Derfiny v. Pontiac Osteopathic Hospital

CLAY, Circuit Judge. Defendants, Pontiac Osteopathic Hospital (“POH”), Doctors Donald Sheesley, Samuel Johnson, and Brian Purchase, appeal from the district court’s order entered on October 17, 2002, denying Defendants’ motion for summary judgment based on qualified immunity with regard to Plaintiff Stephen Derfiny’s claim of an Eighth Amendment violation of his right to be free from cruel and unusual punishment, pursuant to 42 U.S.C. § 1983. Because we believe this case is not properly before this Court, we will REMAND back to the district court for further proceedings consistent with this opinion. I. BACKGROUND Procedural History Plaintiff, Stephen Derfiny, filed this civil rights action on November 2, 1999, while incarcerated in the Oakland County jail, claiming Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, pursuant to 42 U.S.C. § 1983.1 Defendants filed two motions for summary judgment: (1) requesting relief based on a lack of proximate cause for Plaintiffs alleged constitutional violation; and (2) requesting relief based on an insufficient showing of deliberate indifference, as required for a § 1983 claim and an entitlement to qualified immunity.2 [931] The district court granted in part and denied in part Defendants’ summary judgment motion for lack of proximate cause on September 23, 2002. The court granted Defendants’ summary judgment motion regarding proximate cause as it pertained to all claims alleged against Defendants subsequent to early October 19973 because these claims were deemed irrelevant to Plaintiffs injuries. The court denied Defendants’ summary judgment motion regarding proximate cause as it pertained to all claims alleged against Defendants prior to early October 1997. The district court also denied Defendants’ summary judgment motion regarding Plaintiffs “deliberate indifference” allegation under § 1983 as it pertained to Defendants POH, Shees-ley, Alizo, Johnson, Gardner and Purchase.4 On October 17, 2002, the district court issued an amended order, setting forth the same disposition as the original September 1997 order, except for the court’s acknowledgment of Defendants’ qualified immunity claim as stated in their summary judgment motion, denying such immunity. The district court, having heard oral arguments on both of Defendants’ motions for summary judgment, issued its order based upon the “reasons set forth in the record and otherwise by stipulation.” Id. However, the court’s discussion on the record during oral argument merely addressed Defendants’ claim of insufficient proximate cause and deliberate indifference.5 On October 23, 2002, Defendants filed this interlocutory appeal based on the denial of qualified immunity. Facts Plaintiff, a type I diabetic, was incarcerated in the Oakland County jail from May 1, 1997 through March 1998, on a probation violation for receiving and concealing stolen property. Upon entering the Oakland County jail, Plaintiff was able to read, write and had full function of his eyes. Plaintiff has been previously diagnosed as a “brittle” type I diabetic6 by his prior doctor, and was previously diagnosed with mild diabetic retinopathy7 by an opthal-mologist in 1993. In speaking with various doctors over the years, Plaintiff had been told that the recommended treatment for his “brittle” type I diabetes consists of daily monitoring of his blood sugar levels and the adjustments of his insulin accordingly; consulting with a doctor once a month; and having an eye examination by an opthalmologist at least once a year. Consequently, prior to Plaintiffs incarceration he used a glucometer to check his [932] blood sugar once or twice daily. Once incarcerated. Plaintiffs glucometer was confiscated by an official at the Oakland County jail. Upon Plaintiffs incarceration, a clinic physician and medical resident at POH, Dr. Kaidi,8 performed an exam in the Oakland County jail clinic, with the assistance of two nurses. POH was contracted by Oakland County to provide medical services to the jail “in accordance with the standards of the community, National Commission of Correctional Health Care (“NCCHC”), and the policies and procedures of the Jail Health Program.” Before Plaintiff arrived at the Oakland County jail, records were prepared regarding Plaintiffs stay stating that he was a diabetic requiring two insulin shots daily. Upon Plaintiffs arrival at the jail, the initial examining doctor wrote Plaintiff a treatment plan for the maintenance of his diabetes. Plaintiff was placed on a 2400 caloric diet and prescribed two insulin shots per day. Although Plaintiff received his insulin shots daily, during Plaintiffs ten month incarceration his blood sugar was tested no more than ten times. The last recorded blood sugar reading, before the testing resumed in November of 1997, was May 8, 1997 — the week Plaintiff was incarcerated. Defendant Sheesley reviewed Plaintiffs chart on May 7 and May 8,1997, but never actually saw Plaintiff. Plaintiffs blood sugar levels on those days were 285 and 261, respectively. Sheesley countersigned the note on Plaintiffs chart by the examining physician, feeling no need for additional testing. Sometime in October of 1997, Plaintiff filled out a request for medical assistance pertaining to a finger injury, which was honored on October 29,1997. Plaintiff had not seen a doctor since his first examination in May of 1997. Defendants Johnson and Purchase both countersigned three or four medication log sheets documenting the administration of Plaintiffs insulin injections throughout Plaintiffs incarceration; however, neither of those Defendants saw Plaintiff prior to countersigning his chart. Plaintiff visited the clinic again on November 25, 1997, where he received an eye examination, and again on November 26, 1997, where his blood was drawn. On both days Plaintiffs blood levels were above normal; 304 and 350 respectively. Plaintiffs blood was sent to a lab for an A1C test, which assesses the average daily blood sugar level over a three-month period, and the risk of retinopathy. The A1C test results showed that Plaintiffs average blood sugar level over the last three months was 331. On December 5,1997. Plaintiff asked to see an optometrist, and on December 8, 1997, complained of blurred vision. Plaintiff complained of vision problems again on December 10 and 13, 1997. On December 19, 1997, a POH physician referred Plaintiff to an opthalmologist. Dr. Gossage, whom Plaintiff saw three days later on December 22, 1997. Dr. Gossage diagnosed Plaintiff with proliferative diabetic retinopathy, and referred Plaintiff to Dr. Tarek Hassan, who examined Plaintiff on January 6, 1998. Dr. Hassan made the same diagnosis and performed vitreous surgery on Plaintiffs eyes in late January and February of 1998. Plaintiffs vision, however, continued to worsen, and he is now legally blind due to diabetic retinopa-thy. Plaintiff then brought these claims. II. DISCUSSION Standard of Review As a purely legal determination, the district court’s denial of qualified immunity in [933] connection with a summary judgment motion is subject to de novo review on an interlocutory appeal. Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir.2002). For an interlocutory appeal to proceed, “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.” Scicluna v. Wells, 345 F.3d 441, 444 (6th Cir.2003) (quoting Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.1999)). A moving party is entitled to summary judgment as a matter of law when there are no genuine issues of material fact. Fed.R.Civ.P. 56(c); see also United Nat’l Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 449 (6th Cir.1999). When deciding if summary judgment is proper, we must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Analysis Defendants pursue this interlocutory appeal for review of the denial of their motion for summary judgment based upon their alleged entitlement to qualified immunity because they were contracted by a state facility to perform medical service, and due to Plaintiffs alleged failure to establish a prima facie § 1983 claim. This Court questions Defendants’ right to pursue an interlocutory appeal for the following reasons. A. Right to an Interlocutory Appeal Generally, appellate courts have jurisdiction to review the final decisions of district courts. See 28 U.S.C. § 1291. However, under the collateral order doctrine, an order issued before the conclusion of a district court’s proceedings under appropriate circumstances may be considered a final order and, therefore, immediately appeal-able. Crockett v. Cumberland College, 316 F.3d 571, 577-78 (6th Cir.2003) (citing Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238(1995)); see 28 U.S.C. § 1292. Under this doctrine, the legal determination regarding the appropriateness of a party’s receipt of qualified immunity may be appealable on interlocutory review. Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 526-28, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)); see also Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). In cases where a denial of summary judgment based on the appropriateness of qualified immunity is predicated upon the district court’s determination that a genuine issue of material fact exists, the decision will not be immediately appealable. Johnson, 515 U.S. at 313, 115 S.Ct. 2151; see also Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 536-37 (6th Cir. 2002); Turner v. Scott, 119 F.3d 425, 427 (6th Cir.1997). Here, the district court held oral arguments on both of Defendants’ motions for summary judgment, which challenged the proximate cause of Plaintiffs § 1983 claim, and the deliberate indifference element of the § 1983 claim; however, Defendants requested qualified immunity in conjunction with their opposition to Plaintiffs deliberate indifference allegation. The district court analyzed the § 1983 claim and its allegation of an Eighth Amendment violation, and found that several of the Defendants did exhibit deliberate indifference as to Plaintiffs medical needs. Nevertheless, there was no mention of qualified immunity during oral arguments before the district court. Not only did Plaintiff fail to oppose Defendants’ request for qualified immunity during oral argument, but he also failed to address any opposition to qualified immunity before the district court. Thus, with the district court’s order relying on reasons set forth in the [934] record, the court issued an order denying Defendants’ qualified immunity with no accompanying legal or factual analysis. Resolution of qualified immunity is purely a question of law for the district court. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir.1988) (citing Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987)). Trial courts should resolve questions of qualified immunity in the earliest possible stage of litigation because qualified immunity is immunity from suit “rather than a mere defense to liability,” and “it is effectively lost if the case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526, 105 S.Ct. 2806. Nevertheless, the district court failed to address the issue of qualified immunity prior to its ruling. In fact, the reasons stated in the record upon which the district court ruled were Defendants’ failure to examine Plaintiff for a five month period, and their deliberate indifference, which subsequently was the proximate cause of Plaintiffs injuries. Therefore, absent a discussion and analysis of qualified immunity, in addition to the inclusion of disputed factual issues that gave rise to the denial of Defendants’ summary judgment, this matter is not properly before this court for a strictly legal review of the district court’s qualified immunity determination on an interlocutory appeal. Johnson, 515 U.S. at 313, 115 S.Ct. 2151 (holding the district court’s disposition, stating that the summary judgment record raised genuine issues of fact concerning the merits of respondent’s claim, was not a “final decision” within the meaning of 28 U.S.C. § 1291). For these reasons, this Court will remand the matter back to the district court to determine Defendants’ request for qualified immunity as a matter of law. B. Merits of Defendants’ Qualified Immunity Claim Based on the record currently before the Court, Defendants were correctly denied summary judgment given the genuine issues of material fact that exist regarding Defendants’ alleged deliberate indifference. 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.” Scicluna, 345 F.3d at 445 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In analyzing qualified immunity claims, we employ a sequential analysis prescribed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, plaintiffs must show that defendants deprived them of a right protected by the Constitution. Thomas, 304 F.3d at 569. Second, this right must be so clearly established that a reasonable officer would understand that his or her actions would violate that right. Id.; see also Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (stating that on a motion for summary judgment under qualified immunity, the district court must determine whether the breadth of the right that the government official allegedly violated was “sufficiently clear that a reasonable official would have understood that what he is doing violates that right”). Since this inquiry will turn on the circumstances with which the official is confronted, and often on the information that he possesses, the district court must consider all of the undisputed evidence produced as a result of discovery, read in the light most favorable to the non-moving party. Green v. Carlson, 826 F.2d 647, 650-52 (7th Cir.1987). Although the district court did not engage in a qualified immunity analysis, it did discuss whether or not Defendants act [935] ed with “deliberate indifference,” which in this instance would be the indicator of the constitutional violation upon which qualified immunity is based. The constitutional violation Plaintiff alleges is a right to be free from cruel and unusual punishment. U.S. Const, amend. VIII. This Court has held that the legal standard applied when analyzing an Eight Amendment claim regarding medical care for prisoners is “deliberate indifference.” Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834, 843 (6th Cir.2002) (citing Williams v. Mehta, 186 F.3d 685, 691 (6th Cir.1999)) (en banc). “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eight Amendment.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal citation omitted). A prison official can only be found liable for denying a prisoner humane conditions if that official “knows of and disregards an excessive risk to inmate health or safety; the 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.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). This is what the Court terms the objective and subjective components of an Eighth Amendment violation. In the instant case, the district court considered liability with respect to any doctor who signed off on the continuation of Plaintiffs standard insulin prescription, without assessing Plaintiffs condition, or more importantly, his specific blood sugar level. Under the objective component of the deliberate indifference standard, the seriousness of Plaintiffs ailment was recognized on several occasions. As a type I diabetic, Plaintiffs condition was well known and properly documented in his file. The doctors in the facility placed him on two shots of insulin per day. Furthermore, Plaintiff possessed and used a glu-cometer which read his blood sugar levels on a daily basis, prior to incarceration, because of his history of erratic blood sugar levels; again, that information is located in Plaintiffs file. Therefore, any doctor treating Plaintiff in any capacity should have known of the excessive health risks to which Plaintiff was susceptible. Terrance, 286 F.3d at 846. Furthermore, Defendants’ prescription of two insulin shots per day for over five months for Plaintiff illustrates Defendants’ knowledge that Plaintiff had always been in serious need of medical services. Under the subjective component of Plaintiffs alleged Eighth Amendment violation. Plaintiff must establish that Defendants had subjective knowledge of the serious health risks of Plaintiffs sporadic blood sugar level readings, which left no basis to accurately administer the correct level of insulin to control Plaintiffs diabetes; but simply disregarded such concerns. Although this burden falls on Plaintiff, the Supreme Court has warned courts that a prison official may “not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk he strongly suspected to exist.” Farmer, 511 U.S. at 843 n. 8, 114 S.Ct. 1970. Furthermore, “[wjhether a prison official has the requisite knowledge of a substantial risk is a question of facts subject to demonstration in the usual ways, including inferences from circumstantial evidence.” Id. at 842, 114 S.Ct. 1970. 1. Defendants Doctors Johnson and Purchase Plaintiff has set forth facts that establish Defendants Johnson and Purchase, [936] who both countersigned three or four medication log sheets documenting the administration of Plaintiffs insulin injections months after his initial examination, had subjective knowledge of Plaintiffs potential for serious harm. By signing Plaintiffs chart, Defendants Johnson and Purchase had access to Plaintiffs accompanying medical history of erratic blood sugar levels, as well a history, or lack thereof, of tests performed on Plaintiff while incarcerated. Despite Defendants’ knowledge of the available information, by administering drugs to a patient without assessing his need, Defendants Johnson and Purchase acted with deliberate indifference to Plaintiffs substantial risks. Terrance, 286 F.3d at 845 (holding doctor was not entitled to qualified immunity where doctor repeatedly administered drugs to patient without properly assessing his needs, exhibiting grossly inadequate care and placing patient at risk for substantial harm). This Court has held that liability may attach when it has been shown that Defendants acted or failed to act despite their knowledge of a substantial risk of serious harm. Id. at 843, 114 S.Ct. 1970. 2. Defendant Dr. Sheesley There is a factual dispute, however, as to the information Defendant Sheesley possessed, inasmuch as he countersigned Plaintiffs chart on two separate occasions, May 7 and May 8, 1992, where Plaintiffs blood sugar readings were indicated. However, such an absence of documentation with respect to Plaintiffs medical treatment subsequent to May 8, 1992, should not absolve Sheesley of liability. Again, an official may “not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Consequently, Defendants have not established an absence of genuine issues of fact, as to the individual Defendants of Plaintiffs § 1983 claim; therefore, such factual issued should be reserved for a jury. Id. Moreover, here the district court did not specify as to which Defendants the constitutional violation applied;9 therefore, it is difficult to review its qualified immunity decision. Generally, “district courts should set out the reasons for their decisions with some specificity.” United States v. Woods, 885 F.2d 352, 354 (6th Cir.1989) (noting that “[w]hen a motion for summary judgment is granted,[] without any indication as to the specific facts and rules of law supporting the court’s decision, it is difficult, except in the simplest of cases, for an appellate court to review such a decision.”); see also Bybee v. Paducah, 22 Fed-Appx. 387 (6th Cir.2001) (unpublished decision) (concluding that “the district court’s order must be vacated. The district court’s order is insufficient because it does not provide any indication as to the court’s rationale for dismissing [plaintiffs § 1983] complaint____ Thus, a remand is necessary because the district court’s order does not provide an adequate basis for appellate review”). Given the district court’s lack of analysis, and, mere acknowledgment of Defendants’ qualified immunity claim on the record during oral arguments, a remand would be more than appropriate. [937] Furthermore, since there was no oral argument or judicial analysis regarding qualified immunity prior to this appeal, Plaintiff attempts to argue that the Defendants do not even facially qualify for qualified immunity since they were private physicians employed by a private hospital contracted by the County to provide medical services at the County jail. As discussed above, since qualified immunity is reserved for state actors, private litigants are generally not eligible to receive qualified immunity pursuant to § 1983. Wyatt v. Cole, 504 U.S. 158, 168-69, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). The Court has previously held, however, that a private litigant, who performed service at the “behest of the sovereign,” is entitled to receive qualified immunity from suit. Culli-nan v. Abramson, 128 F.3d 301, 310 (6th Cir.1997) (citing Richardson v. McKnight, 521 U.S. 399, 407, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997)) (claiming that “the common law ‘did provide a kind of immunity for certain private defendants, such as doctors or lawyers who performed services at the behest of the sovereign.’ ”) (citations omitted). We addressed this issue again in Cooper v. Parish, and ruled that particular plaintiff was not working at the behest of the sovereign, or performing any unique government function; therefore, qualified immunity was not applicable. 203 F.3d 937, 953 (6th Cir.2000). As Defendant responds, this issue was neither briefed nor argued in the lower court; thus, this is yet another reason for this Court to remand. III. CONCLUSION This interlocutory appeal is limited to the review of the district court’s denial of Defendants’ request for qualified immunity. Since the district court did not set forth any findings of facts or conclusions of law explaining its decision we cannot adequately review Defendants’ appeal. This case is not representative of the relatively simple cases we have previously held can be reviewed from an incomplete and insufficient record. Woods, 885 F.2d at 354. The deficiency of the record and brevity of the district court’s order preclude this Court from engaging in a proper review; therefore, we REMAND this case to the district court for further proceedings consistent with this opinion. Additionally, given the various relationships and interactions with the Plaintiff in this case, we strongly suggest Defendants seek individual representation. SUHRHEINRICH, Judge. I agree that we have jurisdiction under the collateral order doctrine to review the district court’s denial of Defendants’ motion for qualified immunity. I agree too that the matter should be remanded back to the district court to determine Defendants’ request for qualified immunity as a matter of law, but I would further direct the district court to make an individualized assessment as to each Defendant, based on Plaintiffs version of the facts. However, I do not concur in Section B, because I think that we do not have jurisdiction at this juncture to conduct to hold that the district court “correctly denied summary judgment given the genuine issues of material fact that exist regarding Defendants’ alleged deliberate indifference.” Again, I would simply direct the district court, on remand, to initially conduct an individualized qualified immunity analysis for each Defendant, and, then, assuming that the district court denies qualified immunity to any of the Defendants, to then conduct a distinct, individualized deliberate indifference analysis under the summary judgment standards for each Defendant. Lastly, as the majority [938] instructs. I think that the district court should urge Defendants to seek individual representation. Footnotes [1] Plaintiff originally brought suit against Oakland County; Oakland County Board of Commissioners; Michael Bouchard, Sheriff of Oakland County; Thomas Quisenberry, the Under Sheriff of Oakland County; Donald Sheesley, D.O.; Samuel N.F. Johnson, D.O.; Katherine J. Alizo, D.O.; Carolyn W. Bird, M.D.; Sam R. Kaidi, D.O.; Teresa Gardner, D.O.; Roy S. Hembey, D.O.; and Brian D. Purchase, D.O. The immediate appeal, however, solely addresses Defendants’ motion for summary judgment based on qualified immunity, as it pertains to Defendants Sheesley, Johnson and Purchase, as employees of POH contracted out to the Oakland County jail. [2] The record on appeal is deficient in that neither of Defendants’ motions for summary judgment, and the briefs in support of the [931] motions, are included in the Joint Appendix; they were independently obtained by this Court from the district court for our review. [3] This date represents when Defendants actively sought to measure Plaintiff’s blood-sugar level after not doing so for approximately five months. [4] Defendants Alizo and Garnder are not parties to this appeal. [5] The district court did not engage in any discussion as to Defendants' qualified immunity claim during its hearing on Defendants’ motions for summary judgment on August 21, 2002. [6] As a type I diabetic, Plaintiff is unable to produce insulin to control the level of sugar in his blood; therefore, he is dependent on daily insulin injections to control his blood sugar levels. [7] When a diabetic's blood sugar level escalates above a normal level, anything in excess of a level of 120, a condition known as hyperglycemia develops. This condition is not immediately symptomatic, but is instead associated with long term detrimental effects, such as retinopathy. Retinopathy, at its most progressed stage, will result in retinal detachment and other complications, causing blindness. [8] Dr. Kaidi is not a party to this lawsuit. [9] The district court asserted that "deliberate indifference” would apply to every doctor who signed off on Plaintiff's chart confirming the administration of his insulin, which would then be determined by the parties; however, there are factual questions as to which doctors had the subjective knowledge with regard to Plaintiff's health risks, to have their conduct defined as deliberate indifference.