Kevin Darrah v. Krisher, et al

Filing

OPINION and JUDGMENT filed : The district court s grant of summary judgment is REVERSED, and the case is REMANDED for further proceedings consistent with the opinion of this court. Decision for publication. Danny J. Boggs, Ronald Lee Gilman, and Bernice Bouie Donald (AUTHORING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0163p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KEVIN DARRAH,
Plaintiff-Appellant,

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DR. KRISHER; DR. ANDREW EDDY; KAREN STANFORTH;
DR. DAVID WEIL,
Defendants-Appellees.

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>

v.

No. 15-4136

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00899—George C. Smith, District Judge.
Argued: December 7, 2016
Decided and Filed: July 26, 2017
Before: BOGGS, GILMAN, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Dorianne Mason, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for
Appellant. Debra Gorrell Wehrle, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees. ON BRIEF: David Singleton, A. Dominick Romeo, Mark
Clark, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant. Debra Gorrell
Wehrle, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Kevin Darrah, an inmate at the Madison
Correctional Institution (“MCI”) in London, Ohio, filed suit against Defendants, Doctors

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Krisher, Eddy, and Weil and Nurse Stanforth, under 42 U.S.C. § 1983, claiming that by denying
and delaying necessary medical treatment, Defendants violated his right to be free from cruel and
unusual punishment under the Eighth Amendment.

The district court granted Defendants’

motion for summary judgment. Darrah now challenges the district court’s grant of summary
judgment on appeal. For the reasons that follow, we REVERSE the district court’s order and
REMAND this case for further proceedings consistent with this opinion.
I.
Following his conviction and sentence in 2006, Darrah was committed to the custody of
the Ohio Department of Rehabilitation and Correction (“ODRC”). Prior to this, Darrah had been
diagnosed with Palmo-Plantar-Hyper-Keratoderma (“HPK”), a severe form of psoriasis that
causes debilitating pain from large and deep fissures that form on the bottom of the feet. In
December 2006, Darrah was transferred to the Lebanon Correctional Institute (“LCI”), where
dermatologists at the medical center examined his HPK and noted that it had been treated
successfully with Soriatane, and that multiple other treatments had proven ineffective.
Following this diagnosis, the LCI medical center prescribed Soriatane, a drug that was outside of
the ODRC’s “Drug Formulary.”
The ODRC maintains a Drug Formulary specifically developed for the ODRC and its
institutions. The formulary “lists standardized medications that may be prescribed and dispensed
for inmates by advanced-level providers without prior authorization from . . . the ODRC Office
of Correctional Health Care.”

(R. 40-9, PageID # 269.)

According to Defendant Eddy,

medications that are not listed on the ODRC’s Drug Formulary require a prior authorization.
This is done through a request from an advanced-level provider. However, ODRC regulations
require that “[m]edications on the ODRC’s Drug Formulary should be used as a treatment option
prior to prescribing non-formulary medications.” (Id. at PageID # 270.) On the ODRC Drug
Formulary, Methotrexate is the medication listed for treatment of psoriasis and rheumatoid
arthritis.
The Ohio Department of Mental Health (“ODMH”) regulates all ODRC medications.
Defendants explain that “[t]he ODMH will only supply pharmaceuticals to Ohio correctional

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institutions from the formulary list established by the ODRC’s Pharmacy and Therapeutics
Committee unless either the Bureau of Medical Services Medical Director or the Bureau of
Mental Health Services Clinical Director approves a non-formulary medication.” (Appellee Br.,
at 8–9; R. 51-3, PageID # 695.) According to Defendants, LCI did not become centrally
regulated under ODMH until March 2012, and prior to 2012, LCI used its contract pharmacy to
supply medications for its inmates. MCI, however, was centrally controlled by ODMH at the
time of Darrah’s transfer there on January 18, 2011, and could not procure non-formulary, nonapproved medications.
While on Soriatane at LCI, Darrah reported good results, and his medical records
indicated that his HPK was “much improved.” Upon his arrival at MCI, the medical health staff
performed a health screening on him and forwarded a list of the medications he had previously
received at LCI to the MCI pharmacy. However, because Soriatane was not listed on the
ODRC’s Drug Formulary, the prescription was not filled.
Two weeks after he arrived at MCI, Darrah reported to Nursing Sick Call (“NSC”) that
he had not received Soriatane since his transfer to MCI. In response to this complaint, the
medical staff contacted Dr. Weil to inquire about Darrah’s Soriatane. Again, on February 17,
2011, Darrah contacted NSC, complaining that he still had not received his Soriatane.
On March 2, 2011, Dr. Weil examined Darrah. During this examination, Dr. Weil noted
that although Darrah’s heels were fissuring, he was in no apparent distress. Dr. Weil also noted
that Darrah had used Soriatane with good results, and that Darrah believed that he had a prior
authorization for Soriatane, which was still in effect. Following this visit, Dr. Weil ordered
Darrah’s previous medical charts and placed a new order for Soriatane. On March 22, 2011,
Darrah sent a “kite” complaining that, even after his visit with Dr. Weil two weeks prior, he was
still not given Soriatane. Darrah further complained that he had two “very large fissures” on
each heel, that they caused him excruciating pain, and that he was in danger of contracting a
staph infection. Darrah also filed a skin-complaint form, complaining that he was not receiving
proper treatment for his feet. Nurse Stanforth, on March 22, 2011, arranged for Darrah to meet
with Dr. Weil, who again placed an order for Soriatane.

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On March 28, 2011, Dr. Weil again examined Darrah and noted that he had large
“plaques/fissures” on his heels. During this visit, Darrah complained of pain and difficulty
walking, and Dr. Weil placed him on “medical lay-in” for twenty days. Darrah also complained
about having not received his Soriatane, and Dr. Weil once again attempted to order Soriatane
for Darrah. On April 4, 2011, Dr. Weil examined Darrah. Dr. Weil noted that Darrah still had
“plaque and fissures” on his heels. Nurse Stanforth also noted that Darrah had several calluses
with some deep cracks/fissures on his heels. During this visit, Darrah again complained that he
still had not received his Soriatane. At this point, Dr. Weil submitted a fourth request for
Soriatane.
On April 6, 2011, Dr. Krisher denied Dr. Weil’s request for Soriatane, stating instead that
an alternative, Methotrexate, was available. Dr. Krisher also ordered that “‘high potency
steroids’ and folic acid be used and that another medication, Dovenex, be prescribed as needed,”
and that Darrah’s liver enzymes be monitored. (R. 53, PageID # 714.) The next day, Nurse
Stanforth1 informed Darrah and his wife, Lacona, that the request for Soriatane had been denied
and that Methotrexate had been recommended instead. Both Darrah and his wife agreed to try
Methotrexate and, on April 11, 2011, Darrah picked up the Methotrexate, along with folic acid,
for self-administration, agreeing that he understood the dosage instructions.
Between April 13, 2011 and May 26, 2011, the record indicates that Darrah reported to
the prison infirmary at least ten times; however, his progress notes do not refer to his HPK again
until June 14, 2011. During this visit with Dr. Weil, Darrah reported that his feet were “no worse
but no better,” and Dr. Weil increased Darrah’s Methotrexate dosage upon Darrah’s request. On
July 7, 2011, Darrah filed an informal complaint, stating that he was in constant and severe pain
and prone to infection because he was not taking Soriatane. Nurse Stanforth, in response to this
complaint, discussed with Dr. Weil and Darrah the conflicting information they had received
because Darrah had told Dr. Weil that he wanted to “run on the track.” On July 28, 2011, Darrah
filed a grievance, stating that “the level of pain in [his feet was] the same whether [he was]
sitting, standing, walking, or running,” and that he runs to stay in good health; therefore, if he
1

Nurse Stanforth served as the Health Care Administrator for MCI and first became aware of Darrah’s
condition in December 2006, when she served as LCI’s Health Care Administrator.

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would be in pain regardless, he “might as well try to stay healthy.” (Id. at PageID # 715–16.)
Darrah’s grievance also stated that Methotrexate was not working for him, and that he was at risk
of contracting an infection because another inmate had recently been diagnosed with a staph
infection. Darrah was seen by a podiatrist on that same day, and the note reflected that while he
had “multiple areas of severe HPK buildup,” his HPK was “stable in nature.” (Id. at PageID #
716.)
Between August and September 2011, Darrah was seen three times. On September 17,
2011, Darrah filed another skin-complaint form, complaining that he had not obtained any relief
from his HPK. Darrah was advised to continue taking his medications as prescribed. On
November 1, 2011, Dr. Weil examined Darrah and noted Darrah’s complaint that Methotrexate
was not working for him. Dr. Weil prescribed a pain medication “for the time being.” Darrah
had a follow-up visit on November 15, 2011, where he again complained that Methotrexate was
not working for him.
Following Darrah’s November examination, an attempt was made to get Soriatane
through a private insurer, or from Canada. Darrah was informed that he could order the drug
from a non-ODRC pharmacy, but that he (or his wife) would have to cover the costs. On
November 21, 2011, a prescription for Soriatane was placed at a non-ODRC pharmacy. The
record indicates that there were some custody disputes with the Soriatane and, on January 26,
2012, Dr. Weil filed a prior-authorization request to allow Darrah to receive the Soriatane.
Darrah began taking Soriatane in February 2012, and his follow-up examinations in March and
April indicated that his feet had improved and that his lesions were almost gone.
Darrah filed a complaint in federal court in September 2012, alleging that several
employees of the ORDC and MCI violated his rights under federal and state law, and seeking
monetary damages and injunctive relief. After an initial screening, the district court allowed
Darrah’s Eighth Amendment deliberate-indifference claim to proceed against Defendants
Krisher, Weil, Eddy, and Stanforth.2

Following discovery, Defendants filed a motion for

summary judgment. Darrah responded in opposition. The magistrate judge recommended that
2

The record indicates that after Darrah filed his complaint, the ODRC began to pay for his Soriatane.

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the motion for summary judgment be granted as to Defendants Krisher, Weil, and Eddy, finding
that Darrah failed to establish the subjective element of his Eighth Amendment claim. With
respect to Nurse Stanforth, the magistrate judge recommended that the motion for summary
judgment be denied without prejudice because she had waived her insufficient-service-of-process
argument. The district court overruled the objections to the magistrate judge’s recommendation
and adopted it in whole. Nurse Stanforth subsequently filed a motion for summary judgment,
which the district court granted.3 Darrah filed this timely appeal.
II.
We review a district court’s grant of summary judgment de novo. Brown v. Chapman,
814 F.3d 447, 464 (6th Cir. 2016). Summary judgment is proper when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Our role at the summary judgment stage is to determine whether, viewing the
facts in the light most favorable to the non-moving party and drawing all reasonable inferences
in that party’s favor, a genuine dispute of material fact exists—to wit, is there “sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party”? Brown,
814 F.3d at 464 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
III.
Eighth Amendment jurisprudence clearly establishes that “deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’”
that is violative of the Constitution. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg
v. Georgia, 428 U.S. 153, 173 (1976)). For this reason, “deliberate indifference to a prisoner’s
serious illness or injury states a cause of action under § 1983.” Id. at 105. A prisoner bringing a
claim of deliberate indifference must meet two requirements to succeed. See Farmer v. Brennan,
511 U.S. 825, 834 (1994).

The first requirement—the objective factor—requires that the

deprivation alleged be of a sufficiently serious need. Id. The district court concluded that
Darrah’s HPK amounted to an objectively serious condition, and Defendants do not dispute this
3

The district court also dismissed the official-capacity claims against Defendants, holding that because
Darrah sought monetary damages and retroactive declaratory relief, his claims were barred by the Eleventh
Amendment. Darrah does not appeal this holding.

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finding. We, therefore, focus our determination on whether genuine disputes of material fact
remain as to the second requirement—the subjective element.
The subjective requirement “follows from the principle that ‘only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834 (quoting
Wilson v. Seiter, 501 U.S. 294, 297 (1991)). This means that the defendants must have a
“sufficiently culpable state of mind.” Id. (citations omitted). At the summary-judgment stage,
“the plaintiff must allege facts which, if true, would show that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact
draw the inference, and that he then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837).
Darrah points to three time periods during which Defendants acted with deliberate
indifference to his HPK and the pain and suffering produced by it: (1) between January 2011 and
April 2011 (the first three months of Darrah’s incarceration at MCI)—when Darrah’s HPK was
essentially untreated; (2) between April 2011 and February 2012—when Darrah was initially
prescribed and treated with Methotrexate instead of Soriatane; and (3) between August 2011 and
February 2012—Darrah’s continued treatment with Methotrexate despite the lack of
improvement. For clarity, we address each Defendant’s potential liability as it relates to each
time period.
A.

Defendant Dr. Weil

Dr. David C. Weil was the Chief Medical Officer and an advanced-level provider at MCI.
Through his position at MCI, Dr. Weil was responsible for the daily medical care of inmates at
MCI, and he performed several medical examinations on Darrah in relation to Darrah’s HPK.
Darrah argues that from the time he was first transferred to MCI on January 18, 2011, until April
11, 2011, he received no medication to treat his HPK, despite Dr. Weil’s knowledge of his
diagnosed condition and his prior effective treatment with Soriatane. According to Darrah, this
failure to provide any treatment during this period constituted a knowing interference with his
“prescribed plan of treatment,” which constitutes deliberate indifference.

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In Boretti v. Wiscomb, we reiterated that the “interruption of a prescribed plan of
treatment could constitute a constitutional violation.” 930 F.2d 1150, 1154 (6th Cir. 1991)
(citing Estelle, 429 U.S. at 105). In that case, we specifically found that the plaintiff had stated a
claim of deliberate indifference where he alleged that, for five days, defendants refused to look at
his wound or change the dressing even after several direct requests and after a sick-call slip was
sent to the infirmary. Id. Our precedents make it clear that neglecting a prisoner’s known
medical needs may constitute deliberate indifference. See, e.g., Comstock, 273 F.3d at 702
(“[W]e have long held that prison officials who have been alerted to a prisoner’s serious medical
needs are under an obligation to offer medical care to such a prisoner.” (citing Danese v. Asman,
875 F.2d 1239, 1244 (6th Cir. 1989))). Even relatively short periods of delay or neglect have
sufficed. See Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 844–45 (6th Cir.
2002) (finding that the defendant doctor acted with deliberate indifference where he waited
approximately one hour after being paged to attend to the prisoner, despite knowing of the
prisoner’s numerous health conditions that placed him at risk for a heat stroke); Byrd v. Wilson,
701 F.2d 592, 594–95 (6th Cir. 1983) (concluding that the plaintiff, a pro se prisoner, produced
sufficient evidence for this Court to reverse the district court’s finding of frivolity on his
deliberate-indifference claim where he was denied his prescribed medication and diet for two
days).
The district court, in its adoption of the magistrate judge’s report and recommendation,
failed to adequately address this claim. Instead, it concluded that Darrah’s claim was unavailing
and Defendants’ failure to provide Soriatane to Darrah upon his transfer to MCI was not
dispositive because Methotrexate had been provided in its stead based on the ODMH regulations.
Although the provision of Methotrexate and the ODMH regulations are important considerations,
this conclusion misses the point of Darrah’s argument here and fails to address the fact that, for
almost three months, Darrah was not provided any medications for his HPK. Defendants,
likewise, do not dispute that there was a three-month delay between Darrah’s arrival at MCI and
him receiving any HPK medication.

Rather, Defendants argue that they were derailed by

Darrah’s misrepresentations that he had a prior authorization for Soriatane.

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Viewing the facts in the light most favorable to Darrah, as we are required to do in a
motion for summary judgment, we believe that Darrah has sufficiently shown that genuine
disputes of material fact exist as to whether Dr. Weil was deliberately indifferent for failing to
provide any HPK treatment during this three-month period. Darrah has provided evidence to
show that his HPK and his need for medication were known to Dr. Weil at the time of his arrival
to MCI, but not addressed; that he made several complaints about his lack of Soriatane, including
reporting to NSC multiple times; and that he was not treated for the three-month period in
question. True enough, Dr. Weil sought to prescribe Soriatane for Darrah, prescribed pain
medication, and ordered a medical restriction that placed Darrah on “lay-in” for twenty days.
Considering the seriousness of Darrah’s condition, however, we cannot say that this lackadaisical
pace over three months defeats Darrah’s deliberate-indifference claim.

Even further,

Defendants’ argument that Darrah’s misrepresentations about his prior authorization for
Soriatane contributed to the delay, to the extent relevant, does not entitle Defendants to summary
judgment. At most, it raises a factual question that is not suitable for this Court or the district
court to determine on summary judgment.
Darrah also argues that there was deliberate indifference to his medical needs when, in
April 2011, Defendants insisted on prescribing Methotrexate despite knowing that Soriatane was
the only drug that had proven effective for Darrah’s HPK. True, Dr. Weil cannot be liable for
this decision as Dr. Weil requested that Dr. Krisher approve a prior authorization request for
Soriatane. Dr. Weil might be found liable, however, based on Darrah’s claim that Defendants
were deliberately indifferent for continuing to treat him with Methotrexate after Darrah had been
on the drug for several months without any noticeable improvement.
After Darrah began receiving Methotrexate in April 2011, the record is replete with
evidence that Dr. Weil examined him numerous times, and that Darrah continued to complain
that Methotrexate was not alleviating his HPK or the pain therefrom. The record indicates that
the only affirmative action that Dr. Weil took was to increase the dosage of Methotrexate, and
advise Darrah to continue taking his medication. Defendants dispute this assertion, stating that
the medical records refute Darrah’s assertions of pain and “give credence to the lack of
subjective awareness of [Defendants].” (Appellee Br., at 23.) Defendants further allege that “it

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is reasonable to believe that [Darrah] may have intentionally not taken the Methotrexate so that it
could subsequently be determined ineffective.” (Id. at 25.) With no evidence in the record to
support this allegation, Defendants’ contention is at the very least baffling, and at the most,
highly speculative.
We have held that “[w]hen the need for medical treatment is obvious, medical care which
is so cursory as to amount to no treatment at all may amount to deliberate indifference.”
Terrance, 286 F.3d at 843 (quoting Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989)).
Darrah’s complaint is that Methotrexate was so ineffective in treating his HPK that it was
essentially the equivalent of no treatment at all. Although the record indicates that Dr. Weil
monitored Darrah for infections during the period that he was on Methotrexate, the question of
whether it was reasonable to continue to keep him on a drug that had proven ineffective and
whether that course of treatment constituted deliberate indifference is a question best suited for a
jury.
Darrah, as further evidence of deliberate indifference, asserts that, during the time his
HPK was being ineffectively treated with Methotrexate, he faced a substantial risk of contracting
a contagious disease, and Defendants disregarded this risk. The district court discounted this
argument because Darrah did not in fact contract an infection during this period. We disagree
with the district court’s reliance on the fact that Darrah did not develop an infection. We have
previously stated that “the test for deliberate indifference is whether there exists a ‘substantial
risk of serious harm,’ and does not require actual harm to be suffered.” Blackmore v. Kalamazoo
Cty., 390 F.3d 890, 899 (6th Cir. 2004) (internal citations omitted).4
In essence, Dr. Weil’s failure to provide any HPK medication during Darrah’s first three
months at MCI could support a finding of deliberate indifference to Darrah’s serious medical
needs because a jury could find that Dr. Weil disregarded the substantial risk of harm to Darrah
4

The district court found that there was no evidence that Dr. Krisher actually knew that Darrah was sharing
a cellblock with other inmates who suffered from infections. Defendants also argue that Darrah has pointed to no
evidence that they were subjectively aware of the risk of infection. The district court’s conclusion here, however,
cannot apply as easily to Dr. Weil. Further, to the extent that Defendants argue that there is no evidence that they
were aware of Darrah’s exposure to infections, this argument is squarely disputed by Darrah and the evidence that
he has provided in support of his claim. Defendants’ assertions to the contrary merely create a genuine dispute of
material fact that makes summary judgment improper here.

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stemming from leaving his HPK untreated. Similarly, Darrah has sufficiently shown that Dr.
Weil’s actions during the ten-month period that his HPK was being ineffectively treated with
Methotrexate could constitute deliberate indifference.
B.

Defendant Nurse Stanforth

Darrah’s claim of deliberate indifference as it relates to Nurse Stanforth is arguably a
closer question. As the district court noted, Nurse Stanforth is not an advanced-level provider
who has the authority to prescribe medications for inmates.

As MCI’s Health Care

Administrator, however, Nurse Stanforth was “responsible for decisions about the deployment of
health resources and providing clinical and administrative supervision to institution medical staff
24 hours a day, 7 days per week.” (R. 72, PageID # 868.) According to Darrah, Nurse
Stanforth’s potential liability stems from the “abdication of her duties to ensure that inmates
receive appropriate medical care.” (R. 68, PageID # 829.)5 We have previously sustained
deliberate-indifference claims holding a defendant liable for “‘abandoning the specific duties of
[their] position[s] . . . in the face of actual knowledge of a breakdown in the proper workings’ of
their respective departments or facilities,” such that this failure resulted in a direct violation of
the plaintiff’s Eighth Amendment rights. Estate of Young v. Martin, 70 F. App’x 256, 260 n.3
(6th Cir. 2003) (quoting Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992)).
As with Dr. Weil, Darrah argues that Nurse Stanforth was deliberately indifferent to his
medical needs between January 2011 and April 2011, when he first arrived at MCI, and between
April 2011 and February 2012, when he was being ineffectively treated with Methotrexate. The
record establishes that Darrah was not provided with any medication to treat his HPK during his
first three months at MCI. The record is equally clear that Nurse Stanforth, like Dr. Weil, knew
of Darrah’s HPK and his need for medical care. In fact, the record indicates that Nurse Stanforth
first became aware of Darrah’s HPK in December 2006 when she served as the Health Care
5

The district court found that Darrah raised this argument for the first time on summary judgment.
We disagree. In his complaint, Darrah stated that Nurse Stanforth, as MCI’s Health Care Administrator, was
responsible for the daily administration of healthcare services rendered at MCI. Darrah further noted that Health
Care Administrators were responsible for assessing, directing, coordinating, supervising, and evaluating all
healthcare services delivered at the institutional level. It is clear that the basis of Darrah’s claim against Nurse
Stanforth centers upon her failure to perform the essential duties of her position, which was raised prior to the
summary-judgment proceedings.

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Administrator at LCI. However, Darrah was not seen in NSC until two weeks after his transfer
to MCI, and did not see a doctor until March 2, 2011. Even Nurse Stanforth did not personally
meet with Darrah at MCI until April 4, 2011. As we previously noted, this neglect of Darrah’s
known serious medical needs may constitute deliberate indifference. See Comstock, 273 F.3d at
702; Boretti, 930 F.3d at 1154. Given Nurse Stanforth’s position at MCI and the requirements of
her position as Health Care Administrator, it is entirely possible that a jury could conclude that
her failure to ensure the continuity of Darrah’s treatment and her failure to, at a minimum, ensure
that Darrah was seen by an advanced-level medical provider upon his arrival to MCI, constitutes
deliberate indifference.
Darrah further argues that Nurse Stanforth’s failure to consistently relay his complaints of
pain to his treating physicians while he was on Methotrexate constituted deliberate indifference.
Darrah points to evidence of the multiple grievances he filed during this period, complaining that
he was in constant and severe pain and that he was prone to infection. Nurse Stanforth’s reaction
to this complaint was to question the severity of Darrah’s pain. The record also contains
evidence of multiple communications between Darrah’s wife, Lacona, and Nurse Stanforth
detailing Darrah’s lack of improvement while on Methotrexate and the fact that there had not
been any response from Nurse Stanforth. Darrah has, therefore, presented sufficient evidence to
create a genuine dispute of material fact as to whether Nurse Stanforth’s actions (or inaction)
regarding his complaints of pain while on Methotrexate constituted deliberate indifference to his
serious medical needs.
C.

Defendant Dr. Krisher

Darrah argues that Defendants were deliberately indifferent by insisting on prescribing
Methotrexate while knowing that Soriatane was the only drug that had proven effective for his
HPK. According to Darrah, Methotrexate should never have been prescribed for his HPK
because it is a drug primarily used in the treatment of cancer, and even its FDA-approved
warning label cautions that the drug should be used to treat psoriasis only in cases where all
other medications have proven ineffective. Additionally, Darrah argues that Defendants’ reason
for choosing Methotrexate over Soriatane was solely because Soriatane was the more expensive
drug, and that this use of a non-medical factor as the sole reason for that determination was

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improper. Dr. Krisher, as a member of the ODRC Collegiate Review Board (the Board that must
preapprove the prescription of any drug that did not appear on the ODRC Drug Formulary), was
directly responsible for denying Dr. Weil’s request for a prior authorization to prescribe
Soriatane to Darrah. Although Dr. Krisher did not work directly at MCI or personally treat
Darrah, his position on the Review Board made him responsible for ensuring that Darrah
received effective treatment.
As a general rule, a patient’s disagreement with his physicians over the proper course of
treatment alleges, at most, a medical-malpractice claim, which is not cognizable under § 1983.
See Estelle, 429 U.S. at 107; see also Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir.
2014) (“But a desire for additional or different treatment does not suffice by itself to support an
Eighth Amendment claim.”). Additionally, “[w]here a prisoner has received some medical
attention and the dispute is over the adequacy of the treatment, federal courts are generally
reluctant to second guess medical judgments and to constitutionalize claims which sound in state
tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). However, a decision to
provide an “easier and less efficacious treatment” may suffice to establish deliberate
indifference. Warren v. Prison Health Servs., Inc., 576 F. App’x 545, 552 (6th Cir. 2014)
(quoting Estelle, 429 U.S. at 104 n.10).
We have previously held that “[w]hen prison officials are aware of a prisoner’s obvious
and serious need for medical treatment and delay medical treatment of that condition for nonmedical reasons, their conduct in causing the delay creates [a] constitutional infirmity.”
Blackmore, 390 F.3d at 899. This holding is consistent with the holdings of our sister circuits.
See Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)
(“[I]f necessary medical treatment is delayed for non-medical reasons, a case of deliberate
indifference has been made out.” (citations omitted)); Ancata v. Prison Heath Servs., Inc., 769
F.2d 700, 704 (11th Cir. 1985) (same).
The record in this case does not provide any medical reason why Darrah was given
Methotrexate instead of Soriatane.

The only apparent basis for this decision was that

Methotrexate was listed on the drug formulary. We recognize that prisons have legitimate
reasons to be concerned with the cost of medical treatment for inmates, and that a drug formulary

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can be an appropriate method of controlling such costs. We note, however, that had Darrah
merely argued that he should have received Soriatane instead of Methotrexate, our decision here
would be different. See Mitchell, 553 F. App’x at 605. But Darrah does not just imply that he
disagreed with Dr. Krisher’s decision to prescribe Methotrexate over Soriatane. Rather, he
asserts that only Soriatane had successfully treated his HPK, and that “Defendants knew that
several alternatives had failed.” (Appellant Br., at 36.)6 The decision by Dr. Krisher to prescribe
Methotrexate, according to Darrah, was a “less efficacious” treatment option. In McCarthy v.
Place, we held that the defendant doctor took a less efficacious treatment route and was
deliberately indifferent to an inmate’s medical needs when, although aware of the significant
pain that plaintiff suffered due to his dental cavity, the defendant failed to relieve the pain for
over seven months and chose to prescribe Ibuprofen rather than prescribe a temporary filling.
313 F. App’x 810, 816 (6th Cir. 2008). In so holding, we noted that a reasonable jury could find,
based on the record, that the defendant disregarded a risk of serious harm when he failed to
temporarily fill the plaintiff’s cavity, despite knowing that the plaintiff was in significant pain
and despite being familiar with more effective treatment options. Id.
This reasoning also applies here as against Dr. Krisher. At the time of Darrah’s transfer
to MCI, Defendants were aware of the severe nature of his HPK, that he had been taking
Soriatane prior to his transfer, and that Soriatane had been the only effective treatment for his
HPK out of a number of other medicines that he had tried. Given Dr. Krisher’s knowledge of
Darrah’s previous success with Soriatane; his knowledge that Methotrexate is a drug of last
resort for psoriasis; and the fact that Methotrexate is an immunosuppressant that required Darrah
to be monitored for severe side effects during its use, a reasonable jury could find that Dr.
Krisher disregarded a risk of serious harm to Darrah by prescribing Methotrexate despite his
familiarity with the more effective treatment option, Soriatane.

6

It is important to note that Darrah does not specifically claim that he had tried Methotrexate
unsuccessfully in the past or that, if he had, Defendants knew about it. In fact, the record indicates that Darrah and
his wife agreed to try Methotrexate after Nurse Stanforth informed them that the request for Soriatane had been
denied. These facts arguably weaken Darrah’s deliberate-indifference claim, but they do not defeat it; rather, they
raise a material factual dispute deserving consideration at trial.

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D.

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Defendant Dr. Eddy

Dr. Andrew Eddy was the Chief Medical Officer for ODRC and the Director of the
Collegiate Review Board. Like Dr. Krisher, he did not work at MCI or personally treat Darrah.
However, in his position, Dr. Eddy had immediate control over decisions made by the Review
Board, over the approval of medical care rendered, and over approval of requests for nonformulary medications. Dr. Eddy’s potential liability stems from his decision to continue to deny
Darrah’s request for Soriatane after knowing that Darrah had been on Methotrexate without
improvement, and after viewing pictures of the fissures and calluses on Darrah’s feet.
The evidence in the record shows that in July 2011, after Darrah had been on
Methotrexate for slightly over three months, he continued to complain that he was in pain and
was at risk of developing an infection. Shortly after Darrah filed his grievance, Dr. Eddy
reviewed Darrah’s medical information, saw pictures of his fissured feet, and nevertheless
decided to “continue with the current treatment plan,” which was Methotrexate at the time.
Viewing these facts in the light most favorable to Darrah, a reasonable jury could find that Dr.
Eddy was deliberately indifferent to Darrah’s medical needs by forcing him to remain on a
medication that was ineffective in treating his condition.
Ultimately, under the facts of this case, we conclude that the conduct of Drs. Weil,
Krisher, and Eddy and Nurse Stanforth could support a finding of deliberate indifference by a
reasonable jury.
IV.
Because we hold that the district court’s grant of summary judgment in favor of
Defendants was improper, we must also address the issue of qualified immunity.7 The doctrine
of qualified immunity shields officials from civil liability if their conduct “does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)).
7

The qualified immunity analysis has two steps: “(1) whether,

The district court declined to address the issue of qualified immunity based on its finding that Darrah
failed to show deliberate indifference.

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considering the allegations in a light most favorable to the party injured, a constitutional right has
been violated, and (2) whether that right was clearly established.” Estate of Carter v. City of
Detroit, 408 F.3d 305, 310–11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
The first inquiry of the qualified-immunity analysis asks “whether plaintiff has alleged
facts which, when assumed to be true, show that the defendants’ conduct violated a constitutional
right.” Comstock, 273 F.3d at 702. This inquiry “collapses into the analysis of whether [Darrah]
has produced sufficient evidence to show that [Defendants] were deliberately indifferent to
[Darrah’s] medical needs under the subjective component” of the deliberate-indifference
standard. See Parsons v. Caruso, 491 F. App’x 597, 602 (6th Cir. 2012). We have already
concluded that a jury could so find. Thus, we turn to the question of whether the right was
clearly established.
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Comstock,
273 F.3d at 702 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Further, we are not
required to “find a case in which ‘the very action in question has previously been held unlawful,’
but, ‘in the light of pre-existing law, the unlawfulness must be apparent.’” Id. (alterations and
citation omitted). Initially, “[t]he proposition that deliberate indifference to a prisoner’s medical
needs can amount to a constitutional violation has been well-settled since Estelle in 1976.”
Parsons, 491 F. App’x at 602. Furthermore, we have already noted that this Circuit’s precedent
is clear that neglecting a prisoner’s medical need and interrupting a prescribed plan of treatment,
even for a relatively short period, can constitute a constitutional violation.

See Terrance,

286 F.3d at 844–45; Comstock, 273 F.3d at 702; Boretti, 930 F.3d at 1154. Thus, it was “clearly
established” in 2011, at the time of Darrah’s transfer to MCI, that neglecting to provide a
prisoner with needed medication, choosing to prescribe an arguably less efficacious treatment
method, and continuing on a treatment path that was clearly ineffective could constitute a
constitutional violation.

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V.
For the above-mentioned reasons, we hold that Darrah has produced sufficient evidence
to establish that a genuine dispute of material fact exists as to whether Defendants Krisher, Eddy,
Weil, and Stanforth were deliberately indifferent. Such evidence precludes a grant of summary
judgment. Accordingly, we REVERSE the district court’s grant of summary judgment in favor
of Defendants and REMAND this case for further proceedings consistent with this opinion.