                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 15a0684n.06

                                         No. 15-3089

                         UNITED STATES COURT OF APPEALS
                                                                                   FILED
                                                                               Oct 08, 2015
                              FOR THE SIXTH CIRCUIT
                                                                          DEBORAH S. HUNT, Clerk

EDWARD SHAVER, Administrator of the Estate of )
Deceased Mark Shaver,                         )
                                              )
      Plaintiff-Appellant,                    )
                                              )              ON APPEAL FROM THE
              v.                              )              UNITED STATES DISTRICT
                                              )              COURT FOR THE NORTHERN
BRIMFIELD TOWNSHIP, et al.,                   )              DISTRICT OF OHIO
                                              )
      Defendants-Appellees.                   )
                                              )



BEFORE: KEITH, ROGERS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Following his arrest for shoplifting DVDs from a Wal-Mart in Brimfield Township,

Ohio, Portage County took Mark Shaver into custody in the early hours of November 2, 2010.

During his stay at the Portage County Jail, Shaver, a self-identified daily heroin user, showed

several signs of possible opiate withdrawal, including diarrhea, elevated blood pressure and

pulse, nausea, sweating, and vomiting. Yet, other than regularly monitoring Shaver’s condition,

the Jail’s correctional officers and privately contracted nurses took no steps to regulate his

withdrawal through prescription medication. A little over forty-eight hours after his booking,

Shaver collapsed in his cell.    He died a day later due to complications from a cerebral

aneurysm—an aneurysm, Shaver’s Estate contends, that ruptured due to defendants’ deliberate

indifference to Shaver’s serious medical needs because he never saw a physician who could have
No. 15-3089
Edward Shaver v. Brimfield Township, et al.


prescribed him medications to alleviate his withdrawal symptoms. Shaver’s Estate appeals the

district court’s dismissal of his 42 U.S.C. § 1983 claims against numerous correctional officers,

supervisors, nurses, the health care companies providing medical care at the Jail, and Portage

County. We affirm.

                                                I.

       The facts pertinent to this appeal are limited given a post-appeal settlement between the

Estate and the nurses and the health care companies.

       Upon his booking at the Portage County Jail and his disclosure that he was a daily heroin

user, nurses placed Shaver on withdrawal watch in the early hours of November 2, 2010.

Accordingly, the nurses regularly monitored Shaver for various symptoms associated with

withdrawal—such as elevated pulse and blood pressure, vomiting, and sweating—pursuant to the

health care companies’ Clinical Protocols for Opiate Withdrawal/Treatment. If two or more of

these symptoms exist, a nurse is to notify the on-call physician. In practice, however, the nurses

do not view the presence of two symptoms so rigidly as to mandate contacting the on-call

physician without exception. Instead, whether to contact the on-call physician is based on a

nurse’s individual assessment of an inmate’s condition and “depends on the severity of the

symptoms.” Notification of the on-call physician, moreover, does not automatically trigger the

provision of prescription drugs. Rather, the on-call physician must give his or her approval

before administering any prescription medication.

       Shaver had encounters with six nurses in some fashion at least eight times during his

forty-eight-hour detention in the Jail.     During these encounters, nurses documented the

progression of Shaver’s withdrawal symptoms. They noted, for example, that he had diarrhea,

nausea/vomiting, and a rising blood pressure and pulse rate. With the exception of LPN David

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Edward Shaver v. Brimfield Township, et al.


McCown (who saw Shaver an hour before he collapsed on November 4, 2010), none of the

nurses considered Shaver to be in active withdrawal and therefore did not contact the on-call

physician under the Protocols.     And while McCown circled “in withdrawal” on Shaver’s

withdrawal watch form, he later testified that he circled “in withdrawal” because he thought it

was a “possibility.”

        Shaver also interacted with Robert Jones, the sole correctional officer remaining in this

appeal. On the morning of November 3, Shaver told Jones “that he was feeling either nauseated

or . . . wasn’t feeling well.” Shaver also expressed that he was “having difficulty holding down

his food and was having diarrhea.” Jones did not personally witness these symptoms. Upon

Shaver’s inquiry, Jones informed Shaver that a nurse would next make a round (known as the

“med pass”) between approximately 12:00 and 12:30 p.m. While Jones admits that he does not

know “what [he] exactly told the nurse” regarding Shaver’s condition, he expressly testified that

he passed along Shaver’s complaint about having diarrhea to the nurse. Shaver saw a nurse at

the next med pass, who documented Shaver as having symptoms of nausea/vomiting, a drop in

his pulse, and an increase in blood pressure. The nurse did not document Shaver having diarrhea

at this time.

        Jones next encountered Shaver in the late morning of November 4. At that time, Jones

witnessed Shaver appearing to vomit. Shaver again told Jones that “he wasn’t feeling well.”

The Estate contends that Jones admitted not informing the nurses about this incident, but this is

not supported by the record. Instead, Jones testified that he “would have relayed [that Shaver

was not feeling well and had nausea and vomiting] to medical.” More to the point, Jones clearly

testified that he “informed medical when [he] noticed that [Shaver] may have vomited, and

medical saw [Shaver] within probably . . . [a] half hour [to] 45 minutes.”

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       Jones found Shaver unresponsive on the floor of his cell later that afternoon, less than an

hour after LPN McCown saw Shaver. He died at the hospital the next day due to complications

from a ruptured cerebral aneurysm.1 The aneurysm likely formed due to traumatic events in

Shaver’s past—being struck by a motor vehicle and a snowboard accident. There is no medical

evidence to draw a definitive link between Shaver’s nausea, vomiting, and diarrhea and any

warning signs of an impending rupture. Nonetheless, the Estate’s medical expert has opined that

“vomiting, diarrhea and the associated retching with it . . . leads to dissections, tears in the walls

of carotid or vertebral arteries”—called “Valsalva effects”—and were therefore “the most

probable proximate cause” of Shaver’s ruptured aneurysm. He also has concluded that had the

Jail’s personnel successfully treated Shaver’s symptoms, the aneurysm may not have ruptured.

At the same time, he also admitted that he would not have expected anyone to know that Shaver

had the aneurysm.

       Shaver’s Estate brought a single § 1983 claim (and several state law claims) against three

general categories of defendants:        (1) the county operating the Jail (Portage County),

its correctional officers (Robert Jones being the only one remaining on appeal), and its

supervisors (Sheriff David Doak and Lt. Gregory Johnson); (2) the health care companies

providing medical services to the Jail (Correctional HealthCare Companies, Inc. and Health

Professionals, Ltd.); and (3) six nurses employed by the health care companies (LPNs Beth

Cruise, Tamara Dalesandro, Kelly English, Dawn Hayter, David McCown, and Vondakae




       1
         While Jones discovered that Shaver collapsed sometime after seeing LPN McCown and
participated in attempts to revive him, the Estate makes no deliberate indifference claim
regarding the care Shaver received after his collapse in this appeal.


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Edward Shaver v. Brimfield Township, et al.


Weekly).2 The Estate generally asserts that: (1) the correctional officers and nurses were

deliberately indifferent to Shaver’s opiate withdrawal condition in violation of the Fourteenth

Amendment;3 (2) the supervisors condoned such unconstitutional conduct by promulgating

deficient policies and conducting and approving a deficient post-death investigation; and

(3) Portage County and the health care companies maintained unconstitutional policies, customs,

or practices under Monell v. Department of Social Services, 436 U.S. 658 (1978) for (a) failing to

properly treat inmates’ withdrawal symptoms, and (b) preventing nurses from communicating

about an inmate’s medical condition unless the condition raises safety concerns.

       The district court, adopting a magistrate judge’s Report and Recommendation, entered

summary judgment for all defendants on the Estate’s § 1983 claim. It held that even assuming

“Shaver’s opiate withdrawal is an objectively serious medical condition sufficient to form the

foundation for § 1983 liability, none of the actions of any individual defendant . . . constituted

deliberate indifference to that condition. . . .” Because no constitutional violation occurred, the

district court held the Estate’s Monell claims also failed. Accordingly, the district court granted

defendants’ motions for summary judgment as to the Estate’s § 1983 claim and declined to

exercise supplemental jurisdiction over the Estate’s state law claims.

       During the pendency of this appeal, the parties stipulated to dismiss the health care

companies and the nurses with prejudice pursuant to a settlement agreement. All that remains in


       2
          As reflected by the caption, the Estate also filed claims against Brimfield Township
(as well as its employees) relating to Shaver’s arrest. These claims are not on appeal.
        3
          We have not yet resolved whether claims of inadequate medical care by detainees (like
Shaver) are instead cognizable under the Fourth Amendment’s objective reasonableness
standard. See Bonner-Turner v. City of Ecorse, No. 14-2337, 2015 WL 5332465, at *5 n.2
(6th Cir. Sept. 14, 2015) (collecting cases). Whether the Fourth Amendment applies is not
before us as the Estate only brings a deliberate indifference claim under the Fourteenth
Amendment.
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Edward Shaver v. Brimfield Township, et al.


this appeal, therefore, is whether the district court properly granted summary judgment as to the

Estate’s claims against Jones, Sheriff Doak, Lt. Johnson, and Portage County.4

                                                II.

       We review the district court’s grant of summary judgment de novo. Thomas M. Cooley

Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014). “Summary judgment is

proper when, viewing the evidence in the light most favorable to the nonmoving party, there is

no genuine dispute as to any material fact and the moving party is entitled to judgment as a

matter of law.” Id.

                                               III.

       The Estate’s claims against the individual supervisors (Sheriff Doak and Lt. Johnson) and

Portage County rise and fall with the viability of its claim against Jones. That is, these claims

fail without the presence of an underlying constitutional violation. Robertson v. Lucas, 753 F.3d

606, 622 (6th Cir. 2014) (“There can be no liability under Monell without an underlying

constitutional violation.”); McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006)

(“[A] prerequisite of supervisory liability under § 1983 is unconstitutional conduct by a

subordinate of the supervisor.”). We turn first, and decisively, therefore, to the Estate’s claim

that Jones was deliberately indifferent to Shaver’s serious medical needs.

       Under the deliberate indifference rubric, a plaintiff must satisfy both objective and

subjective components. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004). The

plaintiff must objectively show that he is “incarcerated under conditions posing a substantial risk


       4
         To the extent the docket reflects that correctional officers Erica Tate and David Lyons
are parties to this appeal, the Estate makes no argument as to these officers. It has therefore
abandoned its claims against Tate and Lyons. Vander Boegh v. EnergySolutions, Inc., 772 F.3d
1056, 1063 (6th Cir. 2014).
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of serious harm” and must subjectively show that the named prison official had “a sufficiently

culpable state of mind in denying medical care.”         Id. (citations omitted).   “Satisfying the

objective component ensures that the alleged deprivation is sufficiently severe, while satisfying

the subjective component ‘ensures that the defendant prison official acted with a sufficiently

culpable state of mind.’” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013)

(citation omitted).

       Assuming, as the district court did, that Shaver’s condition satisfies the objective prong,

we agree the Estate did not meet its burden to satisfy the subjective component of the deliberate

indifference test. Under the subjective prong, the Estate must show: (1) “the official being sued

subjectively perceived facts from which to infer substantial risk to the prisoner”; (2) the official

“did in fact draw the inference”; and (3) the official “then disregarded that risk.” Rouster v. Cty.

of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014) (citation omitted). “Deliberate indifference is a

stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (internal

quotation marks, brackets, and citation omitted). It is not enough, however, for an officer to

“fail[] to act in the face of an obvious risk of which he should have known but did not[.]”

Estate of Carter v. City of Detroit, 408 F.3d 305, 312 (6th Cir. 2005) (citation omitted).

Accordingly, “a prison official may ‘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 of risk that he strongly suspected to exist.’” Comstock v. McCrary, 273 F.3d 693, 703

(6th Cir. 2001) (citation omitted). Nor need a plaintiff “show that the correctional officers acted

with the ‘very purpose of causing harm or with knowledge that harm will result[.]’” Phillips v.

Roane Cty., 534 F.3d 531, 541 (6th Cir. 2008) (citation omitted). Instead, a plaintiff may satisfy

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the subjective component through ordinary methods of proof, “including inference from

circumstantial evidence[.]” Farmer v. Brennan, 511 U.S. 825, 842 (1994).

       Jones had limited interactions with Shaver. On the morning of November 3, Shaver

informed Jones that he was “nauseated,” “wasn’t feeling well,” was “having difficulty holding

down his food,” and “was having diarrhea.” Shaver inquired as to the time of the next med pass,

and Jones told him it would occur around 12:00 p.m. or 12:30 p.m. Jones also testified, contrary

to the Estate’s assertion otherwise, that he passed this information along to the nurses. That one

of the now-dismissed nurses failed to document one of the symptoms reported by Jones

(diarrhea) is pertinent to that nurse’s performance, but not Jones’s, and therefore does not create

a dispute of material fact as to Jones’s subjective knowledge or actions.

       Jones also saw Shaver a few hours before he collapsed on November 4. Jones witnessed

Shaver appear to vomit, and Shaver told him “he wasn’t feeling well.” The record also supports,

contrary to the Estate’s argument, that Jones passed along this information to the nurses.

       On this record, we agree with the district court that these actions do not rise to the level

of deliberate indifference. There is simply no indication that Jones actually perceived facts from

which to infer there was a substantial risk to Shaver, that Jones actually drew that inference, and

that Jones then disregarded that risk. Rouster, 749 F.3d at 446. Instead, Jones “reasonably

responded to [Shaver’s] serious medical needs by contacting the nursing staff at the jail for

medical assistance.”    Harrison v. Ash, 539 F.3d 510, 519 (6th Cir. 2008) (concluding a

correctional officer was not deliberately indifferent when, upon the inmate’s complaint, he

requested the nurse to “check on” the inmate); see also Smith v. Cty. of Lenawee, 505 F. App’x

526, 532 (6th Cir. 2012) (holding a correctional officer was not deliberately indifferent when he,

among other things, contacted a doctor regarding an inmate’s medical condition and received

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assurances regarding the inmate’s medical status); Clark-Murphy v. Foreback, 439 F.3d 280, 291

(6th Cir. 2006) (finding a correctional officer was not deliberately indifferent when she asked

about referring an inmate for a psychiatric evaluation, and then took no further action upon

learning one was already completed).       We have also noted that the deliberate indifference

threshold is higher for correctional officers where, as here, an inmate is receiving medical

treatment—there must be some “reason to believe (or actual knowledge) that prison doctors or

their assistants are mistreating (or not treating) a prisoner.” See Smith, 505 F. App’x at 532

(citation omitted). The Estate made no such showing here. And to the extent the Estate argues

we should infer deliberate indifference because Jones did not expressly log his conversations

with Shaver or inform other correctional officers about Shaver’s condition, we decline to do so;

Jones informed the nurses about his two encounters with Shaver pursuant to Jail policy,5 and

such actions, on their own, do not establish that Jones drew an inference of substantial risk to

Shaver, and then disregarded it.

       As the Estate has failed to establish an underlying constitutional claim, its claims against

Portage County, Sheriff Doak, and Lt. Johnson fail as a matter of law. Robertson, 753 F.3d at

622; McQueen, 433 F.3d at 470.

       Finally, because the district court properly dismissed the Estate’s federal claims, it did

not abuse its discretion when it declined to exercise jurisdiction over the Estate’s state law

claims. See Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 849 (6th Cir. 2012) (“As

[28 U.S.C.] § 1367(c)(3) expressly permits the district court to decline supplemental jurisdiction


       5
         The Jail’s “detoxification services” policy provides that “[s]hould symptoms of
withdrawal be present, medical staff shall be notified and shall provide detoxification treatment
as indicated according to their established protocol.” Additionally, Jail officials are to “promptly
relay to the medical staff any immediate emergency need which comes to the[ir] attention. . . .”
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in the event, as was the case here, the federal claims are resolved, there was no abuse of

discretion.”).

                                              IV.

        For these reasons, we affirm.




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