Leon Lippett v. Corizon Health, Inc. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0061n.06
No. 20-1700
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LEON DESEAN LIPPETT, ) FILED
)
Feb 02, 2022
Plaintiff-Appellee, )
DEBORAH S. HUNT, Clerk
)
v. )
)
CORIZON HEALTH, INC., a foreign Corporation, )
ON APPEAL FROM THE
DIANE HERRING; SHARON DRAVELLING; )
UNITED STATES DISTRICT
DOCTOR BETH CARTER; OFFICER THOMAS )
COURT FOR THE EASTERN
JORDAN; MICHELLE PIECUCH, )
DISTRICT OF MICHIGAN
)
Defendants, )
)
LISA ADRAY, )
)
Defendant-Appellant )
Before: SUHRHEINRICH, STRANCH, and MURPHY, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Leon Lippett developed a severe foot infection while in
the custody of the Michigan Department of Corrections (“MDOC”). He sued Corizon Health, Inc.
(MDOC’s health services contractor) and one of its physicians, as well as several MDOC nurses
and one corrections officer, claiming they violated the Eighth Amendment and were grossly
negligent under Michigan law. The district court granted summary judgment (based on qualified
immunity and governmental immunity under Michigan law) for all defendants1 except one—acting
1
The court also granted summary judgment, by Lippett’s consent, to Corizon.
No. 20-1700, Lippett v. Corizon Health, Inc., et al.
Nurse Supervisor Lisa Adray, who now brings this interlocutory appeal. Because Adray makes
no arguments that are reviewable in this posture, we dismiss her appeal.
I.
We recount the relevant facts as determined by the district court, keeping in mind that we
generally may not question them now. See Gillispie v. Miami Township, 18 F.4th 909, 912 (6th
Cir. 2021).
Lippett’s foot became infected on June 25, 2017. On June 26, he filed a health care request
form—called a “kite,” in prison jargon—which stated: “I have dealt with athlete’s foot for a
longtime [sic]. I have had several different types of ointments. My foot has developed a severe
infection, which has my foot in much pain. I need immediate attention.” Early the next morning,
after reviewing his kite, Nurse Diane Herring booked an appointment in the prison’s health care
clinic for the morning of June 28.
Lippett’s infection apparently worsened thereafter, as his foot became more swollen and
painful. He attempted to obtain treatment at the clinic, without an appointment, several times on
June 27—all of which (except one, during which Lippett was seen by nurses and given Tylenol)
failed for reasons unrelated to Adray. Lippett v. Corizon Health, Inc., No. 18-cv-11175, 2020 WL
532399, at *2–3 (E.D. Mich. Feb. 3, 2020), rev’d on reh’g in part on other grounds, 2020 WL
3425044 (June 23, 2020). Those attempted visits are not at issue here.
Around 9:30 a.m. on June 28, Lippett reported to the clinic for the appointment that Nurse
Herring scheduled; before entering the clinic, however, Officer Jordan (who was posted outside
the clinic) told Lippett that his appointment was canceled and would be rescheduled. Lippett did
not know who canceled his appointment, nor did Jordan. Officer Robison (another corrections
officer on duty at the time) later testified, however, that Nurse Adray canceled the appointment.
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No. 20-1700, Lippett v. Corizon Health, Inc., et al.
The record is unclear why Adray canceled the appointment, but that doesn’t matter for this appeal;
the district court found that she did not subjectively perceive Lippett’s medical needs then, so she
was entitled to qualified immunity at that point. Id. at *13.
Around 12:30 p.m. on June 28, Lippett spoke with Officer Robison back at his housing
unit; Lippett showed her his foot and described his pain. Noticing that the foot was swollen,
Robison called the clinic to see if there was “something [she] could do.” Robison recalled that
Nurse Adray answered the phone and responded that Lippett “would be seen when a nurse is
available,” which Robison then noted in the prison’s logbook. After Lippett pressed her, Robison
called the clinic again a few minutes later, at 12:39 p.m., and recalled asking “is there any way that
you guys could see him, [because] his foot appears to be swollen.” As Robison noted in the
logbook, Adray then responded that Lippett’s “appointment will be rescheduled for another day.”
We don’t know, on this record, why Adray said that, but again it doesn’t matter—the district court
found that Adray did not subjectively perceive Lippett’s medical needs even then, so she was
entitled to qualified immunity. Id.
From the district court’s view, things changed a bit later. Around 2:15 p.m., Lippett
attempted to visit the clinic again without an appointment or permission from a corrections officer,
but he was turned away. The district court summarized that visit:
Around 2:15 PM on June 28th, Lippett tried again to get attention from health care.
(ECF No. 61-3, Lippett Dep., PgID 1882–83.) He limped to health care and told
Officer Rushing about his problem, showed Officer Rushing his foot, and asked
him for help. (Id. at PgID 1883.) Officer Rushing went inside, talked to a nurse,
he could not remember which one but stated that his best guess was Nurse Adray,
and the nurse told Officer Rushing that they did not have time to see Lippett. (ECF
No. 61-3, Rushing Dep., PgID 2029.) Officer Rushing told Lippett they could not
see him and Lippett went back to his unit. (Id.) Officer Rushing testified that health
care was short staffed at the time, though he also testified that this interaction
occurred in the morning of the 28th, not in the afternoon. (Id. at PgID 2028–29.)
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No. 20-1700, Lippett v. Corizon Health, Inc., et al.
Anthony Woods[,] [a fellow inmate at Lippett’s prison,] was in health care services
receiving treatment at some point on the 28th and overheard “the head nurse” telling
another nurse that Lippett was “faking” and instructing the other nurse to send
Lippett back. (ECF No. 61-3, Woods Dep., PgID 1961.) The other nurse said that
she told the unit staff to send Lippett over and said that she could not send him
back, but the “head nurse” insisted. (Id.) Woods could not remember the exact day
on which this occurred, or the names of the nurses involved, but described the time
of day as the “evening” and said that Lippett was sent to the hospital the next day.
(Id. at PgID 1961–65.) Therefore, this conversation occurred sometime on June
28th. Lippett believes that Nurse Adray was the “head nurse” Woods overheard
saying that Lippett was faking. (See ECF No. 60, Response to MDOC MSJ, PgID
1051.) Nurse Adray was the supervising nurse at the time, and she worked until
3:46 on June 28th. (ECF No. 45-14, Adray Timesheet, PgID 751.) Nurse Adray
did not remember this incident and testified that the only interaction she had with
Lippett was talking to him as he was waiting to see Dr. Carter on June 29th. (ECF
No. 61-4, Adray Dep., PgID 2211–12.)
Lippett, 2020 WL 532399, at *4.
Although Lippett was ultimately treated by no later than 4:29 p.m. that day—by both Nurse
Herring and the prison physician, Dr. Beth Carter—the district court denied qualified immunity to
Adray. Based on inferences drawn from the summary judgment record, the court found that
Lippett created a genuine factual dispute as to whether Adray was the nurse who denied him
treatment at 2:15 p.m., and whether Adray did so knowing of his serious medical needs. It
reasoned:
[I]f, as a jury could believe, it was Nurse Adray who turned Lippett away when he
went to health care the third time on June 28th, around 2:15 PM, and if that was
when Woods heard her say that Lippett was faking, she learned two more facts.
(ECF No. 61-3, Lippett Dep., PgID 1882–83; ECF No. 61-3, Rushing Dep., PgID
2029.) First, she learned that another layperson thought that there was something
wrong with Lippett’s foot—Officer Rushing testified that he told the nurse with
whom he spoke, who he guessed was Nurse Adray, that Lippett had “an issue.” (Id.)
Second, she learned that Lippett’s symptoms were bad enough that he had come to
health care without authorization. These facts increase the obviousness of the risk
to the point where it is fair to conclude that she actually perceived the risk. Farmer,
511 U.S. at 842. Her comment, that Lippett was “faking,” shows a callous disregard
of that risk. (ECF No. 61-3, Woods Dep., PgID 1961.) Therefore, the allegation
that Nurse Adray turned Lippett away from health care on the afternoon of the 28th
constitutes deliberate indifference, which is a clearly established violation of
Lippett’s Eighth Amendment right to be free of cruel and unusual
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No. 20-1700, Lippett v. Corizon Health, Inc., et al.
punishment. See, Phillips, 534 F.3d at 539–45; Estelle, 429 U.S. at 104. Nurse
Adray is not entitled to qualified immunity on the Eighth Amendment claim against
her, and the Court denies her request for summary judgment.
Id. at *14.
While the district court denied Adray qualified immunity as to Lippett’s deliberate-
indifference claim, it granted her governmental immunity under Michigan law as to Lippett’s
gross-negligence claim. Id. at *16. It later reversed that ruling on rehearing, however, after finding
that it applied the wrong causation standard. Lippett v. Corizon Health, Inc., 2020 WL 3425044,
at *3–5 (E.D. Mich. June 23, 2020). Both Adray and Lippett appealed, but a motions panel
dismissed Lippett’s appeal for lack of jurisdiction. Lippett v. Corizon Health, Inc., No. 20-1751,
2020 WL 8472484, at *2 (6th Cir. Dec. 30, 2020). We turn now to Adray’s appeal, which takes
aim at both Lippett’s deliberate-indifference and gross-negligence claims. Our analysis for each
begins and ends with jurisdiction.
II.
Generally, orders denying summary judgment are not “final decisions” appealable under
28 U.S.C. § 1291, but that general rule does not apply to such orders denying qualified immunity.
Plumhoff v. Rickard, 572 U.S. 765, 772 (2014). In those cases, we may review the denial of
qualified immunity “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). Those issues of law are usually whether (1) “the facts and inferences as
determined by the district court ‘show a violation’ of” a constitutional or statutory right, and (2)
whether that right was clearly established. Downard ex rel. Downard v. Martin, 968 F.3d 594,
599 (6th Cir. 2020) (quoting Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en banc)); see
also Williams, 186 F.3d at 689–90, 691–92.
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But we may not review in this posture claims about “‘evidence sufficiency,’ i.e., which
facts a party may, or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313
(1995). According to Lippett, this appeal fits that mold. We agree.
Adray argues only that “Lippett has failed to produce any admissible evidence on which a
reasonable juror could conclude that [she] was personally involved in the alleged decision to deny
Lippett” health care. She claims that, if the district court had disregarded as inadmissible the
testimony of Anthony Woods—the inmate who heard the “head nurse” say that “[Lippett] was
faking, send him back”—“there would be no evidence [showing that] Adray had any involvement
with Lippett’s alleged denial of care.” Maybe so, but that boils down to only a Johnson-type claim
of evidence sufficiency—i.e., that Lippett is unable to prove at trial that Adray was personally
involved in his denial of care. We may not review that question in this posture. Id.And Adray’s counterargument changes nothing. She tries to disguise her factual argument
as a “purely legal” one, insisting that the issue is only whether the district court erred in considering
purportedly inadmissible evidence when denying summary judgment. But we have adhered to
Johnson’s rule even where “the only factual dispute in th[e] case arises from the rankest type of
inadmissible hearsay.” Ellis v. Washington County, 198 F.3d 225, 229 (6th Cir. 1999). So
Johnson’s rule applies here.
We note that, while there are other legal issues that Adray could have raised here, we have
limited our analysis only to those that she has raised. For example, she does not argue that the
district court’s factual determinations fail to “‘show a violation’ of the deliberate indifference
standard” as a matter of law, Downard, 968 F.3d at 599 (quoting Williams, 186 F.3d at 690), or
that that violation was not clearly established, Williams, 186 F.3d at 690. Had she done so, we
could have “ignore[d] [her] attempts to dispute the facts and nonetheless resolve[d] the legal
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issue[s].” DiLuzio v. Village of Yorkville, 796 F.3d 604, 611 (6th Cir. 2015) (quoting Estate of
Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)). However, because Adray did not,
nor will we, and we thus do not reach those issues. Instead, we dismiss her appeal.
III.
Next up is Adray’s challenge to the district court’s denial of summary judgment as to
Lippett’s gross-negligence claim. Below, Adray asserted governmental immunity under Mich.
Comp. L. § 691.1407 as to that claim, which the district court first granted, then denied on
rehearing. Lippett, 2020 WL 3425044, at *3–5.
Adray does not argue that the denial of governmental immunity was error; rather, her
argument is merits-based. She asserts that “the law in Michigan does not allow intentional acts to
be the basis of a claim for gross negligence.” Because Lippett based his gross-negligence claim
“on the same conduct” supporting his deliberate-indifference claim, Adray argues, it “fail[s] as a
matter of law.” Adray does not explain what that has to do with governmental immunity,2 so we
must ask whether this claim is reviewable under the doctrine of pendant appellate jurisdiction.
It is not. Because we lack jurisdiction to consider Adray’s arguments as to Lippett’s
deliberate-indifference claim, we necessarily lack pendant appellate jurisdiction to consider her
appeal of Lippett’s state-law claim. Pendant appellate jurisdiction extends to “issues that are not
independently appealable when those issues are ‘inextricably intertwined’ with” an issue over
which this court “properly and independently has jurisdiction.” Williams v. Maurer, 9 F.4th 416,
428 (6th Cir. 2021) (quoting Farm Lab. Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523,
2
Had Adray argued here that she was wrongly denied governmental immunity, we would likely have jurisdiction to
review that denial as an order that is independently appealable under Michigan law. See Rudolph v. Babinec, 939 F.3d
742, 753 (6th Cir. 2019) (per curiam); Bennett v. Krakowski, 671 F.3d 553, 560 (6th Cir. 2011); Smith v. County of
Lenawee, 600 F.3d 686, 689–90 (6th Cir. 2010); Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th Cir.
2007); see also Mich. Ct. R. 7.202(6)(a)(v) (defining a “final order” to include “an order denying a motion for
summary [judgment] . . . based on a claim of governmental immunity”).
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No. 20-1700, Lippett v. Corizon Health, Inc., et al.
549 (6th Cir. 2002)) (emphasis added). Even if the federal- and state-law issues here were
inextricably intertwined (they’re not),3 we lack jurisdiction over the federal-law issue, as explained
above. That precludes pendant appellate jurisdiction over any state-law issues that, like Adray’s
merits-based challenge to Lippett’s gross-negligence claim, are not independently appealable.
IV.
For those reasons, we dismiss Adray’s appeal.
3
Two issues are inextricably intertwined where resolution of one “necessarily resolves” the other. Courtright v. City
of Battle Creek, 839 F.3d 513, 523 (6th Cir. 2016) (quoting Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir.
1999)). That plainly is not the case here. The first issue, whether Adray was entitled to qualified immunity for an
alleged Eighth Amendment violation, in no way—let alone necessarily—resolves the second issue, whether Michigan
law allows Lippett to simultaneously assert deliberate-indifference and gross-negligence claims.
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