                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0476n.06

                                         Case No. 20-1035

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Aug 12, 2020
 JUDITH BARRETT,                                  )                          DEBORAH S. HUNT, Clerk
                                                  )
         Plaintiff-Appellant,                     )
                                                  )          ON APPEAL FROM THE UNITED
 v.                                               )          STATES DISTRICT COURT FOR
                                                  )          THE EASTERN DISTRICT OF
                                                  )          MICHIGAN
 PATRICIA CARTER, et al.,                         )
                                                  )                       OPINION
         Defendants-Appellees.                    )
                                                  )




BEFORE: NORRIS, NALBANDIAN, and READLER, Circuit Judges.

       NALBANDIAN, Circuit Judge. Jeffrey Barrett was an inmate in the Michigan prison

system. During his imprisonment, he saw multiple medical professionals and received treatment

for different ailments. He was ultimately paroled. But shortly after the parole, Barrett was

diagnosed with lung cancer that had, at the point of identification, already metastasized. He passed

away a little over a month after his parole.

       His wife (Judith Barrett) sued. She named as defendants, in their individual capacities, the

nurses and physician assistants who provided Barrett treatment before his parole. In one count,

she sought damages and attorney’s fees under 42 U.S.C. §§ 1983 and 1988 for Defendants’ alleged

violations of Barrett’s Eighth and Fourteenth Amendment rights. Defendants successfully moved

for summary judgment. Plaintiff appeals. Viewing the facts in the light most favorable to Plaintiff,
No. 20-1035, Barrett v. Carter


we find the record devoid of any evidence that tends to show Defendants were deliberately

indifferent. Because Plaintiff cannot prevail, we AFFIRM.

                                                  I.

       On appeal from a grant of summary judgment, we take the facts of the case in the light

most favorable to the nonmovant. Before discussing the facts relevant to Barrett and this case, we

give a brief background on the inner workings of medical treatment at the facility where Barrett

served his sentence—the Michigan Department of Corrections (MDOC) and Gus Harrison

Correctional Facility (GHC). GHC inmates could, while Barrett was an inmate there, request

healthcare using a “kite box” located in the yard and on the individual units. (R. 42-7, Ex. Carter

Dep., PageID 1017.) Inmates fill out a form or provide written communication on other pieces of

paper “if there’s no[] [form] available.” (Id.) When the nurse comes in at night—in this case,

Defendant Patricia Carter, RN—she “pick[s] up those kites and [] spend[s] the night answering

them.” (Id.) In response to the kites, Carter either “set[s] up an appointment for the[] [inmates]”

or, for some that require immediate attention, she “ha[s] to call out and talk to [them] . . . [to] see

if they were safe or if they had to be put in seg. or something.” (Id. at 1018–21 (explaining that

“[i]f an inmate has an urgent problem . . . [she] will speak to the prisoner” and that she “pretty

much saw anybody who requested to be seen at night” but “if [she] didn’t see them, [she] would

put a note in the record documenting . . . the reason why [she] felt she didn’t have to see th[em]”).)

       For every kite she received, she would generate a report but “d[id] not make diagnoses”

because “[n]urses don’t diagnose.” (Id. at 1020; see also R. 33-3, Ex., PageID 540 (explaining

that “Michigan law . . . does not allow the nurse to diagnose and treat medical conditions” and they

instead provide “nonmedical care to relieve symptoms of patients’ injuries, disease, and

conditions” as well as refer patients when conditions “require[] a higher level of care”).) In



                                                  2
No. 20-1035, Barrett v. Carter


response to every kite received, the computer system would automatically schedule a visit

(“[a]lmost always with the nurse”) and schedulers would set up the actual schedule the next

morning by “fit[ing] [the visit] into the slot that they have.” (R. 42-7, Ex. Carter Dep., PageID

1021.)

         For complaints about an urgent medical problem, e.g., a heart attack, stroke, or blood

“gushing out from an artery” at that moment, inmates would receive medical attention from

“medical provider[s]” or “M.P.[s]” (physician assistants or “P.A.[s,]” “M.D.[s,]” or “D.O.[s]”).

(Id. at 1022.) But for all other situations, inmates usually saw nurses three times before the nurses

could refer inmates to an M.P. (Id. (explaining that the staff did this “according to the policy

books” and that the nurses “were [generally] not allowed to make direct appointments through the

computer with the M.P.’s unless it was th[e] [inmates’] third visit”).) After the third visit, even if

the nurses “didn’t find anything that the M.P. really need[ed] to see the[] [inmates] about, the[]

[inmates] would [] still get an appointment [with the M.P.] anyway[.]” (Id. at 1022–23.)

         Back to Barrett specifically.1 Starting June 11, 2014, Barrett was an inmate at GHC. Upon

intake into MDOC, Barrett was screened and “reported a history of stomach ulcer[,]” a “herniated

lumbar disc[,] and DDD (degenerative disc disease) for 25 years.” (R. 33, MDOC Summ. J. Mot.,

PageID 258.) Barrett’s DDD resulted in pain in his lower back, something he received treatment

for during his time at MDOC. The relevant period of medical complaints and treatment (according

to Plaintiff) began in early April 2015 and ended upon Barrett’s parole in mid-August of that year.



         1
          To recount Barrett’s extensive medical history at GHC during the relevant period of time,
we rely on the medical records detailing Barrett’s treatment during his incarceration. Though
Plaintiff leaves out some of the events found in those records, she references those records
throughout her briefs (below and in her appellate brief) and does not dispute their accuracy. She
also attached those records, including those with information omitted from her retelling of the
facts, to her response in opposition to Defendants’ summary judgment motions below. And
Defendants did as well. So we adopt those records as the undisputed facts.
                                                  3
No. 20-1035, Barrett v. Carter


        Barrett complained for the first time on April 9, 2015 that it hurt to breathe on his right side

and that he had experienced that pain for the past two weeks. Carter scheduled a nursing

appointment for the next day because she determined that the complaint “[wa]s not . . . an

emergen[cy] situation” given Barrett waited two weeks before complaining about it. (R. 42-7, Ex.

Carter Dep., PageID 1025.) After that and until he was paroled on August 18, 2015, Barrett saw

either the nurses at MDOC or an M.P. over fifteen times as well as transmitted and received

multiple messages about his healthcare. Given the volume and importance of that information to

this appeal, we provide them below.

    •   Defendant Rosanne M. Jones, RN (now-deceased) saw Barrett for his scheduled
        appointment on April 10 (a Friday) and ordered over-the-counter (OTC) pain medication
        to ease Barrett’s pain.

    •   Barrett then saw Defendant John Solomonson, RN the Monday after the visit with Jones
        and again reported similar symptoms. Solomonson examined Barrett and recorded that he
        found both lungs “[c]lear to auscultation” without “[r]ales[,]” “[c]rackles[,]” and
        “[w]heezes[.]” (R. 42-1, Ex. Medical Records, PageID 917.)

    •   Barrett saw Christopher C. Nethercott, RN the next day for a scheduled follow-up visit
        where Barrett complained that while he saw nursing three times, “nothing has worked[.]”
        (Id. at 915.) Nethercott informed Barrett that he would see an M.P. but, after Nethercott
        informed Barrett that it would be a P.A., Barrett became angry and abruptly left.

    •   Two days after seeing Nethercott, on April 16, 2015, Barrett saw Defendant Savithri
        Kakani, P.A. for his cough and pain in the right side of his chest. Although she found
        Barrett’s overall health (including his lungs) normal, based on Barrett’s complaints,
        Kakani ordered that they monitor his vital signs three times per week for a month. She
        also ordered a chest X-ray to take place the next day and recorded the reason: “cough
        smoker[.]” (Id. at 909.) And Barrett let Kakani know that he did not take any pain
        medication given his history with drug abuse so Kakani discontinued the previously-
        ordered pain medication.2

        2
        That night, Barrett sent a kite reporting again his pain while breathing and explaining that
he suspected he had pneumonia. In response, Carter explained that Barrett already received
medical attention from nurses and Kakani and that the ordered X-ray would confirm “any presence
of pneumonia.” (R. 42-1, Ex., Medical Records, PageID 907.)

       Ten days later on April 26, Barrett sent a “Health Care Request” to prison staff reporting
the same pain in his right side. (Id. at 921.) This time he reported it hurt “all the way through to
                                                   4
No. 20-1035, Barrett v. Carter



    •   The X-ray went through as scheduled on April 28 and Lyle S. Mindlin, D.O. reported that
        it showed Barrett’s “lung fields a[s] free of acute disease process[,]” an “unremarkable”
        “cardiac silhouette[,]” and “[c]hronic obstructive pulmonary disease” (COPD) or
        “[c]hronic lung disease.”3 (Id. at 901; R. 33-3, Ex., PageID 534.)

    •   On April 29, Defendant Brenda Eaton, RN saw Barrett where he complained of the same
        pain as before, that it felt better when he lay on his left side, and that he “cough[ed] up
        yellow-brown sputum” the week before the visit.4 (R. 42-1, Ex. Medical Records, PageID
        898–99.) Eaton noted Barrett denied any blunt trauma but found “diminished lung sounds
        through-out[.]” (Id.) She then made an appointment to follow up on the X-ray results
        with Kakani for May 1, 2015.

    •   Solomonson saw Barrett next after Barrett reported the same pain he’d previously reported
        and found Barrett’s “[l]ungs sound[ed] clear but slightly diminished in lower lobes
        bilaterally.”5 (Id. at 895 (May 2).) He discussed the X-ray results with Barrett, provided
        Barrett educational material on COPD, and ordered no further treatment at that time.

    •   Four days later, “per PA order[,]” Barrett received “4 days of medication . . . with
        instruction.”6 (Id. at 889.)


back sho[u]lder blade . . . at all times” and asked for help. (Id.) Defendants’ discussion of the
factual background does not include this health care request or the response. But Plaintiff includes
as an exhibit a copy of Barrett’s handwritten request on that date. It’s also unclear from the record
the difference between such a request and a kite. And between April 16 and 28, the nurses took
Barrett’s vitals as ordered by Kakani on the 20th, the 22nd, and the 27th of that month.
        3
         For reasons not explained in the record, the X-ray was at first canceled and then
rescheduled for April 28, 2015.
        4
          In the early morning of April 28, Barrett kited and complained again about the same pain
on his right side while breathing. But given his pending X-ray on that day, Carter scheduled this
nurse visit for the day after.
        5
          Before this, Defendant Kimberly C. McGuire, RN took Barrett’s vitals on May 1, 2015
as previously ordered by Kakani. Dawn Maly, LPN then did the same three days after that on May
4. Four days after that, on May 8, Eaton recorded taking Barrett’s lab specimen for Barrett’s
hypertension and taking his vitals. And for the rest of May: Kimberly A. Korte, RN took Barrett’s
vitals on May 11, Jones on May 13, and McGuire again on May 15.
        6
          Two days after that, Barrett submitted another “Health Care Request” again reporting his
chest pains (alleging this time that he had pain “all the way through to sho[u]lder blade”) and that
it hurt to both breathe and walk at this point. (R. 42-1, Ex., Medical Records, PageID 922.)
Defendants’ discussion of the facts does not explicitly include this request. But Plaintiff includes
as an exhibit a copy of Barrett’s handwritten request on that date.

                                                 5
No. 20-1035, Barrett v. Carter



    •   On May 11, Barrett submitted another kite complaining of the same pain he’d previously
        reported. So Carter scheduled a callout, and Jones saw Barrett the next day. During the
        visit, Barrett reported that he found the only medications he had been taking (OTC
        medications) “not effective” and still had the same pain on his right side but that he had
        “[n]o cough[.]” (Id. at 880 (explaining that Barrett was “guarding area above R nipple”).)
        Jones then ordered another visit with Kakani for May 13.

    •   At his visit with Kakani, Barrett explained that “moderate activity” “aggravated” his
        symptoms such as his “dry cough.”7 (Id. at 871.) Kakani examined him and recorded that
        Barrett’s exam returned normal results but recorded that his COPD was “[p]oor.” (Id. at
        872.) She then prescribed to him Qvar (an “oral inhaler”) as well as Proventil HFA or
        “albuterol” (an “actuation aerosol inhaler”). (Id.) She also placed Barrett in the pulmonary
        chronic care clinic, instructed him to increase his fluid intake and follow an exercise
        program, and gave him “education” on his condition and medication. (Id. at 871–73.)

    •   Kakani then saw Barrett again on May 21 for his chronic care visit where she conducted a
        physical examination and found nothing out of the ordinary. She also discussed with
        Barrett management or treatment options with another provider, reviewed diagnostic study
        tests with him, and provided him with education on relevant topics. And she ordered that
        he avoid “ASA” and “NSAIDS” as well as increase his fluid intake, increase his activity
        level, and follow an exercise program. (Id. at 868–69.)

    •   Kakani had the same discussion with Barrett again on his June 15 chronic care visit.8 His
        physical exam again revealed nothing out of the ordinary. And Barrett let Kakani know
        that he “[wa]s taking otc meds [at that time] and [was] doing good” and that his “shoulder
        and muscles . . . feel better” “when he walks and rest[s.]” (Id. at 863.) But Barrett again
        complained that moderate activity aggravated his symptoms and that the “inhal[e]rs
        don[’]t help much[.]” (Id.)

    •   On June 28, Eaton scheduled a nurse appointment for June 30 in response to Barrett’s kite
        complaining that it “[h]urt[] to breathe” and that he had very bad pain (a “10+” on a scale


        7
         The night before his visit with Kakani, Barrett again submitted a kite to Carter
complaining about the same pain to which Carter responded: “? Why kiting. You have a visit
pending already.” (R. 42-1, Ex., Medical Records, PageID 877.)
        8
          Before this visit, Barrett requested a refill of his albuterol inhaler on June 10. The day
after this visit, he submitted another kite to Carter very early in the morning on June 16. In it, he
complained that his chest pain had worsened, that he had COPD, and that he saw no improvement
in his back and shoulder pain. He explained that the “meds from store do not help[.]” (R. 42-1,
Ex. Medical Records, PageID at 862, 924.) Carter responded that Barrett had dated the kite on
June 14 and that, because Barrett saw Kakani on June 15, Carter “assumed [Barrett] discussed
th[e] issue[s] [in the kite] with [Kakani] at that time.” (Id.)

                                                 6
No. 20-1035, Barrett v. Carter


        of 10) in his “shoulder/back/R[ight] arm[.]”9 (Id. at 861.) At that appointment, Barrett
        complained to McGuire that despite Kakani letting him know he had COPD, he “d[id]n’t
        think so.” (Id. at 859.) He also let McGuire know that he “ha[d] an appointment with
        [his] doc the day [he] get[s] out to see what is real and what is not.” (Id.) And he let
        McGuire know that he “just want[ed] th[e] RN to make a note in the computer that his arm
        is sore and numb.” (Id.) McGuire also recorded the visit as one related to a “strain/sprain.”
        (Id. at 860.)

    •   On July 9, Barrett saw Defendant Kimberly A. Korte, RN who recorded tenderness and
        pain with movement in Barrett’s shoulder as related to a “strain/sprain.”10 (Id. at 856.)
        She ordered he take ibuprofen, use “[i]ce/cool compresses[,]” and go to “[s]ick call if
        symptoms do not subside or become more severe.” (Id. at 857.)

    •   The day after that, Barrett had his annual health screening with Solomonson. During that
        meeting, Barrett “denie[d] emergent/urgent medical needs[,]” denied any fever, chills,
        night sweats, cough, “bloody or black stools[,]” and “recurrent abdominal pain[,]” and
        exhibited no distress. (Id. at 853.) But Barrett reported “recurrent chest pain” and
        “difficulty breathing”—something Solomonson attributed to the COPD diagnosis. (Id.)

    •   Kakani then saw Barrett on July 20 for another chronic care visit where Barrett’s physical
        exam yielded no abnormalities and during which she recorded his COPD as “[g]ood.” (Id.
        at 848.) They again discussed the same topics and concerns that they had discussed during
        the earlier chronic care visits.

    •   Defendant Sarah E. Miller, RN then saw Barrett the next day for an unscheduled visit.
        During that visit, Barrett let Miller know that he could not breathe while walking, “feels
        better laying down,” and had pain in his right-side chest and “right shoulder/armpit[.]”
        (Id. at 845.) She recorded that she found Barrett’s lungs clear and that Kakani called and
        ordered that he see an M.D. Barrett returned to his unit in a wheelchair, and Miller
        instructed him to rest for the remainder of the day or night as well as to “kite if symptoms
        get worse.” (Id. at 843.)


        9
          Before this visit on June 23, Barrett submitted a grievance to MDOC in which he
complained that he received no medical treatment despite his repeated complaints and complained
again about his ailments. In response, Defendant Janet Campbell, RN interviewed Barrett and
Defendant Lori Kopka, RN reviewed the grievance as well. Campbell and Kopka then denied the
grievance because they noted Barrett “[wa]s being evaluated [and] treated” and that his M.P. had
conducted and monitored his “diagnostic treating[.]” (R. 42, Resp., PageID 804 (noting that
although Barrett could disagree with his M.P.’s “medical judgment[,]” that did not amount to or
support a claim that the treatment plan is inappropriate).) And they encouraged Barrett to access
health care through the procedures in place at the facility.
        10
           Two days earlier, in response to Barrett’s kite, Carter refilled both inhalers and scheduled
a callout for shoulder pain of which Barrett complained.

                                                  7
No. 20-1035, Barrett v. Carter


    •   The day after that, Barrett had another unscheduled nurse visit with Eaton who ordered
        Barrett receive his meals in his unit for the next week and sent Barrett back to his “unit
        via wheelchair” after Barrett complained he could “only breathe good lying down.” (Id.
        at 839.)

    •   In response to Barrett’s “continue[d] . . . breathing problems when walking long
        distances[,]” on July 30, Korte continued Barrett’s “meal-in detail” and scheduled Barrett
        for another visit with an M.P.11 (Id. at 836.)

    •   Two days later on August 1, Barrett saw Gregory Boyd, RN for an unscheduled nurse visit
        where Barrett complained of pain “related to his COPD” in his right shoulder. (Id. at 832.)
        Boyd found Barrett’s lungs “clear throughout with shallow breathing” and ordered Barrett
        pain medication and a “2 week lay[]in with meals in [] per [Barrett’s] request.” (Id. at
        830, 833.)

    •   Two days after seeing Boyd, Barrett requested to see a doctor, not a P.A., and complained
        of COPD, back pain while out of bed, and pain in his right shoulder. But Barrett failed to
        show up to the scheduled appointment.

    •   Barrett did show up to his scheduled visit on August 5 despite denying any need for
        treatment. He again complained of his COPD as well as back and shoulder pain so Boyd
        gave Barrett Tylenol for three days and noted that Barrett “ha[d] a lay in with meals in
        until he paroles.” (Id. at 822.)

    •   On August 10, the physician was notified of Barrett’s impending release. A week after
        that, Barrett “[was] seen in healthcare for scheduled exit interview” and paroled the next
        day on August 18, 2015. (Id. at 820.)

        The same day he was paroled, Barrett went to Spectrum Health Gerber Memorial where

they took X-rays of his chest and found a mass in his right lung “consistent with a [] tumor.” (R.

42-4, Ex., PageID 934.) They then diagnosed him with “Stage IV adenocarcinoma” that “had




        11
           Before this, Barrett sent two kites on July 28 and 29. In the first one, he requested a refill
for his inhalers. Becky Seymoure let Barrett know that they could not refill them until a later date
and to send another kite “[i]f he [was] having issues and would like to be seen[.]” (R. 42-1, Ex.
Medical Records, PageID 838.) In the second kite, he explained he “[s]till need[ed] meals in”
given he “still c[ould ]not walk 200 feet without falling” and had “extreme pain in shoulder and
arm.” (Id. at 837.) Carter responded that Barrett had seen an M.P. July 20, was referred back to
an M.P. after his nursing visits on July 21 and 22, and scheduled another visit with an M.P.

                                                   8
No. 20-1035, Barrett v. Carter


metathesized” by the time doctors identified the tumor. (R. 42, Resp., PageID 810.) Barrett passed

away on September 24, 2015, a little over a month after he was paroled.

       Plaintiff sued. She named as defendants Campbell, Carter, Eaton, Jones (now-deceased),

Kopka, Korte, McGuire, Miller, and Solomonson in their individual capacities (MDOC

Defendants). She also sued Kakani.12 She brought one § 1983 claim alleging Defendants violated

Barrett’s Eighth and Fourteenth Amendment rights. And she sought damages as well as attorney’s

fees for her claim.

       During discovery, Plaintiff took only two depositions—one of Miller and the other of

Carter—and provided no expert evidence. Defendants, on the other hand, put forth affidavits or

statements by Kakani and three experts: Neel Shah, M.D., an oncologist who specializes in lung

cancer, Claudia Barrett, a physician assistant who has worked in correctional and primary care for

over eight years, and Kathryn J. Wild, a licensed RN who has worked in the field of corrections

healthcare for over 30 years.

       Dr. Shah explained that Barrett “had a clear chest X-ray on April 28th, 2015 that did not

reveal any mass” and so “his malignancy must have developed between that date and August 18th,

2015” (the day he was paroled). (R. 37-6, Shah Letter, PageID 593.) She also explained that

Barrett’s “outcome would not have been different if the disease was found a few months earlier.”

(Id. (describing Barrett’s disease as “very aggressive”).) And the medical care and treatment

Kakani provided “[wa]s consistent with the standard of care”; “[w]hen a patient with COPD



       12
          Likely because Kakani is only a “contract correctional medical provider[]” rather than
an employee at MDOC and because of the different role Kakani served from the MDOC
employees, different attorneys represented Kakani and the MDOC Defendants below. (R. 49,
Reply, PageID 1566.) We also note that although MDOC did not employ Kakani, this court has
found “§ 1983 liability applies to [medical providers] who are not formally employed by a state,
but who instead serve prison populations as government contractors.” Johnson v. Karnes, 398
F.3d 868, 876 (6th Cir. 2005).
                                                9
No. 20-1035, Barrett v. Carter


presents with shortness of breath, getting a [chest X-ray] and following up with the patient to

review results is appropriate” and the records revealed “his symptoms were addressed in the

appropriate manner[.]” (Id. at 593–94.)

       The physician assistant opined that “it is [her] professional opinion that” the medical care

Kakani provided reflected “no deliberate indifference or negligence[.]” (R. 37-7, Barrett Aff.,

PageID 599.) But, she speculated, Barrett’s “clinical outcome may have been attributed to several

factors, including his age, social history of smoking[,] and the possible incorrect reading of the

chest X-ray which guided most of his care.” (Id.)

       Wild also walked through a comprehensive discussion of the treatment Barrett received

while at GHC. Based on that information, she opined that the MDOC Defendants used “reasonable

and acceptable practices” when treating Barrett and “were not negligent nor did they consciously

disregard any serious health care need.” (R. 33-3, Ex., PageID 539.) She found “no barriers to

accessing healthcare in the” MDOC and that the MDOC Defendants “appropriately responded to”

Barrett’s “requests for care and ensured that he was referred to a higher level of care when

required[,]” in compliance with Michigan law. (Id. at 540–42 (explaining that Michigan law does

not permit RNs to diagnose and only to provide other care as well as refer patients for a higher

level of care).) Thus, given Wild’s understanding, the MDOC Defendants “unequivocally did not

intentionally or recklessly fail to act with reasonable and appropriate care.” (Id. at 542.)

       Defendants then moved for summary judgment. The MDOC Defendants requested the

district court dismiss Plaintiff’s Fourteenth Amendment claim and argued that they were entitled

to qualified immunity on Plaintiff’s Eighth Amendment claim. Kakani, on the other hand, did not

invoke qualified immunity. She instead argued that discovery revealed no material issue of fact




                                                 10
No. 20-1035, Barrett v. Carter


warranting the case go to a jury and urged the court to find that her actions did not amount to one

that could support an Eighth Amendment claim.

       The district court granted Defendants’ summary judgment motions. It agreed that Plaintiff

could not proceed on an independent Fourteenth Amendment claim. It then laid out the two

components (objective and subjective) an inmate must show to make out an Eighth Amendment

claim—a sufficiently serious medical need and deliberate indifference to that medical condition.

Based on that test, it found the MDOC Defendants were entitled to qualified immunity because

Plaintiff “failed to present any evidence that MDOC Defendants were aware of [Barrett]’s cancer,

or that they failed to provide him treatment.” (R. 51, Op. & Order, PageID 1609.) And the district

court further explained that “[t]he evidence shows that [] Kakani believed [Barrett] had COPD and

treated him for the same” and that “[t]here is no evidence that [] Kakani thought [Barrett] may

have had lung cancer.” (Id. at 1612.) Plaintiff appeals.

                                                II.

       On appeal, Plaintiff urges us to reverse the district court’s decision and find there is a

genuine issue of material fact on whether the MDOC Defendants are entitled to qualified immunity

and whether Defendants were deliberately indifferent to Barrett’s serious medical needs. Her

argument consists almost entirely of summaries of three Sixth Circuit cases that she argues

demonstrate a genuine issue of material fact in this case.

       Defendants disagree. They ask this court to affirm the district court’s judgment. The

MDOC Defendants do not take the position that Plaintiff failed to meet the analysis’s objective

component, only that she failed to provide any evidence that shows they were deliberately

indifferent to Barrett’s medical needs. Kakani argues Plaintiff failed to meet both components of

the analysis.



                                                11
No. 20-1035, Barrett v. Carter


                                                  A.

       Here the district court granted summary judgment in the MDOC Defendants’ favor because

it found those defendants are entitled to qualified immunity. We review de novo a district court’s

grant of summary judgment on qualified immunity grounds and draw all inferences and view all

the evidence in a light most favorable to the nonmoving party. Gilmore v. Hodges, 738 F.3d 266,

272 (6th Cir. 2013). We examine whether there exists a genuine dispute of material fact that

precludes summary judgment or whether no such dispute exists so that the movant is entitled to

judgment as a matter of law. Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir. 2018).

       Qualified immunity shields government officials from civil damages liability in a § 1983

suit like the one here unless they violated a statutory or constitutional right clearly established at

the time of their alleged violation. Gilmore, 738 F.3d at 272. “Once a defendant raises qualified

immunity, ‘the burden is on the plaintiff to demonstrate that the official is not entitled to qualified

immunity[.]’” Simmonds v. Genesee County, 682 F.3d 438, 444 (6th Cir. 2012) (original alteration

omitted) (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). To do so, the

“plaintiff ‘must present evidence sufficient to create a genuine issue as to whether the defendant

committed the acts that violated the law’” and must “allege[] ‘facts sufficient to indicate that the

[defendant’s] act in question violated clearly established law at the time the act was committed[.]’”

Id. (quoting Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994); Russo v. City of Cincinnati, 953

F.2d 1036, 1043 (6th Cir. 1992)); see also Pearson v. Callahan, 555 U.S. 223, 232 (2009). We

may resolve whether a plaintiff has met those requirements in any order. Pearson, 555 U.S. at

236.




                                                  12
No. 20-1035, Barrett v. Carter


       Plaintiff’s claims on appeal depend on whether there exists a genuine issue of material fact

on her Eighth Amendment claims.13 The Eighth Amendment prohibits the “inflict[ion]” of “cruel

and unusual punishments[.]” U.S. Const. amend. VIII. Despite the “paucity of evidence from the

Founding era . . . about how the Eighth Amendment was commonly understood to operate in the

prison context[,]” the Supreme Court has recognized the amendment “applie[s] to some

deprivations . . . not specifically part of the sentence but [] suffered during imprisonment.”

Rhinehart, 894 F.3d at 735–36 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). For example,

the Supreme Court in Farmer v. Brennan explained that the amendment imposes on prison officials

the duty to “ensure that inmates receive adequate . . . medical care[.]” 511 U.S. 825, 832 (1994).

       Two components (objective and subjective) now make up modern Eighth Amendment

doctrine. First, the objective. Under that component, “the deprivation [of medical care] alleged

must be, objectively ‘sufficiently serious,’ [and] a prison official’s act or omission must result in

the denial of ‘the minimal civilized measure of life’s necessities[.]’” Id. at 834 (citation omitted)

(quoting Wilson, 501 U.S. at 298; Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

       The subjective component requires that a plaintiff must “at a minimum[] allege ‘deliberate

indifference’ to [the inmate’s] ‘serious’ medical needs[.]” Rhinehart, 894 F.3d at 736 (quoting

Wilson, 501 U.S. at 297). While that does not require a plaintiff to allege that the officers acted

“for the very purpose of causing harm or with knowledge that harm will result[,]” it requires a

showing of criminal recklessness. Farmer, 511 U.S. at 835–40. “[T]he official must both be aware

of facts from which the inference could be drawn that a substantial risk of serious harm exists, and



       13
          The district court dismissed Plaintiff’s Fourteenth Amendment claim below, and she
makes no effort to argue that Defendants violated Barrett’s Fourteenth Amendment rights on
appeal. To the extent she made a standalone Fourteenth Amendment claim below, we need not
review the district court’s decision on those grounds. See Radvansky v. City of Olmsted Falls, 395
F.3d 291, 318 (6th Cir. 2005).
                                                 13
No. 20-1035, Barrett v. Carter


he must also draw the inference.” Id. at 837–39 (describing this mindset as “‘consciously

disregard[ing]’ a substantial risk of serious harm” (original alterations omitted) (quoting Model

Penal Code § 2.02(2)(c))); see also Broyles v. Corr. Med. Servs., Inc., 478 F. App’x 971, 975 (6th

Cir. 2012); Miller v. Calhoun County, 408 F.3d 803, 821 (6th Cir. 2005) (finding no genuine

dispute on whether the defendant was deliberately indifferent although she “had knowledge of the

circumstances surrounding [the inmate]’s deteriorating condition” because nothing in the record

would allow a jury to find the defendant “drew [] [the] inference” of “a substantial risk of serious

harm”). And “an official’s failure to alleviate a significant risk that he should have perceived but

did not, while no cause for commendation, cannot . . . be condemned as the infliction of

punishment” and an Eighth Amendment violation. Farmer, 511 U.S. 838; see also id. at 843 n.8.

       To the extent a plaintiff complains “solely [about] the lack of diagnosis and inadequate

treatment of” the injury or ailment and takes the position “that more should have been done by

way of diagnosis and treatment” (including “suggest[ing] a number of options that were not

pursued”), that question “is a classic example of a matter for medical judgment.” Estelle v.

Gamble, 429 U.S. 97, 107 (1976) (referring to such a claim as “[a]t most [one of] medical

malpractice” appropriately brought in state court). “An accident, although it may produce added

anguish, is [also] not on that basis alone to be characterized as wanton infliction of unnecessary

pain” that amounts to an Eighth Amendment violation. Id. at 105. This component exists to

prevent allowing medical malpractice claims to “become a constitutional violation merely because

the victim is a prisoner.” Id. at 106; Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).

       Whether an official had the subjective mental state required for an Eighth Amendment

violation “is a question of fact subject to demonstration in the usual ways, including inference

from circumstantial evidence[.]” Farmer, 511 U.S. at 842. “[A] factfinder may conclude that a



                                                14
No. 20-1035, Barrett v. Carter


prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. When

the evidence suggests, for example, that the official “‘must have known’ about” the risk, that

“evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual

knowledge of the risk.” Id. at 842–43 (describing such evidence as “showing that a substantial

risk . . . was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in

the past, and the circumstances suggest that the defendant-official . . . had been exposed to

information concerning the risk’”). And an official “would not escape liability if the evidence

showed that he merely refused to verify underlying facts that he strongly suspected to be true, or

declined to confirm inferences . . . that he strongly suspected to exist[.]” Id. at 843 n.8.

                                                  B.

       Plaintiff presents no genuine issue of material fact on whether the MDOC Defendants acted

with deliberate indifference. Same with Kakani. The X-ray revealed no cancer in Barrett’s lungs.

It revealed only COPD—something the record shows Kakani and the MDOC Defendants

attentively treated Barrett for from the time Mindlin made that diagnosis until Barrett left GHC.

       Even if Mindlin erroneously read the X-rays, Plaintiff did not name him in this suit. And

“the right to adequate medical care does not encompass the right to be diagnosed correctly[.]”

Johnson, 398 F.3d at 874; see also Jones v. Muskegon County, 625 F.3d 935, 944–45 (6th Cir.

2010) (finding that the doctor’s initial incorrect diagnosis of severe constipation, even “in light of

[the prisoner’s] substantial weight loss and sharp stomach pain[,]” amounted only to negligence

given the prisoner also complained of his “inability to have a bowel movement for several days

and other stomach pains, which could have been consistent with [the doctor’s] diagnosis”). Even

assuming Defendants were aware of facts that allowed Kakani or the MDOC Defendants to infer

Mindlin either misdiagnosed Barrett or to infer Barrett faced substantial risk of serious harm other



                                                  15
No. 20-1035, Barrett v. Carter


than COPD, e.g., development of lung cancer after the X-ray, Plaintiff puts forth no evidence that

Defendants drew those inferences. Nor can she.

        Though Barrett continued to complain of symptoms and even once expressed doubt after

the diagnosis that he had COPD, Kakani put forth expert evidence at summary judgment that at

least some of those post-diagnosis symptoms coincided with those of a COPD patient. Plaintiff

fails to rebut this point. She presents no evidence that the post-diagnosis symptoms were those

that indicated something other than COPD. So this is not a case where “a factfinder may conclude

that [Kakani or the MDOC Defendants] knew of a substantial risk [of lung cancer or serious harm

other than COPD] from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.

        Plaintiff’s “allegations [instead] amount[] to no more than a difference of opinion

concerning [Barrett’s] diagnosis and treatment.” Truss-El v. Bradley, 80 F. App’x 425, 426–27

(6th Cir. 2003) (order) (finding that a nurse’s treatment “constituted negligence at most” where

she “treated [the inmate’s] facial lacerations[] and [] fail[ed] to detect his cracked ribs” despite the

inmate’s “requests to be taken to the hospital emergency room” after getting beaten up); see also

Tapp v. Banks, 1 F. App’x 344, 352–53 (6th Cir. 2001) (finding no Eighth Amendment violation

where the jail personnel failed to treat the inmate for his fractured patella despite the inmate telling

“jail personnel about his pain” because it could not find personnel were deliberately indifferent

where, among other factors, the doctor provided an “inaccurate diagnosis” and the “swelling in the

[inmate’s] knee” “could occur with either” “a bruise or a fracture”). And we have expressed in

the past a “reluctan[ce] to second guess medical judgments where a prisoner has received some

medical attention and the dispute concerns the adequacy of that treatment.” Broyles, 478 F. App’x

at 976 (quoting Clark v. Corr. Corp. of Am., 98 F. App’x 413, 416 (6th Cir. 2004)).




                                                  16
No. 20-1035, Barrett v. Carter


         The undisputed facts show Defendants were not deliberately indifferent; Plaintiff has put

forth no genuine dispute of material fact on the subjective component of her Eighth Amendment

claim.    We need not resolve whether she has met that showing for that claim’s objective

component.

         But Plaintiff asserts that three cases from this court allow her to prevail: Dominguez v.

Corr. Med. Servs., 555 F.3d 543 (6th Cir. 2009), Johnson, 398 F.3d at 868, and Blackmore v.

Kalamazoo, 390 F.3d 890 (6th Cir. 2004). They do not. All three of those cases involved facts

that revealed a risk so obvious that a reasonable jury could find from the obviousness alone that

the defendants in fact inferred a substantial risk of serious harm existed. And in all three, despite

the obvious risks, the defendants failed to treat the inmates (for at least some period of time).

Unlike in those cases, the facts here do not reflect such an obvious risk of serious harm from which

a reasonable jury could find Defendants made such an inference. Instead, Defendants (for good

reason) did not suspect, much less “strongly suspect[,]” Barrett had anything other than COPD.

And they provided Barrett with frequent medical treatment for that condition. Plaintiff’s claim

amounts to a challenge to the medical judgment exercised by medical professionals, which cannot

form the basis of an Eighth Amendment deliberate indifference claim.14



         14
           We note the Blackmore panel quoted the Supreme Court for the proposition that a
reasonable jury “could conclude [from the facts in that case] that Defendants were ‘aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists and the
Defendants ignored that risk.’” 390 F.3d at 896 (quoting Farmer, 511 U.S. at 837). But defendants
in Eighth Amendment litigation “must also draw the inference” of a substantial risk of serious
harm. Farmer, 511 U.S. at 837 (“[T]he official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” (emphasis added)). We infer from the panel’s finding (“the Defendants ignored th[e]
risk”) that the panel concluded a reasonable jury could find the defendants in Blackmore did in
fact draw the inference and not that an Eighth Amendment claim could move forward even where
the record is devoid of any evidence that the defendants drew the inference that serious harm
existed.

                                                 17
No. 20-1035, Barrett v. Carter


       Thus, Plaintiff cannot overcome Defendants’ summary judgment motions. The district

court appropriately found that the undisputed facts revealed Kakani did not violate Barrett’s Eighth

Amendment rights and the MDOC Defendants are entitled to qualified immunity.

                                                III.

       Plaintiff understandably mourns Barrett’s death, especially given his untimely passing

right after he was paroled. But the record contains no genuine issue of material fact on whether

Defendants were deliberately indifferent. So we AFFIRM.




        Plaintiff also makes much of the language used by the panel in Dominguez—that “[a]s a
trained medical professional, a registered nurse, [the defendant] was aware or should have been
aware of” the dangers and risks that “accompany heat-related illnesses and dehydration.” 555
F.3d at 550 (emphasis added). But the panel used that language to highlight the obviousness of
the risks or inferences the defendant could have made from the known facts in that case.
Dominguez does not water down the subjective component analysis to something less than what
the Supreme Court announced—that a defendant was aware of the facts that could give rise to the
inference and drew the inference that a substantial risk of serious harm exists. See Farmer, 511
U.S. at 837–39. And it could not; the Supreme Court has explicitly instructed that “an official’s
failure to alleviate a significant risk that he should have perceived but did not” cannot amount to
an Eighth Amendment violation. Id. at 838, 843 n.8.
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