                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0141n.06

                                        Case No. 19-1837

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Mar 10, 2020
KEVIN BRIGGS,                                       )                    DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
UNKNOWN WESTCOMB, et al.,                           )       MICHIGAN
                                                    )
       Defendant-Appellees.                         )




BEFORE: SILER, GIBBONS, and READLER, Circuit Judges.

       SILER, Circuit Judge. Kevin Briggs, a Michigan state prisoner, appeals the district court’s

dismissal of his civil rights complaint, filed pursuant to 42 U.S.C. § 1983, for failing to state a

claim pursuant to 28 U.S.C. § 1915(e)(2), 28 U.S.C. § 1915A, and 42 U.S.C. § 1997e(c). For the

reasons set forth below, we REVERSE and REMAND for further proceedings.

                                         I. Background

       Briggs brought this this pro se § 1983 suit in forma pauperis against three staff members—

Westcomb, Barber, and Rondeau—at the Alger Correctional Facility in Michigan. In addition to

several state law claims—over which the district court declined to exercise supplemental

jurisdiction—and several claims whose dismissal he does not appeal, Briggs alleged that:

(1) Westcomb was deliberately indifferent to Briggs’s serious medical needs, in violation of the
Case No. 19-1837, Briggs v. Unknown Westcomb, et al.


Eighth Amendment, for reducing his insulin dosage and thereafter failing to increase it despite his

suffering adverse effects caused by the lower dosage; and (2) Barber and Rondeau retaliated

against him for filing a grievance, in violation of the First Amendment, by submitting a false

misconduct report against him. The district court screened his complaint pursuant to the Prison

Litigation Reform Act, and dismissed both of these claims for failure to state a claim on which

relief may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). Briggs appeals

the dismissal.1

       In reviewing a dismissal for failure to state a claim, we are to construe the complaint “in

the light most favorable to the plaintiff.” Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998).

Therefore, the following recitation of facts are the facts as alleged by Briggs in his complaint.

Briggs is diabetic and requires insulin. He was prescribed an insulin dosage of 48 units but, from

January 13-18, 2016 he was sick, so he did not take his full dose each day. On January 19, when

he went to get his morning dose of insulin, Briggs was informed that his dosage had been reduced

to no more than 40 units. Briggs was informed that Westcomb, a physician assistant at the facility,

had reduced his morning, midday, and evening dosages of insulin. Briggs then requested to speak

with Westcomb to increase his insulin dosage, but he was not able to do so. That same day, he

filed a grievance against Westcomb alleging “deliberate indifference and [a] violation [of]

[Michigan Department of Corrections] Policy and Operating Procedures.” A week later on

January 25, Westcomb’s supervisor spoke to her about her having lowered Briggs’s insulin dosage.

The next day, Westcomb and Barber—a correctional officer—“ambushed” Briggs together and

tried to provoke him into committing misconduct. Westcomb verbally attacked Briggs, and Barber



       1
         Briggs also appeals the district court’s designation of the dismissal of his suit as a strike
pursuant to the “three-strikes” provision in 28 U.S.C. § 1915(g). Since we reverse the dismissal,
we do not consider this issue.
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Case No. 19-1837, Briggs v. Unknown Westcomb, et al.


“became physical” with Briggs. Barber was “touching and bumping up against” Briggs. Briggs

requested help from Lieutenant Rondeau, a more senior correctional officer.                Rather than

intervening to help Briggs, Rondeau told Briggs that he was “going to the hole.” Briggs was then

taken to the segregation unit.

        Based on this incident, Barber filed a misconduct report against Briggs, accusing him of

threatening behavior. Rondeau provided a witness statement as part of Barber’s report. On

January 29, Briggs was found not guilty of threatening behavior, but guilty of a lesser offense. He

was awarded loss of privileges for thirty days. Months later, on April 20, Barber admitted to

Briggs that the misconduct report was false and that “[Rondeau] told him to write that false

misconduct report.”

        Briggs continued at the lower, 40-unit dosage of insulin until the middle of March, when a

medical doctor intervened and increased his morning insulin dosage to 50 units. The doctor also

increased his midday and evening dosages. From January 19 to mid-March, the lower dosage of

insulin caused Briggs to have high blood sugar levels, which in turn caused him to suffer from

“cysts, constant urinating, and kidney pain.” Prior to the doctor’s intervention to raise the insulin

dosage, Briggs had “complained for months of ill effects” caused by the dosage being too low.

                                            II. Discussion

        We review de novo a district court’s sua sponte dismissal for failure to state a claim upon

which relief may be granted under 28 U.S.C. §§ 1915(e), 1915A, and 42 U.S.C. § 1997e. Grinter

v. Knight, 532 F.3d 567, 571-72 (6th Cir. 2008). The dismissal standard is the same standard as

under Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.

2010). In turn, “to survive scrutiny under §§ 1915A[] and 1915(e)[], ‘a complaint must contain

sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.’”



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Id. at 471 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Nevertheless, as the Supreme

Court has long emphasized, a pro se complaint is to be liberally construed and, “however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

       To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed

favorably, establish: (1) the deprivation of a right secured by the Constitution or the laws of the

United States (2) caused by a person acting under the color of state law. Sigley v. City of Parma

Heights, 437 F.3d 527, 533 (6th Cir. 2006).

   1. Deliberate Indifference

       A deliberate indifference claim has an objective and subjective component. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). The objective component requires the plaintiff to allege that

he suffers from a sufficiently serious medical need. Blackmore v. Kalamazoo Cty., 390 F.3d 890,

895 (6th Cir. 2004). The subjective component requires the plaintiff to allege that the prison

officials have “a sufficiently culpable state of mind” in denying medical care. Farmer, 511 U.S.

at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)) . Deliberate indifference “entails

something more than mere negligence . . . [but] is satisfied by something less than acts or omissions

for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835.

       In evaluating a deliberate indifference claim, we “distinguish between cases where the

complaint alleges a complete denial of medical care and those cases where the claim is that a

prisoner received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th

Cir. 1976). “Where a prisoner alleges only that the medical care he received was inadequate,

‘federal courts are generally reluctant to second guess medical judgments.’”            Alspaugh v.

McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake, 537 F.2d at 860 n.5). “As a



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general rule, a patient’s disagreement with his physicians over the proper course of treatment

alleges, at most, a medical-malpractice claim, which is not cognizable under § 1983.” Darrah v.

Krisher, 865 F.3d 361, 372 (6th Cir. 2017).

       The district court found that Briggs’s complaint sufficiently alleged the objective

component—diabetes constitutes a serious medical need—but that it was insufficient on the

subjective component. It concluded that this case fell within the realm of disagreements about the

proper course of treatment that courts will not second guess and that are not grounds for a claim

under the Eighth Amendment or § 1983. See id. In particular, the district court noted that Briggs

continued to receive insulin and that Westcomb merely changed the dosage following a five-day

period where Briggs declined to take the full dose.

       Despite the reluctance we expressed in Alspaugh to not second guess medical judgments,

we have distinguished inadequate treatment cases from cases alleging intentional infliction of

unnecessary pain. See Richmond v. Huq, 885 F.3d 928, 944-45 (6th Cir. 2018) (en banc). We

have long held that “a prisoner who suffers pain needlessly when relief is readily available has a

cause of action against those whose deliberate indifference is the cause of his suffering.” Boretti

v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir. 1991). Further, both insufficient treatment and a

delay in giving treatment may violate the Eighth Amendment. See Lemarbe v. Wisneski, 266 F.3d

429, 439 (6th Cir. 2001).

       Briggs alleges that, after Westcomb reduced his insulin dosage, (1) he experienced “cysts,

constant urinating, and kidney pains”; (2) these symptoms were the result of the decreased dosage;

(3) he repeatedly complained about these symptoms and requested that his dosage be increased;

(4) after Westcomb’s supervisor spoke to her about the lowered dosage, she “ambushed” him and

verbally berated him; (5) for two months Westcomb did not raise his insulin dosage to alleviate



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Case No. 19-1837, Briggs v. Unknown Westcomb, et al.


his symptoms; (6) the refusal to increase the dosage was done “maliciously and with sadistic

intent”; and (7) after two months of the 40-unit dosage, a doctor intervened and increased his

dosage to 50 units. So, the crux of Briggs’s complaint is not that his insulin dose was lowered, but

that Westcomb did not increase his dosage after becoming aware that he was suffering from

negative effects caused by the lower dosage and that she intended to cause him unnecessary pain

and suffering by refusing the raise the dosage. This is sufficient to state a claim. See Richmond,

885 F.3d at 944-45.

   2. Retaliation

       Briggs alleges that Barber and Rondeau retaliated against him for filing the grievance about

his insulin dosage by submitting a false misconduct report against him. The district court found

that Briggs failed to state a retaliation claim against Barber and Rondeau based on the false

misconduct report.2

       A First Amendment retaliation claim has three elements that the plaintiff must establish:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff

that would deter a person of ordinary firmness from continuing to engage in that protected conduct;

and (3) there is a causal connection between the first two elements—the adverse action was

motivated, at least in part, by the plaintiff’s protected conduct. Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999) (en banc).

       The district court found that the first element was adequately established because prisoners

have a First Amendment right to file grievances against prison officials. See Smith v. Campbell,

250 F.3d 1032, 1037 (6th Cir. 2001). The district court also found the second element was



       2
            Briggs does not appeal the district court’s dismissal of the other two bases for his
retaliation cause of action—Westcomb’s verbal attacks and Barber’s “getting physical” with him.
Therefore, these claims are waived.
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Case No. 19-1837, Briggs v. Unknown Westcomb, et al.


sufficiently alleged because privileges are significant to prisoners, so a false misconduct report

resulting in loss of privileges would deter a person of ordinary firmness from continuing to engage

in filing grievances against prison officials. See Maben v. Thelen, 887 F.3d 252, 266-67 (6th Cir.

2018).

         The district court concluded that Briggs’s complaint failed on the third element because

(1) the temporal proximity of a week between filing the grievance and the retaliatory acts was too

attenuated to allow an inference of a causal connection between them; and (2) he “alleges no facts

from which to reasonably infer the actions of Defendant Barber or Rondeau in pursuing the

misconduct violation were motivated by any of this protected conducted related to [Westcomb].”

         Although this court has been reluctant to find retaliatory motive from temporal proximity

alone when that proximity is not “extremely close,” Holzemer v. City of Memphis, 621 F.3d 512,

526 (6th Cir. 2010), the proximity between the filing of a grievance and an adverse action provides

“some support” for that inference. Hill, 630 F.3d at 476 (citing Holzemer, 621 F.3d at 526). Here,

the district court correctly noted that Briggs alleges he filed his grievance against Westcomb on

January 19 and the retaliatory acts occurred a week later on January 26. However, the district

court did not consider Briggs’s additional factual allegation that Westcomb’s supervisor spoke to

her on January 25 about the decreased dosage. When construing the complaint in the light most

favorable to Briggs, the relevant date for analyzing temporal proximity is January 25, not January

19. Briggs’s inclusion of this factual allegation implies either that Westcomb first learned of the

grievance on January 25, or that the conversation with her supervisor about the dosage in some

way motivated the ambush the next day. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525

(6th Cir. 2008) (using the time that the defendant learns of the protected activity rather than when

the protected activity occurred as the relevant event in analyzing temporal proximity). So, the



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district court erred by concluding that the temporal proximity between relevant events was a week

rather than a day.

        Whether there is a sufficient temporal proximity to support an inference of an improper

motive is an inherently fact-specific inquiry conducted by looking at the totality of the

circumstances. Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010). A day

between events presents a very different situation than a week between events, as two days between

events has been found to be “‘very close’ temporal proximity.” Lindsay v. Yates, 578 F.3d 407,

419 (6th Cir. 2009) (quoting Mickey, 516 F.3d at 525). It is not necessary for us to determine

whether the temporal proximity here would be sufficient on its own to establish a causal connection

because, as discussed below, there is an additional connection between the grievance and the

retaliation besides just temporal proximity.

        Briggs alleges a connection between the grievance against Westcomb and the retaliatory

acts by Barber and Rondeau. The day after Westcomb spoke to her supervisor about having

reduced Briggs’s insulin dosage, Westcomb and Barber ambushed Briggs. One can reasonably

infer from Briggs’s complaint that the ambush was motivated by the grievance, since Westcomb

and Barber ambushed him together. And if the ambush was motivated by the grievance, since the

false misconduct report arose out of the ambush, it can be inferred that it too was motivated, at

least in part, by the grievance. And although not part of the ambush itself, Rondeau was present

for at least part of it, refused Briggs’s request for help, sent him to segregation without justification,

instructed Barber to file the false misconduct report, and submitted a false witness statement. So,

the facts as alleged are sufficient to allow the inference that Rondeau, Barber, and Westcomb

coordinated and worked together to retaliate against Briggs.




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Case No. 19-1837, Briggs v. Unknown Westcomb, et al.


        Accepting the allegations as true—as required at this stage—Briggs has sufficiently alleged

that Barber and Rondeau submitting the false misconduct report was motivated, at least in part, by

his filing the grievance because of the connection between Rondeau, Barber and Westcomb and

the close temporal proximity of Westcomb’s conversation with her supervisor and the retaliatory

acts. Thus, the complaint for retaliation based on filing the false misconduct report states a

plausible claim for relief.

                                         III. Conclusion

        For the reasons set forth above, we REVERSE the district court’s dismissal of deliberate

indifference claim against Westcomb and dismissal of the retaliation claim against Barber and

Rondeau. We REMAND for further proceedings consistent with this opinion.




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