                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 12a0852n.06

                                   No. 10-1584 and No. 11-1992

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                       FILED
JEANNIE PARSONS, successor Personal                     )                        Aug 07, 2012
Representative of the Estate of Randy Parsons,          )                  LEONARD GREEN, Clerk
deceased,                                               )
                                                        )
                Plaintiff-Appellant,                    )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                         v.                             )    THE EASTERN DISTRICT OF
                                                        )    MICHIGAN
                                                        )
PATRICIA L. CARUSO, Warden, Director,                   )
MDOC; JOHN F. MCCARTHY, MD;
LAWRENCE ALEXANDER, RN; JESSICA
PAUSITS, RN; HOPE HEEBSH;
CORRECTIONAL MEDICAL SERVICES, INC.,

               Defendants-Appellees.


Before: SILER and KETHLEDGE, Circuit Judges; GRAHAM, District Judge.*

       SILER, Circuit Judge. This appeal involves two related cases brought under 42 U.S.C. §

1983 by the personal representative of Randy Parsons, a Michigan prisoner who died while in

custody at Standish Maximum Correctional Facility (“Standish”). Plaintiff argues that Parsons died

from a seizure after various officials failed to provide him with the anti-seizure medication Dilantin

over a number of days and that this failure amounted to deliberate indifference to Parsons’s medical

needs in violation of the Eighth Amendment. The district court granted summary judgment for all

defendants in both cases, determining that the defendants’ conduct did not rise to the level of


*
       The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 10-1584 and 11-1992
Parsons v. Caruso

deliberate indifference. For the reasons explained below, we AFFIRM with regard to defendants

Alexander, McCarthy, Caruso, and Correctional Medical Services, Inc. (“CMS”). However, when

the evidence regarding Heebsh and Pausits is viewed in the light most favorable to Plaintiff, Plaintiff

has plausibly demonstrated deliberate indifference to Parsons’s serious medical needs. Therefore,

we REVERSE the district court’s granting of summary judgment as to those two defendants and

REMAND for further proceedings.

                                                  I.

       Parsons was convicted in 1990 of second-degree murder and sentenced to 15 to 30 years in

prison. In 1995 he was diagnosed with a seizure disorder and prescribed Dilantin to control his

grand mal seizures. In 2004, Parsons was regularly taking Dilantin, as well as three psychotropic

medications for his mental health issues.

       On August 25, 2004, Parsons was transferred from Gus Harrison Correctional Facility to

Standish. He arrived at Standish between 9:00 a.m. and 10:00 a.m. At 6:40 p.m., Nurse Jessica

Pausits conducted a medical intake, noting that Parsons had arrived at Standish without his

medications. Pausits then scheduled him to see a medical service provider or “MSP” the next day.

       The parties explain that three possible options existed for obtaining medication for a prisoner

at Standish. First, the normal procedure was to order medications through a company called

PharmaCorr in Oklahoma, a subsidiary of CMS, which is a corporation providing medical services

to Michigan prisoners under a contract with the state. The medications from PharmaCorr would

usually arrive the day after being ordered, but delivery could take as long as three or four days.



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No. 10-1584 and 11-1992
Parsons v. Caruso

Second, medications could be ordered and picked up from a local pharmacy. Third, if the need for

medication was immediate or urgent, certain medications could come from a doctor’s box or “stock

meds” available on-site at Standish. According to Pausits, the stock meds included Dilantin.

       Pausits testified that she was unable to order Dilantin or any other medication from the local

pharmacy when she conducted Parsons’s intake because the cut-off time for ordering from the

pharmacy was 4:00 p.m., over two hours earlier. She also testified, however, that she could have

obtained Dilantin for Parsons if she believed it was an emergency situation, but that she did not

believe Parsons’s lack of Dilantin was an emergency.

       Physician’s assistant Sara Hope Heebsh examined Parsons at 8:49 a.m. on August 26, 2004,

the morning after he arrived at Standish. Her report noted that Parsons suffered from a seizure

disorder and that he was “extremely agitated, histrionic with flight of ideas, and a poor historian.”

It also explained that Parsons “state[d] he is taking his meds as directed.” Heebsh prescribed 100

mg Dilantin to be taken twice per day and ordered laboratory tests to check Parsons’s Dilantin levels

in one week. She indicated that Parsons’s Dilantin medication should have a “Start Date” of

“08/26/2004,” the same day of the examination, but she did not include instructions that the Dilantin

should be ordered from the local pharmacy. It is unclear whether Heebsh was aware that Parsons

arrived at Standish without his medication. Heebsh testified: “[T]he way I handle patients that . .

. don’t have their medications, when I write the order for their medication, I write ‘start today,’

which indicates to me and to the nurse that there is no medication and it needs to be started today.”

She did not write “start today” on Parsons’s report.



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No. 10-1584 and 11-1992
Parsons v. Caruso

       A few hours later, Parsons was seen by a psychiatrist, Dr. John F. McCarthy. From

Standish’s medical computer records, Dr. McCarthy was aware that Parsons had been examined by

Heebsh and that Heebsh had ordered Dilantin. Dr. McCarthy prepared a prescription order for the

three psychotropic medications Parsons had been taking: Lithium Carbonate, Zyprexa, and Remeron.

Recognizing that Parsons was “somewhat agitated” and that “he really should be on his medication,”

Dr. McCarthy ordered a five-day supply of Parsons’s psychotropic medications from the local

pharmacy. Under “Special Nursing Instructions,” he wrote, “Medications for 08/26/04 to 08/31/04

should be obtained from the local pharmacy.” The remaining thirty-day supply of medications were

to be ordered from PharmaCorr.

       Parsons’s Dilantin was ordered from PharmaCorr and apparently arrived August 27, the day

after it was prescribed by Heebsh and ordered by the nurse. According to pharmacy records,

Standish obtained the five-day supply of Parsons’s psychotropic medicine from the local pharmacy

on August 26.

       The parties dispute many of the facts surrounding the administration of Dilantin to Parsons.

According to Standish records, Parsons received his first dose of Dilantin at 6:00 p.m. on August 27.

Pausits testified that she dispensed Dilantin to Parsons on August 27, and she initialed Parsons’s

Medication Administration Record (“MAR”), which indicates that she gave Parsons his Dilantin.

However, according to the prison unit log, Nurse Alexander, not Pausits, performed the medication

round on August 27. Parsons’s MAR indicates that he received a second dose of Dilantin at 8:00

a.m. on August 28 from a Nurse Sharp, who is not a party to the litigation.



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No. 10-1584 and 11-1992
Parsons v. Caruso

       At some point on August 27, Parsons sent a “kite” requesting some form of mental health

services. Alexander processed the kite and forwarded it to outpatient mental health but took no

further action. He testified that he did not recall the nature of Parsons’s request for mental health

services, and the kite itself has apparently disappeared.

       After the evening meal on August 28, officers observed Parsons acting strangely and wearing

his shower shoes on top of his regular shoes. Parsons was “laid in,” meaning he was to return to his

cell and stay there until he could be seen by an officer or mental health provider. A short time later,

around 5:06 p.m., Sergeant Steven Bond went to Parsons’s cell and found him unresponsive on the

floor. He was pronounced dead at 5:56 p.m. on August 28.

       Two autopsies were performed on Parsons. The first, performed by the Arenac County

Medical Examiner, noted a “fresh tongue bite indicating episode of seizures at the time of death” and

concluded that Parsons “died of seizures disorder.” The second autopsy, performed by Spectrum

Health at the request of Parsons’s family, originally stated that the cause of death was undetermined

but was later supplemented to state that Parsons died of a seizure. The forensic pathologist at

Spectrum Health also ordered a toxicology screen on Parsons’s blood. The toxicology results

showed a complete lack of Dilantin in Parsons’s system, suggesting that he did not ingest any

Dilantin medication for at least three days prior to his death. The toxicology results also showed the

presence of Wellbutrin, also known as Bupropion. Wellbutrin is an anti-depressant that is

contraindicated for individuals suffering from seizure disorders and can contribute to causing a

seizure. Dr. McCarthy testified that “[i]f somebody has uncontrolled seizures it would be a very

poor idea to use Wellbutrin,” but that it could possibly be used for a patient with well-managed

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No. 10-1584 and 11-1992
Parsons v. Caruso

seizures in consultation with the patient’s neurologist “as a last resort if other medications had

failed.” Other than the toxicology report, there is no evidence that Parsons received or was

prescribed Wellbutrin, and it is unclear how it entered his system.

       In 2007, Plaintiff Jeannie Parsons, as the personal representative of Randy Parsons’s estate,

filed this 42 U.S.C. § 1983 action against a number of defendants, alleging deliberate indifference

to Parsons’s serious medical needs in violation of the Constitution. Heebsh was dismissed from the

original suit for lack of service, and Plaintiff subsequently brought suit against Heebsh and CMS in

Parsons v. Heebsh. The district court eventually granted summary judgment to all defendants in

both cases, and the appeals have been consolidated.

                                                 II.

       We review the district court’s granting of summary judgment de novo. Profit Pet v. Arthur

Dogswell, LLC, 603 F.3d 308, 311 (6th Cir. 2010). The district court determined that each of the

defendants was entitled to summary judgment based on qualified immunity and Parsons’s failure to

produce evidence of conduct rising to the level of a constitutional violation.

       The Eighth Amendment, applicable to the states under the Fourteenth Amendment, prohibits

prison officials from “acting with ‘deliberate indifference’ toward [an] inmate’s serious medical

needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). A constitutional claim for denial of medical care has both an

objective and a subjective component. Id. “The objective component requires the existence of a

‘sufficiently serious’ medical need.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

“[A] medical need is objectively serious if it is one that has been diagnosed by a physician as

                                                -6-
No. 10-1584 and 11-1992
Parsons v. Caruso

mandating treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Id. at 897 (internal quotation marks omitted and emphasis

removed). “[T]he seriousness of a prisoner’s medical needs may also be decided by the effect of

delay in treatment.” Id. (internal quotation marks omitted and emphasis removed). The defendants

do not contest that Parsons had a sufficiently serious medical need–he suffered from a seizure

disorder, he did not have his anti-seizure medication for at least two days and possibly for the entire

time he was at Standish, and he ultimately died from a seizure.

          This case turns on the subjective component of the deliberate indifference standard. “To

satisfy the subjective component, an inmate must show that prison officials had ‘a sufficiently

culpable state of mind.’” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (quoting Farmer, 511

U.S. at 834). “Deliberate indifference entails something more than mere negligence, but can be

satisfied by something less than acts or omissions for the very purpose of causing harm or with

knowledge that harm will result.” Blackmore, 390 F.3d at 895-96 (internal quotation marks and

citations omitted). “[A]cting or failing to act with deliberate indifference to a substantial risk of

serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Farmer, 511 U.S.

at 836.

          Put simply, the deliberate indifference standard’s subjective component requires a plaintiff

to demonstrate that “the official being sued subjectively perceived facts from which to infer

substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded

that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at



                                                  -7-
No. 10-1584 and 11-1992
Parsons v. Caruso

837). It is not enough that an official “fail[s] to alleviate a significant risk that he should have

perceived but did not.” Farmer, 511 U.S. at 838.

       The proposition that deliberate indifference to a prisoner’s medical needs can amount to a

constitutional violation has been well-settled since Estelle in 1976. Moreover, numerous decisions

have involved the withholding or delayed administration of medication. See, e.g., Canady v.

Wilkinson, 90 F. App’x 863 (6th Cir. 2004) (holding that delay in prescription was not Eighth

Amendment violation because delay was inadvertent and quickly rectified); Dozier v. Pauley, 24 F.

App’x 398 (6th Cir. 2000) (holding that prescription delay was not violation because plaintiff could

not establish detrimental effect of delay in treatment). A number of cases involve the failure to

provide Dilantin to a prisoner with a seizure disorder. See, e.g., Hudson v. McHugh, 148 F.3d 859

(7th Cir. 1998) (denying summary judgment for officers and nurse who allegedly failed to provide

Dilantin to a prisoner known to take the medication for his seizure disorder). The idea that failing

to provide medication like Dilantin can amount to a constitutional violation was therefore “clearly

established” in 2004 when these events took place. See Leary v. Livingston Cnty., 528 F.3d 438, 441

(6th Cir. 2008).

       The qualified immunity inquiry thus collapses into the analysis of whether Parsons has

produced sufficient evidence to show that the defendants were deliberately indifferent to Parsons’s

medical needs under the subjective component of the standard. In other words, because Parsons’s

constitutional right was clearly established in 2004, the defendants are only entitled to summary

judgment based on qualified immunity if Parsons has not demonstrated evidence of a constitutional

violation.

                                               -8-
No. 10-1584 and 11-1992
Parsons v. Caruso

                                                  III.

        A. Pausits

        A reasonable jury could conclude that Pausits was aware of the substantial risk to Parsons

and failed to provide him with Dilantin at any point during his time at Standish. Because this

conduct would rise to the level of deliberate indifference, we reverse the grant of summary judgment

to Pausits.

        Pausits recognized that Parsons did not have his anti-seizure medication, but she testified that

she did not view it as an emergency situation:

        Q: Now, is - - is that an emergency to you? If that guy showed up and didn’t have
        . . . some of these Dilantin pills with him?
        Pausits: No, it wouldn’t be an emergency to me. I wouldn’t jump into my car and
        run to the pharmacy and get him some, no.
        Q: You wouldn’t call an ambulance and have them come up to pick him up?
        Pausits: No, no. No, I would not.
        Q: People can go without the stuff and they can live to see the next day?
        Pausits: Yes, they can.

The district court relied on this testimony and concluded that “[e]ven if [Pausits] should have known

it was an emergency situation, unless she actually knew it was such a situation (which she did not),

she committed no constitutional violation.”

        The deliberate indifference standard, however, does not require a plaintiff to show that a

defendant knew of an “emergency situation.” Instead, Parsons must demonstrate that Pausits

subjectively perceived facts from which to infer substantial risk to Parsons and that she did in fact

draw the inference. See Comstock, 273 F.3d at 703. Common sense dictates that certain situations

can present a substantial risk to a prisoner without being an emergency. In Farmer, which explained


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No. 10-1584 and 11-1992
Parsons v. Caruso

the subjective component of deliberate indifference, the Court held that prison officials could be

liable for placing a transsexual prisoner in the general population when there existed a substantial

risk of harm to that prisoner. Farmer, 511 U.S. at 847-49. The prisoner claimed to have been beaten

and raped two weeks after being placed with the other inmates. Id. at 830. The initial placement of

the prisoner with the general population did not create an emergency situation, but it did “expose

[the] prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’” Id. at 843

(quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)) (emphasis added). Parsons is required to

show actual knowledge of this substantial risk of harm, not actual knowledge of an emergency

situation.

        Subjective knowledge of a substantial risk can be “demonstrat[ed] in the usual ways,

including inference from circumstantial evidence.” Farmer, 511 U.S. at 842. This prevents a

defendant from avoiding liability by simply denying knowledge after the fact. See id. In this case,

Parsons points to the testimony of Dr. McCarthy as circumstantial evidence of Pausits’s knowledge

of the substantial risk. Dr. McCarthy stated that, when a patient arrives at the facility without his

medications, “this creates a rather urgent–in our view, a somewhat urgent situation.” Although this

statement was in reference to all of Parsons’s medications and not just his Dilantin, it is still

circumstantial evidence that a medical professional at Standish like Pausits would have recognized

the substantial risk.1


1
 In Parsons v. Heebsh, No. 11-1992, Plaintiff submitted the deposition of Dr. Gerald Sheiner. Dr.
Sheiner testified:
       [W]hen a patient is taking [anti-seizure] medication regularly and stopped abruptly,
       the possibility or likelihood of a rebound event, in this case the emergence of a

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No. 10-1584 and 11-1992
Parsons v. Caruso

        Also, the risk to Parsons in this case should have been obvious. See Farmer, 511 U.S. at 842.

“If the risk is obvious, so that a reasonable man would realize it, we might well infer that the

defendant did in fact realize it . . . .” Id. (internal quotation marks and alterations omitted). Parsons

suffered from a seizure disorder, was regularly taking Dilantin to control his seizures, and did not

have his Dilantin upon arriving at Standish. Pausits was aware of each of these facts when she

conducted intake. Even if it is not obvious whether these facts present an emergency situation, “a

reasonable man would realize” that there exists a substantial risk to a seizure disorder sufferer who

does not have his anti-seizure medication. See id. Although “it remains open to the officials to

prove that they were unaware even of an obvious risk to inmate health or safety,” this determination

would fall to the trier of fact. Id. at 844.

        Parsons has presented sufficient evidence that Pausits was aware of a substantial risk to

Parsons. Under the relevant standard, however, Parsons must also show that Pausits was deliberately

indifferent by “disregard[ing] that risk.” Comstock, 273 F.3d at 703.

        A jury could conclude that Pausits was aware of the obvious risk to a seizure disorder sufferer

who has not taken Dilantin for a number of hours. There is evidence that Pausits could have

obtained Dilantin for Parsons immediately, as her own testimony demonstrates that Dilantin was


       seizure disorder which the drug is designed to suppress, that possibility increases
       hour by hour. When does it become clinically significant? A concern, 6 hours after
       missing a dose; a serious concern 12 hours after missing a dose, a dire condition 24
       hours after missing a dose.
This would be further circumstantial evidence that the risk to Parsons would have been obvious to
a medical professional. However, the transcript of this deposition was only submitted in Parsons
v. Heebsh and was not in front of the district court in Parsons v. Caruso, so it can only be considered
with regard to defendants Heebsh and CMS.

                                                 - 11 -
No. 10-1584 and 11-1992
Parsons v. Caruso

available in the “stock meds,” and she stated that she could have obtained the medication if she

viewed the situation as an emergency. Pausits’s actions demonstrate a conscious choice to let

Parsons linger yet longer without his anti-seizure medication. Moreover, Parsons has submitted

evidence of the general prison practice of ordering medications from PharmaCorr, a process which

could sometimes take several days.

        Pausits disputes that her decision to delay Parsons’s receipt of Dilantin was the proximate

cause of Parsons’s injury. She notes that Heebsh saw Parsons the next morning, and there is no

evidence that the interim delay caused Parsons’s death. Even if Pausits’s alleged indifference was

not the “sole cause” of Parsons’s death, it would still be “‘a proximate cause if it [was] a substantial

factor in the sequence of responsible causation.’” See Trollinger v. Tyson Foods, Inc., 370 F.3d 602,

620 (6th Cir. 2004) (quoting Cox v. Admin. U.S. Steel & Carnegie, 17 F.3d 1386, 1399 (11th Cir.

1994)). Given the risk involved in delaying providing anti-seizure medication to a seizure sufferer

for over 24 hours, Pausits’s decision could reasonably be considered a substantial factor in Parsons’s

death. Finally, Parsons can recover against Pausits so long as Pausits’s inaction increased the risk

of injury—no matter whether Pausits actually contributed to Parsons’s death. See Blackmore, 390

F.3d at 899.

        Moreover, in Pausits’s case, evidence of deliberate indifference extends to August 27. There

is conflicting evidence regarding Parsons’s medication while he was at Standish. According to

Pausits and Parsons’s MAR, Pausits administered 100 mg of Dilantin to Parsons at 6:00 p.m. on

August 27. The toxicology report after Parsons’s death, however, did not discover any Dilantin in

his system, suggesting that he did not receive this medication for at least three days prior to his death

                                                 - 12 -
No. 10-1584 and 11-1992
Parsons v. Caruso

on August 28. The toxicology results also showed the presence of Wellbutrin, which can exacerbate

a seizure disorder. Also, there is a discrepancy in who was the nurse to dispense medications to

Parsons on August 27–although Pausits signed Parsons’s MAR, the prison unit log states that

Alexander performed the medication round on August 27.

       Viewing this evidence in the light most favorable to Plaintiff, a jury could reasonably

determine that: (1) Pausits was aware of the substantial risk to Parsons and (2) Pausits did not

administer Dilantin.2 These determinations are reasonable because a jury could place more

importance on the toxicology report rather than Pausits’s testimony and the MAR. Furthermore, as

indicated by the MAR, nurses are supposed to circle their initials if there were any problems

administering the medication; Pausits’s initials for 6:00 p.m. on August 27 were not circled, and a

jury could conclude that this demonstrates that Parsons ingested whatever medication was given to

him. Although the district court notes that there is no evidence “that Nurse Pausits willfully

committed a medications error,” Farmer makes clear that “deliberate indifference is satisfied by

something less than acts or omissions for the very purpose of causing harm or with knowledge that

harm will result.” Farmer, 511 U.S. at 835. Viewing the facts and drawing all reasonable inferences

in favor of Parsons, Pausits’s failure to administer Dilantin, even if she lacked intent or knowledge


2
  Based on the toxicology report, a third conclusion could be that Pausits in fact administered
Wellbutrin to Parsons on August 27. This conclusion, however, may be too speculative–while a
reasonable jury could conclude that Parsons could only have received Wellbutrin from a prison
official dispensing the medication, a jury would have to connect additional dots to conclude that the
official was Pausits. The determination that Pausits recklessly disregarded the risk to Parsons by
failing to administer Dilantin when she had the opportunity requires only that the jury credit the
toxicology report and the MAR, which shows that it was Pausits’s duty to dispense medication, and
is much less speculative than the conclusion that she actually administered Wellbutrin.

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Parsons v. Caruso

that harm would actually result, would exceed negligence and rise to the level of “recklessness” as

required under the deliberate indifference standard. See id. at 836-37. Pausits’s conduct, if true,

would be especially reckless because of her familiarity with Parsons through the medical intake and

her failure to initially provide Dilantin on August 25. Plaintiff has presented sufficient evidence to

create a genuine issue as to whether Pausits acted with deliberate indifference in failing to administer

Dilantin to Parsons.

        B. Heebsh

        As with Pausits, Plaintiff has presented sufficient circumstantial evidence of the obviousness

of the risk such that a reasonable jury could conclude that Heebsh was aware of the substantial risk

to Parsons’s health if it can be determined that Heebsh knew Parsons did not have his medication

at the time she examined him. Moreover, Parsons submitted the testimony of Dr. Sheiner, who

stated that a lack of Dilantin is “a dire condition 24 hours after missing a dose.” If Heebsh did not

know Parsons was without his medication, however, she would also be unaware of the substantial

risk.

        There is again conflicting evidence on this point. Heebsh testified that she was “sure

[Parsons] had his medication on [August 27],” the day she met with him, because “[h]ad he not had

his medication, [she] would have put ‘start today’” on her report and prescription order. Heebsh also

argues that the notation on her report that Parsons stated he was “taking meds as directed” indicates

that she believed he had his medications.

        There is sufficient conflicting evidence of this account such that one could reasonably

conclude that Heebsh was aware that Parsons did not have his medication. First, Heebsh also noted

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Parsons v. Caruso

on her report that Parsons was “histrionic with flight of ideas, and a poor historian.” This notation

conflicts at least somewhat with Heebsh’s argument that Parsons’s statement that he was “taking

meds as directed” would have been given weight by Heebsh during her meeting with him. Second,

Pausits testified that Heebsh would conduct a “chart review” as “part of [her] job,” and that this chart

review would include Pausits’s medical intake record, which indicated that Parsons did not have his

anti-seizure medication. Pausits also testified about her general practice, which was to “write it on

[Heebsh’s] schedule and put the inmate’s name and number, inmate so-and-so rode in, has no

medications.” Third, Dr. McCarthy, who met with Parsons shortly after Heebsh, testified that he was

aware that Parsons “had been sent and his medications had not arrived with him” because he “was

notified by the treatment team.” This is sufficient evidence to create a factual dispute as to whether

Heebsh was aware of a substantial risk to Parsons.

        There is also sufficient evidence for a reasonable jury to conclude that Heebsh then

disregarded that risk and acted with deliberate indifference in delaying providing Dilantin to Parsons.

Viewing the evidence and drawing all reasonable inferences in favor of Plaintiff, Heebsh (1) knew

Parsons did not have his Dilantin, either through her normal chart review or a note from Pausits; (2)

did not immediately provide Dilantin, which was available in the “stock meds” or doctor’s box; and

(3) did not write “start today” on the order, ensuring that the Dilantin would come from PharmaCorr

and at least one day would pass before Parsons received his Dilantin.3 While “[d]eliberate


3
 Heebsh argues that she indicated a start date of August 26, which unequivocally gave instructions
that Parsons should be given his medication that very same day. This argument conflicts with
Heebsh’s own testimony, however. She explained that, absent a “start today” note, the nurses
“would have sent the order to PharmaCorr.” Absent a “start today” note and assuming Heebsh was

                                                 - 15 -
No. 10-1584 and 11-1992
Parsons v. Caruso

indifference ‘entails something more than mere negligence,’” Blackmore, 390 F.3d at 895-96

(quoting Farmer, 511 U.S. at 385), in this case there is evidence that a lack of Dilantin for a seizure

sufferer is “a dire condition 24 hours after missing a dose.” By ordering Dilantin from the out-of-

state company instead of securing it locally or immediately on-site, Heebsh effectively ensured that

Parsons went without his anti-seizure medication for over two days, at the least, and possibly longer

if there was any delay in receiving the medication from PharmaCorr. This delay in administering

Dilantin, caused by Heebsh’s conscious choice to order the medication off-site, is comparable to the

facts in many of the cases involving Dilantin. See, e.g., Hudson, 148 F.3d at 861 (denying summary

judgment for officers and nurse who allegedly failed to provide Dilantin to a prisoner, resulting in

his failing to receive the medication for fourteen days); Johnson v. Hay, 931 F.2d 456, 458 (8th Cir.

1991) (denying summary judgment for pharmacist who refused to fill Dilantin prescription based

on his view that the medication was “not appropriate”); Neal v. Smith, 1994 WL 395747, *4 (D. Md.

May 5, 1994) (denying summary judgment when plaintiff submitted evidence that officers failed to

provide his anti-seizure medication for ten days after being informed by prisoner of his health

issues); Walker v. O’Leary, 1986 WL 6428, *2 (N.D. Ill. May 28, 1986) (denial of anti-seizure

medication for seven days); Mitchell v. Chester Cnty. Farms Prison, 426 F. Supp. 271, 272-73 (E.D.




aware Parsons did not have his medication, Heebsh would have written the August 26 start date
knowing that it would be at least August 27 before the Dilantin arrived from PharmaCorr and was
administered to Parsons.

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No. 10-1584 and 11-1992
Parsons v. Caruso

Penn. Dec. 30, 1976) (denial of anti-seizure medication for four days after repeated requests). The

facts in this case plausibly demonstrate deliberate indifference on the part of Heebsh.4

       C. Dr. McCarthy

       Dr. McCarthy met with Parsons August 26 shortly after Parsons’s meeting with Heebsh.

Parsons argues that Dr. McCarthy was deliberately indifferent by failing to immediately secure

Dilantin for Parsons. There is insufficient evidence to support this claim.

       Unlike Heebsh, Dr. McCarthy concedes that he was aware that Parsons arrived at Standish

without his medication and that this created a “rather urgent” or “somewhat urgent situation.” Dr.

McCarthy contends that he was aware that Parsons had already met with Heebsh that morning and

that Heebsh had prescribed Dilantin because the “order was already present in the [prison computer

system] when [he] saw Mr. Parsons.” He also testified that, under his work program, he is

“forbidden to treat medical problems” and could not have written a prescription for or obtained

Dilantin for Parsons. On the other hand, Plaintiff’s expert, Dr. Walsh, stated in an affidavit that a

psychiatrist in Dr. McCarthy’s position is not forbidden to secure Dilantin for a patient in Parsons’s

condition.



4
  Like Pausits, Heebsh also argues that her failure to immediately provide Dilantin cannot be
considered the proximate cause of Parsons’s death. As explained above, Parsons need only
demonstrate that Heebsh’s indifference was a “substantial factor in the sequence of responsible
causation.” See Trollinger, 370 F.3d at 620 (internal quotation marks omitted). Moreover, contrary
to Heebsh’s assertions, there is sufficient evidence to conclude that Parsons’s Dilantin would have
arrived sooner had Heebsh instructed the nurses to order Dilantin from the local pharmacy–the
psychotropic medications, ordered locally by Dr. McCarthy, arrived the same day. Given the risk
associated with the delay in receiving anti-seizure medication, Heebsh’s failure to provide Dilantin
could be considered a proximate cause in this case.

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Parsons v. Caruso

       Even assuming that Dr. McCarthy could have obtained Dilantin for Parsons, he did not act

with deliberate indifference to Parsons’s medical needs. As a mental health professional, it was

reasonable for Dr. McCarthy to treat Parsons’s mental health issues and defer to the medical provider

(Heebsh), who had already ordered Dilantin for Parsons, for his medical issues. “[P]rison officials

who actually knew of a substantial risk to inmate health or safety may be found free from liability

if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511

U.S. at 844. Even if Dr. McCarthy should have, in hindsight, expended more effort to ensure that

Parsons received his Dilantin right away, his failure to do so does not amount to recklessness or

deliberate indifference. “Medical malpractice” or negligence “does not become a constitutional

violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see Westlake v. Lucas,

537 F.2d 857, 860 n.5 (6th Cir. 1976) (“Where a prisoner has received some medical attention and

the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second

guess the medical judgments and to constitutionalize claims which sound in state tort law.”). Dr.

McCarthy is entitled to summary judgment because he did not act with deliberate indifference to

Parsons’s medical needs.

       D. Alexander

       Plaintiff argues that Alexander acted with deliberate indifference by (1) improperly

processing Parsons’s kite on August 28 and (2) failing to administer Dilantin and instead

administering Wellbutrin on August 27, if in fact it was Alexander and not Pausits who dispensed

the medication on that date.



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No. 10-1584 and 11-1992
Parsons v. Caruso

       Parsons has not presented sufficient evidence demonstrating that Alexander acted with

deliberate indifference in either situation. Although the kite was unfortunately not discovered in the

course of this litigation, Alexander marked at 4:04 p.m. on Friday, August 27, that it involved some

sort of “mental health req[uest].” Parsons claims that Alexander was deliberately indifferent to

Parsons’s serious medical needs when he placed the kite in a receptacle to be “forwarded to

outpatient mental health,” knowing that no doctor would respond before Monday, August 30.

Alexander testified that he did not believe the request was urgent.

       The problem with Parsons’s argument is that there is no evidence that his kite had anything

to do with his seizure disorder. Parsons had many mental health issues, for which he had been

prescribed three psychotropic drugs, and this kite may have been related to those mental health

issues. Therefore, even if Alexander was aware of Parsons’s seizure disorder and the risk to his

health from the lack of medication, a jury could not reasonably find that Alexander’s processing of

the kite rose to the level of deliberate indifference to that risk because the kite did not deal with

Parsons’s seizure disorder.5

       With regard to the administering of Parsons’s medication, as explained above, the facts are

unclear. Pausits testified that she dispensed Dilantin to Parsons on August 27, and she initialed


5
  Parsons points to an August 28 letter from Parsons to his family as evidence that his kite request
was urgent and should have been handled differently. In the letter, Parsons stated that he did not
think he was going to “make it.” But the suggestion that Parsons’s statement meant that he was
somehow aware of an impending seizure, and that this letter demonstrates the likelihood that
Parsons’s kite was related to seizures and not his mental health issues, is too tenuous. In fact, the
letter demonstrates Parsons’s anxiety and is consistent with the idea that his kite dealt with mental
health issues. Regardless, there is insufficient evidence that the kite had anything to do with
Parsons’s seizure disorder or that Alexander acted with deliberate indifference in processing it.

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Parsons v. Caruso

Parsons’s MAR, which indicates that she gave Parsons his Dilantin. However, according to the

prison unit log, Alexander, not Pausits, performed the medication round on August 27. For his part,

Alexander testified in his deposition that he had never met Parsons prior to his being discovered

unconscious the evening of August 28.

        Crediting the prison unit log and the toxicology report, a reasonable jury could conclude that:

(1) Alexander, not Pausits, administered medication to Parsons August 27; and (2) Alexander did

not administer Dilantin. This is insufficient evidence that Alexander “subjectively perceived facts

from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that

he then disregarded that risk.” See Comstock, 273 F.3d at 703. Unlike Pausits, Alexander did not

have familiarity with Parsons through the medical intake and did not have the same opportunity to

provide Dilantin to Parsons prior to August 27. There is no evidence that Alexander reviewed

Parsons’s medical chart or had any other reason to know that Parsons had gone over two days

without his anti-seizure medication. Even if he performed the medication rounds on August 27 and

failed to provide Dilantin to Parsons, this conduct in a single, isolated incident would not rise to the

level of deliberate indifference.

        E. Director Caruso

        Caruso was the Director of the Michigan Department of Corrections in 2004 when Parsons

was transferred to Standish. Parsons’s argument with regard to Caruso is difficult to understand.

He seems to contend that Caruso should be held liable under 42 U.S.C. § 1983 for two reasons: (1)

because she implemented or was responsible for policies and procedures that were deliberately

indifferent, or resulted in officials acting with deliberate indifference, to Parsons’s serious medical

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Parsons v. Caruso

needs in violation of the Eighth Amendment; and (2) because she failed to supervise subordinates

who violated Parsons’s constitutional rights. To be sure, Parsons has presented evidence of

numerous possible systematic failures during Parsons’s short stay at Standish that may have

contributed to his death, including: the delay in conducting Parsons’s medical intake; the failure of

Pausits to immediately secure Dilantin for Parsons; Heebsh’s ordering of the medication from

PharmaCorr or, if she was unaware that Parsons lacked his medication, the breakdown in

communication between the nurses and Heebsh; the possible failure to administer Dilantin to

Parsons once it arrived at Standish; and the possible administering of Wellbutrin, a drug

contraindicated for seizure disorder patients like Parsons.

        However, this argument fails for at least two reasons. First, Parsons has not explained how

the policy or procedure claim can be brought against Caruso. Under Monell v. Dep’t of Soc. Servs.

of the City of New York, 436 U.S. 658, 690 (1978), “[l]ocal governing bodies . . . can be sued directly

under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be

unconstitutional implements or executes a policy, statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.” Parsons has not cited any case where

this sort of unconstitutional policy claim has proceeded against state officials like Caruso rather than

against municipalities. Second, even if this policy claim was allowed to proceed against Caruso,

Parsons has not presented sufficient facts to demonstrate that Caruso implemented any medical

policies or procedures at issue in this case. As Caruso points out in her brief, she is not a medical

professional and had virtually no involvement in medical-related policies.



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Parsons v. Caruso

          Parsons also fails to present evidence that Caruso had any direct involvement in Parsons’s

medical care or treatment at Standish, or any direct involvement in the supervision of officials such

as Pausits, Alexander, or Heebsh. In a supervisory liability claim, “the liability of supervisors

[cannot] be based solely on the right to control employees.” McQueen v. Beecher Cmty. Schools,

433 F.3d 460, 470 (6th Cir. 2006). In this case, although prison officials arguably engaged in

unconstitutional conduct, as required for supervisory liability, Parsons cannot show that Caruso

“either encouraged the specific incident of misconduct or in some other way directly participated in

it.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (internal quotation marks omitted).

Because Parsons has not produced any evidence that Caruso was involved in the direct supervision

of the other defendants in this action and because the policy claim cannot be brought against Caruso,

Caruso did not act with deliberate indifference and is entitled to summary judgment.

          F. CMS

          The parties agree that Parsons can bring a Monell custom or policy claim against CMS. See

Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). “To prevail in a § 1983 action

against [CMS, Plaintiff] must show that a policy or well-settled custom of the company was the

‘moving force’ behind the alleged deprivation of . . . rights.” See Braswell v. Corr. Corp. of Am.,

419 F. App’x 622, 627 (6th Cir. 2011) (quoting Miller v. Sanilac, 606 F.3d 240, 254-55 (6th Cir.

2010)).

          Although Parsons cannot point to any official CMS policy, he has arguably demonstrated that

there existed a custom of ordering medications, if at all possible, from PharmaCorr in Oklahoma.

A custom is a practice “that has not been formally approved by an appropriate decisionmaker,” but

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Parsons v. Caruso

is “so widespread as to have the force of law.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 404 (1997). Parsons presented the testimony of several defendants who suggested that the

general practice was to order medications from PharmaCorr. However, even if this was the custom

and the custom was attributable to CMS, Parsons cannot show that this custom was the “moving

force” behind any deprivation of his Eighth Amendment rights. See id. While Parsons has produced

evidence that obtaining medications from PharmaCorr could sometimes take several days, there is

also plenty of evidence that the staff was free to disregard the general practice of ordering from

PharmaCorr in order to secure medication sooner. Because of the evidence that the general custom

of ordering from PharmaCorr could be easily overridden by the medical staff at Standish, it cannot

be said that this policy resulted in deliberate indifference to Parsons’s medical needs or was the

moving force behind his alleged constitutional violations.

                                                  IV.

       With regard to Dr. McCarthy, Alexander, Caruso, and CMS, Parsons has failed to present

sufficient evidence demonstrating deliberate indifference. As to Pausits and Heebsh, viewing the

evidence in the light most favorable to Parsons, there is sufficient evidence of deliberate indifference

to survive summary judgment.

       AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further

proceedings.




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