Franklin v. Michigan, State of et al

Filing 100

OPINION AND ORDER granting in part and denying in part 80 Motion for Summary Judgment; granting 81 Motion for Summary Judgment; denying 82 Motion for Summary Judgment. Signed by District Judge Laurie J. Michelson. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAREN FRANKLIN, personal
representative of the estate
of Keith Franklin,

Case No. 16-13587
Honorable Laurie J. Michelson
Magistrate Judge David R. Grand

Plaintiff,
v.
CORIZON HEALTH, INC., et al.,
Defendants.

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [82], GRANTING IN PART AND DENYING IN PART CORIZON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [80], AND GRANTING
DEFENDANT HEYN’S MOTION FOR SUMMARY JUDGMENT [81]
In 2014, Keith Franklin died of cancer. At the time, he was an inmate in the Michigan
Department of Corrections. Franklin’s mother, as the representative of his estate, brings this
lawsuit challenging the medical care Franklin received while incarcerated. Ms. Franklin says the
individual doctors who treated her son, the company they work for, and the head of MDOC all
violated Franklin’s Eighth Amendment rights.
In time, all parties moved for summary judgment. And for the reasons that follow, one of
Franklin’s claims needs to go to a jury. The rest are dismissed.
I.
A.
On August 6, 2012, Keith Franklin began serving a one- to five-year term of incarceration
in the Michigan Department of Corrections for his second DUI offense. (ECF No. 93, PageID.615–
618, 1238.) On that day, Franklin arrived at MDOC’s Reception and Guidance Center, where,

among other things, he had his intake physical. (ECF No. 80, PageID.1590.) At the intake physical,
an MDOC medical professional discovered that Franklin had Hepatitis C, so he was scheduled for
a “bubble” appointment the next day. (Id. at PageID.1622–1623.) A bubble appointment, not
normally longer than 90 minutes (id. at PageID.1775–1776), is used to further evaluate a prisoner
who presents at intake with a chronic illness (ECF No. 80, PageID.1754–1756).
1.
Dr. Janak Bhavsar performed Franklin’s bubble exam. (ECF No. 80, PageID.1586.)
Bhavsar has a fuzzy memory of it. (Compare ECF No. 80, PageID.1725–1726, 1757, 1883, with
id. at PageID.1873–1875.) But Bhavsar’s charting helps fill in some of the gaps. It appears Bhavsar
educated Franklin on the importance of monitoring his Hepatitis C symptoms, getting regular
exercise, and taking his medications. (Id. at PageID.1586.) And as part of the appointment,
Bhavsar took a snapshot of Franklin’s medical history, learning, among other things, that Franklin
was a pack-a-day smoker for decades. (Id. at PageID.1584.)
Importantly, the bubble appointment includes a physical exam. (Id. at PageID.1583–1586.)
As part of the physical, Bhavsar palpated Franklin’s head, neck, and thyroid. (Id.) Although
Bhavsar charted that his inspection of those areas “reveal[ed] symmetry,” he also left a cryptic
comment: “? palpable lymphnode 2-3 cm below L angle of jaw.” (Id.) Beyond the cryptic notation,
Bhavsar’s charting is otherwise silent about what he did to follow up on a possible palpable lymph
node. However, Bhavsar did order a “CBC” (id. at PageID. 1586), short for a complete blood
panel, a thorough blood test Bhavsar says he did not ordinarily order for every patient (id. at
PageID.1793). Eventually, Franklin’s blood test came back normal. (Id. at PageID.1594–1611.)
Two weeks later, Bhavsar saw Franklin again, this time for a clearance physical. (ECF No.
80, PageID.1563–1565, 1754–56.) The clearance physical is a medical appointment prior to a

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prisoner’s transfer from the Reception and Guidance Center to a longer-term facility within
MDOC. (Id.) Once more Bhavsar conducted a physical exam. (ECF No. 80, PageID.1812.) The
physical exam’s charting does not say one way or another whether Bhavsar palpated Franklin’s
neck and thyroid. (Id. at PageID.1563–1564.) And the chart is also silent about the presence or
absence of any palpable lymph node. But the charting is clear that Bhavsar reviewed the previously
ordered lab work, ordered more labs, took Franklin’s vitals, and educated him about routine health
issues. (Id. at PageID.1564–1565.) Then he labeled Franklin a chronic care patient (because of his
Hepatitis C) ready to be transferred anywhere within the prison system. (Id. at PageID.1561, 1732–
1733.)
2.
Franklin was transferred to the Carson City Correctional Facility. There, he was under the
care of Dr. Scott Holmes and Dr. Daniel Carrel. (ECF No. 86, PageID.8552–8553, 8580–8581.)
And from September 2012 through October 2013, Franklin’s medical records show he received
care related to his Hepatitis C and other minor health issues. (Id. at PageID.1477–1558.)
Circumstances changed in October 2013. On October 9, Franklin sought treatment for
frequent urination. (ECF No, 80, PageID.1485.) The nurse who treated Franklin conducted a
physical exam. (ECF No, 80, PageID.1485.) During the physical, the nurse found a mass on the
right side of Franklin’s neck. (Id.) The nurse charted the mass as large and firm. (Id.) Notably, her
charting reflects that Franklin said the mass had been evaluated last August but was now “5-6
times larger.” (Id.) The chart also notes that Franklin had not sought treatment for the mass because
doing so, he thought, might hold up his parole. (Id.) So the nurse referred Franklin for further
evaluation in two weeks and ordered an x-ray. (Id.)

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Further evaluation came on October 23, 2013, when Franklin saw Dr. Holmes. Holmes
charted that Franklin had “a lump to the right side of the neck.” (ECF No 80, PageID. 1471–1475.)
Holmes did a physical exam and noted that the lump was persistent, firm, about four centimeters
in diameter, not freely mobile, rubbery, and fixed. (Id. at PageID.1472.) He indicated it did not
feel like lymph node material. (Id. at PageID.1475.) Holmes, too, charted that Franklin said he first
noticed the lump 15 months prior, and the mass had been growing in the interim. (Id. at
PageID.1471.) Holmes concluded by recording his “suspicion here for [an] ominous neck mass
that needs further evaluation.” (Id.)
Consistent with this note, Holmes set a treatment plan in place. Although he believed the
mass was not likely a symptom of an infection, he prescribed a dose of penicillin. (ECF No. 80,
PageID.1472.) Then he ordered imaging. Within the prison’s clinic, he sent Franklin for an x-ray
with a low dose of radiation, thinking he might be able to quickly get a picture of the neck’s soft
tissue. (Id. at PageID.1463, 1466, 2255.) And he submitted a request for an outside medical
provider to do a CT scan. (Id. at PageID.1465.)
Although Holmes had ordered the CT scan on October 23, 2013, the results did not come
back until late November. (ECF No. 80, PageID.1441–1445, 1458.) They showed a “bulky
heterogenous mass deep to the SCM muscle with considerable mass effect . . . and inseparable
from the tonsillar pillar.” (Id. at PageID.1437.) The CT results strongly suggested cancer, which
necessitated a biopsy. (Id.) So Holmes referred Franklin to an Ear Nose and Throat specialist for
a consult about a biopsy. (Id.)
Like the CT scan, scheduling the ENT consult took some time. In early December, the
prison booked Franklin’s consult for January 6, 2014. (ECF No. 80, PageID.1436.) The consult
confirmation included in Franklin’s medical records says Dr. Holmes approved of the time frame.

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(Id.) But on the day of the appointment, a snowstorm forced the ENT’s office to close. (Id. at
PageID.1422, 2405–2406.) So Franklin’s appointment had to be rescheduled for February 10,
2014. (Id. at PageID. 1413, 2406.)
While Franklin waited to see the ENT for a consult, he started to complain of pain. (ECF
No. 80, PageID.1422.) In mid-December 2013, Dr. Carrel saw Franklin and recorded that Franklin
had “some masses at the angle of the R jaw and a 2.1 cm submandibular mass.” (Id. at
PageID.1431.) The masses caused pain, so Carrel prescribed some non-steroidal antiinflammatory pain medications (i.e., generic versions of Advil, Tylenol, and Aleve). (Id.) A month
later, Carrel again saw Franklin and charted that Franklin “feels the mass is growing.” (Id. at
PageID.1422.) Franklin even started to feel pain when he opened his mouth. (Id.) And by then,
Carrel described Franklin as having a “solid fixed lesion on his R neck that is 15 cm by 5 cm.”
(Id.) Again, Carrel increased Franklin’s dosages of generic Advil, Tylenol, and Aleve. (Id. at
PageID.1423.)
On February 10, 2014, Franklin had his consult with the ENT. (ECF No. 80, PageID.1413.)
And that same week, Dr. Carrel went over the ENT’s report with Franklin. (Id.) The ENT wanted
Franklin to have two procedures. The first was a biopsy done via laryngoscopy. (Id.) The second
was an esophagoscopy (a scope of the esophagus) “in the operating room under general
anesthesia.” (Id.) Carrel filled out a request for the two treatments. (Id. at PageID.1404.)
But Carrel incorrectly filled out the request. Corizon required each procedure to have its
own paperwork. (ECF No. 80, PageID.1404–1405.) Carrel put the laryngoscopy and the
esophagoscopy on the same piece of paper. (Id.) So Carrel’s first request was denied (id. at
PageID.1405), and the next day Carrel tried again (id. at PageID.1399, 1402). He submitted two

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requests, both were approved, and Franklin’s biopsy was set for March 18, 2014, about a month
later. (Id. at PageID.1396.)
While he waited for the biopsy, Franklin again complained about the pain. As the mass
expanded, Franklin’s jaw started to hurt. (ECF No. 80, PageID.1376.) In response, Carrel added
Norco to Franklin’s pain medications. (Id. at PageID.1375.)
On March 18, 2014, the ENT performed the biopsy. (ECF No. 80, PageID.1364.) And,
before the results came back, the ENT told Franklin to prepare for a cancer diagnosis. (ECF No.
80, PageID.1364.) Shortly after, the ENT’s pathology report confirmed the cancer was an
“invasive, moderately-differentiated squamous cell carcinoma.” (Id. at PageID.1356.) The
squamous cell carcinoma was staged at “T2N3” of the right tonsil with spread to the right neck.
(Id.) To begin treatment, the ENT recommended the prison refer Franklin to a medical oncologist
and a radiation oncologist. (Id.)
Two days after receiving the pathology report, Dr. Carrel completed the referrals Franklin
needed to see radiation and medical oncologists. (ECF No. 80, PageID.1353.)
Less than a month later, Franklin saw a medical oncologist, Dr. Cheryl Kovalski. (ECF No.
80, PageID.1332.) At the appointment with Kovalski, Franklin asked if it was possible to delay his
treatment for three months so he could seek a medical parole. (Id.) But Kovalski said Franklin
might not have that long to live. (Id.) So Kovalski asked Corizon to refer Franklin for an MRI,
which confirmed a right-sided mass with likely metastasis. (Id. at PageID.1299.)
A short time later, Franklin saw the radiation oncologist. (Id. at PageID.1288.) The
radiation oncologist recommended a PET-CT scan. (Id.) And depending on the PET-CT results,
he would recommend a particular course of chemotherapy to shrink the tumor prior to starting
radiation. (Id.)

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Carrel scheduled Franklin’s PET-CT scan for May 2014. (Id.) But Franklin did not properly
prepare for it. (ECF No. 80, PageID. 1259, 1264.) So the scan was rescheduled for, and occurred
in, mid-June. (Id. at PageID. 1259, 1206.) Yet the delay in obtaining a PET-CT scan meant
Franklin had to wait for chemotherapy to begin. (ECF No. 85, PageID.6937–6938.)
By April, Franklin had “four masses on his R neck.” (Id. at PageID.1321.) The masses
caused pain, which Carrel continued to address. (ECF No. 80, PageID.1320.) Carrel increased
Franklin’s pain medication. (Id. at PageID.1319.) But Franklin’s pain grew worse, and he
requested higher doses of pain killers. (ECF No. 80, PageID.1254.) By late May Franklin told
Carrel the pain medication did nothing at all. (ECF No. 80, PageID. 1247, 1245.)
Also by May, Carrel knew Franklin’s situation was dire. (ECF No. 80, PageID.1319.) And
he realized Franklin had yet to start chemotherapy. (Id.) So Carrel recorded that he would seek a
medical parole for Franklin. (Id. at PageID.1319.) And Franklin’s records show he received a
parole date for early July. (Id. at PageID.1167.)
The medical professionals at Carson City continued to treat and monitor Franklin’s cancer.
In early June, they completed the paperwork necessary for Franklin to receive chemotherapy under
Kovalski’s care. (ECF No. 80, PageID.1185–1186.) Then on June 19, 2014, Franklin was admitted
to McLaren hospital for his first round of chemotherapy. (ECF No. 80, PageID.1210, 1212.) Over
five consecutive days, Franklin received five chemotherapy treatments. (Id. at PageID.1171–
1173.)
But five straight days of chemotherapy left Franklin nauseated and vomiting. (Id. at
PageID.1171.) To alleviate the nausea and emesis, the hospital treated Franklin with Compazine
and Zofran. (ECF No. 86, PageID.9782.) The treatments worked, and the side-effects subsided by

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his last day of treatment. (Id.) As a result, Franklin successfully completed his first round of
treatment and was stable enough to be discharged to the prison system. (Id. at PageID.9782–9783)
Kovalski believed Franklin would be discharged from McLaren to Duane Waters,
MDOC’s hospital. (ECF No. 85, PageID.6926–6927; ECF No. 86, PageID.9682, 9783.) So
Kovalski discharged Franklin with detailed instructions for his follow-up care. (ECF No. 86-7;
ECF No. 86, PageID.9683–84, 9701). The plan stretched for weeks. (See ECF No. 86,
PageID.9783.) Among other things, Kovalski recommended giving Franklin a dose of Zofran
every eight hours, meant to mitigate Franklin’s nausea and vomiting, along with doses of
Compazine as needed. (ECF No. 86, PageID.9783.) And the instructions urged the prison medical
staff to monitor Franklin’s white blood cell count. (Id.) Overall, though, the discharge report said
Franklin was in stable condition and noted he had his next appointment with Dr. Kovalski in a few
weeks. (Id.) Kovalski expected Franklin to make that appointment. (ECF No. 85, PageID.6943.)
3.
Franklin died less than five days after his discharge from McLaren. (ECF No. 80,
PageID.1031.)
Contrary to Kovalski’s expectation, Franklin was not discharged to Duane Waters hospital.
Instead, on June 23, 2014, consistent with MDOC’s policies, Franklin was returned to his unit at
the Carson City Correctional facility. (ECF No. 80, PageID.1169, 2845.) In line with the discharge
instructions, a nurse at the prison gave Franklin a dose of Zofran and told Franklin to return eight
hours later for the next dose. (Id. at PageID.1170.) And because Franklin still felt nauseous, prison
medical staff allowed him to bring a foot basin with him to his cell. (Id. at PageID.1169–1170.)
Three days passed. On the morning of June 27, the officer in charge of Franklin’s unit
contacted the chronic care clinic. (ECF No. 80, PageID.1163.) The unit officer said for the past

8

few days Franklin had been suffering from nausea, vomiting, and diarrhea. (Id.) Franklin was
dehydrated and his blood pressure was abnormally low. (Id.) A nurse contacted Carrel and started
Franklin on intravenous fluids.
Carrel saw Franklin and charted that his “overall appearance is ill-appearing.” (ECF No.
80, PageID.1162.) Franklin had difficulty breathing and experienced pain when he talked or
swallowed. (Id.) And because he had been vomiting, Franklin could not keep his medications
down. (Id.) Carrel consulted with Dr. Coleman, another Corizon physician. (Id.) The pair agreed
Franklin needed to be admitted to a hospital. (Id.) They arranged to send him to Duane Waters
Hospital. (Id.)
Duane Waters Hospital is about 80 miles from the Carson City prison. Franklin left Carson
City around 1 pm on June 27 and arrived at Duane Waters around 4:45 pm that evening. (ECF No.
80, PageID.1157, 1159.) Duane Waters medical professionals noted that Franklin was
hypotensive, dehydrated, and struggling to breathe. (Id.) They treated him throughout the night,
and initially had some success, recording that Franklin’s hypotension was resolving. (Id. at
PageID.1149.)
But on the morning of June 28, Franklin’s condition turned grave. (ECF No. 80,
PageID.1145.) Franklin was again hypotensive, had difficulty breathing, and his skin was hot to
the touch. (Id.) So Duane Waters medical professionals arranged to send him to the emergency
room at nearby Allegiance Hospital. (Id.) Once at Allegiance, Franklin’s respiratory problems
worsened and were compounded by multi-organ system failure and shock. (Id. at PageID.1142.)
Franklin died the next morning. (Id. at PageID.1031.) Allegiance’s death summary indicates
Franklin died of sepsis and other complications from cancer. (Id. at PageID.1031.)

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B.
Franklin’s mother, as the representative of her son’s estate, sued MDOC, Corizon, and all
the doctors involved in Franklin’s care. (ECF No. 1.) As the case progressed, some Defendants
settled. (See ECF No. 58.) The remaining Defendants are Bhavsar, Holmes, Carrel, and Corizon
health, along with former Director of the Michigan Department of Corrections Daniel Heyns. Now
they move for summary judgment on all of Franklin’s claims. (ECF No. 80, 81.) And for her part,
Franklin’s mother moves for summary judgment on her deliberate indifference claims against the
individual doctors. (ECF No. 82.)
For the reasons that follow, one of Franklin’s claims will proceed to trial. And the
remainder of Franklin’s claims will be dismissed.
II.
Summary judgment is appropriate where the moving party is entitled to judgment as a
matter of law and there are no genuine issues of material fact. Fed. R. Civ. P. 56(a). If there are
genuine disputes of material fact, then the appropriate finder of fact must resolve the dispute. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). And even though both parties move
for summary judgment, it does not necessarily follow that the parties see all the facts the same
way. See Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003). The Court must “evaluate
each motion on its own merits and view all facts and inferences in the light most favorable to the
nonmoving party.” Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003). And
the Court must apply the burden-shifting framework governing summary judgment.
The burden-shifting framework is as follows. When a party moves for summary judgment
on a claim for which it does not bear the burden at trial, it must establish that the record lacks
evidence to support the non-moving party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325

10

(1986). Then the burden shifts to the non-moving party to point out “specific facts showing that
there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). However, when a party moves for summary judgment on a claim for which it does
bear the burden at trial, the moving party has a heavier initial burden. To discharge its heavier
burden, the moving party must lay out the elements of its claim, and the facts satisfying those
elements, and then “demonstrate why the record is so one-sided as to rule out the prospect of a
finding in favor of the non-movant on the claim.” Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund,
778 F.3d 593, 601 (7th Cir. 2015).
III.
Franklin’s estate brings a § 1983 action against MDOC, Corizon, and the individual
doctors. Start with the law on § 1983 claims against the individual doctors. Section 1983 permits
suit against individuals who, while acting under color of state law, “deprived the claimant of rights,
privileges or immunities secured by the Constitution or laws of the United States.”1 Bennett v. City
of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing McKnight v. Rees, 88 F.3d 417, 419 (6th
Cir. 1996)). Karen Franklin alleges the individual doctors violated the Eighth Amendment’s ban
on cruel and unusual punishment because they were deliberately indifferent to her son’s cancer.
U.S. Const. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).
The Eighth Amendment’s “cruel and unusual punishments” clause grants prisoners a
constitutional right to medical care. U.S. Const. amend. VIII; Estelle, 429 U.S. at 104–05. And the
“deliberate indifference to an [inmate’s] serious medical needs” violates that right. Id. at 104. A
deliberate indifference claim has two parts. The first is an objective component: Franklin must
show that the “deprivation of medical care was serious enough to violate the Eighth Amendment.”

1

The individual actors do not dispute that they were acting under color of state law.
11

Rhinehart, 894 F.3d at 737. The second is a subjective component: Franklin must establish that
each “defendant has ‘a sufficiently culpable state of mind in denying medical care.’” Blackmore
v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Brown v. Bargery, 207 F.3d 863,
867 (6th Cir. 2000)). Deliberate indifference on the part of a medical professional requires a
showing of something greater than negligence, but less “than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result.” Blackmore v. Kalamazoo Cnty, 390
F.3d 890, 895–96 (6th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)); accord
Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (“Deliberate indifference . . . can be
characterized as ‘obduracy and wantonness’ rather than ‘inadvertence or error in good faith’”
(quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991))).
So the Court turns to Franklin’s deliberate indifference claims against the individual
doctors. To direct the traffic of multiple motions, the Court considers, first, the individual doctors’
motions for summary judgment. Resolving the individual doctors’ motions also resolves
Franklin’s motion for summary judgment. And because the subjective component of a deliberate
indifference claim must be analyzed individually as to each doctor, the Court will take in turn the
claims against each of Franklin’s doctors.
A.
Dr. Janak Bhavsar saw Franklin twice in August 2012. Franklin’s estate starts with the first
appointment, when Bhavsar charted a “? palpable lymphnode 2-3 cm below L angle of jaw.” That
notation, says the estate, meant Bhavsar found a two- to three-centimeter mass on Franklin’s right
side. And it was the first sign of Franklin’s potentially fatal cancer. (ECF No. 86, PageID.10200,
12364.) Potentially fatal cancer is an objectively serious medical condition. See Reilly v.
Vadlamudi, 680 F.3d 617, 624 (6th Cir. 2012). And even though Bhavsar knew a palpable lymph

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node like the one he found could be a sign of cancer (ECF No, 80, PageID.1765–1766), Franklin’s
estate continues, he never tried to rule out cancer (or any other serious medical condition for that
matter) and never developed a treatment plan of any kind. Indeed, Bhavsar never followed up at
all. So Bhavsar left the palpable lymph node untreated and thus consciously disregarded Franklin’s
serious medical need.
Bhavsar takes a different view of “? palpable lymphnode 2-3 cm below L angle of jaw.”
Bhavsar eventually came to the conclusion that “L angle” of Franklin’s jaw means the lymph node
he palpated was on Franklin’s left side. (ECF No. 80, PageID.1788–1789.) And later entries in
Franklin’s medical records all (save one) locate Franklin’s cancerous mass on Franklin’s right side.
(See, e.g., id. at PageID.1471, 1485; but see ECF No. 80, PageID.1437.) So Bhavsar says
Franklin’s fatal, right-sided neck mass was entirely different from the left-sided palpable lymph
node he detected at the first appointment. (Id. at PageID.994–995, 1010–1011.) Bolstering that
conclusion, says Bhavsar, his chart from the second appointment makes no mention of any
palpable lymph node. (Id. at PageID.1011.) Bhavsar says that must mean the lymph node had
cleared up by then, likely because it was a lipoma (a harmless fatty deposit), or the result of a
minor infection. (Id.; see also id. at PageID.1661.) Therefore, Bhavsar says that as of August 2012,
no reasonable jury could conclude Franklin had an objectively serious medical condition.
1.
The objective component of a deliberate-indifference claim may be satisfied a number of
ways. One route is to show that the prison’s doctors failed to provide treatment for a serious
medical condition. Rhinehart, 894 F.3d at 737. And “because a serious medical condition carries
with it a serious medical need, when prison officials fail to provide treatment for an inmate’s

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serious medical condition, the inmate has endured an objectively serious deprivation.” Id. (citing
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 896–99 (6th Cir. 2004)).
The two sides dispute whether Franklin had an objectively serious medical condition as of
August 2012. The estate says the lymph node Bhavsar palpated was cancer; Bhavsar says the
lymph node was a fatty deposit. And the nub of the disagreement is Bhavsar’s charting. Whether
Bhavsar is right, and thus deserving of summary judgment, depends on whether Franklin’s
palpable lymph node was the first sign of his cancer. And making that determination requires
figuring out what Bhavsar meant on August 7, 2012, when he charted a finding of a “? palpable
lymphnode 2-3 cm below L angle of jaw.”
The first problem is how to interpret “2-3 cm.” Does “2-3 cm” refer to the size of the lymph
node, or does it chart the node’s proximity to the jaw? Franklin’s experts interpreted “2-3 cm” to
refer to the lymph node’s size. (ECF No. 86, PageID.10173, 12365.) And based on that
interpretation, the experts said Franklin’s two- to three-centimeter lymph node was a serious
medical condition: most likely cancer. (Id. at PageID.10173, 12364.) However, Bhavsar testified
that he was pretty sure that “2-3 cm” referred to the node’s location—i.e., “2-3 cm” below the
jaw—even though his expert was less sure. (Compare ECF No. 80, PageID.1744–1745, 1782 with
id. at PageID.1963.) And neither Bhavsar nor his expert was at all sure of the node’s size. (ECF
No. 80, PageID.1782; id. at PageID.1973.) Eventually, Bhavsar came around to the belief that the
lymph node was probably under one centimeter. (Id. at PageID.1854.) And at that size, neither
Bhavsar nor his expert immediately jumped to cancer as the cause of the lymph node. (ECF No.
80, PageID.1853–1854, 1956.) A small lymph node like that usually turns out to be a symptom of
a minor infection or lipoma. (id. at PageID.1854, 1947–1948, 1973–1974.) Yet Bhavsar’s expert
acknowledged that a palpable lymph node could be a sign of cancer. (Id. at PageID.1968–1969.)

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Regardless of the lymph node’s size, the second problem is how to interpret “L angle of
jaw.” At his deposition, Bhavsar eventually came around to the firm conviction that “L angle”
meant Franklin’s left side. (ECF No. 80, PageID.1788–1789; see also id. at PageID.2241.) He
insisted he used anatomical position in his charting. (Id. at PageID.1672.) And because virtually
all of Franklin’s medical records locate Franklin’s cancerous mass on Franklin’s right side,
Bhavsar says the left-sided node he found, regardless of its size, could not have been the first sign
of cancer. Yet Franklin’s post-August 2012 medical records are not as clear as Bhavsar thinks they
are. (Compare ECF No. 80, PageID.1485 (“R side of neck”), with id. at PageID.1437 (“mass in
the left neck”).)
Even Bhavsar’s expert conceded Bhavsar’s charting from August 2012 was too ambiguous
to determine the lymph node’s exact location. (ECF No. 80, PageID.1963.) Plus, when Franklin’s
neck mass was charted in October 2013, Franklin told the nurse that it was the same mass Bhavsar
palpated in August 2012. (ECF No, 80, PageID.1485.) Other entries in Franklin’s medical records
also say Franklin’s neck mass was first detected in August 2012. (Id. at PageID.1471.) Also,
Bhavsar’s expert said a common charting error is to record a patient’s physical feature without a
clear indication whether the finding is from the physician’s perspective or the patient’s perspective.
(Id. at PageID.1946–1947.) Other medical professionals said the same thing. (See ECF No. 86,
PageID.9486, 12364, 12683–12684.) Absent a clear indication of location, physicians reading the
chart later on (like Franklin’s expert, for example) are left to guess at the physical feature’s precise
location. (See, e.g., ECF No. 86, PageID.10175.) And Franklin’s estate emphasizes that Bhavsar
likely made that charting error: recording the palpable lymph node at “L angle” of jaw but meaning
physician’s left rather than patient’s left. (ECF No. 86, PageID.8195.) Charting the lymph node

15

from the perspective of the physician’s left would mean the palpable lymph node was actually on
Franklin’s right side. (See ECF No. 86, PageID.12364, 12683–12684.)
In sum, whether Franklin had an objectively serious medical condition as of August 2012
boils down to an ambiguous notation in Bhavsar’s chart and physicians and experts who have
offered competing interpretations of that notation. And a reasonable jury could find either
interpretation credible. Put stock in one part of the record and Bhavsar palpated a small, harmless
lymph node on Franklin’s left side that had cleared up two weeks later. In that case, Franklin did
not have an objectively serious medical condition. But credit another part of the record and Bhavsar
palpated a sizeable, cancerous mass on Franklin’s right side. So a reasonable jury could believe
Franklin had an objectively serious medical condition as of August 2012. Thus, at least as to the
objective component, there exists a genuine issue of material fact.
2.
That leaves the subjective component. Even though a genuine issue of material fact exists
as to the objective component, Franklin still has to establish Bhavsar’s “sufficiently culpable state
of mind.” Blackmore, 390 F.3d at 895. Bhavsar’s culpable state of mind must have been
“equivalent to criminal recklessness.” Santiago, 734 F.3d at 591 (citing Farmer, 511 U.S. at 834,
839–40); see also Rhinehart, 894 F.3d at 738. Criminal recklessness requires more than evidence
of a doctor’s “errors in medical judgment or other negligent behavior.” Rhinehart, 894 F.3d at 738.
Rather, it requires showing that Bhavsar “‘subjectively perceived facts from which to infer
substantial risk to [Franklin], that he did in fact draw the inference, and that he then disregarded
that risk’ by failing to take reasonable measures to abate it.” Id. (quoting Comstock v. McCrary,
273 F.3d 693, 703 (6th Cir. 2001)). And if the record does not permit a jury to so find, then Bhavsar
is entitled to summary judgment.

16

Franklin’s estate says Bhavsar knew palpable lymph nodes were serious; knew how to
triage and follow up on a palpable lymph node; knew Franklin had a palpable lymph node; and did
not do anything. So Bhavsar consciously disregarded a substantial risk to Franklin.
Bhavsar insists he was not criminally reckless. He returns to his argument that there is
nothing in the record to suggest Franklin’s August 2012 palpable lymph node was cancerous. (ECF
No. 80, PageID.1010.) Again, he thinks it was probably a minor lipoma or infection. (Id. at
PageID.1010–1011.) So he could not have perceived facts from which to infer a substantial risk to
Franklin, did not actually know Franklin was substantially at risk, and thus did not disregard any
risk. (Id.at PageID.1011.)
Assessing Bhavsar’s state of mind requires analysis of Bhavsar’s deposition. At his
deposition, Bhavsar explained his training in cancer detection. (ECF No. 80, PageID.1651.) He
learned to palpate for tumors during his residency. (Id.) And he learned a standard operating
procedure for how to triage a suspicious finding, like a palpable lymph node. (Id. at PageID.1653,
1766.) Bhavsar knew suspicious lymph nodes could be a sign of a variety of conditions. (Id. at
PageID.1669.) And not all need to be seen by a specialist. (Id.) To make the best decision about a
patient’s medical care, he knew to gather and record data. On a case-by-case basis he would want
to know the size, location, color, temperature, and texture of the mass. (Id. at PageID.1658–1659,
1748–1749.) And he would want to know the patient’s history. (Id. at PageID.1653–1654.)
Depending on all of the above, he might order imaging to learn more, or he might first rule out an
infection. (Id. at PageID.1653–1654.) Ruling out an infection could mean checking vital signs and
ordering lab tests, like blood work. (Id. at PageID.1654.) If the blood work and testing came back
normal, then he might prescribe antibiotics. (Id.) And no matter what, Bhavsar would want to stay
in regular communication with the patient, including follow-up appointments. (Id. at PageID.1655,

17

1752, 1766.) Follow up appointments would have required referring back to charting from earlier
appointments. (Id. at PageID.1682.) Only upon completion of his “workup,” would he determine
whether the patient had a serious medical condition, like cancer. (Id. at PageID.1657–1658.)
Bhavsar also knew to chart his findings as he went along with his standard operating
procedure. Medical school taught him the importance of accurate charting. (ECF No. 80,
PageID.1665.) And he learned how to use Corizon’s specific system when he came on board. (Id.
at PageID.1666.) In the prison system, especially, Bhavsar understood accurate charting to be a
key component of continuity of care. (Id. at PageID.1666–1667.) Other medical professionals in
the prison system would read and rely on his charting. (Id. at PageID.1714.) So he knew to be
careful with his abbreviations and locate physical findings using anatomical position as a standard
reference. (Id. at PageID.1672.) And in his charting, he would record whether he educated the
patient about any specific findings or medical conditions. (Id. at PageID.1686–1687.)
However, in Franklin’s case, Bhavsar did not follow his standard operating procedure.
True, Bhavsar charted a finding of a palpable lymph node. And Bhavsar did record some of
Franklin’s history, noting his pack-a-day smoking habit for decades. And Bhavsar took at least
some steps to rule out minor causes, like infection.
But Bhavsar did not gather the other information he said he would need to judge the
significance of the palpable lymph node. Bhavsar did not include any information about the node’s
texture, color, or temperature. And even Bhavsar’s expert acknowledged Bhavsar’s charting was
too ambiguous to determine the node’s size or location.
And the information Bhavsar did collect tended to rule out something minor. Franklin’s
vitals and white blood count all came back normal, two indications Franklin was not fighting off
an infection. (ECF No. 80, PageID.1597, 1604; id. at PageID.1654–1655.) And Bhavsar’s chart

18

from the clearance physical says he reviewed the lab work with Franklin. (ECF No. 80,
PageID.1564.) The chart also indicates normal vital signs. (Id.) So Bhavsar had reason to doubt
Franklin had an infection.
More significantly, Bhavsar’s charting left no indication of any follow up. Yet Bhavsar
knew a palpable lymph node required follow up. He knew it might make sense to prescribe
antibiotics or order imaging to learn more. He did neither. And Bhavsar’s expert saw no evidence
of follow up in the charting. (ECF No. 80, PageID. 1956–1958, 1968.) Indeed, the chart from the
first appointment does not say whether Bhavsar educated Franklin on what a palpable lymph node
might mean. (Id. at PageID.1804.) That was the case even though Bhavsar knew Franklin’s age
and chronic smoking habit were warning signs for cancer. (Id. at PageID.1723.) Later at the
clearance physical, the charting offers nothing to indicate Bhavsar checked in on the lymph node.
(Id. at PageID.1814–1815, 1885–1887.) Even though the chart says Bhavsar conducted a physical
exam, the physical exam does not appear to have included any palpations of the throat or thyroid.
(Id. at PageID.1814.) Instead, Bhavsar cleared Franklin for transfer anywhere within the prison
system. (Id. at PageID.1564, 1818–1819.)
Bhavsar eventually explained why he deviated from his standard operating procedure.
Bhavsar’s deposition occurred over two days in 2017. (Id. at PageID.1832.) On day one, and even
at times on day two, Bhavsar said he had no recollection of Franklin or the August 2012
appointments with Franklin. (Id. at PageID.1725, 1791,1883.) And he admitted his August 2012
charting left him unable to answer specific questions about the lymph node, or any follow up he
did to keep track of it. (Id. at PageID.1789–1791, 1812–1817, 1821.) Yet on day two, after some
reflection and discussions with his lawyer (id. at PageID.1860), Bhavsar’s memory improved (id.
at PageID.1851, 1874; but see id. at PageID.1875). Bhavsar came to remember that the real focus

19

of the bubble appointment was Franklin’s Hepatitis C and constipation. (Id. at PageID.1851.) The
palpable lymph node was just an incidental finding, but something Bhavsar was nonetheless not
entirely sure about. (Id. at PageID.1851, 1854.) The question mark jogged his memory (Id.) The
question mark, he now recalled, was intentional: it indicated Bhavsar believed Franklin had
something odd on his neck, but something minor, like a lipoma. (Id. at PageID.1852–1853.) And
because Bhavsar believed Franklin had something minor like a lipoma, the lymph node must have
had a normal texture—soft, mobile, and not fixed to any surrounding tissue. (Id. at PageID.1852–
1853.) And because the palpable lymph node must have had a normal texture, the lymph node
must have been fairly normal in size, which would mean smaller than one centimeter. (Id. at
PageID.1853–1854.) And because the palpable lymph node was a small, normal lipoma, by the
August 21 clearance physical, Bhavsar said he was sure the palpable lymph node was gone. (Id. at
PageID.1859, 1864.) And with the neck mass cleared up, Bhavsar went ahead and cleared Franklin
for transfer.
Given all of the above, a genuine issue of fact exists as to the subjective component. Recall
that the subjective component requires three things: Bhavsar’s perception of facts “from which to
infer substantial risk” to Franklin, evidence that Bhavsar inferred a substantial risk, and proof that
he “disregarded that risk by failing to take reasonable measures to abate it.” Rhinehart, 894 F.3d
at 738. Whether Franklin has established these things depends on who you believe.
A reasonable jury could conclude Bhavsar was not criminally reckless. Reasonable minds
could credit Bhavsar’s testimony from the second day of his deposition and thus conclude that
Bhavsar never inferred a substantial risk to Franklin. Yes, Bhavsar found a palpable lymph node.
But he made clear that a lymph node, at most, could be serious. And Bhavsar eventually said
Franklin had all the signs of a non-serious one. Supporting that conclusion is the charting. The

20

question mark showed he was not sure, and by the clearance physical it was gone so he did not
bother to mention it.
Or a reasonable jury could go the other way. Reasonable jurors could find incredible
Bhavsar’s recovered memories. Instead, as already noted, a reasonable jury could believe that
Bhavsar palpated a questionable lymph node that bore the warning signs of cancer. And they could
reject Bhavsar’s claim that the absence of evidence amounts to evidence of absence. A reasonable
jury could infer from Bhavsar’s charting that he did nothing to assess, let alone treat, a lymph node
he knew could be serious. So a reasonable jury could find Bhavsar subjectively perceived facts
from which to infer a substantial risk and did nothing to alleviate the risk.
But could a reasonable jury find that Bhavsar actually drew the inference? To make out an
Eighth Amendment claim, it is not enough to insist Bhavsar should have known. See Watkins v.
City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2001). Importantly, however, Bhavsar’s
knowledge of a substantial risk may be established by circumstantial evidence. See Rhinehart, 894
F.3d at 738. If a risk is “obvious” and “well-documented” and the circumstances “suggest that the
official has been exposed to information so that he must have known of the risk, the evidence is
sufficient for a jury to find that the official had knowledge.” Id. (internal quotations and citations
omitted). Here, Bhavsar palpated a lymph node on a long-time smoker over the age of 40. Bhavsar
knew that age and smoking amplified a cancer risk. And Bhavsar knew that a palpable lymph node
could be a sign of an infection, or a sign of a tumor, so he put a question mark by it. Then he
obtained blood work and vital signs that tended to rule out infection. And Bhavsar said he used the
UpToDate system to keep abreast of best practices. According to Franklin’s expert, in 2012
UpToDate indicated that a neck mass, though common, could be the only symptom of a “serious
and potentially malignant pathology, especially in the adult population.” (ECF No. 86,

21

PageID.12366.) Bhavsar used UpToDate, (ECF No. 80, PageID.1692), and left open the possibility
that he referenced it in Franklin’s case (Id. at PageID.1693). Add up all of the above and the
evidence is sufficient for a reasonable jury to find that Bhavsar knew of a substantial risk to
Franklin. So a reasonable jury could conclude that Bhavsar “consciously expos[ed] [Franklin] to
an excessive risk of serious harm.” Richmond v. Huq, 885 F.3d 928, 940 (6th Cir. 2018).
At bottom, Bhavsar’s state of mind in August 2012 depends on which Bhavsar a reasonable
jury believes. A reasonable jury could credit Bhavsar on day two of his deposition and find he was
never criminally reckless. Or a reasonable jury could credit Bhavsar from day one of the deposition
could conclude that Bhavsar had a sufficiently culpable state of mind to violate the Eighth
Amendment. Put simply, the facts needed to determine the subjective component turn on a
credibility determination.
Summary judgment in favor of Bhavsar is not warranted.
B.
Next is Dr. Scott Holmes. He treated Franklin at the Carson City Correctional Facility.
Franklin’s estate says Holmes discovered an objectively serious medical condition in October
2013. Yet almost eight months passed before Franklin started chemotherapy. Franklin’s estate
attributes the eight-month delay, in part, to Holmes. Specifically, Holmes could have marked as
“urgent” all the referrals Corizon required to schedule specialist care. (ECF No. 80, PageID.2934–
2935.) Urgent referrals would have meant immediate responses to the requests. (Id. at
PageID.2941.) Franklin required a lot of specialist care. And Holmes’ failure to speed up the
referrals for specialist care, over time, drastically delayed Franklin’s diagnosis and treatment. So
the failure to mark the referrals “urgent” establishes deliberate indifference on Holmes’ part.

22

Holmes disagrees. First he says no reasonable jury could conclude Franklin had an
objectively serious medical condition until February 2014. And then Holmes says from February
2014 onward, he did everything he could to treat and monitor Franklin’s cancer. So no reasonable
jury could find Holmes consciously disregarded a substantial risk to Franklin’s health.
Although the parties disagree over whether Franklin had an objectively serious medical
condition in October 2013, assume, for the sake of argument, he did. Even so, from October 2013
onward, no reasonably jury could find Holmes consciously disregarded a substantial risk by
delaying Franklin’s treatment. See Rhinehart, 894 F.3d at 743. “When ‘a doctor orders treatment
consistent with the symptoms presented and then continues to monitor the patient’s condition, an
inference of deliberate indifference is unwarranted.’” Id. (quoting Self v. Crum, 439 F.3d 1227,
1232–33 (10th Cir. 2006)).
Beginning in October 2013, Holmes treated and monitored Franklin’s condition. From the
start, Holmes labeled Franklin’s neck mass “ominous.” (ECF No. 80, PageID.1471.) So he
perceived the substantial risk. Accordingly, he first prescribed a dose of penicillin to rule out minor
causes, and then he immediately ordered imaging. (Compare ECF No. 80, PageID.1471 with id.
at PageID.1475.) The first imaging he ordered, an x-ray with a certain dose of radiation, was
intended to speed up Franklin’s diagnosis. (ECF No. 80, PageID.2255.) And Holmes requested a
CT scan. Three days after the CT scan results revealed a “bulky” mass, Holmes referred Franklin
to an ENT for a biopsy. (Id. at PageID.1437.) The biopsy confirmed Franklin’s cancer and set off
months of follow-up tests and treatments. In the meantime, Holmes treated Franklin for pain as
needed.
And Holmes did not illegally delay. Throughout the time he treated Franklin, the medical
records show Holmes promptly submitted referrals. (See, e.g., id. at PageID.1472, 1437.) True,

23

Holmes never marked the referrals as urgent. But all Holmes’ referrals were approved in under a
week anyway. (Id.) And from January to June 2014, at least, almost all of Holmes’ referrals were
approved within 24 hours. (See ECF No. 80-17.) Plus, Holmes attributed any delay in scheduling
appointments not to the referral system, but to the number of schedulers employed by the prison,
none of whom are defendants in this case. (Id. at PageID.2137–2138; see also id. at PageID.3493.)
Plus, some of the delay is not attributable to anyone at all. Unfortunately, a major snowstorm
forced the cancellation of Franklin’s first ENT appointment. And even if Holmes was negligent in
not acting faster “[m]edical malpractice does not become a constitutional violation merely because
the victim is a prisoner.” Estelle, 429 U.S. at 106.
To be sure, the eight-month delay in Franklin’s case is troubling. Yet the estate’s argument
relies too much on hindsight bias. Looking at the entirety of Franklin’s medical record, knowing
how Franklin’s medical treatment turned out, it is easy to second-guess Holmes’ decision-making
along the way. But Holmes is owed more deference than that. Cf. Richmond¸ 885 F.3d at 940. And
taking each of Holmes’ referrals on its own, nothing in the record would allow a reasonable jury
to conclude that Holmes was consciously disregarding a substantial risk to Franklin every time he
referred Franklin for cancer treatment. See Triplett v. Palmer, 592 F. App’x 534, 536 (8th Cir.
2015). So no reasonable jury could say Holmes’ failure to mark every referral as urgent amounted
to recklessness.
C.
That leaves Daniel Carrel. Franklin’s estate says Carrel exhibited deliberate indifference
in June 2014. At that time, the estate says, Carrel provided inadequate care for the early symptoms
of Franklin’s sepsis, and when Franklin’s condition turned emergent, Carrel made an indefensible

24

decision to send Franklin to a hospital 80 miles away. (ECF No. 86, PageID.10179.) So Franklin’s
estate says Carrel’s care violated the Eighth Amendment.
As for the objective component, the parties agree Franklin had a serious medical condition
by the time Carrel first saw him. (ECF No. 80, PageID.1012; ECF No. 86, PageID.8199.) So once
more, the only issue is whether Franklin can establish Carrel acted with a sufficiently culpable
state of mind.
It is true that Franklin’s health deteriorated rapidly after his discharge from chemotherapy.
Medical records after the discharge show Franklin appears to have spent around three days
suffering from vomiting and diarrhea without any care from the medical professionals at Carson
City Correctional. But for those three days, nothing in the record suggests Carrel had any idea
Franklin was deteriorating. (ECF No. 86, PageID.10178.) And Carrel read the discharge papers.
(ECF No. 80, PageID.295–296,) He saw nothing concerning. (Id. at PageID.296.) Franklin was in
stable condition with normal labs, normal blood pressure, good white blood cell count, and
breathing well. (Id. at PageID.296–299.) Carrel first learnedof Franklin’s worsening condition on
the morning of June 27. (ECF No. 80, PageID.1163.) By that time, Franklin had a fever and
complained of chest pain. (ECF No. 86, PageID.10178.)
Within two hours, Carrel saw Franklin. (Compare ECF No. 80, PageID.1161 with id. at
PageID.1163.) According to the estate’s expert, Franklin’s symptoms were signs of sepsis. (ECF
No. 86. PageID.10178.) And the estate’s expert says Carrel responded consistent with how to treat
sepsis. (ECF No. 86, PageID.10178, 10179.) And Carrel knew Franklin’s condition was an
emergency, so he phoned Dr. Coleman to determine where Franklin should go for emergent care.
So even if Carrel “should have known” about Franklin’s condition earlier, that is not enough to
establish deliberate indifference. See Watkins, 273 F.3d at 686.

25

It is also true that Carrel’s call to Coleman caused Franklin to be sent to a hospital 80 miles
from Carson City Correctional. But the decision to send Franklin to Duane Waters is not evidence
of deliberate indifference. For one, Carrel did not decide to send Franklin to Duane Waters.
Coleman did. (ECF No. 80, PageID.2846.) Coleman decided on Duane Waters because Franklin
needed care in an infirmary setting. (ECF No. 80, PageID.2846–2847.) Duane Waters was an
infirmary and it was close enough to another hospital for a transfer if Franklin worsened. (Id.) And
Coleman believed the staff at Carson City Correctional could stabilize Franklin for the trip to
Duane Waters. (Id.)
Initially, Franklin responded positively to the care provided at Duane Waters. (ECF No.
80, PageID.1149.) But the next morning his condition worsened, and the staff transferred him to
the nearby hospital. (ECF No. 80, PageID.2847.) Not long after, Franklin died at that nearby
hospital.
Given all of the above, no reasonable jury could conclude Carrel consciously exposed
Franklin to a substantial risk of serious harm. “A doctor is not liable under the Eighth Amendment
if he or she provides reasonable treatment, even if the outcome of the treatment is insufficient or
even harmful.” Rhinehart, 894 F.3d at 738 (citing Farmer, 511 U.S. at 844). Carrel saw Franklin
two hours after he was first notified of Franklin’s grave condition. Carrel treated Franklin for the
early signs of sepsis and stabilized him for a trip to the hospital. Then Carrel consulted with another
physician to ensure Franklin could receive emergent care consistent with the prison’s security
needs. Franklin died almost two days after leaving Carrel’s care. So Carrel provided reasonable
treatment for Franklin’s sepsis, even though the outcome was “insufficient.”

26

D.
Franklin’s estate also brings an individual-capacity claim against Heyns. The estate says
Heyns “deprived Keith Franklin. . . of his Eighth Amendment rights by personally maintaining
policies that deprived Franklin of healthcare because he was seeking an early release from prison
on parole.” (ECF No. 85, PageID.6149.) The estate says they are not suing on a Monell theory, nor
do they bring suit against Heyns in his official capacity. (Id.) Because MDOC allegedly has this
parole policy, and Heyns admitted he was responsible for all MDOC policies, and the estate thinks
the parole policy unconstitutionally delayed Franklin’s medical care, the estate says Heyns’ is
individually liable for a deprivation of Franklin’s Eighth Amendment rights. (Id. at PageID.6156.)
Put another way, the estate thinks Heyns should be liable because he was in charge of MDOC, and
all its policies, at the time of Franklin’s death. But that is a theory of respondeat superior. And
respondeat superior cannot “sustain a § 1983 claim against state employees in their individual
capacities[.]” Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010). Heyns is entitled to summary
judgment on Franklin’s estate’s individual capacity claim.
The result is the same on the merits. According to the estate, MDOC has a policy that
allows the parole board to consider an inmates’ medical condition when making a parole decision.
(ECF No. 85-10, 85-11.) And according to the estate, the policy expressly allows the board to deny
parole to those inmates suffering from serious medical conditions. So the state thinks MDOC’s
policy acts as a cruel and unusual barrier to parole for inmates suffering from a serious medical
condition.
Plaintiff misreads MDOC operating procedure 06.05.104A. (ECF No. 85-10.) The policy
ensures that “prisoners who receive a positive parole action are screened appropriately, that the
parole is properly authorized, and that necessary arrangements are completed prior to parole.”

27

(ECF No. 85, PageID.8159.) True, the factors the parole board must consider include a prisoner’s
physical and mental health. (ECF No. 85, PageID.8167.) And MDOC’s policy allows the parole
board to delay parole for medical reasons, if necessary. (Id. at PageID.8160.) But Heyns’ counsel
rightly explained the policy as a bridge not a barrier. The policy safeguards against a disruption of
medical care as a result of parole. For example, the policy requires MDOC to line up communitybased medical care where possible. (Id.) And if a parolee is on medication, MDOC must provide
the parolee with a 30-day supply. (Id.) Overall, the policy is intended to alert the parole board to a
parolee’s medical needs such that any parole decision does not negatively affect the parolee’s
medical care. And Plaintiff’s counsel could not identify another inmate who was delayed medical
care as a result of this policy. So no reasonable jury could conclude that the policy is designed to
frustrate parole for an inmate with a serious medical condition.
And even assuming MDOC’s policy is problematic, Franklin received a parole date. Recall
that Carrel advocated for a medical parole. Indeed, by Spring of 2014, Franklin’s medical records
reflect a parole date of early July 2014. And although Franklin may have worried that treatment
for his neck mass might hold up his parole, nothing in the record suggests that actually occurred
or there was any policy to that effect.
The claims against Heyns will be dismissed.
E.
At this point a brief summary is in order. Thus far, the Court has denied summary judgment
as to Dr. Bhavsar. A jury needs to decide whether Bhavsar was deliberately indifferent to
Franklin’s medical care. However, no reasonable jury could conclude that either Dr. Carrel or Dr.
Holmes was deliberately indifferent to Franklin’s medical care. So the Court grants summary
judgment as to them. And the estate’s individual capacity claim against Heyns is out. Moreover,

28

the disposition of the individual defendants’ motion for summary judgment also takes care of the
estate’s motion. The fact issue preventing summary judgment in favor of Bhavsar likewise
prevents summary judgment in favor of the estate’s claim against Bhavsar. And because the record
establishes that no reasonable jury could find Carrel or Holmes violated the Eighth Amendment,
a fortiori, the estate cannot establish that the record “is so one-sided as to rule out the prospect of
a finding in favor of [Holmes or Carrel] . . . .” Hotel 71 Mezz Lender LLC, 778 F.3d at 601.
IV.
What remains is Defendants’ motion for summary judgment on Franklin’s Monell claims
against Corizon. Section 1983 permits suit against Corizon, consistent with Monell v. Department
of Social Services, 436 U.S. 658 (1978). See West v. Atkins, 487 U.S. 42, 54 (1988). But Franklin’s
claims against Corizon must be “premised on some policy that caused a deprivation of [his] Eighth
Amendment rights.” Starcher v. Correctional Medical Services, 7 F. App’x 459, 465 (6th Cir.
2001); Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996); see also Monell, 436 U.S.
at 690–91. A policy may be formal and written, or informal, such as “a widespread practice that,
although not authorized by written law or express municipal policy, is ‘so permanent and well
settled as to constitute ‘custom or usage’ with the force of law.’” City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988) (citations omitted).
Franklin’s estate says three Corizon policies violate the Eighth Amendment. They point to
Corizon’s utilization management system as a policy intended to delay the provision of specialist
care; a cost-saving approach to the provision of medical care; and a failure to train doctors on
proper charting procedures.
Corizon is entitled to summary judgment on all three.

29

A.
Consider, first, the estate’s failure-to-train claim. The estate says Corizon failed to instruct
its employees on the proper standard of care for prisoners. (ECF No. 86, PageID.8208.) The estate
says Corizon’s employees had no idea they were not to act with deliberate indifference to
prisoners’ medical needs. (Id.) So Corizon’s policy violates the Eighth Amendment.
To succeed on a failure-to-train claim, Franklin needs to establish “‘prior instances of
unconstitutional conduct demonstrating that [Corizon] ha[d] ignored a history of abuse and was
clearly on notice that the training in this particular area was deficient and likely to cause injury.’”
Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010) (quoting Fisher v. Harden, 398 F.3d
837, 849 (6th Cir. 2005)). The estate has not provided any facts showing prior instances of
unconstitutional conduct such that Corizon was on notice that its training on the standard of care
was lacking. See Burgess v. Fischer, 735 F.3d 462, 478–79 (6th Cir. 2013). And neither side
addresses whether Franklin’s case falls “in a narrow range of circumstances” where “a pattern of
similar violations might not be necessary to show deliberate indifference.” Connick v. Thompson,
563 U.S. 51, 63 (2011). So no reasonable jury could return a verdict in favor of Franklin’s estate
on the failure-to-train claim.
B.
Next turn to Corizon’s utilization management system. This is the referral process Corizon
doctors had to use if they wanted to send prisoners for specialist care. (ECF No. 86, PageID.8204.)
The estate thinks the system unconstitutionally delayed Franklin’s specialist care. (ECF No. 86,
PageID.8204–8205.) And the estate points to a revision of the utilization management system,
implemented in 2016, as evidence that the system was flawed when Franklin needed it. (Id. at
PageID.8205–8206.)

30

Again, Franklin must show a deprivation of his Eighth Amendment rights. See Miller, 606
F.3d at 255. And while Franklin’s estate has evidence that the referral system allowed Corizon
physicians up to two weeks to approve routine requests for specialist care, (see ECF No. 86,
PageID.12674) at the time of Franklin’s incarceration, the average response time was much lower
(id. at PageID.12436). Specific to Franklin’s case, the Corizon physician who actually approved
the requests moved quite quickly. (ECF No. 80-17.) On average the requests were approved in
under two days. (ECF No. 80, PageID.3493.) So no reasonable jury could conclude that Corizon’s
utilization-management system violated Franklin’s Eighth Amendment rights. See Runkle v.
Kemen, 529 F. App’x 418, 424 (6th Cir. 2013).
C.
Lastly, Franklin alleges Corizon pushed cost savings over care. (ECF No. 86,
PageID.8207.) The estate gleans Corizon’s cost-cutting ethos from a company brochure given to
practitioners. (Id.) The brochure explains that an increase in inmate populations across the country
has brought with it an increase in costs to states plus an increase in the need to treat complex,
chronic illness. (Id.) Looking to mitigate the risks and cap the costs, the brochure says states
contract with Corizon to care for inmates. (Id.) Franklin’s estate says that language implies Corizon
takes a cost-savings-over-quality-care approach to treating chronic illness. (Id.) And Franklin’s
cancer was a chronic illness. So in Franklin’s case, Corizon violated the Eighth Amendment by
putting costs over care.
Assume, for the sake of argument, Corizon has an informal policy of cost cutting. Even so,
Franklin’s estate has to show that the cost cutting violated Franklin’s Eighth Amendment right to
medical care. With respect to Franklin’s care, the estate is not clear where Corizon cut costs.
Franklin appears to argue that Corizon was brought in largely to limit money spent on outside

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specialists. (ECF No. 86, PageID.8207–8208.) But the record shows that every time Holmes or
Carrel requested specialist care, their requests were approved. (ECF No. 80-17.) True, sometimes
the requests were denied. (Id.) But those requests were denied either because they were duplicates
or because the paperwork was not filled out correctly. And once corrected, the referrals were
approved. (Id.) So to the extent the estate challenges Corizon’s cost cutting, no reasonable jury
could find that Corizon’s cost cutting violated Franklin’s Eighth Amendment rights.
V.
The Court is not unsympathetic to the Plaintiff’s tragic loss. But its task is to determine
whether the record supports that the Defendants violated Franklin’s constitutional rights. And in
the end, Defendants are entitled to summary judgment on most of the estate’s claims.
No reasonable jury could find Holmes or Carrel deliberately indifferent to Franklin’s
cancer. Accordingly, the estate cannot show that the record is so one-sided as to preclude a verdict
in favor of Carrel or Holmes. And no reasonable jury could return a verdict for the estate on the
Monell claims against MDOC and Corizon. Nor can Franklin proceed on an individual-capacity
claim against Heyns. However, as for Bhavsar, genuine issues of material fact preclude a grant of
summary judgment for either side. So the estate’s claim against Bhavsar will proceed to trial.
Therefore, the Court GRANTS in part and DENIES in part the Corizon defendants’ motion for
summary judgment (ECF No. 80), GRANTS Heyns’ motion for summary judgment (ECF No. 81),
and DENIES the estate’s motion for summary judgment (ECF No. 82).

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

Date: March 22, 2019
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
and/or pro se parties on this date, March 22, 2019, using the Electronic Court Filing system and/or
first-class U.S. mail.

s/William Barkholz
Case Manager

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