NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0661n.06
No. 08-3427 FILED
Sep 24, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
EILEEN L. KOSLOSKI, )
Administratrix for the Estate of )
Daniel Kosloski, Deceased, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
)
DAN DUNLAP, LAKE COUNTY, OHIO, )
ANN TAKACS, CAROLYN BARBISH, )
DR. CARLA BASTER, and SEVEN )
UNKNOWN DEFENDANTS, )
Defendants-Appellees.
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
SILER, Circuit Judge. Eileen Kosloski appeals the district court’s grant of summary
judgment in favor of Dan Dunlap, Anne Takacs, Carolyn Barbish, Dr. Carla Baster, and Lake
County, Ohio (collectively “Defendants”), on her deceased son’s 42 U.S.C. § 1983 claims. We
review the district court’s order granting summary judgment de novo. Street v. Corrections Corp.
of Am., 102 F.3d 810, 814 (6th Cir. 1996). Finding no constitutional violation, we affirm the
judgment of the district court.
A federal civil rights claim requires (1) that the conduct at issue be under color of state law
and (2) that the conduct cause a deprivation of a right secured by the Constitution or laws of the
United States. 42 U.S.C. § 1983. Defendants concede that, at all time pertinent to this suit, they
No. 08-3427
Kosloski v. Dunlap, et al.,
were acting under color of state law. Eileen Kosloski alleges that Defendants violated the Eighth
Amendment’s prohibition against cruel and unusual punishment through their deliberate indifference
to Daniel Kosloski’s serious medical needs during his time as a prisoner at the Lake County Jail.
“[D]eliberate indifference to the serious medical needs of a prisoner constitutes ‘the
unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). An Eighth
Amendment claim has objective and subjective components. The objective component requires a
prisoner to show that his medical need was “sufficiently serious.” Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The subjective
component requires the prisoner to demonstrate that the official being sued had “a sufficiently
culpable state of mind in denying medical care.” Blackmore v. Kalamazoo County, 390 F.3d 890,
895 (6th Cir. 2004). A prison official cannot be found liable under the Eighth Amendment for
deliberate indifference to a prisoner’s serious medical needs unless at the time of the conduct: (1)
the official is aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and (2) the official actually draws the inference. Farmer, 511 U.S. at 837.
Negligence, including medical malpractice, does not rise to the level of a constitutional tort
simply because the victim is a prisoner. Estelle, 429 U.S. at 106. When medical professionals
provide treatment, albeit carelessly or inefficaciously, to a prisoner, they have “not displayed a
deliberate indifference to the prisoner’s needs, but merely a degree of incompetence which does not
rise to the level of a constitutional violation.” See Comstock, 273 F.3d at 703.
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Kosloski v. Dunlap, et al.,
Eileen Kosloski’s claims against Takacs arise out of her son’s request for medical attention
on April 1, 2005. In the written request for medical attention, Daniel Kosloski informed Takacs, a
registered nurse, that he had blood in his stool and that he had “antartice” [sic]. Takacs met with
Daniel Kosloski that same day. She ascertained that Daniel Kosloski believed that he had
endocarditis. Daniel Kosloski explained that he thought he had the infection because he and his
girlfriend, who was being treated for infective endocarditis, shared needles while injecting heroin
together, and one of her doctors had told him that he should be tested for the infection. Daniel
Kosloski, however, did not have symptoms of endocarditis, and he indicated that he had never been
diagnosed or treated for the infection. Finding Daniel Kosloski’s outward appearance and skin to
be normal, Takacs returned him to the range, without further examination or referral to the jail
doctor. The meeting lasted approximately two minutes and concluded with Takacs telling Daniel
Kosloski to “quit wasting my time.”
Because the parties do not dispute that endocarditis is an objectively serious condition,
Takacs’s subjective mental state is the determinative issue. Takacs decided not to refer Daniel
Kosloski for further examination because she thought he did not have endocarditis. She made this
assessment because of Daniel Kosloski’s lack of symptoms, past diagnosis, or previous treatment
for endocarditis. Takacs may have been negligent in failing to conduct a physical examination or
refer Daniel Kosloski to the jail doctor, but negligence is insufficient to support an Eighth
Amendment violation. Ford v. County of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008).
Because Takacs did not appreciate that a substantial risk of serious harm existed, she cannot be held
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personally liable, under the Eighth Amendment, for failing to diagnose and treat Daniel Kosloski’s
serious medical needs. See Farmer, 511 U.S. at 837.
Eileen Kosloski’s claims against Barbish arise out her son’s three additional requests for
medical attention during his term of imprisonment. On April 11, 2005, Daniel Kosloski requested
a dentist appointment because of a broken tooth. On April 21, 2005, he requested that he be given
Motrin rather than Tylenol for his toothache, and, on May 24, 2005, he complained of fever and
vomiting. Barbish, a certified licensed practical nurse, responded promptly and in a reasonable
manner to each of these requests for medical attention from Daniel Kosloski.
However, Barbish had no reason to believe Daniel Kosloski had a serious medical condition.
He did not mention to her the possibility that he had been exposed to endocarditis. Takacs did not
communicate with Barbish about her visit with Daniel Kosloski, and there is no evidence that
Barbish learned about Daniel Kosloski’s heightened risk of exposure to endocarditis from reviewing
his medical file. Barbish may have been negligent in failing to review Daniel Kosloski’s medical
file, but negligence is insufficient to support an Eighth Amendment violation. Ford, 535 F.3d at
495. Therefore, she was not deliberately indifferent to his serious medical needs. See Farmer, 511
U.S. at 837.
Eileen Kosloski has forfeited her appeal of her § 1983 claims against Baster, the head of the
medical department at the Lake County Jail, and Dunlap, the Lake County Sheriff, because her
appellate brief gives only cursory treatment of those claims. See United States v. Sandridge, 385
F.3d 1032, 1035 (6th Cir. 2004). Moreover, they are without merit. Eileen Kosloski’s claims
against Baster and Dunlap are based on their respective supervisory positions. However, “[b]ecause
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§ 1983 liability cannot be imposed under a theory of respondeat superior, proof of personal
involvement is required for a supervisor to incur personal liability.” Miller v. Calhoun County, 408
F.3d 803, 817 n.3 (6th Cir. 2005). Neither Baster nor Dunlap had any level of personal involvement
in responding to Daniel Kosloski’s requests for medical attention or actual knowledge of his
heightened risk of exposure to endocarditis. Therefore, they cannot be held personally liable, under
the Eighth Amendment, for failing to meet Daniel Kosloski’s serious medical needs. See id.
There is likewise no substance to Eileen Kosloski’s municipal liability claims against Lake
County, Ohio, which are based on a theory of respondeat superior that has been squarely rejected by
the Supreme Court. See Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978). Moreover, the
policy Eileen Kosloski identified as the basis for her municipal liability claims–the use of nurses to
triage inmate requests for medical care–has been previously upheld by this court in Graham v.
County of Washtenaw, 358 F.3d 377, 384 (6th Cir. 2004) (finding that it is not unconstitutional for
municipalities and their employees to rely on the medical judgments made by medical professionals,
including nurses, responsible for prisoner care). In addition, there is no evidence that the alleged
failure to meet Daniel Kosloski’s medical needs was anything other than an isolated incident. See
City of Canton v. Harris, 489 U.S. 378, 391(1989) (noting that there can be no municipal liability
where “an otherwise sound program has occasionally been negligently administered”). Indeed,
Eileen Kosloski’s counsel conceded that “had the medical personnel at the Lake County Jail
followed [their] own written policies and procedures [Daniel] Kosloski’s endocarditis would have
been appropriately diagnosed and treated before June 2, 2005.”
AFFIRMED.
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
Because I conclude that, viewing the evidence in the light most favorable to the plaintiff, a trier of
fact could reasonably infer that Defendant Takacs demonstrated deliberate indifference to a
substantial risk to Daniel Kosloski’s serious medical needs, I respectfully dissent.
As the district court acknowledged, there was a fair amount of evidence suggesting that
someone in Takacs’s position would have known that Kosloski likely had endocarditis. For one, in
his affidavit, Kosloski explains that he told Takacs that his girlfriend suffered from the disease and
that they shared intravenous needles. This alone should have concerned Takacs given her familiarity
with endocarditis and the means by which it spreads. But even if Takacs failed to make this
connection, Kosloski explicitly told her that a physician had advised him to get tested for
endocarditis.
This, of course, does not provide direct evidence that Takacs consciously disregarded the risk
that Kosloski had contracted endocarditis. But plaintiffs asserting Eighth Amendment claims may
rely upon “circumstantial evidence” from which the requisite culpable state of mind can be inferred.
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825,
842 (1994)), cert. denied, 537 U.S. 817 (2002). In particular, “‘a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was obvious.’” LeMarbe
v. Wisneski, 266 F.3d 429, 436 (6th Cir. 2001) (quoting Farmer, 511 U.S. at 842), cert. denied, 535
U.S. 1056 (2002). Here, a jury could find that the risk was indeed obvious. After all, it is one thing
negligently to overlook a symptom, but it is quite another to ignore a disease that is specifically
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identified by a patient and a previous doctor. Under such circumstances, it is difficult for Takacs
plausibly to claim that she did not know that Kosloski might be affected by the disease.
Similarly, Kosloski’s affidavit indicates that Takacs ended her interview by telling Kosloski
to “quit wasting her time.” Record on Appeal (“ROA”) at 209 (Kosloski Aff. at 4). A jury might
understandably find such a statement to be quite callous. Indeed, when combined with the fact that
Takacs conducted nothing more than a “visual[] observ[ation]” which did not even involve checking
Kosloski’s temperature, ROA at 256 (Takacs Dep. at 15), a trier of fact might reasonably conclude
that Takacs was deliberately indifferent to a substantial risk to Kosloski’s serious medical needs.
The majority summarily concludes, however, that Takacs honestly “thought [Kosloski] did
not have endocarditis . . . because of [his] lack of symptoms, past diagnosis, or previous treatment
for endocarditis.” Maj. Op. at 3. But a reasonable jury might attach little weight to the fact that
Kosloski had not yet been diagnosed with or treated for endocarditis. After all, the whole point of
his inquiry to Takacs was to determine whether he had endocarditis and then to obtain treatment for
it, and for a nurse to respond with nothing more than a cursory examination might very well be found
to constitute the kind of deliberate indifference to a serious medical need that the Eighth Amendment
prohibits.
Of course, the majority may be right that Takacs had only the best intentions, and if they were
acting as the trier of fact they would be free to reach this conclusion. But the majority provides little
explanation as to why a different inference might not be equally reasonable, and I can find none.
Therefore, I would reverse the district court’s judgment with respect to Defendant Takacs and
remand for further proceedings. I respectfully dissent.
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