NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0613n.06

                                           No. 19-2294

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Oct 29, 2020
TIMOTHY FINLEY,                                   )                         DEBORAH S. HUNT, Clerk
                                                  )
     Plaintiff-Appellant,                         )
                                                  )          ON APPEAL FROM THE UNITED
v.                                                )          STATES DISTRICT COURT FOR
                                                  )          THE WESTERN DISTRICT OF
MANDI SALMI, Mental Health Nurse Practitioner, et )          MICHIGAN
al.,                                              )
                                                  )
     Defendants-Appellees.                        )

                                            ORDER

                Before: STRANCH, THAPAR, and READLER, Circuit Judges.

       The panel delivered an order of the court. STRANCH, J. (pp. 5–7), delivered a separate
opinion concurring in part and dissenting in part.

       Timothy Finley, a Michigan state prisoner, appeals pro se from a district court judgment in
two consolidated prisoner civil rights actions filed under 42 U.S.C. § 1983. He has filed a motion
for a protective order and to seal and strike certain attachments. This case has been referred to a
panel of the court that, upon examination, unanimously agrees that oral argument is not needed.
See Fed. R. App. P. 34(a).
       Finley filed a complaint alleging that the noise level in his prison housing unit was so
excessive that it caused him to lose sleep and exacerbated his mental illness, causing him to engage
in self-harming behavior, including cutting his arms, swallowing razor blade pieces, and taking
overdoses of his medication. He filed a second complaint alleging that his Eighth Amendment
rights were violated by prison officials’ failure to prevent him from harming himself and failure to
treat his mental illness properly. The two complaints were consolidated. The defendants moved
for summary judgment and Finley responded. A magistrate judge recommended that the motion
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be granted. Finley filed objections. The district court overruled the objections and granted
summary judgment to the defendants.
       On appeal, Finley reasserts his claims from the first complaint against a nurse practitioner
and the warden of the Marquette Branch Prison, and his claims from the second complaint against
four nurses and four prison officers. Both parties have moved to strike Attachments 2 and 3 from
Finley’s brief.
       This case arose out of events from the end of August 2016 to the end of September 2016.
Throughout this period, Finley engaged in self harm, which he attributes to the noise level in his
housing unit exacerbating his mental illness. He alleged that defendants failed to protect him from
himself and failed to treat his mental illness properly. He also filed a complaint alleging that he
should not have been placed in segregation at the end of this period. That complaint was dismissed
for failure to state a claim, but this court vacated the dismissal and remanded with leave to amend.
See Finley v. Huss, 723 F. App’x 294, 299 (6th Cir. 2018).
       A summary judgment motion is reviewed de novo, construing the allegations in the light
most favorable to the non-moving party, and will be affirmed where there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter of law. See Kocak v.
Cmty. Health Partners of Ohio, Inc., 

, 468 (6th Cir. 2005).
       An Eighth Amendment violation occurs when prison officials are deliberately indifferent
to a prisoner’s serious medical needs, including psychological needs. Comstock v. McCrary, 

, 702–03 (6th Cir. 2001). To establish an Eighth Amendment violation, however, it is
insufficient to second guess medical judgments concerning the adequacy of the treatment provided.
See Rouster v. County of Saginaw, 

, 448 (6th Cir. 2014).
       In his first complaint, Finley alleged that the noise levels in his housing unit caused him to
engage in self harm. The record documents that he complained about the noise on several
occasions. The defendant nurse practitioner, however, stated that he never made that complaint to
her and that there was no diagnosed medical need for Finley to be housed in a quiet atmosphere.

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The warden noted that there were regulations concerning the noise level that were to be enforced
by the corrections officers. He also submitted evidence that an investigation performed in response
to Finley’s complaints showed that the noise levels in the prison did not exceed acceptable levels.
Finley submitted no evidence in support of his allegation that these defendants were deliberately
indifferent to his serious psychological need by failing to transfer him to a different housing unit.
       In his second complaint, he alleged that corrections officers failed to prevent him from
engaging in self harm, and that the officers and nurses did not properly treat his physical injuries
or mental illness, in violation of the Eighth Amendment. To establish the first claim, Finley was
required to show that the defendants were deliberately indifferent to either his safety or his serious
medical needs. That claim requires satisfying both an objective and subjective component. The
objective component required Finley to prove a “substantial risk of harm”, and the subjective
component required him to prove the corrections officers had a “sufficiently culpable state of
mind.” Santiago v. Ringle, 

, 591 (6th Cir. 2013) (quoting Farmer v. Brennan, 

, 834 (1994)). Put differently, the officers must have known of a substantial risk of serious
harm to Finley and failed to take reasonable steps to abate that risk.

dispute
Finley’s self-injurious behaviors amount to a substantial risk of harm, satisfying the objective
component. But Finley fails to meet the subjective component.
       Finley argued that the corrections officers should have ensured that he did not have access
to razor blades. Finley was placed in a clean cell under observation. Yet he nevertheless succeeded
in smuggling razor blades into his cell, using them to cut his arms, and later swallowing many of
them. Indeed, Finley credited his own resourcefulness, claiming that after he was able to swallow
the first razor blade, he was able to obtain three additional razor blades, to cut himself and
ultimately swallow. Perhaps, as Finley notes, further safeguards could have been employed,
possibly by being placed in restraints to prevent self-harm. But we have already rejected the notion
prison officials are deliberately indifferent where they merely place an inmate under observation
without, for example, prescribing medications after he engaged in self-harm with razor blades.

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Edmonds v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004). Just as the plaintiff in Edmonds, Finley
would have the court second guess the defendants’ judgments. To the extent “a prison official
knew of a substantial risk from the very fact that the risk was obvious,” officers attempted to
address that risk by placing Finley in a clean cell, yet Finley resourcefully succeeded in obtaining
razor blades. 

. Finley contends it is sufficient that the officers knew
Finley injured himself after being placed in a clean cell. But there is no evidence that the officers
traced the source of Finley’s injuries to a smuggled razor blade still in Finley’s possession. The
record before us, at best, demonstrates only that the corrections officers acted negligently with
respect to Finley’s possession of razor blades, well short of proving deliberate indifference.
       In his objections to the magistrate judge’s report, Finley argued that the defendants failed
to report that he was spitting up blood after he returned from the hospital on September 2 until he
was returned to the hospital on September 5. The records from that period, however, showed that
Finley was observed sucking blood out of the wounds on his arms and spitting it around his cell
on the first three days. On the last day, when he appeared to be actually bleeding from the razor
blade piece he had swallowed, he was sent back to the hospital. The medical records reflect that
Finley was constantly evaluated, his prescribed medications were adjusted, the cuts to his arms
were treated, he was placed under observation, and he was sent to outside hospitals when he
reported swallowing razor blade pieces. He did not show that the treatment he received was so
woefully inadequate as to amount to no treatment at all. See Alspaugh v. McConnell, 

, 169 (6th Cir. 2011). Accordingly, no genuine dispute of material fact exists that requires
vacating the summary judgment award to defendants.
       We thus AFFIRM the district court’s judgment. We GRANT the motions to strike the
attachments to Finley’s brief and for a protective order.




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        JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part.

I concur with the bulk of the majority’s conclusions but would find that there remain issues of

material fact regarding Finley’s Eighth Amendment claim that the correction officers were

deliberately indifferent to his possession of razor blades before he swallowed one on September 1,

2016.

        To survive summary judgment, Finley needed to demonstrate that there were issues of

material fact as to whether prison officials were deliberately indifferent to “a substantial risk of

serious harm” to him. Farmer v. Brennan, 

, 828 (1994). To be deliberately

indifferent, “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.” 

. “[A] factfinder may conclude that a prison official knew of a substantial risk from the very

fact that the risk was obvious.”

        On August 30, 2016, Finley was placed in a suicide observation cell for threatening to harm

himself. Within 15 minutes, Finley had cut himself with a razor blade that he had brought with

him. Defendant Tasson observed this and obtained medical attention for Finley, but did not

remove the razor blade. The next day, on August 31, 2016, a Qualified Mental Health Professional

issued a mental health management plan that placed Finley at a “moderate” risk of self-injury, and

advised that he be placed in a “stripped, clean observation cell” and not be permitted to have

“razors or potentially sharp objects.” But over the course of the next few days, as medical records

show, Finley proceeded to repeatedly cut himself. Finley does not, as the majority represents,

contend only that various officers knew he had injured himself after being placed in a clean cell.




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                                            No. 19-2294


Rather, he alleges that Defendants Feltner, Sharrett, Schetter, and Tasson (Defendant Officers)

observed him in the act of cutting himself with a razor blade but did not take the blade from him.

       He does not, as the majority claims, “credit[] his own resourcefulness” in bringing this

razor blade into his cell, but explains that he was in the throes of an episodic relapse of his severe

mental illness that “compelled” him to harm himself. Finally, on September 1, 2016, Finley

swallowed the razor blade, causing him extreme pain and requiring him to be taken to the hospital

for treatment twice. Surgeons were unable to remove the razor blade on multiple occasions and it

remained lodged in his throat until at least September 26, 2016.

       Taken together, this evidence, including Finley’s own allegations, is sufficient to create an

issue of material fact regarding whether the Defendant Officers could have and did draw the

inference that the razor blades Finley possessed posed a substantial risk of serious harm to him.

Yet nothing in the record indicates that the officers took any action in response, such as attempting

to identify, locate and confiscate the device Finley was using to make those cuts, beyond one

provider’s note that Finley “would not elaborate on what he is using to afflict injury.” And even

though Finley was initially placed in a clean cell, he has stated that the correction officers

subsequently observed him using razor blades in that clean cell. A reasonable juror could infer

that ignoring those later observations, particularly in light of Finley’s history of self-harm and the

mental health management plan in place, constituted deliberate indifference.

       Although Defendants moved for summary judgment on their qualified immunity defense,

the district court denied that motion as moot, having found no underlying constitutional violation.

So that issue has not been briefed on appeal. On this record, I would vacate the district court’s

judgment as to Finley’s claim against Feltner, Sharrett, Schetter, and Tasson based on their alleged


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failure to confiscate the first razor blade that Finley used for self-harm from August 31, 2016 until

he swallowed it, and remand for further consideration. I therefore respectfully dissent.


                                              ENTERED BY ORDER OF THE COURT




                                              Deborah S. Hunt, Clerk




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