NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0391n.06

                                           No. 10-2089

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


DALLAS COBBS,                                         )                 FILED
                                                      )
                                                                     Apr 10, 2012
        Plaintiff-Appellee,                           )
                                                      )         LEONARD GREEN, Clerk
v.                                                    )
                                                      )
GEORGE PRAMSTALLER, Chief Medical                     ) ON APPEAL FROM THE UNITED
Officer, Michigan Department of Corrections,          ) STATES DISTRICT COURT FOR THE
                                                      ) EASTERN DISTRICT OF MICHIGAN
        Defendant-Appellant,                          )
                                                      )
and                                                   )
                                                      )
CRAIG HUTCHINSON, Doctor, et al.,                     )
                                                      )
        Defendants.                                   )


        Before: BATCHELDER, Chief Judge; COLE and COOK, Circuit Judges.

        COOK, Circuit Judge. Defendant-Appellant Dr. George Pramstaller, the Chief Medical

Officer of the Michigan Department of Corrections, appeals the district court’s denial of his motion

for summary judgment based on qualified immunity. Plaintiff-Appellee Dallas Cobbs brought a civil

rights action against Pramstaller under 42 U.S.C. § 1983, alleging that Pramstaller violated his

Eighth Amendment rights by delaying cataract-removal surgery on his left eye for four years. We

reverse the district court’s decision.

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        Cobbs is an inmate in the custody of the Michigan Department of Corrections (“MDOC”).

In July 2004, doctors diagnosed Cobbs with cataracts in both of his eyes. In August 2004, Dr.

Ghulam Dastgir, an ophthalmologist, removed the cataract from Cobbs’s right eye, but prison

officials denied corrective surgery for Cobbs’s left eye until February 2008. Between 2004 and

2008, Cobbs met with Dr. Dastgir and several optometrists, all of whom recommended that Cobbs

undergo cataract-removal surgery on his left eye. Notwithstanding these recommendations, prison

officials, including Pramstaller, withheld approval of the surgery. In November 2007, Cobbs brought

this lawsuit seeking declaratory, injunctive, and monetary relief.

        During this period, Pramstaller served as Chief Medical Officer of the Michigan Department

of Corrections. As Chief Medical Officer, Pramstaller headed the Medical Services Advisory

Committee (the “Medical Committee”), a panel of physicians that oversees the authorization of

medical procedures for prison inmates. While head of this committee, Pramstaller twice denied

Cobbs cataract-removal surgery on his left eye. Cobbs claims that Pramstaller’s denials violated the

Eighth Amendment’s prohibition of cruel and unusual punishment.

A. The Medical-Claims Review Process

        Surgical removal is the only treatment for cataracts. Because prison doctors cannot authorize

or perform cataract surgery themselves, doctors seeking surgery for their patients must submit a

request for off-site “specialty care.” Doctors submit these requests to a “network provider,” in this

case, Correctional Medical Services, Inc. (“CMS”), a private health-management company hired by

the State of Michigan to screen requests against approved Michigan Department of Corrections

criteria.

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       Once a doctor submits a request, CMS will either (1) approve, (2) deny, or (3) “pend” the

request. “Pending” a request suspends the decision while CMS awaits supplemental information

from the requesting doctor. Only supervising physicians at CMS can deny requests. If CMS denies

a request and a doctor disagrees with the denial, he may appeal to the MDOC regional medical

officer. The duty of initiating the appeals process belongs to the disagreeing physician. After a

doctor appeals, an MDOC regional officer ensures the completeness of the prisoner’s medical file

and forwards the case to the chief medical officer—in this case, Pramstaller.

       The usual prison-medical-request protocol proceeds as follows: Pramstaller receives the

request and medical file, which he presents for a decision at the Medical Committee’s next monthly

meeting. In addition to Pramstaller, the Medical Committee includes

       four MDOC Regional Medical Directors, [and] a couple of physicians from the
       Department of Community Health that were psychiatrists. . . . And there was the
       state-wide CMS Medical Director, the CMS Medical Director for Utilization Review,
       and . . . an Associate CMS Medical Director.

       This team of physicians reviews doctors’ appeals and attempts to reach a consensus on

whether to approve the requested treatment. If the committee cannot reach a consensus, Pramstaller

holds the ultimate authority to approve requests. After deciding, the committee provides a

memorandum explaining its decision to the appealing physician. An invitation to resubmit requests

if circumstances change or more information becomes available accompanies each denial.

B. Cobbs’s Request for Cataract-Removal Surgery

       Cobbs’s request for cataract-removal surgery ran this course twice before CMS approved his

surgery in early 2008. The Medical Committee, headed by Pramstaller, denied Cobbs’s request for

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the surgery in October 2004 and denied a request for an off-site ophthalmology consultation in April

2006. We recount below the repeated requests, denials, and ultimate approval of Cobbs’s cataract-

removal surgery in 2008.

       In August 2004, Dr. Dastgir, Cobbs’s ophthalmologist, removed a cataract from Cobbs’s

right eye and recommended that Cobbs undergo surgery on his left eye to remove another, less severe

cataract. A month later, Dr. Piper, a physician at the Ryan Correctional Facility, requested that CMS

authorize left-eye surgery for Cobbs, noting Dr. Dastgir’s recommendation. The utilization-review

unit at CMS “pended” Dr. Piper’s request and forwarded Cobbs’s claim to the Medical Committee.

       A few weeks later, in October 2004, the Medical Committee met and considered Cobbs’s

request for surgery. When the Medical Committee reviewed his claim, Cobbs had 20/70 vision

without correction in his right eye and 20/70 vision with correction in his left. When exposed to

glare, vision in his left eye was much worse—20/400—and Cobbs’s medical records described a

“dense posterior sub-capsular cataract.” Prior to his right-eye surgery, Cobbs complained of double

vision. After reviewing Cobbs’s record, the Medical Committee denied his request for surgery,

noting that the “decision was based on the documentation that was submitted with this request.

Should other information become available, the [Medical Committee] will be happy to re-evaluate.”

       Both Pramstaller’s and CMS’s denial of the request relied on the medical judgment that,

although deteriorated vision in one eye would affect peripheral vision and depth perception, a

cataract did not warrant treatment unless it impaired the prisoner’s overall visual acuity. In

Pramstaller’s words,



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       [H]aving monocular vision does not put anybody at a risk for anything. People who
       have monocular vision are allowed to drive automobiles; the only thing I’m aware
       of that they cannot do with monocular vision is work as a pilot.

       Cobbs met with two different optometrists in March and May of 2005. In May 2005, Cobbs

met with Dr. Connolly, who noted Cobbs’s left-eye cataract and requested an off-site ophthalmology

evaluation as a prerequisite to cataract-removal surgery. CMS denied the request, citing the Medical

Committee’s previous denial, and Dr. Connolly did not appeal the decision.

       In December 2005, Cobbs met with a new optometrist, Dr. McGrath. After examining

Cobbs, McGrath also concluded that “cataract surgery [was] needed.” By this time, vision in

Cobbs’s left eye deteriorated to 20/600. Notes from McGrath’s December 2005 examination also

remark on Cobbs’s “trouble with depth perception” and mention that Cobbs had “walked into objects

on his left side.” CMS denied the request, again citing the Medical Committee’s previous denial.

McGrath did not appeal the decision to the Medical Committee.

       In March 2006, Cobbs met with McGrath a second time. Once again, McGrath concluded

that Cobbs needed cataract surgery and requested approval for an ophthalmology consultation from

CMS, noting that Cobbs suffered from a “dense cataract,” that Cobbs risked developing glaucoma,

and that Cobbs had 20/20 vision in his right eye and 20/600 vision in his left eye. Again, CMS

denied McGrath’s request, citing the Medical Committee’s previous denial. This time, McGrath

appealed his request for an ophthalmology consultation to the Medical Committee. In the form

appealing his denied request, McGrath noted that “surgery [was] advised to prevent secondary




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glaucoma” and that Cobbs “need[ed] cataract surgery—hypermature cataract surgery is more

complicated and there is [a] risk of [secondary] glaucoma.”

       On April 25, 2006, Pramstaller and the Medical Committee met and deemed an

ophthalmology consultation for cataract removal unnecessary. They did, however, respond to

McGrath’s concerns regarding glaucoma by issuing a directive to “monitor closely for increase in

interocular pressure and resubmit [the request] if pressure increases.” Again, the Medical Committee

invited Cobbs’s physician to resubmit his request if Cobbs’s condition changed.

       After the April 2006 denial, no doctor appealed another denied request to the Medical

Committee. Cobbs’s vision continued to deteriorate, and Cobbs continued to send healthcare request

forms describing the worsening condition of his left eye. In July 2006, Dr. Piper, Cobbs’s primary

care physician, again requested that Cobbs be sent to an ophthalmologist, but CMS again denied his

request. Dr. Piper did not appeal the denial to the Medical Committee.

       In August 2006, Dr. Cook, another optometrist, examined Cobbs, requested surgery, and

suggested that Cobbs wear a patch over his left eye to offset the effects of his now-monocular vision.

Cook marked the request “urgent”; noted that Cobbs had an “opaque/white pupil”; and warned that

the hypermaturity of the cataract could “preclude the use of phacoemulsification,” a technique used

in cataract-removal surgery. Cobbs saw optometrists again in December 2006 and April 2007, and

both optometrists requested cataract surgery for Cobbs. Relying on the Medical Committee’s denial,

CMS denied the doctors’ requests. Despite providing grave descriptions of Cobbs’s condition, none

of the doctors appealed CMS’ denials to Pramstaller and the Medical Committee. Throughout this



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period, Cobbs continued to file various health care requests and grievances complaining about his

condition, to no avail.

       In October 2007, Cobbs filed this lawsuit. Pramstaller unsuccessfully moved for summary

judgment on Cobbs’s claims against him, contending that his only involvement with the denial of

Cobbs’s medical requests was attendance at the two Medical Committee meetings at which the

Medical Committee denied Cobbs’s requests for surgery. Pramstaller, along with other MDOC

defendants, have twice more moved for summary judgment, asserting qualified immunity. Each

time, the district court has adopted the magistrate judge’s recommendation to reject the defendants’

claims of qualified immunity.

       Three months after filing his lawsuit, Cobbs met with another optometrist, the optometrist

requested surgery, and CMS approved the request the following week. As Cobbs’s doctor predicted,

Cobbs’s cataract-removal required a follow up surgery due to complications caused by the surgery’s

delay. Cobbs has since fully recovered his sight; according to the last entry in Cobbs’s medical

records, his left-eye vision is now 20/25.

                                                 II.
A. Standard of Review

       We review de novo the denial of qualified immunity in an action brought under 42 U.S.C.

§ 1983. See Scicluna v. Wells, 

, 444 (6th Cir. 2003). “[F]or an interlocutory appeal to

be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as

alleged by the plaintiff and discuss only the legal issues raised by the case.” 

v.




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Luttrell, 

, 299 (6th Cir. 1999)). Thus, we accept all of Cobbs’s allegations as true and

view all facts and reasonable inferences in the light most favorable to him. 

B. Analysis

       Pramstaller asserts entitlement to qualified immunity. “Under the doctrine of qualified

immunity, ‘government officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Phillips v. Roane Cnty.,

Tenn., 

, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 

, 818 (1982)).

Once the defendants raise a qualified immunity defense, “it is the plaintiff’s burden to prove that the

state officials are not entitled to qualified immunity.” Ciminillo v. Streicher, 

, 466 (6th

Cir. 2006). We apply a two-step test to qualified immunity claims in deliberate-indifference cases,

determining (1) whether, based upon the applicable law, a constitutional violation has occurred; and

(2) whether that violation involved a clearly established constitutional right. 

.

       Cobbs contends that Pramstaller acted with deliberate indifference toward his serious medical

needs in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. See

Estelle v. Gamble, 

, 104 (1976). Cobbs must prove two elements to prevail on this

claim: First, Cobbs must show that he suffered from a “sufficiently serious” medical need. Farmer

v. Brennan, 

, 834 (1994). Second, Cobbs must show that Pramstaller acted with “a

sufficiently culpable state of mind”—specifically, “one of deliberate indifference to inmate health

or safety.” 

marks omitted).

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1. Serious Medical Need

       A medical need is sufficiently serious if the need is “so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.” Blackmore v. Kalamazoo Cnty., 

, 897 (6th Cir. 2004) (quoting Gaudreault v. Municipality of Salem, 

, 208 (1st Cir.

1990). For obvious medical needs left completely untreated, “the delay alone in providing medical

care creates a substantial risk of serious harm.” 

By contrast, where a “‘deliberate

indifference’ claim is based on a prison’s failure to treat a condition adequately” or on “a

determination by medical personnel that medical treatment was unnecessary,” a plaintiff must “place

verifying medical evidence in the record to establish the detrimental effect of the delay in medical

treatment.” 

(emphasis added) (citing Napier v. Madison Cnty. Ky.,

, 742 (6th Cir. 2001)); see also Blosser, 422 F. App’x at 460.

       Though Cobbs waited four years for cataract-removal surgery, he met regularly with

optometrists and ophthalmologists during this period. Ultimately, Cobbs received cataract-removal

surgery in both eyes and he concedes that he has since “fully recovered his sight.” Accordingly,

Cobbs cannot claim that prison officials denied him any treatment; rather, Cobbs argues that his

doctors should have pursued a more aggressive course of treatment for his left-eye cataract.

       Cobbs points to a variety of harms that resulted from the delay in his treatment. Among

these, Cobbs claims that the delay caused a more complicated and risky procedure, necessitating a

second surgery. Evidence in Cobbs’s medical records supports this claim: Dr. Dastgir, the

ophthalmologist who removed Cobbs’s cataract, noted that delaying surgery until a cataract becomes

hypermature can complicate surgery. Dastgir pointed out that Cobbs’s post-surgery “wound did not

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properly heal and leaked, likely because of the length of the surgery to remove his hyper-mature

cataract” and noted that the “leaking wound” required “additional sutures during a follow up

operation.”

       Viewing the facts in the light most favorable to Cobbs, this medical evidence demonstrates

a serious medical need.

2. Deliberate Indifference

       The question remains whether Pramstaller’s sustained denial of Cobbs’s doctors’ requests

for surgery amounted to deliberate indifference. See 

. To establish

subjective culpability, Cobbs must demonstrate that Pramstaller’s conduct evidenced “deliberateness

tantamount to an intent to punish.” Hicks v. Frey, 

, 1455 (6th Cir. 1993) (quoting

Molton v. City of Cleveland, 

, 243 (6th Cir. 1988)). “[A] prison official cannot be

found liable under the Eighth Amendment for denying an inmate humane conditions of confinement

unless 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.” 

.

       “Because . . . prison officials who lacked knowledge of a risk cannot be said to have inflicted

punishment,” 

the question of what Pramstaller and the Medical Committee knew is

paramount. On that score, even viewing the facts in the light most favorable to Cobbs, we cannot

charge Pramstaller with knowledge of the entirety of Cobbs’s medical file. At oral argument,

Cobbs’s counsel admitted that the entire medical file did not accompany each appeal; rather, the



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Regional Medical Director furnished the committee with only “the most recent documents” in a

prisoner’s medical file. It may be true, as Cobbs argues, that Pramstaller and the Medical Committee

should have conducted a more searching review of Cobbs’s medical file. But to hold Pramstaller

accountable for portions of the file that he should have reviewed—but did not—would replace the

requirement that Pramstaller actually “be aware” of a risk of serious harm with a standard closer to

negligence. 

see also 

(“[D]eliberate indifference requires more than mere

negligence.”).

       The magistrate judge’s report and recommendation, which the district court adopted,

misapplied the law by grounding its conclusion about Pramstaller’s subjective culpability on

Pramstaller’s failure to assert that he was unaware of Cobbs’s needs. Pramstaller does not bear the

burden of demonstrating that he was “unaware”; rather, the “plaintiff bears the onerous burden of

proving [an] official’s subjective knowledge.” Comstock v. McCrary, 

, 703 (6th Cir.

2001). Also problematic, the magistrate judge apparently combed the entire medical record for

evidence of deliberate indifference without parsing it to determine what Pramstaller actually knew

when denying Cobbs’s claims.

       We tighten the frame for our review, focusing on what Cobbs shows that Pramstaller actually

knew. On this point, the record is murky. Much of the lengthy factual background concern volleys

of claims and denials, but Cobbs highlights no evidence of Pramstaller’s involvement in these

exchanges. Similarly, Cobbs devotes a large portion of his brief to discussing complaints made in

prison healthcare requests, or “kites.” According to undisputed evidence in the record, however,

kites did not reach the record that Pramstaller’s Medical Committee reviewed.

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       Again, when questioned at oral argument about Pramstaller’s knowledge, Cobbs’s counsel

speculated that “the only thing [the Medical Committee] ever looked at was the last optometrist’s

exam.” Our review of the record likewise does not yield a definitive answer, but we can infer that

the Medical Committee relied on the forms that treating physicians used to appeal to the Medical

Committee—“CHJ” forms—as well as records of the patient’s most recent optometry examinations.

With these principles and conclusions in mind, we turn to Pramstaller’s subjective culpability.

       We can winnow Cobbs’s allegations against Pramstaller to three separate acts: (1)

Pramstaller’s October 2004 denial of Cobbs’s request for surgery to remove his left-eye cataract; (2)

Pramstaller’s April 2006 denial of Cobbs’s request for an ophthalmology consult; and (3)

Pramstaller’s November 2007 reaction to the filing of this lawsuit—moving to dismiss instead of

authorizing Cobbs’s surgery. We examine Pramstaller’s subjective culpability for each event.

       a. October 2004 Denial

       The Medical Committee first denied Cobbs’s request for left-eye cataract surgery on October

26, 2004. Though the Medical Committee memorandum denying surgery does not detail its reasons

for denying Cobbs’s 2004 claim, the record compels the conclusion that the Medical Committee

denied surgery because Cobbs enjoyed good overall visual acuity following his right-eye surgery.

In general, Pramstaller believed that delaying cataract-removal surgery posed “minimal” risk when

a prisoner had good overall vision. Prison officials thus looked to a prisoner’s “overall visual

acuity”—their corrected vision using both eyes—when determining whether to grant cataract

surgery. At the time, Cobbs’s enjoyed overall vision of 20/70 without correction in his right eye, and

20/70 vision with correction in his left.

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       Pramstaller identified several conditions warranting surgery despite good overall vision:

where a prisoner suffers from a “posterior subcapsular cataract” that “causes glare,” a “discrepancy”

in vision, or glaucoma. Cobbs argues that notes from a July 2004 visit with Dr. Dastgir, his

ophthalmologist, should have apprised the Medical Committee that he suffered from two of these

three conditions—glare and a discrepancy in vision. Cobbs stresses that these notes would have

alerted Pramstaller to Cobbs’s need for surgery had Pramstaller reviewed them. But Cobbs offers

no evidence that Pramstaller was aware of Dastgir’s notes. At oral argument, when asked whether

Cobbs’s appeals to the Medical Committee presented Pramstaller with these notes, Cobbs’s counsel

admitted, “We don’t know; they don’t ever tell us what they had.” Further, doctors removed Cobbs’s

right-eye cataract after the July examination, and none of Cobbs’s post-surgery examination reports

mentions double vision or glare. Drawing every factual inference in Cobbs’s favor, as we must, we

conclude that Cobbs fails to demonstrate Pramstaller’s awareness of facts from which he could infer

that a substantial risk of serious harm existed in October 2004.

       b. April 2006 Denial

       In April 2006, Pramstaller and the Medical Committee denied Dr. McGrath’s request to

schedule Cobbs for a consultation with an ophthalmologist as a prelude to cataract surgery. The

record suggests that the Medical Committee denied the ophthalmology consultation after reviewing

forms that Dr. McGrath prepared following a March 2006 examination of Cobbs.

       McGrath’s 2006 request described Cobbs’s deteriorating left eye and the risks of delaying

surgery. The request, which McGrath originally submitted to CMS, warned that Cobbs suffered

from a “dense cataract” and risked developing glaucoma, and recorded Cobbs’s vision as 20/20 in

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his right eye and 20/600 in his left eye. After CMS denied McGrath’s request, he appealed to the

Medical Committee, noting that “[s]urgery [was] advised to prevent secondary glaucoma. No view

of lens/retina possible to check eye health.” McGrath further remarked that Cobbs “need[ed] cataract

surgery—hypermature cataract surgery is more complicated.” Finally, McGrath noted that “if

[cataract surgery was] denied, monthly [intraocular pressure check] advised.”

        Pramstaller and the Medical Committee again found cataract removal unnecessary, but

heeded McGrath’s warning about glaucoma and the need to monitor pressure. A directive to

“monitor closely for [an] increase in interocular pressure and resubmit if pressure increases”

accompanied the Medical Committee’s denial of Cobbs’s cataract-removal surgery. Again, the

Medical Committee invited Cobbs’s doctors to resubmit his request if his condition changed.

        Cobbs fails to show that this denial was anything other than the product of considered

medical judgment. Before denying the claim, Pramstaller met with the Medical Committee, a group

of physicians, and the group discussed the necessity of treatment. According to Pramstaller, the

Medical Committee and he believed that delaying cataract-removal surgery—in the absence of

conditions like glare or double vision—posed “minimal” risk.

        Cobbs points out that the difference in acuity between his two eyes—20/20 and

20/600—constituted a “discrepancy” in vision that Pramstaller admits warranted surgery. But a

discrepancy in vision is more than a difference in acuity between eyes; rather, a “discrepancy” in

vision refers to a difference that “creates a disparity in the visual cortex and makes it difficult for the

brain to perceive vision.” The result is double vision, a condition that impairs overall sight.



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       The eye care that Cobbs actually received further belies the notion that Pramstaller acted with

deliberate indifference toward Cobbs’s health. During the relevant time period, Cobbs regularly met

with ophthalmologists and optometrists. When a doctor did mention a condition that potentially

qualified Cobbs for cataract-removal surgery—such as McGrath’s warning about glaucoma in

2006—the Medical Committee responded by ordering that doctors monitor the condition. Finally,

both of the Medical Committee’s denials invited doctors to resubmit requests if additional facts came

to light, making clear that its denial relied only on documents submitted with the doctors’ requests.

       c. October 2007 Lawsuit

       Last, Cobbs contends that filing this lawsuit in October 2007 should have prompted

Pramstaller to review his file and authorize the cataract-removal surgery. Instead of immediately

granting Cobbs’s surgery, Pramstaller moved for summary judgment, noting that his only

involvement with the denial of Cobbs’s claims was his attendance at two Medical Committee

meetings at which the Medical Committee denied Cobbs’s request for surgery. But Cobbs offers no

reason why filing this lawsuit should have compelled Pramstaller to bypass the ordinary medical-

request-authorization procedure. Cobbs continually saw physicians after the second denial of his

claim, and Pramstaller’s denials invited Cobbs’s physicians to resubmit their requests if Cobbs’s

condition worsened. Though Cobbs’s condition did worsen, his physicians elected not to pursue

Medical Committee review after the Medical Committee’s second denial. Cobbs saw an optometrist

three months after filing his lawsuit, and CMS approved his surgery the week after this visit.

       Finally, Cobbs did receive cataract removal surgery, on both eyes, in 2004 and 2008. At

bottom, “federal courts are generally reluctant to second guess” medical judgments like Pramstaller

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and the Medical Committee’s decision to delay treatment. Alspaugh v. McConnell, 

,

169 (6th Cir. 2011) (quoting Westlake v. Lucas, 

, 860 n.5 (6th Cir. 1976)). While

Cobbs’s need for the second operation seems evident in hindsight, we cannot conclude that

Pramstaller’s decisions to delay surgery constituted deliberate indifference in light of his limited

knowledge.

                                                III.

       For these reasons, we REVERSE the district court’s denial of Pramstaller’s motion for

summary judgment based on qualified immunity.




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        COLE, Circuit Judge, dissenting. I agree with the majority that Cobbs has shown that he

suffered from a serious medical need. However, I believe the district court was correct in concluding

that the record establishes that Pramstaller acted with deliberate indifference to that need. Therefore,

I respectfully dissent.

        There is no dispute that Pramstaller appreciated the significance of having, in effect, a non-

functional eye. In his deposition, Pramstaller was presented with a variety of hypothetical scenarios

involving an individual with a cataract in one eye. In several places, Pramstaller stated that the

proper medical decision was to perform the surgery. For example, Pramstaller was asked whether

the fact that Cobbs had one functioning “good eye” after his original surgery would remove the need

for surgery on the bad eye. Pramstaller answered:

        Well [the vision in the good eye] does not indicate or counterindicate, but it’s one of
        the factors that is taken into consideration . . . The other thing is you have someone
        who is, has 20/20 vision in the first cataract eye, but the second cataract eye is
        20/400, and you can't see a thing out of that eye, the disparity in the visual cortex
        makes it difficult, so we would probably do the cataract, also.

(Dep. of Pramstaller, Dist. Ct. Docket No. 106-10, at 57:19 - 58:5.) The majority notes correctly that

poor visual acuity must be combined with collateral consequences, such as glare, from the deficit

in order to trigger the need for surgery. In addition, Pramstaller does say that the 20/400 reading

would not immediately trigger surgery if there was the possibility that the glare was caused by

artificial lenses. (Dep. of Pramstaller, Dist. Ct. Docket No. 106-10, at 64:8-15.) Taken together,

Pramstaller’s testimony is that a patient with (1) vision in the bad eye of 20/400 or worse; and (2)




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suffering from collateral consequences such as glare; occurring (3) whether or not artificial lenses

were worn, could expect to have surgery on the bad eye.

       As of October 2004, the time of the first denial, Cobbs’s vision in his left eye was 20/400

with glare, and as of November 2005 his vision in the left eye was 20/600. (Medical Records, Dist.

Ct. Docket No. 106-5, at 12-13; McGrath Dep., Dist. Ct. Docket No. 106-8, at 49:9-14.) It is

undisputed that Cobbs had the qualifying collateral consequences, such as glare caused by the

cataract, in addition to the poor acuity during this time period. (See Dep. of Pramstaller, Dist. Ct.

Docket No. 106-10, at 56:7-23.) Furthermore, the medical records from 2005 and 2006 make clear

that Cobbs’s vision problems were independent of the presence of artificial lenses. (Medical

Records, Dist. Ct. Docket No. 106-5, at 34, 36.) Thus, as of the second denial of surgery in 2006,

Pramstaller (1) had medical records in front of him that stated that Cobbs’s vision in his left eye was

worse than 20/400, with glare, even without artificial lenses; (2) recognized (at least as of his

deposition) that this should have triggered an approval of the surgery; and yet (3) denied the surgery

request. This meets all three of the elements of the deliberate indifference established in our case

law. See, e.g., Jones v. Muskegon Cnty., 

, 941 (6th Cir. 2010)

       In that light, I cannot agree with the majority that the decision not to order surgery in 2006

represents “considered medical judgment.” (Maj. Op. at 16.) I see no way to square Pramstaller’s

testimony, describing the appropriate course of treatment for a patient in Cobbs’s circumstances,

with the treatment Pramstaller actually ordered for Cobbs. Thus, under the standards articulated by

Pramstaller himself, there was no legitimate reason not to order the surgery for Cobbs after April

2006. That Pramstaller did not do so constitutes deliberate indifference.

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No. 10-2089
Cobbs v. Pramstaller, et al.

       The majority notes that Pramstaller did order opthamological monitoring of Cobbs for

potential glaucoma during this period. This is beside the point. Glaucoma and cataracts are two

unrelated eyes diseases, and Cobbs’s claim is for deliberate indifference toward his cataracts. The

only reason the two were linked in Cobbs’s case is that Cobbs’s cataracts made it impossible to

conduct the normal glaucoma examinations. Conceding that Pramstaller acted properly in ordering

the extra examinations for glaucoma, proper care for one condition does not excuse improper care

for another, unrelated condition.

       For the above reasons, I would affirm the judgment of the district court and allow Cobbs’s

case to proceed to trial on the merits.




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