Alfred R. Scicluna v. Harry G. Wells

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0350P (6th Cir.)
File Name: 03a0350p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ALFRED R. SCICLUNA,
Plaintiff-Appellee,
v.
HARRY G. WELLS et al.,
Defendants-Appellants.
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No. 02-2117
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-70376—Avern Cohn, Senior District Judge.
Argued: September 12, 2003
Decided and Filed: October 2, 2003
Before: MERRITT, MOORE, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: John L. Thurber, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellants. Nedra D.
Campbell, LAW OFFICE OF NEDRA D. CAMPBELL,
Southfield, Michigan, for Appellee. ON BRIEF: John L.
Thurber, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellants. Nedra D. Campbell,
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LAW OFFICE OF NEDRA D. CAMPBELL, Southfield,
Michigan, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Alfred Scicluna,
a Michigan prisoner, brought suit against two physicians and
a corrections officer for the alleged violation of his rights
under the Eighth Amendment to the United States
Constitution. Dr. Paul Harvey, Dr. Richard Huff, and
Corrections Officer Felix Carrizales filed separate motions for
summary judgment based upon the doctrine of qualified
immunity. The defendants now appeal the district court’s
denial of their motions, arguing that the record provides no
basis for Scicluna’s allegations that they were deliberately
indifferent to his serious medical and security needs. For the
reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A. Factual background
Scicluna suffered a fractured skull as the result of an
unprovoked attack on April 20, 1992 that was orchestrated by
Eugene O’Sullivan, Scicluna’s codefendant in the criminal
trial that resulted in their imprisonment. At the time of the
attack, Scicluna and O’Sullivan were both inmates at the
Muskegon Correctional Facility (MCF) in Muskegon,
Michigan. Scicluna contends that Carrizales, his Resident
Unit Manager and counselor at MCF, demonstrated deliberate
indifference by taking no action to transfer either Scicluna or
O’Sullivan to a different facility, even though Carrizales had
been told by Scicluna that the two inmates had a hostile
relationship and that keeping them together at MCF was in
violation of Michigan Department of Corrections (MDOC)

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No. 02-2117 Scicluna v. Wells et al. 3
regulations concerning “known conflict situations.”
Carrizales, on the other hand, argues that he was unaware of
any conflict between Scicluna and O’Sullivan and therefore
could not have demonstrated deliberate indifference to the
safety of Scicluna by failing to address the conflict situation.
Following the attack, Scicluna was brought to a community
hospital in Muskegon for emergency neurosurgery. He was
treated by a civilian physician, who removed a portion of his
skull and recommended continued treatment, including a
crainioplasty to replace the removed portion. Rather than
authorize further surgery, Huff, MCF’s Medical Director,
recalled Scicluna from the community hospital. Huff
examined Scicluna on April 27, 1992, after which Huff
prescribed the anti-seizure drug Dilantin. Following a second
examination on May 5, 1992, Huff transferred Scicluna to
Kinross Correctional Facility (KCF) in Kincheole, Michigan
for a neurosurgical consultation. Because KCF did not have
the facilities needed to treat Scicluna, he was transferred to
the G. Robert Cotton Correction Facility (JCF) in Jackson,
Michigan on the following day. Scicluna contends that Huff
demonstrated deliberate indifference to his serious medical
needs by transferring him to a facility that Huff knew was not
equipped to treat him. In response, Huff argues that he
believed that KCF was equipped to treat Scicluna and that
none of his actions constituted deliberate indifference.
Scicluna arrived at JCF on May 6, 1992, with paperwork
calling for an immediate neursurgical consultation. But he
was not examined by Harvey until May 26, 1992. Harvey,
after determining that Scicluna’s level of Dilantin was toxic
and that his skull was recently fractured, lowered his Dilantin
levels and arranged to have Scicluna transferred to the Earnest
C. Brooks Correctional Facility (LRF) in Muskegon,
Michigan for a neurosurgical consultation. Scicluna arrived
at LRF, which is in the same complex as MCF, on August 5,
1992, and was again placed under the care of Huff.
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Scicluna argues that Harvey demonstrated deliberate
indifference to his serious medical needs by failing to
examine him until 20 days after he arrived at JCF, despite
papers calling for an “immediate neuro consult.” Harvey
contends that the record provides no basis for finding
deliberate indifference on his part because Scicluana offered
no evidence that Harvey even knew that Scicluna was at JCF
prior to May 26, 1992.
B. Procedural background
Scicluna filed suit pursuant to 42 U.S.C. § 1983, “which
provides for a private right of action against any person who,
under color of state law, violates another person’s federal
rights.” Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir.
1992). Harvey, Huff, and Carrizales filed separate motions
for summary judgment based upon the doctrine of qualified
immunity. The district court denied the motions on the basis
that Scicluna has raised genuine issues of material fact that
could not be resolved on summary judgment. This timely
appeal followed.
II. ANALYSIS
A. Standard of review
This court reviews the denial of qualified immunity in an
action brought under 42 U.S.C. § 1983 de novo. Klein v.
Long, 275 F.3d 544, 550 (6th Cir. 2001). “[F]or an
interlocutory appeal to be appropriate, a defendant seeking
qualified immunity must be willing to concede to the facts as
alleged by the plaintiff and discuss only the legal issues raised
by the case.” Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.
1999). We will therefore accept Scicluna’s allegations as true
for purposes of this interlocutory appeal and view all facts
and reasonable inferences in the light most favorable to him.

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No. 02-2117 Scicluna v. Wells et al. 5
B. Doctrine of qualified immunity
The doctrine of qualified immunity shields from liability
for civil damages those officials whose “conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). We evaluate a
defendant’s claim of qualified immunity by determining
whether (1) a constitutional violation occurred, (2) the right
violated was clearly established, and (3) “the plaintiff has
alleged sufficient facts, and supported the allegations by
sufficient evidence, to indicate that what the official allegedly
did was objectively unreasonable in light of the clearly
established constitutional rights.” Williams v. Mehra, 186
F.3d 685, 691 (6th Cir. 1999) (en banc).
Scicluna contends that the defendants violated a clearly
established constitutional right when they showed deliberate
indifference to his serious medical and safety needs. Such
conduct is prohibited by the Cruel and Unusual Punishment
Clause of the Eighth Amendment. Estelle v. Gamble, 429
U.S. 97, 104 (1976). To show that he was subjected to such
deliberate indifference, Scicluna need not prove that the
defendants had the “express intent to inflict unnecessary
pain,” but only that their conduct demonstrated a level of
“obduracy and wantonness” greater than simple “inadvertence
or error in good faith . . . .” Whitley v. Albers, 475 U.S. 312,
319 (1986).
C. Carrizales’s motion
Scicluna testified in his deposition that he told Carrizales of
the conflict situation with O’Sullivan and of the relevant
MDOC regulations. Carrizales, however, claims that the
record fails to support a finding of deliberate indifference
because there is no documentary evidence supporting
Scicluna’s deposition testimony. But documentary evidence
is not essential to overcome a motion for summary judgment.
Other sources of evidence, such as deposition testimony, may
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suffice. See Fed. R. Civ. P. 56(C) (stating that the “pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits” are considered in
determining whether there is a genuine issue as to any
material fact). Viewing the evidence in the light most
favorable to Scicluna establishes that Carrizales was told that
O’Sullivan presented a serious threat to the safety of Scicluna,
and that, in knowing disregard of MDOC regulations,
Carrizales took no action to segregate the two inmates even
though he was conscious of the risk that his failure to act
imposed upon Scicluna.
Carrizales argues, alternatively, that no reasonable
government official in 1992 could have known that failure to
follow up on general information pertaining to an inmate-
housing conflict situation would expose the official to
liability. But Carrizales, according to Scicluna, had before
him far more than general information concerning the
conflict. Both Scicluna and his sister had allegedly informed
Carrizales that O’Sullivan posed a specific threat to Scicluna.
In addition, MDOC had issued directives requiring the
segregation of former codefendants, such as Scicluna and
O’Sullivan, because of the risk of assault, and had warned
officials that they could be found personally liable for not
following MDOC policy. Scicluna, consequently, “was a
member of an identifiable group of prisoners for whom risk
of assault was a serious problem . . . .” Marsh v. Arn, 937
F.2d 1056, 1062 (6th Cir. 1991) (contrasting the plaintiff in
Marsh, who was not a member of an identifiable risk group,
with the plaintiff in Walsh v. Mellas, 837 F.2d 789 (7th Cir.
1988), who was a member of such an identifiable group).
“If the law was clearly established, the immunity defense
ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct.”
Harlow, 457 U.S. at 818-19. A constitutional right is clearly
established where “a reasonable official would understand
that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). In light of these legal

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No. 02-2117 Scicluna v. Wells et al. 7
principles and the facts as asserted by Scicluna, the district
court did not err in denying Carrizales’s motion for summary
judgment on qualified immunity grounds.
D. Huff’s motion
Huff argues in his brief that he believed that Scicluna
would receive all necessary medical treatment at KCF when
he transferred Scicluna there in May of 1992. But he offered
no affidavit in support of this assertion. Scicluna, on the
other hand, testified under oath that Huff knew that KCF
officials would be unable to treat his condition. Viewing all
reasonable inferences in the light most favorable to Scicluna
as the nonmovant, a genuine issue of material fact exists as to
whether Huff knew that he was transferring Scicluna to a
facility that was unable to treat his injury.
Huff argues, alternatively, that even if his decision to
transfer Scicluna to KCF constituted deliberate indifference,
the constitutional right violated was not clearly established by
1992. But “a right can be clearly established even if there is
no case involving ‘fundamentally similar’ or ‘materially
similar’ facts” if the premise of a prior case alerts officials to
the “clear applicability” of the legal principle to “a subsequent
set of facts.” Feathers v. Aey, 319 F.3d 843, 850 (6th Cir.
2003) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 743
(2002)). Deliberate indifference to a prisoner’s serious
medical condition was known to be a violation of the Eighth
Amendment’s right to be free from cruel and unusual
punishment long before 1992. See Estelle v. Gamble, 429
U.S. 97, 104 (1976) (holding that “deliberate indifference to
serious medical needs of prisoners” is “proscribed by the
Eighth Amendment”). Transferring a prisoner in need of
urgent medical attention to a facility that the official knows is
unable to provide the required treatment is conduct that would
alert a reasonable person to the likelihood of personal
liability. See Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th
Cir. 1972) (“[W]here the circumstances are clearly sufficient
to indicate the need of medical attention for injury or illness,
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the denial of such aid constitutes the deprivation of
constitutional due process.”). Based upon the present record,
the district court did not err in denying Huff’s motion for
summary judgment on qualified immunity grounds.
E. Harvey’s motion
Harvey claims that the record does not support a finding of
his deliberate indifference because there is no evidence that
he was even aware that Scicluna was at JCF between May 6
and May 26 of 1992. In the absence of an explanation for the
delay, however, a reasonable inference arises that Harvey
purposefully ignored the emergency-treatment report
specifying that Scicluna required an “immediate neuro
consult.” Viewing the facts and drawing all reasonable
inferences in the light most favorable to Scicluna, a genuine
issue of material fact exists as to whether Harvey’s three-
week delay constituted deliberate indifference.
Harvey argues, alternatively, that even if his failure to treat
Scicluna at JCF constituted deliberate indifference, the
constitutional right violated was not clearly established by
1992. Before 1992, however, the Supreme Court had
established in Estelle that deliberate indifference to a
prisoner’s serious medical condition constitutes a violation of
the Eighth Amendment. 429 U.S. at 104. Knowingly waiting
three weeks to examine a prisoner referred to one’s care for
urgent attention is conduct that a reasonable prison official in
1992 should have known would subject him to personal
liability. Based upon the present record, the district court did
not err in denying Harvey’s motion for summary judgment on
qualified immunity grounds.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court that denied the defendants’
motions for summary judgment.

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