott could have been treated by any of the radiation oncologists with medical staff
No. 08-1671        Scott v. Ambani, et al.                                          Page 9


privileges. Dr. Sullivan just happened to be the physician who provided treatment. As such,
Dr. Sullivan was not performing her duties as a state actor in her treatment of Scott and
dismissal of the claim against her was proper.

       AFFIRMED in part, VACATED in part, and REMANDED for further proceedings
in connection with the claim against Dr. Antonini only.
No. 08-1671          Scott v. Ambani, et al.                                         Page 10


         __________________________________________________________

              CONCURRING IN PART AND DISSENTING IN PART
         __________________________________________________________

         McKEAGUE, Circuit Judge, concurring in part and dissenting in part. I concur fully
in affirming the district court’s judgment as to Drs. Ambani and Faghihnia. As to Dr.
Sullivan, I would affirm judgment on a basis other than state actor. The University of
Michigan is a public university and therefore a state actor. NCAA v. Tarkanian, 488 U.S.
179, 192 (1988). As an employee of the University, Dr. Sullivan is a state actor when acting
within the scope of her employment. Johnson-Kurek v. Abu-Absi, 423 F.3d 590, 595 (6th
Cir. 2005); Cameron v. Children’s Hosp. Med. Center, 131 F.3d 1167, 1172 (6th Cir. 1997).
Had Scott been brought to the University for treatment and had Dr. Sullivan treated him
there, it seems reasonably clear that she would have been a state actor in her role as Scott’s
treating physician. In her affidavit, Dr. Sullivan contends that she was “assigned by” the
University to the oncology radiation unit at Foote Hospital. Without a better understanding
of the precise contractual relationships, if any, between (a) Dr. Sullivan and the University,
(b) the University and Foote Hospital, and (c) Foote Hospital, MDOC and Correctional
Medical Services, I cannot conclusively say that Dr. Sullivan was not a state actor when she
treated Scott at Foote Hospital. However, in my opinion we need not reach the issue of state
actor because, as the magistrate judge explained in her report and recommendation, Dr.
Sullivan did not act with deliberate indifference to Scott’s serious medical needs. R&R at
17-18.

         I also part company with my colleagues on the evaluation of Dr. Antonini’s treatment
of Scott. Normally, when considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court cannot consider records or other documents outside the four
corners of a plaintiff’s complaint. There are exceptions, however, to this general rule. Scott
attached to and cited in his complaint a number of medical records. “When a court is
presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits
attached thereto . . . so long as they are referred to in the Complaint and are central to the
claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citation
omitted).
No. 08-1671         Scott v. Ambani, et al.                                           Page 11


        The Eighth Amendment does not protect against every unnecessary deprivation
suffered by a prisoner, but rather “only that narrow class of deprivations involving ‘serious’
injury inflicted by prison officials acting with a culpable state of mind.” Hudson v.
McMillian, 503 U.S. 1, 20 (1992) (emphasis in original). Scott received medical treatment
from several physicians and healthcare workers, including Dr. Antonini, as he acknowledges.
When the cause of action is grounded not on an allegation that the prison official failed to
provide him with any treatment, but rather is grounded on an allegation that the prescribed
treatment was inadequate in some way, courts traditionally have been reluctant to second-
guess the medical official. See, e.g., Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995);
Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). As this court sitting en banc
explained in Williams v. Mehra, “[T]he standard is not whether there is something easy that
the doctors, with the benefit of hindsight, could have done. It is whether they knew of and
disregarded an excessive risk to inmate health or safety.” 186 F.3d 685, 692 (6th Cir. 1999)
(internal quotation marks and brackets omitted; emphasis in original). In these types of
cases, the prisoner must allege and ultimately prove that he received “grossly inadequate
care” in the face of “a decision to take an easier but less efficacious course of treatment.”
Perez v. Oakland County, 466 F.3d 416, 424 (6th Cir. 2006) (citation omitted).

        A review of the complaint and of the attached medical records confirms that while
Scott might be able to state a claim of negligent malpractice against Dr. Antonini, he has not
stated a claim of deliberate indifference. The records show that Dr. Antonini treated Scott
for his testicular pain and rectal bleeding, albeit maybe not as quickly as Scott desired.
Shortly after examining Scott, Dr. Antonini ordered an ultrasound on Scott’s testicles as well
as a colonoscopy. There were delays in the scheduled procedures, but there is nothing in the
record to suggest that the delays were due to Dr. Antonini’s deliberate indifference. The
ultrasound on Scott’s testicles came back negative and the course of treatment recommended
for Scott’s rectal bleeding was a high-fiber diet, Metamucil, stool softener, and a suppository
as needed. The refusal to give Scott any pain medication for his testicles might have been
negligent, but when compared to the other acts of treatment provided by Dr. Antonini, it
cannot be said that the doctor provided Scott with grossly inadequate care. Accordingly, I
would affirm judgment in favor of Dr. Antonini.
