               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0450n.06

                                          No. 10-1447

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Apr 30, 2012
RICKY LEE BROYLES,                              )
                                                )                            LEONARD GREEN, Clerk
       Plaintiff-Appellant,                     )
                                                )
v.                                              )
                                                )    ON APPEAL FROM THE UNITED
CORRECTIONAL MEDICAL SERVICES,                  )    STATES DISTRICT COURT FOR THE
INC., named as Correctional Medical Service,    )    WESTERN DISTRICT OF MICHIGAN
Inc.; C. PEROG, Medical Secretary;              )
TAMERLA HAMILTON; AMY MEYER and                 )                   OPINION
JOHN DOE, Medical Service Supervisor for        )
MCF,                                            )
                                                )
       Defendants-Appellees.                    )



       Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Plaintiff Rickey Lee Broyles appeals the dismissal

with prejudice of his amended complaint against correctional facility nurses Tamerla Hamilton and

Amy Meyer and an unknown medical supervisor. Broyles brought claims under 42 U.S.C. § 1983

based on allegedly inadequate medical treatment, which he claims violated his Eighth Amendment

rights. The district court held that the amended complaint failed to allege facts that amount to

deliberate indifference as required to state a claim under the Eighth Amendment. Because Broyles

has alleged at most negligence, we AFFIRM the district court’s dismissal of the amended complaint.
No. 10-1447
Broyles v. Correctional Medical Services, et al.

                                        I. BACKGROUND

A.      Factual Background

        On August 20, 2005, while an inmate at the Muskegon Correctional Facility, Broyles spoke

with health care nurse Tamerla Hamilton on the phone and requested medical attention for a “partial

blur in the vision of the corner of his right eye.” As Hamilton instructed, Broyles sent the health care

unit a written request form the same day. Health care responded on August 22 with a notice stating

Broyles had an appointment for August 23. However, Broyles was not on the health care call-out

list on either August 23 or 24. Broyles had a corrections officer call health care on August 24 with

the same complaint and Broyles was sent to health care and examined by a nurse, who did not

discover any abnormal findings. The nurse scheduled Broyles to see optometry and informed him

to contact health care if there was no improvement or if his problem worsened.

        On August 26, Broyles had an officer call health care to complain that his condition was

worsening. Nurse Amy Meyer informed Broyles over the phone that he was scheduled to see

optometry, but did not arrange for him to be seen by health care that day. On August 29, Broyles

again had an officer call health care because the vision blur worsened daily. Medical secretary C.

Perog informed Broyles that she did not see his name on the list to see optometry or see that he had

filed any health care request. She said he would need to send another request, which he did. Perog

responded in writing on August 31 that Broyles had been placed back on the eye clinic waiting list

for his “non-emergent symptoms.”

        On September 6, Broyles again had an officer call health care complaining that his condition

was worsening. Broyles was examined that day by a health care nurse, who informed Broyles that
No. 10-1447
Broyles v. Correctional Medical Services, et al.

he saw nothing wrong with his eye. The nurse said that Broyles had been on a previous list to see

optometry, but that he had been removed because the list was long and Broyles’s medical problem

had been considered non-emergent. The nurse put Broyles back on the eye clinic waiting list.

       On September 8, Broyles was seen by the clinic optometrist who diagnosed a retina

detachment in Broyles’s right eye. On September 12, Broyles went to the T.L.C. Laser Center and

was examined by eye-specialist Dr. Gordon, who diagnosed a serious retina detachment. Dr. Gordon

told Broyles he should have gotten medical attention when he first noticed the slight blur in the

corner of his eye. Dr. Gordon stated this delay allowed the retina to progressively detach past the

half-way point and it was unlikely Broyles’s vision in that eye could be repaired. The next day, he

was seen by Dr. Gordon and another eye-specialist, Dr. Lavery, both of whom repeated Dr. Gordon’s

earlier statements. Beginning on September 14, 2005, Broyles had a series of surgeries attempting

to reattach and repair his retina and several follow up examinations at the T.L.C. Laser Center.

These surgeries did not successfully repair Broyles’s vision.

B.     Procedural History

       On July 20, 2007, Broyles filed this § 1983 action against Correctional Medical Services, Inc.

(“CMS”) and C. Perog, a medical secretary. Both CMS and Perog filed motions to dismiss the

complaint. On August 13, 2007, Broyles filed an amendment to his complaint, naming three new

defendants: Tamerla Hamilton, R.N.; Amy Meyer, R.N.; and John Doe, “Medical Service

Supervisor.” On April 4, 2008, the district court granted CMS’s and Perog’s motions and struck the

proposed amended complaint as futile. Specifically, the court held Broyles failed to allege facts

suggesting CMS had a policy, practice, or custom that resulted in his injury. The court also held that
No. 10-1447
Broyles v. Correctional Medical Services, et al.

Broyles alleged at most negligence on the part of Perog, which is insufficient to establish an Eighth

Amendment violation. Because the facts alleged against the proposed Defendants in the amended

complaint amounted only to negligence, the court also dismissed the amendment as futile.

        Broyles appealed the district court’s order to this Court, which affirmed the dismissal of CMS

and Perog. Broyles v. Corr. Med. Servs., Inc., No. 08-1638, 2009 WL 3154241 (6th Cir. Jan. 23,

2009). However, this Court reversed the district court’s order striking Broyles’s amended complaint

because he had an “absolute right” to amend the complaint once as a matter of course pursuant to

Federal Rule of Civil Procedure 15(a)(1). Id. at *3-4. This Court remanded the case with

instructions to allow the amended complaint. Id. After the amended complaint was reinstated, the

district court reviewed it in accordance with 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C.

§ 1997e(c) to determine if it was frivolous, malicious, or failed to state a claim upon which relief can

be granted. In an order filed March 16, 2010, the district court dismissed the amended complaint

with prejudice for failure to state a valid claim. Specifically, the court found that Broyles stated at

most a claim for negligence or medical malpractice, but not constitutional deliberate indifference.

Broyles appeals this determination and the dismissal of his amended complaint.

                                         II. DISCUSSION

A.      Standard of Review

        This Court reviews de novo a district court’s decision to dismiss under 28 U.S.C. §§ 1915(e),

1915A, and 42 U.S.C. § 1997e(c). Grinter v. Knight, 532 F.3d 567, 571-72 (6th Cir. 2008). In

assessing a complaint for failure to state a claim, this Court must construe the complaint in the light

most favorable to the plaintiff, accept his factual allegations as true, and determine whether the
No. 10-1447
Broyles v. Correctional Medical Services, et al.

complaint “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and

citation omitted). The pleadings of pro se petitioners, such as Broyles, are liberally construed and

held to a less stringent standard than those prepared by attorneys. Martin v. Overton, 391 F.3d 710,

712 (6th Cir. 2004) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).

B.     Eighth Amendment Violations

       Broyles brought his claims under 42 U.S.C. § 1983. Section 1983 creates a cause of action

against any person who, under color of state law, causes the deprivation of a right secured by the

Constitution or the laws of the United States. A claim under § 1983 must allege two elements: “1)

the deprivation of a right secured by the Constitution or laws of the United States and 2) the

deprivation was caused by a person acting under color of state law.” Street v. Corr. Corp. of Am.,

102 F.3d 810, 814 (6th Cir. 1996). Broyles argues that Hamilton, Meyer, and Doe violated his

Eighth Amendment rights. “‘Deliberate indifference’ by prison officials to an inmate’s serious

medical needs constitutes ‘unnecessary and wanton infliction of pain’ in violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment.” Miller v. Calhoun Cnty., 408 F.3d

803, 812 (6th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

       A claim of deliberate indifference under the Eighth Amendment has both an objective and

a subjective component. The objective component requires the existence of a sufficiently serious

medical need. Turner v. City of Taylor, 412 F.3d 629, 646 (6th Cir. 2005). To satisfy the subjective

component, the defendant must possess a “sufficiently culpable state of mind,” rising above

negligence or even gross negligence and being “tantamount to intent to punish.” Horn v. Madison
No. 10-1447
Broyles v. Correctional Medical Services, et al.

Cnty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). Put another way, “[a] prison official acts with

deliberate indifference if he knows of a substantial risk to an inmate’s health, yet recklessly

disregards the risk by failing to take reasonable measures to abate it.” Taylor v. Boot, 58 F. App’x

125, 126 (6th Cir. 2003) (citing Farmer v. Brennan, 511 U.S. 825, 837-47 (1994)). Mere negligence

will not suffice. Farmer, 511 U.S. at 835-36. Consequently, allegations of medical malpractice or

negligent diagnosis and treatment generally fail to state an Eighth Amendment claim of cruel and

unusual punishment. See Estelle, 429 U.S. at 106.

       Although the detachment of Broyles’s retina was a latent medical injury, Broyles has

established the objective component requiring a sufficiently serious medical need. In claims

involving non-obvious complaints of a serious need for medical care, “[a]n inmate who complains

that delay in medical treatment rose to a constitutional violation must place verifying medical

evidence in the record to establish the detrimental effect of the delay in medical treatment to

succeed.” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001). Broyles has met this

requirement by alleging statements by Dr. Gordon and Dr. Lavery linking the delay in treatment to

the permanency of his vision impairment. Broyles’s claims, therefore, depend on whether the

subjective component is satisfied for each Defendant.

       1.      Defendant Hamilton

       Broyles asserts that Hamilton was deliberately indifferent to his serious medical need when

she made “an incompetent, and inadequate medical determination” that his condition was non-

emergent following his initial phone call and written health care request filed on August 20, 2005.
No. 10-1447
Broyles v. Correctional Medical Services, et al.

Broyles also suggests that Hamilton may be responsible for the health care unit’s failure to schedule

Broyles to be seen by a nurse on August 23 as promised.

       In order to be held liable for deliberate indifference, a prison official must know of and

disregard an excessive risk to an inmate’s health. Farmer v. Brennan, 511 U.S. at 837-38. “[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.” Id. at 837. However, a claimant is not

necessarily required to prove that the prison official had actual knowledge of the substantial risk;

rather, one may conclude that a prison official knew of a severe risk from the very fact that the risk

was obvious. Id. at 842-43.

       The seriousness of Broyles’s condition and the risk posed by delay were not obvious.

Therefore, Broyles had to allege facts that could prove both that Hamilton was aware of facts from

which she could draw an inference that a substantial risk of serious harm existed to Broyles’s health

and that she in fact drew that inference. See id. at 837. The only facts Broyles alleges that Hamilton

knew consist of his phone call and written health care request on August 20, which described a

partial blur in the vision of his right eye. Broyles’s complaint alleges Hamilton was responsible for

failing to ensure that he see a nurse on August 23; however, he did see a nurse on August 24 and the

nurse found nothing abnormal with his eye. In essence, Broyles disagrees with Hamilton’s

determination that his condition was non-emergent. “An allegation of mere negligence in diagnosis

or treatment is not actionable under § 1983.” Clark v. Corrs. Corp. of Am., 98 F. App’x 413, 416

(6th Cir. 2004) (citing Estelle, 429 U.S. at 97); Byrd v. Wilson, 701 F.2d 592, 595 n.2 (6th Cir.

1983). The complaint contains no allegations that Hamilton specifically knew Broyles faced a
No. 10-1447
Broyles v. Correctional Medical Services, et al.

substantial risk of serious harm and disregarded that substantial risk by failing to take reasonable

measures to abate it as is required to state an Eighth Amendment claim. See Farmer, 511 U.S. at

847.

       2.      Defendant Meyer

       When Broyles complained for the third time about his vision impairment on August 26,

Broyles asserts Meyer acted with deliberate indifference by failing to send him to health care that

same day. Broyles alleges that “medical policy and procedure” required a prisoner be referred to a

medical service provider if a third complaint is made without improvement. He alleges that, at the

time Meyer failed to schedule an examination of Broyles, she was aware of his prior two complaints,

the fact that he was examined on August 24, and the fact that the nurse had told him to contact health

care if his condition worsened or failed to improve. The facts Broyles alleges as to Meyer’s

knowledge also include the classification of his condition as non-emergent and the determination

of an examining nurse that Broyles’s eye looked normal with no abnormal findings.

       Broyles’s allegations are similar to those made by the plaintiff in Clark v. Corrections

Corporation of America:

       [the plaintiff] acknowledge[d] he received medical treatment, arguing instead that
       once prison officials knew that his jaw was broken (a fact unknown for several weeks
       due to misdiagnosis), they should have taken immediate steps to treat it. As a result
       of their delay, he alleges, he now has permanent nerve damage that can only be
       corrected by surgery.

98 F. App’x at 416. In Clark, this Court emphasized that it “is reluctant to second guess medical

judgments where a prisoner has received some medical attention and the dispute concerns the

adequacy of that treatment.” Id. (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (1976)). As with
No. 10-1447
Broyles v. Correctional Medical Services, et al.

Hamilton, Broyles’s complaint contains no allegations that Meyer specifically knew Broyles faced

a substantial risk of serious harm and disregarded that substantial risk by failing to take reasonable

measures to abate it as is required to state an Eighth Amendment claim. See Farmer, 511 U.S. at

847.

        3.      Defendant Doe

        In the amended complaint, Broyles sues an unknown medical services supervisor, John Doe,

in both his individual and official capacities; however, Broyles makes allegations only on an

individual-capacity basis in his amended complaint.1 Broyles alleges that an unknown medical

services supervisor “failed to properly supervise, develop, and provide an adequate medical system

and staff to respond to medical emergencies.” Broyles asserts this failure to supervise and train

allowed nurses and staff to make inadequate and incompetent medical determinations. These general

allegations are insufficient to establish liability under § 1983 for failure to supervise. Section 1983

liability “must be based on more than respondeat superior, or the right to control employees.”

Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Thus, in such claims, the plaintiff must allege

facts showing the defendant “either encouraged the specific incident of misconduct or in some other



        1
         Broyles does not allege that Doe was a policymaker involved in the implementation of a
policy, practice, or custom that resulted in his injury. Even if Broyles did allege facts relevant to the
inquiry of Doe’s liability in his official capacity, this Court has already addressed and rejected this
argument in the prior appeal in this case. There, Broyles alleged CMS was liable because it failed
to properly train its personnel on written CMS policies, failed to discipline personnel who violated
its written policies, and violated its written policies by permitting medical decisions to be made
based upon costs. Broyles, 2009 WL 3154241, at * 2. This Court held that “Broyles’s bare
allegations of a custom or policy, unsupported by any evidence, are insufficient to establish
entitlement to relief.” Id. (citation omitted). For the same reasons, even if Broyles had repeated
those allegations under an official-capacity theory of liability against Doe, he would have failed to
state such a claim here.
No. 10-1447
Broyles v. Correctional Medical Services, et al.

way directly participated in it. At a minimum a plaintiff must show that the official at least

implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.” Id. (citation omitted). To attempt to hold John Doe liable in his individual

capacity simply for his alleged failure to adequately train employees “improperly conflates a § 1983

claim of individual supervisor liability with one of municipal liability.” Phillips v. Roane Cnty.,

Tenn., 534 F.3d 531, 543 (6th Cir. 2008). Because Broyles does not allege that Doe took any

deliberate action or otherwise involved himself personally in allegedly unconstitutional acts of

others, Broyles’s failure-to-supervise claim fails.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s dismissal with prejudice of

Broyles’s amended complaint for failure to state a claim upon which relief can be granted.
