Clark-Murphy Ex Rel. Estate of Clark v. Foreback

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0047p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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BONITA CLARK-MURPHY, as Personal Rep. of the

Plaintiff-Appellee, -
Estate of JEFFREY CLARK, Deceased,
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-
Nos. 05-1323/1394

,
v. >
-
-
Defendants-Appellants -
BRIAN FOREBACK and KRISTINE WAKEFIELD,

(05-1323), -
-
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LEE GILMAN, GINGER BAYNE, BRUCE STOUT,
ANTHONY VANDERVLUCHT, JOANN FRIEDT, DON -
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WISE, SHIRLEY WHITTAKER, RINA BECHER, TOM

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LAUTERS, ANDY DYER, MIKE HARVEY, MARK FOX,

Defendants-Appellants -
and THOMAS DOWKER,

(05-1394). N-

Appeal from the United States District Courts
for the Western District of Michigan at Kalamazoo and Grand Rapids.
Nos. 04-00103; 03-00145—Richard A. Enslen, District Judge.
Argued: November 2, 2005
Decided and Filed: February 6, 2006
Before: MOORE and SUTTON, Circuit Judges; BUNNING, District Judge.*
_________________
COUNSEL
ARGUED: Kevin R. Himebaugh, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS
DIVISION, Lansing, Michigan, for Appellants. Paul W. Broschay, FIEGER, FIEGER, KENNEY
& JOHNSON, Southfield, Michigan, for Appellee. ON BRIEF: Kevin R. Himebaugh, OFFICE
OF THE ATTORNEY GENERAL, CORRECTIONS DIVISION, Lansing, Michigan, for
Appellants. Paul W. Broschay, Tammy J. Reiss, Geoffrey N. Fieger, FIEGER, FIEGER, KENNEY
& JOHNSON, Southfield, Michigan, for Appellee.

*
The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky, sitting
by designation.

1
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SUTTON, J., delivered the opinion of the court, in which BUNNING, D. J., joined.
MOORE, J. (pp. 12-13), delivered a separate opinion concurring in part and dissenting in part.
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OPINION
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SUTTON, Circuit Judge. At issue in this § 1983 action is whether the district court properly
denied qualified immunity to 15 Michigan corrections officers on duty at various points during the
isolation, dehydration and eventual death of inmate Jeffrey Clark. Viewing the facts in the light
most favorable to Clark-Murphy (the representative of Clark’s estate), we affirm the denial of
qualified immunity as to 11 of the employees and reverse it as to 4 of them (Andy Dyer, Kristine
Wakefield, Rina Becher and JoAnn Friedt).
I.
According to Clark-Murphy’s version of this lamentable episode, here is what happened
during the last six days of the Bellamy Creek Correctional Facility’s custody over Jeffrey Clark.
June 29. On Saturday, June 29, 2002, the prison, located in Ionia, Michigan, was on “heat
alert,” a warning that applies whenever outdoor temperatures exceed 85 degrees and a warning that
applied to the prison from June 29 to July 5. D. Ct. Op. at 2, JA 1991–92. At roughly 5:30 p.m. that
day, Clark collapsed outside while waiting in line to enter the mess hall. Two prison officials,
Captain Andy Dyer and Lieutenant Don Wise, attended to him, laying him down under the shade
of a tree. Sergeant Kristine Wakefield, who also came to Clark’s assistance, observed that “[h]e was
crying. He said stuff about his dad, he said stuff about dying. He didn’t make sense, really. [He]
was not connecting a lot of it.” JA 557. She did not perceive any physical problems with Clark but
“thought [he] had some mental problems.” JA 558. Using a wheelchair, Wakefield and Dyer
transported Clark to an observation cell.
As its name suggests, an observation cell gives officers an opportunity to observe a prisoner
more closely than would be possible if the prisoner were in the general prison population. Two
observation cells were located near the “pod,” the control center at the junction of two residence
wings in the Bellamy prison. Each of the observation cells has a small window and two slots
through which officers may pass food to the inmate and (if appropriate) cuff the inmate’s hands or
feet. On the way to meals or exercise, prisoners in the general population pass by the observation
cells.
When the officers placed Clark in one of the observation cells on June 29, Wakefield
observed that “he start[ed] barking like a dog, screaming at the top of his lungs.” JA 561. Dyer told
Sergeant Tom Lauters, the officer in charge of the unit, that Clark “need[ed] to be referred—his
behavior was real erratic and [ ] he needed to be referred for psychological services.” JA 2504.
Some officers on the housing unit, however, told Wakefield that they thought Clark was “faking.”
JA 202.
That same day, Lauters filled out a psychiatric referral form, called a “Roberta-R” (which
stands for reasoning, orientation, behavior, emotions, recall-and-memory, talk, appearance and
relationships), noting that Clark had suffered a seizure. JA 2588. When Lauters and other officers
attempted to move Clark to his regular cell later that day, Clark “stiffened up and his legs just gave
out,” JA 2592, and when they arrived at his regular cell Lauters noticed Clark’s packed duffel bag,
from which he inferred that Clark had planned to leave his cell and was “a manipulator,” JA 2593.
Based on these observations, Lauters returned Clark to the observation cell. So far as the record
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shows, this was the last time the door to Clark’s cell was opened while he was alive; the officers
handled all other contact with him through the slots in his cell door.
June 30. When officer Bruce Stout arrived at work at 6 a.m. on Sunday morning, he found
the water to Clark’s cell turned off. Sergeant Mike Harvey, the supervisor of the unit during this
shift, telephoned JoAnn Friedt, a registered nurse, telling her that “prisoner Clark was barking and
would not talk or respond to me.” JA 2751. In response, Friedt said that she “was aware of it” and
that she “put the Roberta-R Form in for psych to follow-up with him.” JA 2780.
At 7 p.m., during Lauters’ shift, Clark was “[w]alking back and forth, barking and yelling.”
JA 769. Despite this odd behavior, Lauters did not determine whether Clark was receiving
psychiatric care: “I knew that healthcare was contacted. I left it at that.” JA 2599. At 10:35 p.m.,
during the night shift, the log book revealed that Clark was “still beating on [the] door and yelling.”
JA 769. At some point that weekend, inmate Andre Williams heard Clark asking for water.
July 1. On Monday, at 5:40 a.m., officer Anthony VanderVlucht noted that “Clark is acting
very strange, talking and yelling at himself.” JA 769. When Harvey arrived at 6 a.m., VanderVlucht
told him that Clark was not drinking. By the end of VanderVlucht’s 16-hour shift at 2 p.m., he had
not seen Clark sleep.
During Harvey’s morning shift, psychologist Mark Fox observed Clark and noted that he was
“acting somewhat strangely” and that it “was kind of difficult to carry on a conversation with him.”
JA 1783. Fox diagnosed Clark with “psychosis.” JA 1788. As Fox was leaving, Clark asked him
if he could turn the water on. Fox says he asked Harvey to do so but, according to Harvey, Fox
“said [Clark] was acting out to try to manipulate his way to a transfer.” JA 2754. Officer Ginger
Bayne recalled that it was Fox who ordered the water turned off. Later that day, Bayne observed
Clark drinking from his toilet, an observation she shared with Harvey. She acknowledged that Clark
needed mental health attention but did nothing because “that is what the Roberta-R was for.” JA
1465. She also noted that the water had been turned off during this shift.
At 7:52 p.m., during Lauters’ shift, Clark “threw his food tray on the floor and wall.” JA
769. Lauters claims that Clark’s water was never turned off during his shift. When officer Brian
Foreback and Lieutenant Shirley Whittaker relieved Lauters later that night, however, Foreback
observed that the water to Clark’s cell was turned off. Foreback could not remember whether the
water was ever turned back on during his shift. That night, Rina Becher, a relief sergeant who was
filling in for another sergeant, “observed [Clark] pacing back and forth naked and telling me he was
selling candy canes.” JA 2107. She believed that Clark needed to see someone (presumably a
psychologist or a psychiatrist) but was satisfied when she learned that a Roberta-R had been filled
out.
July 2. On Tuesday, Stout arrived at 6 a.m., relieving Whittaker, and again found the water
in Clark’s cell turned off. Roughly two hours into the shift, Harvey instructed Stout to turn on the
water. Another officer observed Clark urinating in the corner of the cell; the urine ran under the
door, leading inmate-workers to complain about the “sticky” floor. JA 212.
Later that day, Tim Nelson, unit chief of the outpatient mental health unit, sent Deputy
Warden Lee Gilman an e-mail stating that “it is my clinical opinion that prisoner Clark is psychotic
and should have been or should be referred . . . for intense psychiatric treatment. . . . [H]is current
level of functioning requires intense interventions.” JA 822. The record does not reveal any
response by Gilman to this e-mail. That afternoon, Lauters, who still did not know whether Clark
had received medical attention, noticed that Clark’s cell was “trashed.” JA 2613. Officer Tom
Dowker reported that Clark refused his dinner that day.
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July 3. On Wednesday, Clark refused his breakfast. The officer who attempted to deliver
his food noticed that “the floor, walls, and Clark were covered with something that looked like dried
food.” JA 213. Harvey asked Rufus Wright, the residence unit manager, if he could move Clark
and informed Wright that the water to the cell was off. “It’s 90 degrees,” Wright responded, “you
can’t have the water off.” JA 214.
From outside the observation cell, Fox observed Clark for “a couple of minutes,” JA 1798,
noting that he was virtually non-responsive and that he “was laying on his cell floor when [I]
arrived. He refused to get up and talk to [me]. . . [H]e continues to act in an odd manner, but he has
become less aggressive in behavior, i.e., not banging on the cell doors much. . . . Unable to assess
because inmate is refusing to talk.” JA 1795–96. Fox informed Harvey that “Clark had a history
of acting out to get into segregation.” JA 214. Later, Nelson contacted Fox regarding a report from
an officer concerned about Clark’s condition. According to Nelson, Fox said “he was not going to
go back to the housing unit as he had already talked to Clark.” JA 214. “Clark was a
‘manipulator,’” Fox added, “and was ‘trying to have things his way.’” JA 214.
On the next shift, Lauters noticed nothing unusual about Clark, though as far as he knew
Clark still had not received psychiatric help. Officer Thomas Dowker, who worked with Lauters
every day that Clark was in the cell, acknowledged some deterioration in Clark’s condition. Officer
Ricardo Dominguez observed Clark lying naked on his bed. According to the log book, Clark
refused to accept his evening meal. During Clark’s time in the observation cell, several inmates
heard Clark asking for water as they passed his cell on the way to the mess hall. JA 573, 1288–94,
1640, 2016, 2017, 2020.
July 4. At roughly 1 a.m., during Whittaker’s shift, Clark was discovered dead. His body
lay naked on the floor, in full rigor mortis, with eyes open and vomit encrusted on his mouth. The
water to Clark’s cell was turned off and the toilet was dry. When an emergency medical crew
arrived, they asked how long it had been since someone had checked on Clark. Upon being
informed it had been 35 to 45 minutes, one of them said, “Jesus. He’s rigored.” JA 216.
Michigan Detective Michael Morey investigated the scene and noted a strong odor of urine,
a pool of urine beneath Clark’s mattress and debris on the floor, including uneaten food. Due to the
smearing of filth on the cell window, Morey determined that “very little of the activity inside that
cell could have been observed from the outside.” JA 2050. Gilman reached the same conclusion:
Due to “the filth on the inside of the window of the door,” he did not “believe that officers in the pod
could see anybody in those cells.” JA 785.
An autopsy revealed that Clark had died of dehydration.
On March 3, 2003, Clark’s estate, through his sister Bonita Clark-Murphy, filed two lawsuits
against a number of prison employees under 42 U.S.C. § 1983, alleging that they were deliberately
indifferent to Clark’s medical needs in violation of the Eighth and Fourteenth Amendments. Ruling
on three summary-judgment motions filed by different groups of defendants in the two cases, the
district court eventually dismissed the claims against several employees as a matter of law. As to
the remaining 15 defendants, the district court ruled (1) that there was a fact dispute about whether
they were deliberately indifferent to Clark’s need for water, ventilation and medical care, and (2)
that qualified immunity did not apply to these employees because Clark’s right to these necessities
and services was clearly established at the time of the incident. Thirteen of the employees filed an
interlocutory challenge to this ruling, while two of them filed a separate interlocutory challenge to
the ruling. We have jurisdiction over each interlocutory appeal, Mitchell v. Forsyth, 472 U.S. 511,
527 (1985); we give de novo review to the district court’s summary judgment decisions, Thomas v.
Cohen, 304 F.3d 563, 568 (6th Cir. 2002); and we have exercised our discretion to consolidate the
two appeals and resolve them together.
Nos. 05-1323/1394 Clark-Murphy v. Foreback, et al. Page 5

II.
Something obviously went wrong during the last six days of the State of Michigan’s custody
over Jeffrey Clark, and the question is whether a triable issue of fact exists over the constitutional
responsibility of these 15 defendants for his suffering and eventual death. Faced with this grim set
of allegations and with the requirement that we must accept them as true at this stage of the
litigation, one might be tempted to invoke the doctrine of res ipsa loquitur and let the trial begin.
But the Constitution gives governments considerable leeway when it comes to the day-to-day
challenges of managing a prison and erects a series of hurdles that allegations of prisoner
mistreatment must clear before they proceed to a jury.
First, the standard of care in this area is not negligence, Farmer v. Brennan, 511 U.S. 825,
835 (1994), which is why res ipsa loquitur does not apply, Sweeney v. Erving, 228 U.S. 233, 240
(1913). Under the Eighth Amendment, an inmate may bring a § 1983 claim regarding his conditions
of confinement only when he can show that there has been “deliberate indifference” to his “medical
needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Farmer, 511 U.S. at 832 (“The
Amendment [ ] imposes duties on these officials [to] ensure that inmates receive adequate food,
clothing, shelter, and medical care, and . . . [to] ‘take reasonable measures to guarantee the safety
of the inmates.’”) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). To establish
“deliberate indifference,” an inmate must show that the alleged mistreatment was “objectively”
serious and that the defendants “subjectively” ignored the inmate’s medical or safety needs.
Farmer, 511 U.S. at 829, 834. A claimant may satisfy the subjective prong of this inquiry by
establishing that “the official knows of and disregards an excessive risk to inmate health or safety,”
which is to say “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.” Id. at 837.
Second, qualified immunity prevents the officers from being held liable for constitutional
violations if the right at issue was not “clearly established” at the time of the violation. Saucier v.
Katz, 533 U.S. 194, 200 (2001). Under Saucier, the “dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. at 202.
A.
Turning to the constitutional question, we note that little room for debate exists about the
objective component of Clark-Murphy’s Eighth Amendment claim. In the abstract, the deprivation
of water and medical care, including psychological services, of course would be “sufficiently
serious” to satisfy this requirement, Farmer, 511 U.S. at 834, and the defendants do not argue
otherwise. The question is whether the defendants satisfy the subjective component of the claim,
a question that we will answer by dividing the defendants into two groups—those involved only in
treating Clark’s collapse outside the mess hall on June 29 and those involved in his treatment from
that day forward.
1.
Captain Dyer and Sergeant Wakefield assisted Clark after he collapsed outside the mess hall
on June 29. Each defendant’s involvement in Clark’s care ended after the two of them transferred
him to Lauters’ unit later that day. While they each perceived that Clark needed psychological care,
they had no reason to expect that Lauters or any of the other defendants charged with Clark’s care
would fail to secure that help. Nor did they leave it at that. Each of them took reasonable steps to
ensure that Lauters looked out for Clark’s safety in this area. See, e.g., JA 2504 (Dyer told Lauters
that Clark needed psychological services); JA 190 (Wakefield “radioed to the unit to find out any
information that would help us on him”). See Farmer, 511 U.S. at 844 (noting that “officials who
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actually knew of a substantial risk . . . may be found free from liability if they responded reasonably
to the risk, even if the harm ultimately was not averted”).
Clark-Murphy has not produced evidence indicating or even suggesting that these defendants
had any reason to think Clark was not receiving the psychological treatment he needed after June
29. And there is no evidence that these defendants had any reason to think that Clark was
dehydrated at this point in time. While it fairly can be said that each of these defendants perceived
a risk to Clark’s health, they acted reasonably in response to that perception. Clark was moved to
an observation cell, and the officers looked into his treatment history and communicated their
concerns that Clark needed psychiatric assistance. Clark-Murphy does not allege that these officers
had any other responsibility for, or interaction with, Clark after this incident. On this record, the
constitutional claims of deliberate indifference fail as a matter of law against these two defendants.
See Williams v. Mehra, 186 F.3d 685, 692–93 (6th Cir. 1999) (en banc) (“Plaintiff would need to
show that the doctors actually knew that [their actions] constituted an excessive risk to [plaintiff’s]
health or safety.”); Davis v. Agosto, No. 02-6141, 2004 WL 376833, at *4 (6th Cir. Feb. 27, 2004)
(requiring “reliable inference[s] of wantonness”) (internal quotation marks omitted).
2.
The claims against most of the remaining 13 officers are another matter. Each of these
officers had some involvement with Clark after his June 29 collapse, and each of them learned at
one time or another about his serious psychological needs or his potential for dehydration. As
shown by the following assessment of the evidence, Clark-Murphy has presented sufficient evidence
from which 11 of these defendants (all but Becher and Friedt) could have inferred that a substantial
risk of serious harm existed to Clark’s health and safety from the deprivation of water or
psychological treatment, or both.
DEPUTY WARDEN
Lee Gilman
Gilman received an e-mail on July 2 from the head of the outpatient mental health
unit stating that “it is my clinical opinion that prisoner Clark is psychotic . . . . [H]is
current level of functioning requires intense interventions,” JA 211; the record offers
no indication that Gilman responded to this e-mail.
LIEUTENANTS
Shirley Whittaker
Shifts: June 30 through July 4, 10 p.m. to 6 a.m.
Whittaker agreed that Clark had “a mental problem [and] that he needed some sort
of psychologist or other mental health professional,” JA 2070; the water was turned
off during her shifts; she did not follow up to ensure that Clark was receiving needed
care; and she was the supervisor on duty the night Clark died.
Donald Wise
Shifts: June 29 through July 3, 2 p.m. to 10 p.m.
Wise worked every day that Clark occupied the cell; he observed Clark’s strange
behavior; he knew the water had been turned off by Harvey and Lauters; and he did
nothing to ensure Clark received medical treatment.
Nos. 05-1323/1394 Clark-Murphy v. Foreback, et al. Page 7

SERGEANTS
Rina Becher
Shift: July 1, 10 p.m. to 6 a.m.
Becher observed Clark “pacing back and forth naked and telling me he was selling
candy canes,” JA 2107; she believed he needed psychiatric help and was told that a
Roberta-R had been completed for him.
Mike Harvey
Shifts: June 30 through July 3, 6 a.m. to 2 p.m.
On each day that Clark was in the observation cell, the water was off for at least part
of Harvey’s shift; Harvey was aware of Clark’s mental illness and that Clark was not
drinking or eating; VanderVlucht told Harvey that he was concerned that Clark was
not drinking; Fox relayed information to Harvey that Clark wanted water; and on
July 3, the day Clark died, the water was still off during Harvey’s shift.
Tom Lauters
Shifts: June 29 through July 3, 2 p.m. to 10 p.m.
Lauters was told by Dyer that Clark needed “psychological services,” JA 2504; and
he did nothing after filling out a referral form—“healthcare was contacted, I left it
that,” JA 2599—even though Clark’s disturbing behavior persisted throughout
Lauters’ shifts.
OFFICERS
Ginger Bayne
Shifts: June 30 and July 1, 6 a.m. to 2 p.m.
Bayne saw Clark drinking from the toilet; Clark asked her for water; she told Stout
“that Clark was a problem,” JA 1495; and while she knew that Clark needed mental
health care she did not ensure that it was provided.
Tom Dowker
Shifts: June 29 through July 3, 2 p.m. to 10 p.m.
Dowker heard “screeching, barking, [ ] jibberish” from Clark, JA 1559; he thought
that Clark needed “psychological or psychiatric intervention,” id.; he perceived Clark
deteriorating on July 3; and he did nothing to ensure Clark was getting help.
Brian Foreback
Shifts: July 1 and 3, 10 p.m. to 6 a.m.
During his July 1 shift, the water was turned off both when Foreback began the shift
and when he ended it; the water was turned off when he began his July 3 shift up
until Clark’s dead body was discovered; and it appears that Foreback did not check
on Clark during his last shift.
Nos. 05-1323/1394 Clark-Murphy v. Foreback, et al. Page 8

Bruce Stout
Shifts: June 30 and July 2, 6 a.m. to 2 p.m.
Stout knew the water was repeatedly turned off in Clark’s cell; he knew that Clark
had exhibited symptoms of mental illness; and he did nothing to ensure that Clark
was getting help.
Anthony VanderVlucht
Shifts: June 30, 10 p.m. to 6 a.m.; July 1, 6 a.m. to 2 p.m.
VanderVlucht realized Clark was not drinking water; he inferred that this posed a
risk to Clark’s health; he perceived symptoms of mental illness (heard Clark barking
and yelling); and he did nothing to seek help for Clark.
MEDICAL
JoAnn Friedt, nurse
Shift: June 30, 6 a.m. to 2 p.m.
Harvey telephoned Friedt, telling her that “prisoner Clark was barking and would not
talk or respond to me.” JA 2751. In response, Friedt said that “I was aware of it and
that I put the Roberta-R Form in for psych to follow-up with him.” JA 2780.
Mark Fox, psychologist
Shifts: Visited Clark on July 1 and 3.
As a psychologist, Fox was well-positioned to identify Clark’s psychosis and to
address it; he did not address the problem during his first examination and gave
Clark only a cursory examination the day he died, despite his awareness that Clark
was suffering from psychosis and despite seeing Clark in a non-responsive condition;
and Fox may have ordered the water turned off in Clark’s cell.
As this record evidence shows, each of these defendants, except for Becher and Friedt,
repeatedly perceived sufficient facts to infer that Clark faced serious risks to his health and safety.
With regard to the dehydration claim, Clark-Murphy has presented evidence indicating that the
water repeatedly was off during many of these defendants’ shifts, that other inmates heard Clark
asking for water throughout the week, that officers perceived that Clark was not drinking and that
the prison was on a heat alert throughout this six-day period. With regard to the mental-illness
claim, many of the officers testified that they believed Clark needed psychological attention. See
Gilman Br. at 11 (Fox diagnosed Clark with psychosis); id. at 17 (Gilman was advised that “Clark
needed psychiatric treatment”); id. at 21 (Bayne thought that Clark had “mental health” needs); id.
at 24 (VanderVlucht “thought Clark’s problems were psychological”); id. at 25 (Dowker “thought
. . . Clark needed psychological or psychiatric intervention”); id. at 27 (Harvey “thought that Clark
‘had some mental issues’”); id. at 29 (Whittaker “thought that Clark needed to be seen by a mental
health professional”).
Despite these widely held beliefs, the record shows that Clark languished in his cell for five
days without the door being opened and apparently with the officers unable readily to see into his
cell for part of this time. Even though prison rules required officers to go up the chain of command
if they felt that a referral had not secured the requisite assistance for an inmate, these defendants pin
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much of their defense on the fact that they (or others) had completed psychological-referral forms.
See, e.g., JA 2599 (Lauters: “I knew that healthcare was contacted, I left it at that.”). While this fact
may be relevant to whether the individual defendants recklessly disregarded a risk of harm to Clark
or responded reasonably to it, the fact does not suffice to establish that the defendants are entitled
to qualified immunity as a matter of law at this stage of the case given their repeated interactions
with Clark and repeated opportunities to assess the seriousness of the situation.
None of this, to be sure, establishes that these defendants either singly or as a group showed
deliberate indifference to Clark. For summary-judgment purposes, we hold only that these 11
defendants could have perceived a substantial risk of serious harm to Clark. Whether in fact they
perceived, inferred or disregarded that risk is an issue for trial. See Farmer, 511 U.S. at 842
(“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways . . . , and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”); see also Comstock v.
McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (noting that it is “permissible for reviewing courts to
infer from circumstantial evidence that a prison official had the requisite knowledge”).
In contrast to these 11 defendants, Sergeant Becher and nurse Friedt worked just one 8-hour
shift between Clark’s seizure on June 29 and his death on July 3 or July 4. While a prison employee
doubtlessly could exhibit deliberate indifference toward an inmate in the course of one shift, neither
Friedt nor Becher had sufficient exposure to Clark to make out a triable issue of fact that any such
wantonness occurred on their part.
Only one of Nurse Friedt’s shifts (an eight-hour shift on Sunday, June 30) involved Clark.
Friedt became aware of Clark’s situation by way of a Roberta-R form, which mentioned “some type
of seizure.” JA 2784. A Roberta-R form is used only “for psychiatric or mental conditions.” JA
2778. As a nurse, Friedt was not expected to become involved with mental-health issues unless the
inmate was being watched for self-harm, which was not the case here. She also knew that the
officers had not prepared a health-care contact sheet, a fact that was inconsistent with a medical
emergency. Knowing that the hospital could have been called the night before if there had been “an
imminent need for care,” JA 2778, Friedt, without more, fairly could have deduced that the situation
with Clark was under control. The officers on the scene had not contacted a hospital or a nurse; they
instead had sought psychiatric care; and 12 hours had passed since the original incident—all prior
to her arrival. Quite possibly, on this record, Friedt reasonably could have done nothing more. But
she did more: She called the officer on duty in Clark’s cell block (Thelen) to determine if Clark
needed medical assistance. Officer Thelen informed Friedt, “All he’s on is custody watch [which
did not impose a responsibility on Friedt]. He does not need medical care.” JA 2780. When Harvey
called later, he mentioned that Clark was having psychiatric difficulties. Since she was not qualified
to help an inmate with psychiatric needs, she let Harvey know that the referral to the psychiatric
department had been completed. In contrast to Harvey, no allegation has been made that Friedt
knew the psychiatric referral had failed to secure Clark the help he needed. No evidence indicates
that Harvey or anyone else told Friedt that a psychologist or psychiatrist needed to see Clark that
day, and Clark-Murphy has offered no theory of liability or damages relating to the fact that Fox did
not see Clark until the next day. On these facts, it is doubtful that negligence could be proved, much
less deliberate indifference.
Sergeant Becher was a relief sergeant who was filling in for another sergeant on July 1 and
worked just one 8-hour shift during the six days at issue. While she learned firsthand during the
shift that Clark needed psychiatric care (based on seeing him pace back and forth naked in his cell
and based on hearing him offer to sell her candy canes), she responded appropriately to this
observation by asking whether a psychiatric referral (a Roberta-R) had been completed for Clark.
She was told that several Roberta-Rs had been completed for him. And of course earlier that day
Fox (the psychologist) had paid his first visit to Clark. On this record, Becher simply did not have
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the repeated opportunities that others had to know that proper mental-health care was not being
provided for Clark. See Davis v. Oakland County, No. 96-1678, 1998 WL 180608, at *4 (6th Cir.
Apr. 7, 1998) (“It was not unreasonable” for defendant “to assume that the trained medical
professional . . . would follow-up in an appropriate manner.”). Nor does any evidence indicate that
she was aware that he repeatedly was not drinking water (or eating food). Later during the shift, she
asked an officer how Clark was doing. The officer responded that he was doing “okay” but that he
had attempted to shove a pillow down his toilet. JA 210. In response, Becher asked if “they would
have to shut the water off and the officer told her no, they had already done that.” Id. To the extent
this evidence shows that Becher was aware that the water to Clark’s cell was turned off, it shows
only that it was turned off toward the end of her shift and solely in response to an incident that
temporarily would have justified shutting off the water. In the absence of other evidence that Becher
was aware that Clark was not drinking (or eating) or that the water was turned off in his cell for an
extended period of time, Clark-Murphy has not tenably shown that Becher recklessly ignored
Clark’s need for water.
Given the brief exposures of these two defendants to Clark and given the resulting absence
of evidence regarding their purposeful indifference to his health and safety needs, the claims against
these defendants must be dismissed as a matter of law. See Gibson v. Matthews, 926 F.2d 532, 535
(6th Cir. 1991) (“[P]ersonal liability on any of the defendants. . . . must be based on the actions of
that defendant in the situation that the defendant faced, and not based on any problems caused by
the errors of others, either defendants or non-defendants.”); see also Vance v. Peters, 97 F.3d 987,
992 (7th Cir. 1996) (“The focus must be on whether any of the defendants had the personal
involvement necessary to permit a finding of liability.”).
B.
Having concluded that a triable issue of fact exists over whether 11 of the defendants showed
deliberate indifference to Clark’s health and safety needs, we turn to whether that right was clearly
established in June 2002. Under Saucier, the “dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” 533 U.S. at 202; Comstock, 273 F.3d at 702; see also Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”). “If the officer’s
mistake as to what the law requires is reasonable,” however, “the officer is entitled to the immunity
defense.” Saucier, 533 U.S. at 205.
At the time of this incident, it should come as no surprise that Clark had a clearly established
right not to be deprived of food and water. See Kent v. Johnson, 821 F.2d 1220, 1229 (6th Cir.
1987) (holding that “[t]he Eighth Amendment affords prisoners protection against . . . exposure to
egregious physical conditions which deprive them of basic human needs”); see also Cherrington v.
Skeeter, 344 F.3d 631, 637 (6th Cir. 2003) (noting that when the state “fails to provide for [a
prisoner’s] basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it
transgresses the substantive limits on state action set by the Eighth Amendment”).
The same holds true for Clark’s right to psychological treatment. See Comstock, 273 F.3d
at 702 (noting that a “prison inmate has [an] Eighth Amendment right [to] be free from deliberate
indifference to serious psychiatric needs”); Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990)
(noting that “every reported decision handed down after Estelle and before [June 1985] . . .
recognized that deliberate indifference to an inmate’s need for mental health care is actionable on
eighth amendment grounds”); Woodall v. Foti, 648 F.2d 268, 270 (5th Cir. 1981) (holding that an
allegation that prisoner “had been denied medically necessary psychiatric care” stated a claim under
the Eighth Amendment); Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.
1979) (holding that “when inmates with serious mental ills are effectively prevented from being
Nos. 05-1323/1394 Clark-Murphy v. Foreback, et al. Page 11

diagnosed and treated . . . the system of care does not meet the constitutional requirements set forth
by Estelle”); see also Heflin v. Stewart County, 958 F.2d 709, 717 (6th Cir. 1992) (holding that
“[t]here can be no doubt that in 1987 existing law clearly established the right [of inmates] . . . to
receive care for [ ] serious medical needs”); Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972)
(holding that “fundamental fairness and our most basic conception of due process mandate that
medical care be provided to one who is incarcerated and may be suffering from serious illness”).
As the above cases suggest and as the following cases confirm, the defendants’ distinction
between medical care and psychological care—“prisoner Clark showed signs that he needed
psychological or psychiatric help, not medical help,” Foreback Br. at 36—does not protect them
from liability. See Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994)
(“[P]sychological needs may constitute serious medical needs.”); Davis, 1998 WL 180608, at *4
(“Medical needs encompass treatment for mental illness.”); see also Partridge v. Two Unknown
Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir. 1986) (“A serious medical need may exist
for psychological or psychiatric treatment, just as it may exist for physical ills.”); Pierce, 612 F.2d
at 763 (“Although most challenges to prison medical treatment have focused on . . . physical ills,
we perceive no reason why psychological or psychiatric care should not be held to the same
standard.”); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (“We see no underlying distinction
between the right to medical care for physical ills and its psychological or psychiatric counterpart.”).
Neither are the defendants correct in contending that Clark-Murphy cannot prove “proximate
cause between their actions and Clark’s death.” Gilman Br. at 50. The claimant need only
demonstrate a link between each defendant’s misconduct and Clark’s injury, which may include his
death as well as the “pain and suffering,” JA 25, that preceded his death. See, e.g., Boretti v.
Wiscomb, 930 F.2d 1150, 1154 (6th Cir. 1991) (holding that “physical pain and mental anguish
[suffered] during the time he was denied [treatment] . . . . may constitute cruel and unusual
punishment within the meaning of the Eighth Amendment”); Westlake v. Lucas, 537 F.2d 857, 860
(6th Cir. 1976) (holding that “a prisoner who is needlessly allowed to suffer pain when relief is
readily available does have a cause of action against those whose deliberate indifference is the cause
of his suffering”).
One of the defendants (Whittaker) claims the complaint does not contain any allegations
against her, requiring that she be dismissed from the case. Not true. The complaint lists Whittaker
as a defendant; it alleges that the defendants, including Whittaker, observed Clark’s deteriorating
condition and failed to seek treatment; and the summary-judgment evidence shows that a triable
issue of fact exists over Whittaker’s alleged indifference.
III.
For these reasons, we affirm the denial of qualified immunity as to 11 of the defendants
(Gilman, Whittaker, Wise, Harvey, Lauters, Bayne, Dowker, Foreback, Stout, Vandervlucht and
Fox) but reverse as to 4 of them (Dyer, Wakefield, Becher and Friedt), and remand for further
proceedings consistent with this opinion.
Nos. 05-1323/1394 Clark-Murphy v. Foreback, et al. Page 12

____________________________________________________
CONCURRING IN PART, DISSENTING IN PART
____________________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. I
dissent in part because I would affirm the denial of qualified immunity for JoAnn Friedt and Rina
Becher for the following reasons.
The majority’s reliance on the brevity of Friedt’s one-shift-long involvement with Clark to
decide that Friedt was entitled to qualified immunity erroneously disregards other factors relevant
to this inquiry, such as the Defendant’s position and expertise and the severity of distressing
behavior that she saw Clark display. Friedt’s awareness of Clark’s seizure, which was noted on the
Roberta-R Form that Friedt received and read, carries enhanced significance because she is a
registered nurse who admitted at her deposition that seizures can be “life[-]threatening” and that she
could not assess whether the seizure was of medical concern without seeing Clark. Joint Appendix
at 2782 (Friedt Dep. at 38). Although the majority further concludes that Friedt did not ignore a
serious risk to Clark’s health because Officer Thelen told Friedt that Clark did not require medical
care, Friedt knew that Thelen did not have medical expertise, and given Friedt’s own training, Friedt
should have taken further action to assess Clark’s health. The majority’s conjecture that “[q]uite
possibly, on this record, Friedt reasonably could have done nothing more,”1 Majority Opinion
(“Maj. Op.”) at 9, is flatly contradicted by the record. Friedt herself testified that when she gets a
call from a resident unit officer regarding a medical concern relating to a prisoner, as she did from
Sergeant Mike Harvey, she has three options: talking to the prisoner on the phone, seeing the
prisoner on his unit, or having the prisoner come to the clinic. In this instance, Friedt chose none
of these courses of conduct, and instead, opted to do nothing.
The majority attempts to absolve Friedt’s inaction by asserting that Friedt had no
responsibility to respond to a prisoner’s potentially life-threatening health risk because she was
made aware of this risk by prison paperwork that is ordinarily used for psychological rather than
medical health issues. This amounts to a rule that a prison’s medical-care personnel can turn a blind
eye to health-care concerns placed before them. This is precisely what the Eighth Amendment
disallows: “deliberate indifference” to “a substantial risk of serious harm” to a prisoner’s health.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Friedt, a medical professional, ignored a fact that
she knew indicated a potential serious health risk — a seizure — that may have required immediate
medical care. Therefore, that a health-care contact sheet had not been prepared and that the hospital
was not contacted is irrelevant in the face of concrete facts that Clark might have been confronting
a serious health risk that required prompt medical attention.
Regardless of whether and when Psychologist Mark Fox or any other mental health
professional saw Clark, because Friedt knew of Clark’s seizure, she knew that he may have required
medical attention.2 As in Comstock v. McCrary, the circumstances reveal that Friedt should have

1
The majority’s willingness to infer facts in favor of Defendant Friedt, a moving party, as evidenced by this
statement and the majority’s assumption that Friedt “could have deduced that the situation with Clark was under control,”
Maj. Op. at 9, contravenes our obligation, in reviewing the grant of a motion for summary judgment, to “view all the
facts and the inferences drawn therefrom in the light most favorable to the nonmoving party.” Cockrel v. Shelby County
Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001).
2
The majority notes that the Plaintiff “has offered no theory of liability or damages relating to the fact that
[Psychologist] Fox did not see Clark until the next day.” Maj. Op. at 9. This reasoning seems out of place given that
the majority does not require the Plaintiff to make such a robust showing of specific causation and damages regarding
the other Defendants in this case. In fact, the majority expressly criticizes that “defendants pin much of their defense
Nos. 05-1323/1394 Clark-Murphy v. Foreback, et al. Page 13

investigated Clark’s condition before determining that he did not require immediate care, and her
decision not to do so amounts to deliberate indifference. See Comstock v. McCrary, 273 F.3d 693,
707-08 (6th Cir. 2001). Therefore, Friedt’s decision not to see Clark, particularly when she knew
that he would not be seen by someone from psychological services that day, smacks of reckless
disregard for the health risks he may have been facing.
The majority again relies too heavily on the extent of Becher’s contact with Clark to
determine whether she ignored a significant health risk. Although Becher worked only one shift in
the time between Clark’s collapse and his death, she observed Clark “pacing back and forth naked
and telling me he was selling candy canes.” Joint Appendix at 2107 (Becher Dep. at 20). One
would expect that this behavior is sufficiently bizarre to arouse great concern in anyone witnessing
it. Moreover, although Becher testified at her deposition that she was unaware that there was a heat
alert, that the water in Clark’s cell was off, and that Clark was experiencing a mental disturbance,
other statements made during her deposition cast doubt on these self-serving assertions. Given that
a factfinder may determine that “‘a prison official had the requisite knowledge of a substantial risk
. . . [by] inference from circumstantial evidence,’” including “‘from the very fact that the risk was
obvious,’” Lemarbe v. Wisneski, 266 F.3d 429, 436 (6th Cir. 2001) (quoting Farmer v. Brennan, 511
U.S. 834, 842 (1994)); see also Majority Op. at 9, Becher has not put forth sufficient evidence to
show that she was not aware of the health risks Clark faced, and thus she should not be dismissed
from the case.
For the foregoing reasons, I would affirm the district court’s denial of qualified immunity
to Friedt and Becher, and accordingly I dissent in part.

on the fact that they (or others) had completed psychological-referral forms” because “prison rules required officers to
go up the chain of command if they felt that a referral had not secured the requisite assistance for an inmate.” Id. at 9.
In any event, it does not require much speculation to conclude that had Friedt seen Clark, she would have gotten him
proper treatment, and perhaps he would have survived or at least avoided some degree of suffering.