Randy Berkshire v. Debra Dahl ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0139p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RANDY BERKSHIRE (17-1993 & 17-2039), ┐
Plaintiff-Appellee, │
│
│
v. > Nos. 17-1993/2039
│
│
DEBRA DAHL, DONNA BEAUVAIS, CHRISTOPHER │
SERMO, and MICHAEL NELSON (17-2039); VASILIS │
POZIOS (17-1993), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cv-12038—Arthur J. Tarnow, District Judge.
Argued: May 1, 2019
Decided and Filed: June 28, 2019
Before: MERRITT, MOORE, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Dale A. Robinson, RUTLEDGE, MANION, RABAUT, TERRY & THOMAS,
P.C., Detroit, Michigan, for Appellant in 17-1993. Adam R. de Bear, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-2039. Conor T. Fitzpatrick,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee.
ON BRIEF: Dale A. Robinson, RUTLEDGE, MANION, RABAUT, TERRY & THOMAS,
P.C., Detroit, Michigan, for Appellant in 17-1993. Adam R. de Bear, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-2039. Conor T. Fitzpatrick,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee.
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 2
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OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Randy Berkshire was formerly an inmate
incarcerated at the Macomb Correctional Facility in Michigan. There, he experienced a parade
of horribles. The question is whether those responsible violated Berkshire’s clearly established
constitutional rights. Different facts and different law apply to each Defendant in this case.
Berkshire had mental-health issues, but he began to improve while he was in the
Residential Treatment Program (“RTP”) at the Macomb Facility. In RTP, Berkshire worked as a
Housing Unit Representative on a “Warden’s Forum,” in which he brought inmate complaints to
the attention of prison staff. After Berkshire brought one set of complaints, Dr. Debra Dahl
unilaterally raised Berkshire’s Global Assessment Functioning (“GAF”) score, which mental-
health professionals use to measure a patient’s level of functioning, to a score that made
Berkshire ineligible to stay in RTP. Berkshire claims Dr. Dahl removed him from RTP to
retaliate against Berkshire for his Warden’s Forum complaints, thereby violating his First
Amendment rights.
Once discharged from RTP, Berkshire’s health and mental state quickly deteriorated.
Three individuals oversaw Berkshire’s care: Donna Beauvais, the unit chief of the outpatient
mental-health program; Christopher Sermo, a psychologist with the outpatient program; and Dr.
Vasilis Pozios, a private doctor working for the government. Berkshire had homicidal thoughts
and engaged in self-injurious activity, including depriving himself of food and water.
Eventually, Berkshire attempted to commit suicide. Only then did Beauvais and Sermo transfer
Berkshire to a Crisis Stabilization Program, because, according to an email, they “could not
transfer [Berkshire] to Mars . . . .” Berkshire claims that Beauvais, Sermo, and Dr. Pozios
exhibited deliberate indifference to Berkshire’s serious medical needs in violation of the Eighth
Amendment.
Finally, after Berkshire attempted suicide, he was restrained. Around midnight, Sergeant
Michael Nelson entered Berkshire’s cell, and Berkshire requested a bathroom break. Sergeant
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 3
Nelson (now a lieutenant) told Berkshire to “hold it” and that he was going to “stay just like that
until [his] mental illness goes away,” and then left. Sergeant Nelson never returned, leaving
Berkshire to lie in his own urine and feces for about six to seven hours. Berkshire’s claim
against Sergeant Nelson turns on the Eighth Amendment conditions-of-confinement standard.
The district court denied qualified immunity to all the Defendants. For the reasons that
follow, we affirm.
I. BACKGROUND
Berkshire has a history of mental-health issues going back to early childhood. See
R. 183-4 (Clark Rep. at 2–3) (Page ID #2430–31). Berkshire’s problems with the law started
when he was just nine years old. Id. at 3 (Page ID #2431). Eventually, Berkshire was
incarcerated for thirteen years (2001 to 2014) for second-degree home invasion, id. at 2 (Page ID
#2430), and from 2011 to 2012, he was housed at the Macomb Correctional Facility in Michigan.
The instant case involves five Defendants and their encounters with Berkshire at the Macomb
Facility. The facts as to each will be addressed in turn.
A. Dr. Dahl: Berkshire’s Time in RTP and His Discharge from RTP
In July 2011, Berkshire entered RTP. RTP is an inpatient mental-health wing at the
prison that offers programs in art and music therapy, weight lifting, and psychotherapy for
inmates with needs like Berkshire. At the time, Berkshire was diagnosed with bipolar disorder,
obsessive-compulsive disorder, and major depression.
In early March 2012, RTP residents elected Berkshire as their Housing Unit
Representative. R. 183-2 (Berkshire Aff. at ¶¶ 25–26) (Page ID #2407). These representatives
work on behalf of RTP residents, solicit residents’ complaints and concerns, and share those
complaints and concerns with the Resident Unit Manager. See R. 184-5 (Policy Directive) (Page
ID #2616). A representative like Berkshire carries out their role by compiling resident input into
an “Agenda” that is submitted to the unit manager prior to meetings between the representative
and the unit manager and other staff. Id. Relatedly, representatives participate in the “Warden’s
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 4
Forum,” which “assist[s] the Warden in identifying and resolving problems which exist in the
general population of the institution.” Id.
As a representative, Berkshire made “rounds” with residents to discuss their concerns,
which he would then compile into an Agenda. R. 183-2 (Berkshire Aff. at ¶¶ 27–28 (Page ID
#2407). Moreover, in his role as representative, Berkshire assisted other inmates, “many of
whom could not read or write, with drafting grievances.” Id. at ¶ 29. On March 19, 2012,
Berkshire submitted an Agenda to Dr. Dahl, the RTP unit chief, and the Resident Unit Manager,
Geraldine Wilson. Id. at ¶ 35 (Page ID #2409); R. 183-10 (Agenda) (Page ID #2491). The
Agenda contained six issues and requests and included citations to prison policies. R. 183-10
(Agenda) (Page ID #2491–93). Berkshire addressed the Agenda to Dr. Dahl, and he asserts that
he delivered it to her personally. Id.; R. 183-2 (Berkshire Aff. at ¶¶ 36–37) (Page ID #2409).
Over the course of the next two days, RTP staff refused to let Berkshire make his rounds, even
though other representatives were able to do so. See R. 183-2 (Berkshire Aff. at ¶¶ 38–40) (Page
ID #2409–10).
Then on March 21, 2012—two days after Berkshire submitted his Agenda—Dr. Dahl
increased Berkshire’s GAF score from 48 to 53. See R. 183-13 (Page ID #2500–02). (As
mentioned above, the GAF is a measure used by mental-health professionals to indicate the level
of functioning of a patient.) A GAF score of 51 makes an inmate ineligible for RTP.
Consequently, Berkshire was transferred from RTP back into the general population on about
March 23, 2012. Berkshire states that he “had not discussed [his] mental health situation with
any of [his] treating doctors in months nor did [he] feel that [he] was ready to be placed in the
general population of a prison.” R. 183-2 (Berkshire Aff. at ¶ 41) (Page ID #2410); see also
R. 183-4 (Clark Rep. at 7) (Page ID #2435) (noting a “three month lapse in documentation”
between December 20, 2011, when Berkshire’s GAF was 48, and March 21, 2012, when
Dr. Dahl raised Berkshire’s GAF to 53). For her part, Dr. Dahl could not recall meeting with
Berkshire, creating the record, or the review of Berkshire. See R. 183-7 (Dahl Dep. at 65–66)
(Page ID #2472–73). The record itself states that, “[s]ince being in the RTP, Mr. Berkshire has
made good progress,” and goes on to recount some of Berkshire’s experiences in RTP. See
R. 183-13 (Page ID #2501).
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 5
Ultimately, Berkshire was discharged from RTP. Any “good progress” that Berkshire
had made during his time there declined quickly once he entered the general population.
B. Beauvais, Sermo, and Dr. Pozios: Berkshire’s Decline After His Discharge From RTP,
His Treatment, and Suicide Attempt
Donna Beauvais, Christopher Sermo, and Dr. Pozios each had a hand in Berkshire’s
treatment after Berkshire’s discharge from RTP. (Because Dr. Pozios forfeited his qualified-
immunity defense below and because his appeal is squarely decided by binding Sixth Circuit
precedent, we address the facts related to him only to the extent that those facts interrelate with
those relevant to Beauvais’s and Sermo’s appeals.)
“Discharge from RTP was traumatic for Mr. Berkshire.” R. 183-4 (Clark Rep. at 4)
(Page ID #2432). Indeed, an April 1, 2012 medical record reveals that Berkshire was
hospitalized due to an “abrup[t] stop[p]age of his medication, and he hadn’t . . . eaten any food,
drunk any water in 3 days . . . . When asked how he is doing, prisoner Berkshire stated ‘doesn’t
matter’.” R. 183-16 (Page ID #2522). The record also states that treatment was necessary to
“reduce risk of [Berkshire] needing a more intensive level of care, reduce risk of harm to self or
others, maintain or improve current level of functioning.” Id. When Berkshire was asked
whether he had attempted suicide in the past, he responded “many times.” Id.
On March 26, 2012, three days after Berkshire was discharged from RTP, Beauvais met
with Berkshire for about ten to fifteen minutes. Beauvais knew then that Berkshire was
expressing homicidal thoughts. R. 212-2 (Beauvais Dep. at 61) (Page ID #4436). After this
meeting, Beauvais testified that she “did not provide any treatment,” but she assigned Berkshire
“to a case manager and a psychiatrist.” Id. at 67 (Page ID #4439). It is possible that Beauvais
was referring to Sermo, who is a psychologist. Sermo indicated that Beauvais “was happy that
she gave [Berkshire] to [him] . . . because [Berkshire] was presented to [him] as being
problematic.” R. 212-3 (Sermo Dep. at 65) (Page ID #4447). Within days after Berkshire’s
meeting with Beauvais, he stopped eating and drinking and abruptly stopped his medications,
which triggered his hospitalization.
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 6
On April 3, 2012, Sermo visited Berkshire in his cell to evaluate him, allegedly for less
than five minutes. Berkshire stated that Sermo asked him “what [Berkshire] felt was best for
[himself].” R. 93 (Berkshire Aff. at ¶ 35) (Page ID #996). Berkshire asked to be placed back
into RTP, but Sermo responded that neither Berkshire’s “diagnosis [n]or behaviors met the
criteria” for RTP. Id. Berkshire then requested to be placed in a Crisis Stabilization Program, in
which Berkshire could have received a psychiatric evaluation to determine appropriate treatment.
Id. Berkshire asserts that Sermo stated “that he did not feel like doing all of that paperwork and
ended the interview.” Id.; cf. 212-3 (Sermo Dep. at 66) (Page ID #4448) (Sermo admitting that
Berkshire was a patient that caused him to do extra work).
Shortly after this meeting, Berkshire attended a hearing about a threatening behavior
ticket he received (purportedly written by Beauvais), and Berkshire was placed in segregation.
R. 93 (Berkshire Aff. at ¶ 37) (Page ID #996); R. 183-17 (Page ID #2525). Berkshire then went
on another hunger strike and engaged in other self-injurious behavior. This culminated in an
April 9, 2012 attempt to hang himself with a noose in his cell. See R. 93 (Berkshire Aff. at
¶¶ 38–47) (Page ID #996–97); R. 183-17 (Page ID #2525). After that, Berkshire’s GAF was
promptly reduced to 19. R. 183-17 (Page ID #2526). The medical record corroborates the fact
that Berkshire was refusing care at this time. Id.; see also R. 183-4 (Clark Rep. at 8–9) (Page ID
#2436–37) (“Given the severity of [Berkshire’s] conditions paired with uncontrolled behavior a
secondary method to administer medications should have been sought . . . . [Berkshire’s]
diagnosis of dissociative depression is marked by deferred ability to establish trust easily . . . or
to self soothe with isolation practices.”). Berkshire’s suicide attempt was unsuccessful.
Other evidence also suggests that Beauvais and Sermo knew of the severity of
Berkshire’s condition but deliberately declined to take action. Another inmate, Brent Lang, met
with Dr. Pozios in late-May or early-June 2012. Lang’s declaration states that Dr. Pozios
“admitted that he, Donna Beauvais and Christopher Sermo knew that Randy Berkshire was
suffering from a[n] MMD (Major Mental Disorder) and that he had engaged in suicidal
behaviors over the course of two weeks.” R. 115 (Lang Decl. at ¶ 8) (Page ID #1478). The
declaration continues: “Dr. Pozios stated that they waited weeks before they referred him to a
Crisis Stabilization Program because they hoped that Randy Berkshire would have died.” Id. at
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 7
¶ 9. But after the attempted hanging, Beauvais and Sermo did transfer Berkshire to a Crisis
Stabilization Program. On April 11, 2012, Beauvais emailed Dr. Pozios: “Unfortunately, we
could not transfer [Berkshire] to Mars so we had to send him to CSP.” R. 213-5 (Page ID
#4562). Dr. Pozios responded, “Great. Why didn’t you try the moon? It’s closer.” Id.
C. Sergeant Nelson: The Night of Berkshire’s Attempted Suicide
Sergeant Nelson’s appeal involves a shorter set of facts. After Berkshire attempted to
hang himself, prison staff first placed him in a four-point top-of-bed restraint. In this position,
Berkshire stated that he was “screaming and complaining that [he] was in severe physical pain.”
R. 115-1 (Berkshire Suppl. Aff. at ¶ 22) (Page ID #1615). Prison staff then placed Berkshire in a
five-point top-of-bed restraint. Id.
Sergeant Nelson was on duty from 9:00 P.M. on April 9, 2012 to about 5:00 A.M. on
April 10, 2012. R. 212-6 (Nelson Dep. at 56) (Page ID #4466). Sergeant Nelson entered
Berkshire’s cell around midnight to check on the restraints. R. 115-1 (Berkshire Suppl. Aff. at
¶ 22) (Page ID #1615). When Berkshire asked to use the restroom, Sergeant Nelson told him to
“hold it” and that Berkshire was going to “stay just like that until [his] mental illness goes away.”
Id. Sergeant Nelson did not return and left Berkshire laying in his own urine and feces for
upwards of six to seven hours. Additionally, Berkshire asserts that he was “noncombative,” “not
threatening,” and “posed no danger to [him]self or others” at the time Sergeant Nelson entered
his cell. Id. at ¶ 24. Berkshire asserts that around 1:30 or 2:00 A.M., he was screaming loudly
and trying to get off the bed to use the restroom, but he was ignored. He then “urinated and
defecated on [him]self.” Id. at ¶ 25 (Page ID #1615–16). At 7:00 A.M., another official finally
entered his room, and Berkshire was cleaned around 9:00 A.M. See id. at ¶¶ 27–29 (Page ID
#1616).
D. Procedural History
Berkshire brought a suit under 42 U.S.C. § 1983, alleging violations of his First and
Eighth Amendment rights. The district court denied qualified immunity to Dr. Dahl, Beauvais,
Sermo, and Sergeant Nelson (collectively, “State Defendants”). See generally Berkshire v. Dahl,
No. 12-12038, 2017 WL 3276466 (E.D. Mich. Aug. 2, 2017). In addition, Berkshire filed for
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 8
summary judgment against Dr. Dahl. The district court granted Berkshire’s motion, see id. at
*3–8, but the district court issued no final judgment or Rule 54(b) certification as to Dr. Dahl,
see FED. R. CIV. P. 54(b). The district court did not address Dr. Pozios’s argument for qualified
immunity because Dr. Pozios did not raise the issue in his objections to the magistrate judge’s
report and recommendation. See Berkshire v. Dahl, No. 12-12038, 2017 WL 9471684, at *19
(E.D. Mich. Mar. 3, 2017) (denying Dr. Pozios qualified immunity). Prior to these rulings, the
district court also struck late-added affidavits proffered by Dr. Dahl. See generally R. 235 (Dist.
Ct. Aff. Order) (striking one affidavit and two paragraphs from another).
II. JURISDICTION
A. State Defendants’ Appeal
Before turning to the merits of this qualified-immunity appeal, we must first address our
jurisdiction. Berkshire previously filed a motion to dismiss the State Defendants’ appeal for lack
of jurisdiction. The motion was held in abeyance for our consideration.
For this court to have jurisdiction over an appeal based on the denial of qualified
immunity, a defendant must concede the facts in the light most favorable to Berkshire. This
concession is necessary because “it is well-established that an order denying qualified immunity
to a public official is immediately appealable pursuant to the collateral order doctrine to the
extent that a summary judgment order denies qualified immunity based on a pure issue of law.”
See Bennett v. Krakowski, 671 F.3d 553, 558–59 (6th Cir. 2011) (citations and internal quotation
marks omitted); Turner v. Scott, 119 F.3d 425, 427 (6th Cir. 1997) (“A denial of qualified
immunity that turns on evidentiary issues is not [immediately appealable].”).
The State Defendants have made the appropriate concession, and consequently, we have
jurisdiction over this appeal. See State Appellants’ Br. at 1. The State Defendants further
concede that “[i]n the event that this Court finds that Appellants have disputed Mr. Berkshire’s
versions of the facts, it can ignore those unintentional factual disputes . . . .” See State
Appellants’ Reply Br. at 3. We take that approach.
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 9
B. Dr. Dahl’s Appeal
Dr. Dahl’s appeal, meanwhile, raises separate and additional jurisdictional issues. We
have jurisdiction over the qualified-immunity issue, as we generally do. See Bennett, 671 F.3d at
558–59. We lack jurisdiction, however, over other aspects of her appeal.
Sometimes a “case presents a special situation, . . . in which the issues of liability and
qualified immunity are so related to each other that we can dispose of them together under the
doctrine of pendent appellate jurisdiction.” Brennan v. Township of Northville, 78 F.3d 1152,
1157 (6th Cir. 1996); see also Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797 (6th
Cir. 1998) (“The doctrine of pendent appellate jurisdiction allows an appellate court, in its
discretion, to exercise jurisdiction over issues that are not independently appealable when those
issues are ‘inextricably intertwined’ with matters over which the appellate court properly and
independently has jurisdiction.”). In this case, the district court granted Berkshire’s summary-
judgment motion against Dr. Dahl, Berkshire, 2017 WL 3276466, at *3–8, and it struck certain
late-added affidavits, R. 235 (Dist. Ct. Aff. Order), but the district court did not enter a final
judgment. Further, the district court did not issue any Rule 54(b) certification. See FED. R. CIV.
P. 54(b) (“when multiple parties are involved, the court may direct entry of a final judgment as to
one or more, but fewer than all, . . . parties only if the court expressly determines that there is no
just reason for delay.”). The lone appealable issue, therefore, is qualified immunity. The
question becomes whether pendent appellate jurisdiction applies to the other issues.
We do not have jurisdiction over the non-appealable issues here because, as we will
explain, Dr. Dahl is not entitled to qualified immunity. If Dr. Dahl is not entitled to qualified
immunity, then “the appealable issue at hand” can, in fact, “be resolved without addressing the
non-appealable collateral issue[s]” (i.e., partial summary judgment and the district court striking
affidavits). See Chambers, 145 F.3d at 797 (citation omitted). First, even if the district court
erred in granting summary judgment against Dr. Dahl, that issue is irrelevant to Dr. Dahl’s
motion for summary judgment against Berkshire. Importantly, Berkshire was the non-moving
party for Dr. Dahl’s motion for summary judgment based on qualified immunity. For Dr. Dahl’s
qualified immunity, we must view all facts and related inferences in the light most favorable to
Berkshire. If, on the other hand, we held that Dr. Dahl should have received qualified immunity,
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 10
then we could reverse the district court’s grant of summary judgment for Berkshire (and the
affidavit issue would become moot). That is not the scenario we are in. Second, the State
Defendants acknowledge that there are no cases in which “a court of appeals has jurisdiction
over an interlocutory appeal of a district court’s order striking an affidavit.” See State
Appellants’ Reply Br. at 4. The stricken affidavits are also irrelevant to Dr. Dahl’s assertion of
qualified immunity because again, for Dr. Dahl’s summary-judgment motion, we view all facts
and related inferences in the light most favorable to Berkshire.
III. QUALIFIED IMMUNITY
We now turn to whether each Defendant should receive qualified immunity. “In civil
suits for money damages, government officials acting in their official capacity are entitled to
qualified immunity for discretionary acts which do not violate clearly established law of which a
reasonable person would have known.” Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir.
2001). This determination involves a two-part analysis, and courts have discretion to choose
which part to address first. See Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016).
A plaintiff must demonstrate: (1) that the facts, in the light most favorable to the plaintiff, show
that a government official violated a constitutional right; and (2) that the right was clearly
established at the time of the violation. See id.
In an appeal from a district court’s decision denying qualified immunity, “[w]e conduct
de novo review because the issue whether qualified immunity is applicable to an official’s
actions is a question of law.” Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).
A. Dr. Pozios
Dr. Pozios forfeited his qualified-immunity defense below. Although Dr. Pozios asserted
qualified immunity in his motion for summary judgment, R. 200 (Pozios Mot. for Summ. J. at
32–35) (Page ID #3834–37), he failed to raise an objection to the magistrate judge’s report and
recommendation that denied qualified immunity, R. 243 (Pozios Objections). Consequently, the
district court did not address the issue. We have long held that, when a defendant does “not raise
[an] argument in his objections to the magistrate’s report and recommendation . . . [he] has
[forfeited] his right to raise this issue on appeal.” Kensu v. Haigh, 87 F.3d 172, 176 (6th Cir.
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 11
1996) (citing Thomas v. Arn, 474 U.S. 140 (1985)); see also Keeling v. Warden, Lebanon Corr.
Inst., 673 F.3d 452, 458 (6th Cir. 2012); Kelly v. Withrow, 25 F.3d 363, 366 (6th Cir. 1994).
We clarify that forfeiture, rather than waiver, is the relevant term here. Although our
cases often use the terms interchangeably, “[w]aiver is different from forfeiture.” United States
v. Olano, 507 U.S. 725, 733 (1993). Waiver is affirmative and intentional, whereas forfeiture is
a more passive “failure to make the timely assertion of a right . . . .” Id.; see also United States v.
White, 920 F.3d 1109, 1122–23 n.4 (6th Cir. 2019) (Clay, J., concurring in part and dissenting in
part) (explaining that “a defendant waives an argument by, for instance, withdrawing a motion or
objection, stating that a proposition is not disputed, or stating that they are not pressing an
argument,” whereas “a defendant forfeits an argument by, for instance, failing to make it before
the district court, failing to make it in its opening appellate brief, or identifying it without
pressing it”) (collecting cases); Lucaj v. Fed. Bureau of Investigation, 852 F.3d 541, 547–48 n.4
(6th Cir. 2017). While Thomas v. Arn held that “the failure to file objections to the magistrate’s
report waives the right to appeal the district court’s judgment,” 474 U.S. at 142 (emphasis
added), Arn preceded the Olano Court’s clarification. See also Freytag v. Comm’r, 501 U.S.
868, 894 n.2 (1991) (Scalia, J., concurring) (noting that the Supreme Court’s cases also “often
used [waiver and forefeiture] interchangeably,” but that “[t]he two are really not the same . . . .”).
Nowhere in his briefs or the proceedings below did Dr. Pozios affirmatively abandon his
qualified-immunity defense. See Lucaj, 852 F.3d at 547–48 n.4. Rather, he simply failed to file
an objection to the magistrate judge’s R & R denying qualified immunity. That is forfeiture, not
waiver.
The difference can sometimes be important because forfeited issues may in certain
circumstances be considered on appeal. See Harris v. Klare, 902 F.3d 630, 635–36 (6th Cir.
2018) (“‘Ordinarily an appellate court does not give consideration to issues not raised below.’
. . . This rule is not absolute, however, and it is within the ambit of our discretion to entertain
questions not raised below.” (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941))). Even
cases that have labeled a party’s failure to object to a magistrate judge’s R & R as “waiver” have
nonetheless acted as though the issue was forfeited by addressing the otherwise “waived” issue
on merits. See, e.g., United States v. Wandahsega, 924 F.3d 868, 878–79 (6th Cir. 2019);
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Keeling, 673 F.3d at 458; see also Arn, 474 U.S. at 155 (using the term “forfeiture” and then
describing its rule as “a nonjurisdictional waiver provision, [which] the Court of Appeals may
excuse . . . in the interests of justice.”). Again, we do that in the forfeiture context.
Even had Dr. Pozios not forfeited qualified immunity, we are bound by our prior decision
in McCullum v. Tepe, 693 F.3d 696, 697, 704 (6th Cir. 2012) (holding that a private doctor
working for the government is not entitled to qualified immunity). See Salmi v. Sec’y of Health
& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). As Dr. Pozios himself concedes, McCullum
squarely decides the issue presented by his appeal.
B. Dr. Dahl: First Amendment Retaliation
To establish a claim of First Amendment retaliation, a plaintiff shows that: “(1) the
plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that
would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) . . .
the adverse action was motivated at least in part by the plaintiff’s protected conduct.” King v.
Zamiara (“King II”), 680 F.3d 686, 694 (6th Cir. 2012) (citing Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999) (en banc)). The crux of this dispute is the first prong—that is, whether
Berkshire engaged in conduct protected by the First Amendment.
In the first iteration of King v. Zamiara (“King I”), we held that the plaintiff’s assistance
to other inmates in his role as a Warden’s Forum representative was protected conduct. See
150 F. App’x 485, 492 (6th Cir. 2005). King I reached that result through a straightforward
application of Thaddeus-X. See id. at 492–93. Specifically, we concluded that the plaintiff
“offered evidence that his assistance was necessary for other inmates to access the courts . . . .”
Id. at 492. In reaching this conclusion, we relied first on the fact that the plaintiff was elected as
a housing representative on the Warden’s Forum and, therefore, the plaintiff was the person other
inmates should contact about certain issues. Id. In addition, we noted that the plaintiff produced
evidence that other inmates were either illiterate in English or “uneducated in the law and that
they would have been unable to seek effective redress without [the plaintiff’s] help.” Id. at 492–
93.
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 13
The question in this case then becomes whether Berkshire has enough evidence to show
that his assistance to other inmates was necessary. Based on King I, Berkshire serving as the
Warden’s Forum representative counts as evidence. And as in King I, prison officials directed
other inmates to Berkshire for help with complaints. See R. 183-6 (Berkshire Dep. at 145–46)
(Page ID #2451–52) (Berkshire stating that this was “a common practice. Any issues that a
prisoner ha[s] . . . to that nature[,] [prison personnel] always direct [other inmates] to see the
housing unit representative.”). That, of course, is precisely what Berkshire was elected to do.
Berkshire further testified that those he helped “were either severely mentally ill, they couldn’t
read or write, or . . . they were too medicated to even . . . write anything down.” Id. at 145 (Page
ID #2451); see also R. 183-2 (Berkshire Aff. Exs. 1 & 2) (Page ID #2412–17) (inmate
grievances that Berkshire helped prepare). Therefore, Berkshire has come forward with enough
evidence to show that his assistance to other inmates in his role as a Warden’s Forum
representative was necessary. See King I, 150 F. App’x at 492–93; Thaddeus-X, 175 F.3d at
395–96. Berkshire “was not a jailhouse lawyer merely ‘hanging a shingle’ with hopes of
attracting business; he was the appointed representative to whom the officials told other inmates
to turn for the resolution of grievances.” See King I, 150 F. App’x at 492.
Whether this claim is analyzed under the Petition Clause, as Berkshire’s counsel at times
has suggested, or under the Speech Clause makes little difference.1 See, e.g., Valot v. Se. Local
Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir. 1997) (“A cause of action for violation of
the Petition Clause is subject to the same analysis applied to a claim arising under the Speech
Clause.”) (collecting cases). Berkshire cites Wolfel v. Bates, 707 F.2d 932 (6th Cir. 1983) for the
proposition that a prison must show that the Agenda (which summarized inmates’ complaints
and concerns) “imperiled legitimate penological objectives in order for the [Agenda] to lose its
protected status.” See Appellee’s Br. at 24. In Wolfel, the plaintiff “drafted a petition alleging
that prison guards were harassing the inmates of the Southern Ohio Correctional Facility by
starting showers and ‘walklines’ between 5:30 and 6:00 a.m. Wolfel obtained signatures from
seventeen fellow inmates and sent the petition to the prison superintendent.” 707 F.2d at 933. In
1There has been some debate about whether this is a speech case or a petition case. We note that the
operative complaint states: “Defendant Dahl’s actions violated Plaintiff’s rights for the retaliation of protected
speech grounded in the First Amendment.” See R. 101 (Am. Compl. at ¶ 28) (Page ID #1197).
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 14
response, a guard issued a misconduct ticket against the plaintiff, and the plaintiff was found
guilty and issued a reprimand on his record. See id. We held that, without a finding that the
petition was false or that the statements in the petition were maliciously communicated, the
plaintiff was “subject[] to discipline merely because he complained. This was an impermissible
abridgement of his right to seek redress of grievances.” Id. at 934.
Wolfel is instructive and provides further force for Berkshire’s case, but it was decided
before Thaddeus-X. We need not probe too deeply how Wolfel interacts with the Thaddeus-X
line of cases because King I (applying Thaddeus-X) is directly on point for Berkshire.
Nonetheless, we observe that in Griffin v. Berghuis a panel of the court stated in dicta that
reliance on the Petition Clause was “problematic . . . [because] [m]embers of the Warden’s
Forum are explicitly barred from using the Forum as a substitute for the formal [individual]
grievance process.” 563 F. App’x 411, 415 (6th Cir. 2014). Griffin continued: “it is clearly
improper for a prisoner to be ‘subjected to discipline merely because he complained’ about his
treatment by prison officials . . . .” Id. at 416 (quoting Wolfel, 707 F.2d at 934). Ultimately,
Griffin rested on the following legal test: the Warden’s Forum letter at issue, though speech, “is
unprotected if its prohibition by prison officials is ‘reasonably related to legitimate penological
interests.’” Id. at 415 (first quoting Turner v. Safley, 482 U.S. 78, 89 (1987); then citing
Thaddeus-X, 175 F.3d at 395). The plaintiff’s letter in Griffin flunked the test not because it was
a Warden’s Forum letter, but because it “posed a threat to prison security and consequently
interfered with the prison’s legitimate penological objectives.” See id. at 416–17; see also id. at
412. Here Berkshire’s letter is like that in Wolfel (a peaceful list of complaints), not Griffin (a
threat of organized protest). Berkshire’s speech was therefore “not inconsistent with his status as
a prisoner or with the legitimate penological objectives of the corrections system.” See Pell v.
Procunier, 417 U.S. 817, 822 (1974).
Dr. Dahl relies on previous statements in two unpublished orders by this court that a
plaintiff “ha[d] not established that he was engaging in protected First Amendment activity as a
warden’s forum representative.” See Cromer v. Dominguez, 103 F. App’x 570, 573, 2004 WL
1447648, at *2 (6th Cir. 2004) (unpublished order); VanDiver v. Martin, 48 F. App’x 517, 519–
20, 2002 WL 31166925, at *2 (6th Cir. 2002) (unpublished order). These statements were made
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 15
in a particular context—an analysis, pursuant to Thaddeus-X, of whether the plaintiff’s assistance
was necessary to help other inmates. In Cromer and VanDiver, the answer was no; the plaintiff
in King I, however, met the standard.
In VanDiver, we relied on the fact that the plaintiff “ha[d] not demonstrated that the
inmates he represented on the warden’s forum could not have been represented by another
inmate, or that they could not bring any concerns they may have to the attention of prison
officials without [the plaintiff’s] assistance.” See VanDiver, 48 F. App’x at 519. To be sure, “an
inmate does not have an independent right to help other prisoners with their legal claims. Rather,
a ‘jailhouse lawyer’s’ right to assist another prisoner is wholly derivative of that prisoner’s right
of access to the courts.” Thaddeus-X, 175 F.3d at 395 (citation omitted). Accordingly, “only if
[a plaintiff’s] assistance is necessary to vindicate [a fellow inmate’s] right of access to the courts
can [a plaintiff] . . . state a claim of retaliation.” Id.
Cromer followed a similar analysis. See 103 F. App’x at 573 (citing Herron v. Harrison,
203 F.3d 410, 415 (6th Cir. 2000)). In Herron, the case VanDiver relied on, we explained that
one inmate assisting another “is protected . . . when the inmate receiving the assistance would
otherwise be unable to pursue legal redress.” Herron, 203 F.3d at 415. Using Thaddeus-X as an
example, we noted that this test could be satisfied in cases in which “the complainant had no
knowledge of the law, was being held in administrative segregation, and could only access legal
books by requesting them by title.” Id. at 416. Taken together, the Cromer and VanDiver
plaintiffs’ First Amendment claims failed not because Warden’s Forum-related activity is not
protected per se; rather, the plaintiffs’ claims failed because they had not shown that other
inmates (whom the plaintiffs assisted) had no other reasonable alternatives for assistance. That
is, the plaintiffs failed to satisfy the standards set out in cases like Thaddeus-X and Herron. By
contrast, Berkshire satisfies this standard and, therefore, engaged in protected conduct.
Dr. Dahl counters that Berkshire violated prison regulations when he submitted the
Agenda because it contained an “individual” complaint. See R. 184-5 (Policy Directive) (Page
ID #2616) (“Housing unit representatives shall not use their position to present individual
complaints to the administration.”); see also Thaddeus-X, 175 F.3d at 395 (“[I]f a prisoner
violates a legitimate prison regulation, he is not engaged in ‘protected conduct,’ and cannot
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 16
proceed beyond step one.”). Simply put, this counterargument is unpersuasive. The purported
“individual” complaint reads: “Sergeant Haggerty doesn’t want me to conduct any further
rounds on A-Wing. His actions prohibit me from identifying and resolving problems which exist
in the unit . . . .” R. 183-10 (Agenda at 2) (Page ID #2492). This complaint, though
“individualized” in a very technical sense, relates directly to Berkshire’s role as a representative
and his ability to serve as a resource for other inmates to voice their complaints and concerns—
which Berkshire was appointed to do. See King I, 150 F. App’x at 492. In short, Dr. Dahl slices
the record too thin.
Moving to the second and third elements of Berkshire’s retaliation claim, he also has
enough evidence to overcome a qualified-immunity defense. Viewed in the light most favorable
to Berkshire, two days after Berkshire submitted his agenda Dr. Dahl unilaterally changed his
GAF score from 48 to 53. See R. 183-13 (Page ID #2500–02). Consequently, Berkshire was
discharged back to the general population. We have held that “actions that result in more
restrictions and fewer privileges for prisoners are considered adverse.” See Hill v. Lappin, 630
F.3d 468, 474 (6th Cir. 2010); see also id. at 474–75 (explaining that a transfer to general
population “can be an adverse action if that transfer would result in foreseeable, negative
consequences to the particular prisoner.”).
Furthermore, Berkshire’s expert, Dr. Karen Clark, noted that “[t]here is a three month
lapse in documentation” between December 20, 2011, when Berkshire’s GAF was 48, and
March 21, 2012, when Berkshire’s GAF was 53. R. 183-4 (Clark Rep. at 7) (Page ID #2435).
Dr. Clark also noted that “[t]here is no mention of a supporting assessment completed.” Id. at 6
(Page ID #2434). Dr. Clark stated that “[d]ischarge from RTP was traumatic for Mr. Berkshire.”
Id. at 4 (Page ID #2432). Dr. Dahl, for her own part, could not recall meeting with Berkshire,
creating the medical record that raised Berkshire’s GAF score, or the review of Berkshire, even
after reviewing the document. See R. 183-7 (Dahl Dep. at 65–66) (Page ID #2472–73). To the
extent that Dr. Dahl contests this evidence for purposes of qualified immunity, we view the
evidence in the light most favorable to Berkshire and “ignore those unintentional factual disputes
. . . .” See State Appellants’ Reply Br. at 3. In sum, given the temporal proximity between
Berkshire’s submitting the Agenda and Dr. Dahl’s unilateral changing of the GAF score,
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 17
alongside Dr. Dahl’s inability to recall why the score was changed and the general absence of
other documentation, Berkshire rounds out his retaliation claim. See Muhammad v. Close,
379 F.3d 413, 417–18 (6th Cir. 2004) (“[T]emporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create an inference of retaliatory
motive.’” (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004))); Thaddeus-X, 175 F.3d
at 399 (“Circumstantial evidence, like the timing of events or the disparate treatment of similarly
situated individuals, is appropriate.”); see also R. 183-2 (Berkshire Aff. at ¶¶ 38–40) (Page ID
#2409–10) (RTP staff refused to let Berkshire make his rounds after he submitted his Agenda,
but other representatives were able to do so).
Finally, King I and Thaddeus-X were decided before the events in question here, and the
law that those cases announced was therefore clearly established. Like King I, this case is a
straightforward application of that well-established standard, and Berkshire has more than
enough evidence to meet it. Berkshire thus engaged in protected activity, and he has more than
enough evidence to round out his retaliation claim for the purpose of overcoming Dr. Dahl’s
qualified-immunity defense.
C. Beauvais & Sermo: Eighth Amendment Deliberate Indifference to a Serious Medical
Need
“The Eighth Amendment, which applies against the States by virtue of the Fourteenth
Amendment, provides: ‘Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.’” Harmelin v. Michigan, 501 U.S. 957, 962 (1991)
(citing Robinson v. California, 370 U.S. 660 (1962)); U.S. CONST. amend. VIII. The Eighth
Amendment thus forbids the “unnecessary and wanton infliction of pain . . . .” See Whitley v.
Albers, 475 U.S. 312, 319 (1986) (internal quotation marks omitted). More specifically for
Berkshire’s claim against Beauvais and Sermo, the Amendment “forbids prison officials from
‘unnecessarily and wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference’
toward the inmate’s serious medical needs.” Blackmore v. Kalamazoo County, 390 F.3d 890,
895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A claim based on
deliberate indifference to a serious medical need has an objective and a subjective prong. See id.
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The “subjective component must be addressed for each [defendant] individually.” Garretson v.
City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005).
To satisfy the objective prong, a plaintiff must show that he has “a sufficiently serious
medical need.” See Blackmore, 390 F.3d at 895 (internal quotation marks omitted). Beauvais
and Sermo concede that Berkshire satisfies the objective component in that Berkshire had a
serious medical need. See State Appellants’ Br. at 35. Namely, Berkshire has issues with
depression, psychotic disorders, and relatedly, suicidal tendencies.
“To satisfy the subjective component, an inmate must show that prison officials had ‘a
sufficiently culpable state of mind.’” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). We have explained:
[T]hat state of mind is one of deliberate indifference to inmate health or safety.
Although the deliberate indifference standard describes a state of mind more
blameworthy than negligence, this standard is satisfied if the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.
Id. (citations and internal quotation marks omitted).
Beauvais and Sermo (as well as Dr. Pozios) oversaw Berkshire’s treatment after he was
discharged from RTP on March 23, 2012. Berkshire points to evidence that suggests Beauvais
and Sermo knew that Berkshire suffered from a “Major Mental Disorder[] and that [Berkshire]
had engaged in suicidal behaviors over the course of two weeks from March 26, 2012 to April
10, 2012.” R. 115 (Lang Decl. at ¶ 8) (Page ID #1478). Dr. Pozios apparently told inmate Brent
Lang that he, Beauvais, and Sermo “waited weeks before they referred [Berkshire] to a Crisis
Stabilization Program because they hoped that Randy Berkshire would have died.” See id. at ¶ 9.
At least by March 26, 2012, Beauvais knew that Berkshire “was expressing homicidal ideation.”
See R. 212-2 (Beauvais Dep. at 61) (Page ID #4436). During this time, in which Berkshire
engaged in various self-injurious behaviors, Sermo met with Berkshire for about five minutes,
and Sermo denied Berkshire’s request to go into a Crisis Stabilization Program apparently
because Sermo “did not feel like doing all of that paperwork . . . .” See R. 93 (Berkshire Aff. at
¶¶ 34–36) (Page ID #996); cf. R. 212-3 (Sermo Dep. at 65–66) (Page ID #4447–48) (Sermo
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 19
stating that Berkshire “was presented to [him by Beauvais] as being problematic,” and admitting
that Berkshire was a patient that caused Sermo to do extra work). In the Crisis Stabilization
Program, Berkshire would have received “a thorough psychiatric evaluation to determine [his]
appropriate treatment.” See R. 93 (Berkshire Aff. at ¶ 35) (Page ID #996). On April 9, 2012,
after days of Berkshire depriving himself of food and water, he attempted to hang himself. Only
then was Berkshire transferred to the Crisis Stabilization Program. On April 11, 2012, Beauvais
emailed Dr. Pozios: “Unfortunately, we could not transfer [Berkshire] to Mars so we had to send
him to CSP.” R. 213-5 (Page ID #4562). Dr. Clark stated in her report that “[t]here is written
evidence that Mr. Berkshire was medically deprived at a time when his behavior was observably
worse and his need for efficient and appropriate intervention heightened.” R. 183-4 (Clark Rep.
at 8) (Page ID #2436).
The evidence in this case shows that, at least at summary judgment, Berkshire meets the
high bar that a plaintiff must clear on an Eighth Amendment medical-needs claim. Although true
that courts generally do not second guess the judgment of prison medical officials, we have also
recognized:
[P]rison officials may not entirely insulate themselves from liability under § 1983
simply by providing some measure of treatment. Indeed, deliberate indifference
may be established in cases where it can be shown that a defendant rendered
“grossly inadequate care” or made a “decision to take an easier but less
efficacious course of treatment.”
Jones v. Muskegon County, 625 F.3d 935, 944–45 (6th Cir. 2010) (citations omitted). The
evidence surveyed above shows that both Beauvais and Sermo, despite knowing that Berkshire
was suicidal, “rendered ‘grossly inadequate care.’” See id. at 944 (citations omitted). The expert
report, Berkshire affidavit and Lang declaration, deposition testimony, and the email all provide
more than ample support for the inference that Beauvais and Sermo knew of and were
deliberately indifferent toward a potential risk of suicide.
“This circuit has consistently recognized a prisoner’s established right to medical
attention once the prisoner’s suicidal tendencies are known.” Comstock, 273 F.3d at 711
(collecting cases). Viewed in the light most favorable to Berkshire, Beauvais’s and Sermo’s
approach was not merely “wait and see if Berkshire gets better,” but rather, they took a
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 20
“medically deprive and hope the problem goes away” approach.2 To the extent that these two
Defendants contest this evidence, at this stage we do not have jurisdiction to address factual
disputes. See State Appellants’ Reply Br. at 3. As one example, Beauvais asserts that she did
not actively participate in Berkshire’s care other than at the March 26, 2012 meeting, yet Sermo
testified that Beauvais participated in Berkshire’s weekly treatment reviews. See R. 212-3
(Sermo Dep. at 68) (Page ID #4449). At this point, Berkshire’s evidence is sufficient to establish
that Beauvais and Sermo knew that Berkshire was suicidal, these suicidal and homicidal
tendencies were communicated to them, and Beauvais and Sermo purposefully declined to send
Berkshire to the Crisis Stabilization Program (until he actually attempted suicide), knowing that
Berkshire was at a significant risk of attempting suicide. Taken together, these facts satisfy the
deliberate-indifference standard at the summary-judgment stage. See Jones, 625 F.3d at 945
(collecting cases).
Berkshire had a clearly established right to have his suicidal tendencies attended to, and
evidence supports the inference that Beauvais and Sermo acted with deliberate indifference
toward Berkshire’s medical needs. Beauvais and Sermo are therefore not entitled to qualified
immunity.
D. Sergeant Nelson: Eighth Amendment Conditions of Confinement
Berkshire’s claim against Sergeant Nelson entails a different Eighth Amendment
analysis, one based on Berkshire’s conditions of confinement. This claim also has an objective
and subjective prong. See Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir. 2006). For a
conditions-of-confinement claim, the objective prong can be satisfied when “a prison official’s
act or omission . . . result[s] in the denial of ‘the minimal civilized measures of life’s
necessities.’” See Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). The subjective prong “requires a finding of deliberate indifference, that is, ‘that the
official acted or failed to act despite his knowledge of a substantial risk of serious harm.’”
See Barker v. Goodrich, 649 F.3d 428, 434 (6th Cir. 2011) (quoting Farmer, 511 U.S. at 842)).
2See, e.g., R. 183-4 (Clark Rep. at 8) (Page ID #2437); R. 93 (Berkshire Aff. at ¶¶ 34–36) (Page ID #996);
R. 213-5 (Page ID #4562); R. 212-3 (Sermo Dep. at 65–66) (Page ID #4447–48); R. 115 (Lang. Aff. at ¶ 9) (Page
ID #1478).
Nos. 17-1993/2039 Berkshire v. Dahl et al. Page 21
“We have held that there is a substantial risk of serious harm ‘in the denial of the minimal
civilized measure of life’s necessities . . . .’” Id. (quoting Spencer, 449 F.3d at 728)). And “[a]n
official’s knowledge of the risk may be demonstrated through circumstantial evidence and
inference, and a factfinder may conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Id. (internal quotation marks omitted). Unlike his
codefendants, Sergeant Nelson makes no concessions.
Based on Hope v. Pelzer, 536 U.S. 730 (2002), and Barker v. Goodrich, Sergeant Nelson
is not entitled to qualified immunity at the summary-judgment stage. In Hope, the Supreme
Court held that “the Eighth Amendment violation is obvious” when an inmate was handcuffed in
a restrictive position for seven hours in the sun without access to water or bathroom breaks. See
536 U.S. at 738. In so holding, the Supreme Court explained that “[a]mong unnecessary and
wanton inflictions of pain are those that are totally without penological justification.” Id. at 737
(internal quotation marks omitted) (alteration in original).
Then in Barker, we relied on Hope and similar cases to hold that the defendants in that
case “had fair warning in 2007 that their conduct was unconstitutional.” Barker, 649 F.3d at
435; see also id. at 434 (“[F]or no legitimate penological purpose, [plaintiff] was denied
adequate access to water and a restroom, and forced to maintain an uncomfortable position for an
extended period of time [i.e., twelve hours], subjecting him to a significant risk of wrist and arm
problems, dehydration and thirst, and pain and damage to the bladder. This constitutes a denial
of the minimal civilized measures of life’s necessities.”). The Barker court continued:
Case law from the Supreme Court, this Court, and other circuits established at that
time that each condition seen here—restraining an inmate in an uncomfortable
position, denying access to water, and denying access to the toilet—could rise to
an Eighth Amendment violation if allowed to persist for an extended period.
Id. at 435 (emphasis added). Notably, we viewed seven hours (the length of time in Hope) as an
“extended period.” See id. at 435–36. The Barker court further reasoned that “our sister circuits
have found shorter deprivations to violate the Constitution when they lack a penological
purpose.” Id. at 436 (collecting cases). Accordingly, we adopted the reasoning of Hope and
other circuits that addressed “shorter deprivations” and concluded that the case law was “thus
sufficient to give the Defendants fair warning.” Id.
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Soo too for Sergeant Nelson. The differences between Hope, Barker, and the cases
surveyed therein are immaterial and do not overcome the fact that Sergeant Nelson denied
Berkshire a bathroom break and then left Berkshire to lay in his own urine and feces for several
hours. Sergeant Nelson had fair warning that this conduct, if without a penological purpose,
constitutes a denial of life’s necessities, subjects Berkshire to a significant risk of pain and
damage to the bladder (as well as humiliation), and therefore could rise to the level of an Eighth
Amendment violation. See Hope, 536 U.S. at 738 & n.8; Barker, 649 F.3d at 434. The district
court correctly concluded “that there is a material question of fact whether [Sergeant Nelson’s]
actions were taken for a legitimate penological reason . . . .” See Berkshire, 2017 WL 3276466,
at *14.
Sergeant Nelson’s arguments to the contrary are not persuasive. He hangs his hat on the
fact that he denied Berkshire the ability to use the restroom on only one occasion and that this
court has previously stated “that deprivations of fresh water and access to the toilet for a 20–hour
period, while harsh, were not cruel and unusual punishment.” See Hartsfield v. Vidor, 199 F.3d
305, 310 (6th Cir. 1999) (citing Stephens v. Carter Cty. Jail, 1987 WL 36997, at *1 (6th Cir.
1987) (unpublished table decision)). First, Stephens is a non-binding and unpublished order, and
it is distinguishable. The plaintiff there was confined in a holding cell in a county jail for twenty
hours and he did, in fact, use the bathroom upon release. Stephens, 1987 WL 36997, at *1.
Moreover, the court stated that “in light of plaintiff’s recent assault on the deputy sheriff, the
defendants were vested with very broad discretion in adopting policies and procedures which
were needed to preserve internal order and security.” Id. Second, Hartsfield is also
distinguishable because, as the court noted, “the record provides [unrefuted] sworn testimony
and documentation . . . that adequate toilet breaks and opportunities to drink were provided to
plaintiff while he was in restraints and that he took advantage of them at least once . . . .”
Hartsfield, 199 F.3d at 310. That is not the case here. Third and relatedly, as the district court
reasoned, the court should not fault Berkshire for requesting to use the restroom only once when
he had only one opportunity to do so. See Berkshire, 2017 WL 3276466, at *14. Sergeant
Nelson entered Berkshire’s cell around midnight, denied Berkshire a toilet break, and then this
denial effectively continued for approximately six to seven hours because Sergeant Nelson never
returned. In fact, no one returned until approximately 7:00 A.M. See id.
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Accordingly, Berkshire has produced sufficient evidence to show a violation of a clearly
established constitutional right, and he can survive Sergeant Nelson’s assertion of qualified
immunity.
IV. CONCLUSION
For these reasons, we AFFIRM the district court, and we DISMISS the remainder of Dr.
Dahl’s appeal for lack of jurisdiction.