author: COLE, Chief Judge.

text:
    Donald R. PHILLIPS, Petitioner-Appellant, v. Randy L. WHITE, Warden, Respondent-Appellee.
    No. 15-5629
    United States Court of Appeals, Sixth Circuit.
    Argued: February 1, 2017
    Decided and Filed: March 15, 2017
    Rehearing Denied April 3, 2017

      ARGUED: Robert Stander, JONES DAY, Washington, D.C., for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Robert Stander, JONES DAY, Washington, D.C., for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
    Before: COLE, Chief Judge; COOK and WHITE, Circuit Judges.
   OPINION

COLE, Chief Judge.

A Kentucky jury .convicted Donald Phillips of two counts of first-degree murder. The jury considered the death penalty, but recommended life imprisonment with no possibility of parole for twenty-five years, which the judge imposed. For over six years, Phillips sought post-conviction relief in state trial court based on ineffective assistance of counsel at sentencing. But no state court ever adjudicated the claim.

Phillips sought habeas corpus relief in federal district court, which dismissed his petition. The court found that the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”)’s deferential standard governed its review of Phillips’s claim. It held that Phillips had not shown prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he had received one of the least severe sentences possible.

We conclude that AEDPA’s deferential standard is inapplicable to Phillips’s claim because no state court ever decided it. We also conclude that Phillips’s counsel was ineffective. In failing to mount a defense during a capital sentencing, he effectively deprived Phillips of counsel throughout a critical stage of trial. Accordingly, prejudice is presumed under United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2089, 80 L.Ed.2d 657 (1984). Further, counsel’s performance actually prejudiced Phillips under Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052. Thus, we reverse the district court’s judgment and grant Phillips a conditional writ of habeas corpus, requiring the Commonwealth of Kentucky to resen-tence him within 90 days or release him.

I. FACTS AND PROCEDURAL HISTORY

A. Guilt Phase

In affirming Phillips’s conviction and sentence on direct appeal, the state supreme court summarized the facts in this case as follows:

[Osa Lee Maggard and Geneva Young] were found shot to death on [Maggard’s] porch in the early morning hours of July 22, 1999. Phillips and his wife were taken into custody in connection with the murders the next day. Phillips was indicted for [two counts of first-degree, murder] on August 4, 1999. His wife was also indicted, .but the [Commonwealth] later dismissed that indictment. Trial began on November 9, 2000 and proceeded as a capital case, with the jury' panel being death-qualified....
The primary witness for the Commonwealth was Phillips’ stepdaughter — his wife’s daughter[, Katherine Davidson]. [Davidson] shared a driveway with [Maggard] and lived up the hill from his house. [Davidson] testified that at about 12:15 a.m. she heard her mother’s car coming up the hill; she recognized the car because she had driven it on previous occasions and was familiar with its loud muffler. When nobody came to the door, she went outside to see if anybody was there. At that point, she recognized Phillips’ voice coming from the bottom of the hill. She described the following conversation between Phillips and [Mag-gard]:
Okay the, what I heard the conversation was I heard [Phillips], I heard them talking about what had happened prior something, him and [Maggard] had had a confrontation before and then I heard [Phillips] say well [Davidson] paid you fifteen and [my wife] paid you twenty. They was talking about thirty dollars. Said [Davidson] paid you fifteen and [my wife] twenty, that makes thirty-five dollars. He said that’s five dollars over thirty dollars. He said that’s five dollars, and then I heard [Maggard], he said go get [Davidson] and we will talk about this and when he said that then the shooting started and I went into the house ... It was a long string of shots, it was like pow, pow, pow, pow, pow, I ain’t for sure how many shots and then pow. By that time I was in the house when I heard you know the last shot.

(Ky. Sup., Ct. Order, App., pp. 126-27) (internal quotation marks omitted); see 28 U.S.C. § 2254(e)(1) (the state court’s factual determinations are “presumed to be correct”).

Davidson also testified that 1) Phillips’s wife had owed Young money, some of which Davidson had taken for herself; 2) Maggard had repeatedly harassed Phillips’s wife about the debt; 3) Maggard carried a firearm and had previously fired shots towards Davidson’s home; and 4) Phillips had been drinking and was “intoxicated” the night of the shooting. (Trial Tr. Ill, App., pp. 395-96.)

A jury convicted Phillips of both counts of first-degree murder.

B. Sentencing

In Kentucky felony cases, the jury recommends a sentence to the judge, who may reject it in favor of another permitted by law. See Ky. Rev. Stat. Ann. §§ 532.055(2)(c); 532.070. Immediately after the verdict, the presiding judge, Cletus Maride, asked both parties if they were prepared to proceed with sentencing. The Commonwealth said it was ready. Phillips’s attorney, Stephan Charles, replied, “No, not really,” but neglected to request a continuance. (Trial Tr. VI, App., p. 876.) The judge excused the jury and asked Charles how long his presentation would take. Charles answered, “I have no idea Judge. As I said ... several times through th[ese] proceedings, I didn’t get into this as a death penalty case. I don’t know anything about death penalty litigation.” (Id. at 877) (emphasis added).

Judge Maride seems to have ignored Charles’s admission, asking if he had prepared any jury instructions. Charles said no. The judge asked Charles if he had any objections to the Commonwealth’s jury instructions. Charles again answered no. Charles consulted with Phillips for less than .an hour prior to proceeding with the penalty phase of the trial.

The jury returned and Judge Maride invited the Commonwealth to make its opening statement. The Commonwealth noted that the legislature “has determined that there are certain situations under which murder would warrant a more serious punishment than it would otherwise. The term they use is aggravating circumstance.” (Id. at 882.) The Commonwealth notified the jury that it had already found the aggravating circumstance of intentional, multiple deaths in this case. The Commonwealth identified 1) death, 2) life without parole, and 3) life with no possibility of parole for twenty-five years as the “more serious punishment[s]” warranted by the aggravating circumstance. (Id.)

Then the court invited Charles to make his opening statement. Charles declined, clarifying, “I have nothing to say your honor.” (Id. at 883.)

Judge Maride asked both parties if they wished to present any evidence. Neither did, so the judge provided the jury instructions. He explained that “[t]hose are the instructions that will be in the envelope with you when you go to the jury room.” (Id. at 883-84.)

Then Judge Maride invited the Commonwealth to make its dosing argument. The Commonwealth began by recounting the “cold bloodiness” of the “senseless killings.” (Id. at 884.) Next, it reminded the jury that it had already found an aggravating factor. The jury had received verdict forms for five sentences: 1) the death penalty, 2) life imprisonment without parole, 3) life imprisonment with no possibility of parole for twenty-five years, 4) life imprisonment (with the possibility of parole before twenty-five years), and 5) twenty-to-fifty years of imprisonment. See Ky. Rev. Stat. Ann. § 532.030(1) (identifying the five sentences above as the potential penalties for someone convicted of a capital offense). But only the forms for the first three sentences acknowledged the jury had found an aggravating factor in Phillips’s case. The Commonwealth continued, “When you take these verdict forms back with you, you will see ... there are three sentences you can impose when you find an aggravating factor. It is a very awesome responsibility to determine which is the most appropriate penalty in this case.” (Trial Tr. VI, App., p. 884.) In doing so, the Commonwealth suggested that the aggravating factor in Phillips’s case prevented the jury from considering the fourth or fifth sentence. At the same time, the Commonwealth assured the jury that the “three sentences under which the aggravating circumstance has to be established ... are definitely appropriate in this case.” (Id. at 885.) This assertion would have been unnecessary if no other sentence were available.

The Commonwealth closed with a pitch for the death penalty: “The evidence is certainly there [for it] and certainly warrants a consideration of [it].” (Id.)

Judge Maride gave Charles an opportunity to make a closing statement. Rather than clarifying the jury’s sentencing options or advocating for a particular sentence, Charles remarked:

Ladies and gentlemen given the dispatch with which you resolved all the holes in the government’s case that I spent two days pointing out, it’s apparent to me that I’m some how not communicated with you during the first part, of the trial. So I don’t intend to take anymore of your time in this part.

(Id. at 885-86.)

The jury recommended life with no possibility of parole for twenty-five years for each count of first-degree murder, the least severe of the available sentences that required an aggravating factor. The jury also recommended that the sentences run consecutively. But as Judge Maride clarified, they had to run concurrently because they are life sentences.

The court sentenced Phillips in January 2001. The Commonwealth presented testimony by the victims’ family members. See, e.g., Trial Tr. VII, App., p. 917 (“I believe with all my heart if he’s ever released from prison he will kill again. I don’t want any other family or individual to go through the horror of having their family murdered.”).

Charles again offered no evidence and made no arguments. Instead, he identified several, mostly typographical errors in Phillips’s presentencing report. (Id. at 920-22) (namely the misspelling of Phillips’s middle name, offenses tagged as public intoxication with a controlled substance rather than with alcohol, and omission of the possibility that Phillips owed back taxes).

The court entered the sentence that the jury had recommended with only boilerplate explanation, noting that “imprisonment is necessary for the protection of the public.” (Id. at 925.)

On April 25, 2002, the state supreme court upheld Phillips’s conviction and sentence.

C. Attempts at State Post-Conviction Review

In October 2002, Phillips moved pro se in state trial court and under state law to vacate, set aside, or correct his sentence. One of the grounds for relief was ineffective assistance of counsel at sentencing.

Phillips’s motion languished in state trial court until March 2006, when Judge Mari-de himself granted Phillips two evidentia-ry hearings a few months apart. By that time, Phillips had obtained an attorney who dropped the ineffective-assistance-at-sentencing claim.

In June 2008, Judge Maride issued an order that stopped short of granting Phillips’s motion. It gave Phillips a month to produce any evidence that could have been presented at sentencing. Though Phillips’s new attorney had failed to pursue the ineffective-assistance-at-sentencing claim, Judge Maride, who personally observed counsel’s performance, felt “compelled” to authorize relief on that basis. (Mot. to Vacate Order, App., p. 251) His assessment was unsparing: “Counsel was completely unprepared for the penalty phase of trial,” which Judge Maride suggested prejudiced Phillips. (Id.)

In August 2008, Phillips complied with Judge Maricle’s order. He provided 1) twenty-eight affidavits from family and friends offering to appear as character witnesses and 2) an affidavit from a mitigation specialist describing what she would have supplied had she been retained, including a “comprehensive biopsychosocial investigation of [Phillips’s] life history.” (Mitigation Specialist Aff., App., p. 282.) The specialist testified that she would have advised counsel to deploy existing trial evidence of statutory mitigating factors, namely extreme emotional disturbance, moral justification, and intoxication.

But Judge Maride never decided Phillips’s claim, most likely because he was indicted for several offenses in March 2009 and sentenced to imprisonment himself in March 2011. See United States v. Maricle, No. 6:09-16-S-DCR, 2011 WL 862425 (E.D. Ky. Mar. 10, 2011). Nor did any other state judge decide Phillips’s ineffective-assistance-at-sentencing claim.

D. Federal Habeas Corpus Proceedings

In November 2008, Phillips moved pro se in federal district court for habeas corpus relief based partly on ineffective assistance of counsel at sentencing.

Phillips asked the court to waive the requirement that federal habeas corpus petitioners first exhaust their claims in state court. See Gray v. Netherland, 518 U.S. 152, 161, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Phillips argued that his motion to vacate, set aside, or correct his sentence, including his ineffeetive-assistance-at-sentencing claim, had been pending in state court for over six years.

The district court referred the matter to a magistrate judge for a report and recommendation on Phillips’s federal habeas corpus petition and review of his motions. See 28 U.S.C. § 636(b)(1)(B). The magistrate judge waived the exhaustion requirement and stayed any state court proceedings due to the inordinate delay in adjudicating Phillips’s motion. (Magistrate Judge Order, R. 32, PagelD 234-35, 237) (“nearly seven years have passed since Petitioner initiated his motion for collateral relief in [state trial court]”).

One of the considerations for staying state court proceedings is a “demonstrated likelihood that the [federal habeas corpus] petition will prevail.” (Id. at 234) (quoting Levine v. Torvik, 986 F.2d 1506, 1518 (6th Cir. 1993), overruled on other grounds as recognized by JiQiang Xu v. Mich. State Univ., 195 Fed.Appx. 452, 457 (6th Cir. 2006)). The magistrate judge found that “Phillips could potentially prevail on the ground of ineffective assistance at the sentencing phase given the [trial] court’s description of trial counsel as ‘completely unprepared’ and its request for further evidence from Petitioner.” (Id.) The magistrate judge, however, did not review Phillips’s petition on the merits.

By September 2011, Phillips’s federal habeas corpus petition had been transferred to another magistrate judge, who recommended denying relief. The magistrate judge assumed that AEDPA deference applied. Further, he found Phillips had not shown that Charles’s performance prejudiced him under Strickland even if it was deficient. The magistrate judge noted that Phillips had not only avoided the death penalty, but received “a less severe term than was available under the relevant Kentucky statute.” (Magistrate Judge R & R, R. 61, PageID 373-74.)

In December 2014, the district court adopted the magistrate judge’s report and recommendation and dismissed Phillips’s habeas corpus petition with prejudice. The court agreed that AEDPA deference applied without specifying which state court had decided Phillips’s ineffective-assistance-at-sentencing claim. (Dist. Ct. Order, R. 77, PageID 540) (“The claims in Phillips’ habeas petition were adjudicated by the state court either through appeal, evidentiary hearings, or other motions and orders from either the trial court or the Kentucky Supreme Court.”). The district court also agreed that Phillips had not shown prejudice underStrickland because he received “one of the most favorable outcomes he could have under the circumstances.” (Id. at 562.)

On January 7, 2016, we granted Phillips a certificate of appealability (“COA”) as to his “claim of ineffective assistance of trial counsel concerning the lack of a defense at sentencing.” (COA, R. 89, PageID 785.) We noted that “[a]ny failure to even mount a defense almost certainly falls below the objective standard of reasonableness, let alone at a sentencing hearing in which the death penalty was a real possibility.” (Id.) We concluded that “reasonable jurists could debate the district court’s conclusion that Phillips failed to show prejudice in the context of his counsel’s ineffective assistance during sentencing.” (Id.)

II. ANALYSIS

A. Standard of Review

In appeals from habeas corpus determinations, we review a district court’s legal conclusions de novo. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010).

The parties agree that AEDPA’s deferential standard of review is inapplicable to Phillips’s claim because “[n]o state court ever ruled on this issue.” Commonwealth Br. 24; see also Pet’r Br. 19-20. See 28 U.S.C. § 2254(d) (applying to “any claim that was adjudicated on the merits in State court proceedings”); Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (applying de novo review where state courts had not reached merits of habeas corpus claim).

But this raises the question of whether the requirement to exhaust state remedies was properly waived. The Commonwealth does not address this question. The Supreme Court hás “instructed appellate courts to take a fresh look at [non-exhaustion]” even when the state has abandoned the argument so they can “determine whether the interests of comity and federalism will be better served by addressing the merits forthwith.” Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000) (internal quotation marks omitted).

Though the requirement is not jurisdictional, federal courts avoid deciding unexhausted claims unless there are “unusual” or “exceptional” circumstances. Id. (quoting O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996)). These include “circumstances ... that render [the state court] process ineffective to protect the rights of the [petitioner].” 28 U.S.C. § 2254(b)(1)(B)(ii). “Inordinate delay in adjudicating state court claims” can do exactly that. Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir. 1992) (highlighting “the principle that federal courts should defer to state courts in the interest of comity assumes that the state courts will give prompt consideration to claims”).

Phillips clearly qualifies for the “inordinate delay” exception to the exhaustion rule. He presented his ineffective-assistance-at-sentencing claim to the state trial court in 2002, received only a request for additional evidence from the court in June 2008, and had not heard anything further in September 2009, when a magistrate judge waived the exhaustion requirement. By contrast, the petition that we exempted from the exhaustion rule in Workman had “languished in the state courts” for less than four years. Id. Moreover, at no point did Phillips acquire a basis for seeking relief in the state appellate or supreme court. See Kentucky Court of Appeals, Basic Appellate Practice at 9 (June 2010) (“[A] judgment is considered final and appealable only if that judgment disposes of all of the claims presented in a [trial] court lawsuit”). This rendered the state process ineffective and limited Phillips to federal remedies.

For these reasons, waiver of the exhaustion requirement was proper and we review Phillips’s claim unconfined by AED-PA.

B. Deficient Performance

1. Failure to investigate or present mitigating evidence at capital sentencing, or raise an argument there that could reduce petitioner’s sentence, may constitute deficient performance

The Sixth Amendment provides those facing the threat of incarceration with a right to counsel “at all critical stages of the criminal process,” including the “sentencing hearing.” McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (internal quotation marks and citation omitted); see Coleman v. Mitchell, 268 F.3d 417, 452 (6th Cir. 2001) (“The sentencing phase is likely to be the stage of the proceedings where counsel can do his or her client the most good.”) (internal quotation marks omitted). To establish ineffective assistance at sentencing, petitioner must show that counsel’s performance was “deficient,” meaning so defective that he ceased functioning as counsel under the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This standard is highly deferential. Id. at 689, 104 S.Ct. 2052. Petitioner must overcome a presumption that counsel’s performance could be considered sound strategy- in the circumstances in which he found himself. Id.

Though there is no checklist for evaluating an attorney’s performance, courts have repeatedly recognized that failure to investigate or present mitigating evidence at capital sentencing may constitute deficient performance. See, e.g., Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“[I]t is undisputed that Williams had a right — indeed, a constitutionally protected right — to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer.”); Harries v. Bell, 417 F.3d 631, 637 (6th Cir. 2005) (“[N]otwithstanding the deference Strickland requires, neither this court nor the Supreme Court has hesitated to deem deficient counsel’s failure to [obtain and present something in mitigation].”); Coleman, 268 F.3d at 449 (“[T]he independent obligation of defense counsel to investigate and present mitigating evidence at the penalty phase of a capital trial is well-established by this Court”).

We have also specified that counsel should complete the investigation before the guilt phase of trial. Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003) (“[T]he time consuming task of assembling mitigating witnesses should not wait until after the jury’s verdict.”) (internal quotation marks and citation omitted); see Glenn v. Tate, 71 F.3d 1204, 1206-11 (6th Cir. 1995) (finding counsel’s unpreparedness, which prevented the jury from hearing any mitigating evidence, constituted deficient performance).

Most of the cases in which we have held that counsel’s sentencing performance was deficient have involved failure to investigate or present certain mitigating evidence rather than abdication of-the duty. In Harries, a jury sentenced petitioner to death for killing a store clerk during an armed robbery. 417 F.3d at 634. Defense counsel contacted petitioner’s family members, reached out to institutions in which he had been confined, and requested two competency evaluations, among other things. Id. at 638. Yet we found the investigation deficient. Id. at 638-39. We cited counsel’s failure to enlist a mental-health expert after learning petitioner suffered from mental illness, and to thoroughly explore petitioner’s family background given signs of childhood trauma. Id.

The Supreme Court’s assessment in Williams signals the depth and detail with which capital defense counsel ordinarily must investigate and present mitigating evidence at sentencing. There, petitioner was sentenced to death for robbery and murder. Williams, 529 U.S. at 368, 370, 120 S.Ct. 1495. The Court faulted counsel for not introducing (among other things) 1) documents describing petitioner’s abusive childhood, 2) testimony that petitioner was “borderline mentally retarded,” and 3) records reflecting petitioner’s cooperation and good behavior in prison. Id. at 395-96, 120 S.Ct. 1495.

Thus, despite the presumption that counsel’s performance could be considered sound strategy, courts have been reluctant to attribute the omission of relevant mitigating evidence at capital sentencing to reasonable tactics. See id. at 396, 120 S.Ct. 1495 (refusing to accept counsel’s failure to present extensive favorable evidence as part of viable strategy to withhold less extensive unfavorable evidence); Hamblin, 354 F.3d at 489-90, 493 (concluding that counsel, who had never tried a capital case and was unaware of the groundwork needed for a capital sentencing hearing, presented no mitigating evidence due to unpreparedness, not “trial strategy”); Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) (finding counsel’s failure to investigate and present mitigating evidence at sentencing “an abdication of advocacy” amounting to ineffective assistance rather than a “strategic decision” because of the number and kinds of people willing to testify on petitioner’s behalf). But see Wickline v. Mitchell, 319 F.3d 813, 820-21 (6th Cir. 2003) (finding no deficient performance under AEDPA where counsel decided not to present mitigating evidence at capital sentencing because “it would open the door for the prosecution to bring in evidence of bad acts committed by [petitioner]”).

Ineffective assistance at sentencing is scarcely limited to not investigating or presenting mitigating evidence. Failure to raise an argument that could reduce petitioner’s sentence may also constitute deficient performance. McPhearson, 675 F.3d at 559. See, e.g., United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997) (finding failure to seek downward adjustment for minimal participation in offense a “drastic misstep! 1 [that] clearly satisfied] Strickland’s first test”).

2. Charles’s failure to mount a defense at sentencing was clearly deficient

Phillips correctly argues that Charleses sentencing performance was deficient because he neglected to mount any defense, including to investigate or present mitigating evidence.

Indeed, Charles admitted in court that he had no experience with death-penalty litigation and was unprepared for sentencing. He made no opening statement, called no witnesses, and presented no evidence— mitigating or otherwise. Charles’s lack of knowledge as to what a capital sentencing hearing requires, coupled with his inaction during Phillips’s penalty phase, demonstrates clearly that he conducted no investigation of mitigating evidence.

Phillips’s response to the order requesting any evidence that could have been presented at sentencing reveals the information that Charles’s performance kept the jury and judge from considering. This includes substantial character evidence from family and friends supporting a capacity for rehabilitation.

At the same time, the affidavit of the mitigation specialist shows that some relevant information, from Phillips’s medical history to his social-service records, remains unknown to us due to Charles’s inaction. The affidavit of the mitigation specialist also notes that the trial record contained evidence supporting mitigating factors under the Kentucky Penal Code, § 532.025. The Commonwealth wrongly denies this.

Charles could have argued that Phillips committed the offenses under 1) “the influence of extreme ... emotional disturbance” or 2) belief that they were morally justified because he feared Maggard and Young posed a grave and imminent threat to his wife and stepdaughter. Ky. Rev. Stat. Ann: §§ 532.025(2)(b)(2), 532.025(2)(b)(4); Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000) (describing extreme emotional disturbance as a “state of mind so ... disturbed as to overcome one’s judgment”) (internal quotation marks and citation omitted).

“As long as there is some evidence to support the mitigation factor, then the court is required to [ask the jury to consider it].” Emerson v. Commonwealth, 230 S.W.3d 563, 571 (Ky. 2007) (internal quotation marks and citation omitted). In the guilt phase of trial, Davidson testified that 1) Phillips’s wife owed Young money, some of which Davidson had taken for herself; 2) Maggard had repeatedly harassed Phillips’s wife about the debt; 3) Maggard not only regularly carried a firearm, but had previously fired shots towards Davidson’s home; and 4) immediately before the shooting, Maggard insisted Phillips “get” Davidson so they could settle the debt. Davidson’s testimony showed that both Maggard and Young had an incentive to injure Phillips’s family, Maggard had the capacity and willingness to do so, and Maggard appeared on the verge of aggression on the night of the shooting. This would have been enough for Judge Maride to ask the jury to consider whether Phillips was intensely disturbed or felt there were extenuating circumstances when he committed the offenses. See Smith v. Com monwealth, 845 S.W.2d 534, 539 (Ky. 1993) (finding testimony that victim repeatedly spurned grieving defendant before he killed her sufficient to ask jury to consider extreme emotional disturbance factor); Emerson, 230 S.W.3d at 571 (finding mother’s testimony that son killed victim to protect her sufficient to ask jury to consider moral justification factor).

Charles could also have argued that Phillips’s capacity to “appreciate the criminality of his conduct ... was impaired as a result of ... intoxication.” Ky. Rev. Stat. Ann. § 532.025(2)(b)(7). Davidson testified that Phillips had not only been drinking the night of the shooting, but was intoxicated. See Smith, 845 S.W.2d at 539-40 (testimony that defendant and victim drank together and that beer cans were found in defendant’s apartment on night of victim’s death sufficient to ask jury to consider intoxication factor).

When Charles neglected to conduct any mitigation investigation at all or present even existing evidence supporting statutory mitigating factors, he ceased functioning as counsel under the Sixth Amendment. Compare Trial Tr. VI, App., pp. 876-92 and Trial Tr. VII, App., pp. 913-25, with Harries, 417 F.3d at 638 (finding deficient performance where counsel pursued several leads as part of mitigation investigation).

Further, Phillips correctly argues that Charles’s failure to clarify that the jury could sentence him to life imprisonment (with the possibility of parole before twenty-five years) or twenty-to-fifty years is another basis for deficient performance. The Commonwealth’s opening and closing arguments were at best unclear. These arguments may have led some jurors to believe that the aggravating factor in Phillips’s case barred them from considering a sentence less severe than life imprisonment with no possibility of parole for twenty-five years. Clearly, Charles was deficient in failing to rebut the Commonwealth’s assertions.

Thus, Charles’s choice not to delineate the jury’s sentencing options, much less argue that twenty-to-fifty years was appropriate over the death penalty, constitutes deficient performance.

Moreover, the one statement that Charles offered at sentencing reproached the jury for finding his guilt-phase presentation unpersuasive. Far from helping Phillips, Charles’s remark threatened to alienate jurors and undermine their confidence in him.

The Commonwealth asserts that Charles’s conduct was part of a strategy, developed with Phillips, not to inflame the jury after Charles failed to sway it during the guilt phase. Commonwealth Br. 27-28. But Phillips has overcome the presumption that Charles’s performance could be considered a reasonable tactic. Charles admitted in court that he was unfamiliar with death-penalty litigation and unprepared for sentencing. His lack of knowledge, skill, and readiness made it impossible to devise a sound plan for the penalty phase of Phillips’s trial. See Sowell v. Anderson, 663 F.3d 783, 790 (6th Cir. 2011) (“Because they were not aware of ... additional mitigating evidence, [petitioner’s] attorneys were not in a position to make a conscious, strategic decision about the type of mitigation case to present at sentencing.”). Phillips’s case is analogous to Hamblin, in which we refused to ignore common sense by attributing inaction by inexperienced counsel to strategy and not inexperience. 354 F.3d at 489-90, 493.

In any event, courts are generally reluctant to accept something as stark as not investigating or presenting mitigating evidence at capital sentencing as a reasonable tactic. Failing to argue against the death penalty and advocate for a lesser sentence is even less reasonable.

For these reasons, Charles’s sentencing performance was clearly deficient.

C. Prejudice

1. We may presume prejudice under Cronic where counsel deprives petitioner of assistance throughout sentencing

To establish ineffective assistance at sentencing, petitioner must show that counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052. Some performances are so likely to prejudice the petitioner that it is unnecessary to litigate their effect. Cronic, 466 U.S. at 658-60, 104 S.Ct. 2039; see also Rickman v. Bell, 131 F.3d 1150, 1155 (6th Cir. 1997). In these instances, we may presume prejudice. Cronic, 466 U.S. at 659, 104 S.Ct. 2039; Rickman, 131 F.3d at 1155. The Supreme Court has cautioned that such instances are rare, however. Florida v. Nixon, 543 U.S. 175, 190, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

For Cronic prejudice to apply, petitioner must be deprived of counsel during a critical stage of trial, such as sentencing. United States v. Ross, 703 F.3d 856, 873-74 (6th Cir. 2012); Van v. Jones, 475 F.3d 292, 299, 309 (6th Cir. 2007) (collecting Supreme Court cases recognizing sentencing as a critical stage). The deprivation can be literal, as when counsel fails to appear, or it can be constructive, as when counsel’s performance is so defective that he may as well have been absent. Cronic, 466 U.S. at 654 n.11, 104 S.Ct. 2039; Rickman, 131 F.3d at 1155. This happens when counsel “fails to subject the [state’s] case to meaningful adversarial testing” and the stage loses “its character as a confrontation between adversaries.” Cronic, 466 U.S. at 657, 659, 104 S.Ct. 2039; see, e.g., Martin v. Rose, 744 F.2d 1245, 1250 (6th Cir. 1984) (finding Cronic prejudice where instead of “participating in the trial to hold the government to its burden of proof, [petitioner’s] trial counsel stood mute, offering the jury virtually no option but to convict him”) (internal quotation marks omitted).

Further, the deprivation of counsel must persist throughout the given stage. In Bell v.' Cone, the Supreme Court declined to presume prejudice where counsel failed to introduce mitigating evidence or make a closing argument during a capital sentencing hearing, but made an opening statement “calling] the jury’s attention to the mitigating evidence already before [it],” cross-examined some of the state’s witnesses, and unsuccessfully pleaded for petitioner’s life. 535 U.S. 685, 691-92, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). The Court found Strickland rather than Cronic review proper because counsel failed to oppose the state only “at specific points,” not “throughout the sentencing proceeding as a whole.” Id. at 697, 122 S.Ct. 1843. As one court has summarized, “non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007) (per curiam) (finding Cronic prejudice where counsel did nothing at sentencing except move for a new trial).

2. Charles’s nonperformance at sentencing prejudiced Phillips under Cronic

The Commonwealth asserts that arguments concerning Cronic are “outside of the question designated by this [c]ourt in its certificate of appealability.” Commonwealth Br. 24. This is a red herring.

The court granted a COA as to Phillips’s “claim of ineffective assistance of trial counsel concerning the lack of a defense at sentencing.” (COA, R. 89, PageID 785.) As Phillips points out, the claim encompasses the issue of Cronic prejudice. See Steele v. Randle, 37 Fed.Appx. 162, 164-65 (6th Cir. 2002) (per curiam) (finding issue properly before court where it was “inherently intertwined” with claim identified in COA); see also Holmes v. Spencer, 685 F.3d 51, 58 (1st Cir. 2012) (finding issue properly before court where it was “fundamentally intertwined” with claim identified in COA).

Moreover, Phillips argued in his supporting memorandum that “Cronic is the appropriate standard by which [my] claim of ineffective assistance is to be judged.” (Fed. Habeas Corpus Mem., R. 1-2, PageID 55.) Thus, the issue of Cronic prejudice was squarely before us when we issued the COA and is reflected in the COA.

We presume prejudice in this case because Charles’s performance amounted to nonperformance; he essentially ceded the sentencing to the Commonwealth.

The Commonwealth incorrectly likens Charles’s performance to that in Bell v. Cone. Charles constructively deprived Phillips of counsel throughout sentencing by neglecting to make an opening statement; failing to investigate or present evidence, mitigating or otherwise; and offering a potentially off-putting and self-deprecating remark.

This gave the Commonwealth carte blanche at the sentencing hearings. The notion that the killings were “senseless” and impression that the least severe sentence available was life with no possibility of parole for twenty-five years went entirely unchallenged. (Trial Tr. VI, App., p. 884.) So too did the Commonwealth’s plea for the death penalty and testimony that Phillips would surely “kill again” if he were ever released. (Trial Tr. VII, App., p. 917.) Phillips’s sentencing was a presentation by one party, not a contest between adversaries.

Thus, Charles’s sentencing performance prejudiced Phillips under Cronic.

3. The possibility that mitigating evidence might have resulted in a different sentence, and reasonable probability that petitioner would have avoided additional time in prison, each establishes prejudice under Strickland

Phillips does not need to establish prejudice under Strickland to succeed on his ineffective-assistance-of-counsel claim because he has already done so under Cronic. Nevertheless, he has shown a reasonable probability that he would have received life imprisonment (with the possibility of parole before twenty-five years) or twenty-to-fifty years but for Charles’s performance. Thus, actual prejudice has been established.

To establish actual prejudice under Strickland, petitioner must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” or to make the outcome unreliable. Id.; West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996).

Actual prejudice exists when mitigating evidence might have influenced the sentencer’s assessment of petitioner’s “moral culpability” and resulted in a “different sentence” given the totality of evidence in the case. Wiggins v. Smith, 539 U.S. 510, 535-36, 538, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Phillips v. Bradshaw, 607 F.3d 199, 216 (6th Cir. 2010); Harries, 417 F.3d at 640 (clarifying that the test is not if the jury could have imposed the same sentence even if it had heard the unpresented evidence).

In Miller, for example, the court proceeded to find Strickland prejudice even after presuming it under Cronic. 481 F.3d at 474. The Commonwealth in that case successfully argued for double the presumptive sentence based on' aggravating circumstances. Id. at 470. Yet defense counsel chose not to “offer a shred of mitigating evidence,” leaving the aggravating evidence completely unchallenged. Id. at 473. Counsel failed “even [to] lobby for a sentence lower than the one urged by the State” or object to substantive errors in petitioner’s presentencing report. Id. The court found a reasonable probability that “the outcome of the proceedings was affected by [counsel’s] performance.” Id. at 474. See also Williams, 529 U.S. at 398, 120 S.Ct. 1495 (finding account of abusive childhood and proof of mental retardation “might well have influenced the jury’s appraisal of [petitioner’s] moral culpability” and yielded a lighter sentence - since the circumstances of the crime suggested compulsion rather than premeditation). But see Wong v. Belmontes, 558 U.S. 15, 27-28, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam) (“[T]he notion that the result could have been different if only [counsel] had put on more than the nine witnesses he did, or called expert witnesses to bolster his case, is fanciful”).

Actual prejudice also exists when there is a reasonable probability that petitioner would have avoided even “a minimal amount of additional time in prison” were it not for counsel’s performance at sentencing. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). In McPhearson, for instance, a jury convicted the petitioner of knowingly possessing drugs with intent to distribute them, but its verdict did not establish that the entire drug quantity was for distribution. 675 F.3d at 557. At sentencing, defense counsel neglected to argue that a portion of the drugs was for personal use. Id. at 559. Had counsel done so and the district judge agreed, petitioner’s sentencing range would have dropped from a range of 140 to 175 months to either 120 to 150 months or 100 to 125 months. Id. at 563. The court concluded that petitioner was “clearly prejudiced” by counsel’s failure to raise the personal-use argument if it was plausible that some of the drugs were for personal use. Id. Thus, it remanded the case on that factual question.

A Charles’s failure to clarify the jury’s sentencing options or present evidence at sentencing each prejudiced Phillips under Strickland

As discussed above, Charles failed to clarify that life imprisonment (with the possibility of parole before twenty-five years) and twenty-to-fifty years were available after the Commonwealth implied that an aggravating factor barred the jury from considering them. He certainly did not advocate for the sentences. Phillips argues that the jury’s willingness to recommend the lightest sentence that the Commonwealth identified shows there was a reasonable probability that the jury was willing to go even lower. The jury’s recommendation that the sentences run consecutively rather than concurrently may undercut this contention, or it may reflect the jury’s judgment that each murder should be accounted for separately. In any event, it does not change the likelihood that the jury made its recommendation unaware of two possible sentences. Thus, the sentence it did recommend is unreliable.

Similarly, Phillips has shown that Charles neglected to offer proof of Phillips’s 1) character from family and friends, 2) belief that Maggard and Young posed a grave and imminent threat to his wife and stepdaughter, and 3) intoxication on the night of the shooting, not to mention the evidence that the mitigation specialist highlighted and is largely unknown to us. There is more than a reasonable probability that one of these could have influenced the jury’s assessment of Phillips’s moral culpability and resulted in a different sentence. The possibilities that the evidence above introduces make the actual outcome of Phillips’s sentencing unreliable.

The Commonwealth argues that Charles’s performance did not prejudice Phillips because he “received the least onerous aggravated sentence” and avoided the death penalty. Commonwealth Br. 28. This misinterprets Strickland prejudice. The test is whether there is a reasonable probability that the result would have differed from what it was, in this case, life with no possibility of parole for twenty-five years. As we have explained, there is such a probability here. Further, petitioners who once faced the threat of the death penalty do not lose the opportunity to show counsel’s performance prejudiced them because it did not lead to the worst possible outcome. Imposing a higher burden on capital defendants would be counterintuitive and conflict with Supreme Court precedent. See Simmons v. South Carolina, 512 U.S. 154, 185, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (Scalia, J., dissenting) (highlighting a “death-is-different” jurisprudence in which the Court has repeatedly made special concessions for capital defendants).

Charles’s performance at sentencing prejudiced Phillips under Strickland because there is a reasonable probability that he would have received a lesser sentence otherwise.

III. CONCLUSION

Because Phillips’s counsel provided ineffective assistance at sentencing, we reverse the district court’s judgment and grant Phillips a conditional writ of habeas corpus, requiring the Commonwealth of Kentucky to resentence him within 90 days or release him.


source: Caselaw Access Project

author: CLAY, Circuit Judge.

license: Public Domain

text:
    Todd MATTOX, Plaintiff-Appellant, v. Adam EDELMAN, M.D.; Corizon Health, Inc., Defendants, Adrianne Neff, P.A.; Haresh Pandya, M.D.; Kenneth Jordan, M.D.; William Borgerding, D.O., Defendants-Appellees.
    No. 16-1412
    United States Court of Appeals, Sixth Circuit.
    Argued: January 25, 2017
    Decided and Filed: March 15, 2017
    Rehearing Denied April 6, 2017

      ARGUED: Susan M. Razzano, EIMER STAHL LLP, Chicago, Illinois, for Appellant. Carly Van Thomme, CHAPMAN LAW GROUP, Troy, Michigan, for Appel-lee Neff. Allan J. Soros, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Pandya and Borgerding. ON BRIEF: Susan M. Razzano, EIMER STAHL LLP, Chicago, Illinois, David M. Shapiro, SO-LANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for Appellant. Carly Van Thomme, Ronald W. Chapman, Kevin A. McQuillan, CHAPMAN LAW GROUP, Troy, Michigan, for Appellee Neff. Kevin Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Pandya and Borgerding.
    Before: MERRITT, CLAY, and DONALD, Circuit Judges.
   OPINION

CLAY, Circuit Judge.

Plaintiff Todd Mattox, a Michigan prisoner, appeals from the orders entered by the district court granting various disposi-tive motions filed against Mattox’s Eighth Amendment deliberate indifference claims against three doctors and a physician’s assistant who allegedly provided him deficient care for his heart condition. On appeal, Mattox argues that the district court erred in: (i) granting summary judgment on his claims against Defendants Haresh Pandya and William Borgerding for failure to exhaust administrative remedies; (ii) sua sponte dismissing his claims against Defendant Kenneth Jordan for failure to exhaust administrative remedies; and (iii) granting Defendant Adrianne Neffs motion to dismiss for failure to state a claim. We have subject matter jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART the district court’s judgment, and REMAND for further proceedings.

BACKGROUND

I. Factual History

Mattox is currently an inmate at the Lakeland Correctional Facility in Coldwa-ter, Michigan. During most of the events relevant to this lawsuit, Mattox was an inmate at the G. Robert Cotton Correctional Facility in Jackson, Michigan.

On July 25, 2011, Mattox complained to prison medical officials that he was experiencing pain and tightness in his chest, neck, shoulders, and arms, as well as shortness of breath, fatigue, and dizziness. The nurse on duty performed an electrocardiogram (“EKG”) test, which indicated a sinus rhythm with left axis deviation. After this test, Mattox was taken to the emergency room, where he was seen by an outside cardiologist. On July 26, 2011, the outside cardiologist performed an echo stress test on Mattox’s heart, which suggested a possible ischemia in the heart’s basal inferior wall. The cardiologist recommended that Mattox undergo a cardiac catheterization procedure to rule out coronary artery disease, and determine whether he needed a stent or surgery in order to prevent a future heart attack.

Mattox’s request for a cardiac catheteri-zation procedure was referred to Defendant Adam Edelman, an employee of Defendant Corizon Health, Inc., for approval. Corizon is a health care contractor for the Michigan Department of Corrections, and employed all of the doctors and physician’s assistants Mattox has sued in this lawsuit. Dr. Edelman reviewed Mattox’s EKG results, and was not convinced that a cardiac catheterization was necessary; accordingly, he denied approval for the procedure.

Mattox was thereafter briefly hospitalized at the Duane L. Waters Hospital, a prison hospital associated with the Michigan Department of Corrections, and was released back to the Cotton Facility on August 2, 2011, with instructions to seek immediate evaluation if his chest pains recurred. On August 3, 2011, Mattox filed an administrative grievance with the prison numbered JCF-2011-08-1632-1202 (“JCF-1632” or “first grievance”), naming Dr. Edelman, and requesting the cardiac catheterization test that the. outside cardiologists had recommended. After the grievance was denied, Mattox fully exhausted his appeals pursuant to Michigan Department of Corrections policy, but did not obtain any relief.

At about 11:00 p.m. on August 14, 2011, Mattox experienced the same symptoms he had complained of on July 25, 2011. He immediately reported to the prison’s infirmary, notified the nurse on duty of his symptoms, and told her that the nitroglye-erine tablets he had been given during his last hospitalization were not working. The nurse performed an EKG on Mattox, and then called an off-site physician’s assistant, Defendant Adrianne Neff, and left P.A. Neff a voicemail message describing the EKG results, Mattox’s recent hospital stay, and the records of the stress test Mattox received on July 26, 2011. P.A. Neff returned the nurse’s call, and ordered that Mattox be sent back to his housing unit rather than to the emergency room.

The next morning, Mattox’s chest pains continued, and he reported to the prison’s attending physician, Dr. Karen Rhodes. Dr. Rhodes did not prescribe Mattox any new medication, but instead sent him to the emergency room, where outside doctors once again recommended that Mattox undergo a cardiac catheterization test. After Mattox returned to the prison, Dr. Rhodes prescribed a medication called Im-dur, but later took Mattox off of that medication because it caused Mattox intolerable dizziness. Dr. Rhodes once again asked Dr.' Edelman for authorization to perform a cardiac catheterization test, but Dr. Edel-man denied the request.

On August 18, 2011, Mattox filed another grievance numbered JCF-2011-08-1747-12DI (“JCF-1747” or “second grievance”), complaining that P.A. Neff did not send him to the hospital as requested on the evening of August 14, 2011. Mattox was denied relief at all steps of this grievance, and his appeals were finally exhausted on December 8, 2011.

On September 18, 2011, Mattox filed a third grievance numbered JCF-2011-09-1974-12D1 (“JCF-1974” or “third grievance”), complaining that his medication was ineffective at controlling his cardiac symptoms. This grievance was also denied at every administrative step, and was finally exhausted on December 28, 2011.

In October 2011, Mattox’s chest pains once again returned, and once again he was sent to the emergency room. While there, an outside cardiologist recommended that Mattox be started on a heart drug called Ranexa. However, Ranexa was not on the prison’s formulary, and so Dr. Rhodes was required to seek the approval of Defendant Haresh Pandya before Ra-nexa could be given to Mattox. On October 12, 2011, Dr. Pandya denied permission to give Mattox Ranexa, and instead ordered Mattox to remain on medication that had previously made him dizzy.

Mattox’s chest pains continued intermittently over the next two and a half years, requiring multiple hospitalizations. Of note during this period, on April 23, 2012, Mat-tox finally received the cardiac catheterization test he had been seeking, which ruled out heart disease, and suggested that his symptoms be treated with medication. After a hospitalization for chest pain in March 2013, Mattox’s outside doctors once again recommended that he be prescribed Ranexa, rather than the Imdur and other medications prison officials had been giving him, because those medications had proven ineffective at controlling his pain. Mattox requested Ranexa from Defendant Kenneth Jordan in early 2013, but was denied; Dr. Jordan gave Mattox another prescription for Imdur instead.

On April 4, 2013, Mattox filed a fourth grievance numbered LCF 2013-04-0355-12D1 (“LCF-0355” or “fourth grievance”), alleging that the medications prison officials were giving him were ineffective at . controlling his pain, and requesting the Ranexa several outside doctors had prescribed him. This grievance, like the others, was denied at every step and was finally exhausted on June 24, 2014.

After yet another hospitalization in mid-June 2013, Mattox was finally given a six-month prescription for Ranexa by Dr. Pandya. Mattox did not experience any cardiac symptoms during those six months. In January 2014, after the Ranexa prescription ran out, Mattox’s chest pains returned. Mattox sought a renewal of his Ranexa prescription, but was informed by a physician’s assistant that Defendant William Borgerding had denied approval because Corizon felt that Ranexa was too expensive. Dr. Borgerding persisted in his refusal to provide Mattox with Ranexa even after Mattox was hospitalized again while on Imdur.

On February 4, 2014, Mattox filed a fifth grievance numbered LCF 2014-02-0159-12F3 (“LCF-0159” or “fifth grievance”), again complaining about his Ranexa denials. This grievance was denied at every step and fully exhausted on June 24, 2014.

II. Procedural History

On August 24, 2012, after exhausting his first three grievances, Mattox filed a pro se complaint in the Eastern District of Michigan against Dr. Edelman and P.A. Neff alleging deliberate indifference to his serious medical needs in violation of 42 U.S.C. § 1983 and the Eighth Amendment. As to P.A. Neff, Mattox alleged that she was deliberately indifferent by not sending to him to the emergency room on August 14, 2011, when he presented to the prison infirmary with chest pains. On July 30, 2013, the district court adopted a magistrate judge’s Report and Recommendation and granted P.A. Neffs motion to dismiss, concluding that Mattox had not pled that he suffered from an objectively serious medical need on August 14, 2011. Mattox v. Edelman, No. 12-13762, 2013 WL 3936424, at *3-4 (E.D. Mich. July 30, 2013).

Subsequently, Mattox sought leave to amend his complaint to add claims against additional defendants. The district court granted this motion as to Dr. Pandya, and the magistrate judge later granted Mattox leave to add Dr. Jordan, Dr. Borgerding, and Corizon as defendants.

Mattox’s amended complaint asserted deliberate indifference claims against Dr. Pandya, Dr. Jordan, and Dr. Borgerding, and a Monell claim against Corizon, relat: ed to these defendants’ various denials of his request for Ranexa, and Corizon’s allegedly unconstitutional practice of denying necessary medical care for purely budgetary reasons. Dr. Pandya and Dr. Borgerding moved for summary judgment, arguing inter alia that Mattox had failed to exhaust his administrative remedies against them.

On January 12, 2016, the magistrate judge granted the dispositive motions filed by Defendants, and also recommended dismissing Mattox’s claims against Dr. Jordan sua sponte. Mattox v. Edelman, No. 12-13762, 2016 WL 398242, at *1 (E.D. Mich. Jan. 12, 2016) (“Mattox II”). The magistrate judge reasoned that none of Mattox’s first three grievances properly exhausted claims as to Dr. Pandya, Dr. Borgerding, or Dr. Jordan because those grievances, which generally sought cardiac catheterization, had not given Defendants a fair chance to address Mattox’s Ranexa claims on the merits. Id. The magistrate judge then determined that Sixth Circuit precedent rendered Mattox’s fourth and fifth grievances ineffective, because they were not exhausted prior to the filing of Mattox’s original complaint. Id. at *2.

Mattox appealed the magistrate judge’s conclusion to the district court. On March 14, 2016, the district court adopted the magistrate judge’s Report and Recommendation, largely echoing the magistrate judge’s legal reasoning. Mattox v. Pandya, No. 2:12-cv-13762, 2016 WL 945340, at *1 (E.D. Mich. Mar. 14, 2016) (“Mattox III”). That same day, the district court entered judgment dismissing all of Mattox’s claims. Mattox filed a timely notice of appeal.

DISCUSSION

Mattox argues that he properly exhausted his claims as to Dr. Pandya, Dr. Jordan, and Dr. Borgerding, and also challenges the district court’s dismissal of his deliberate indifference claim against P.A. Neff. We address each of these issues in turn.

I. Claims Against Dr. Pandya, Dr. Jordan, and Dr. Borgerding

A. Standard of Review

We review de novo the district court’s “[dismissal of a prisoner’s civil rights claim for failure to exhaust administrative remedies.” See, e.g., Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011); Boyd v. Corr. Corp. of Am., 380 F.3d 989, 993 (6th Cir. 2004). Mattox’s claims against Dr. Pandya and Dr. Borgerding were dismissed at the summary judgment stage. “Summary judgment is appropriate only if defendants establish the absence of a ‘genuine dispute as to any material fact’ regarding non-exhaustion.” Risher, 639 F.3d at 240 (quoting Fed. R. Civ. P. 56(a)). “When ruling on a motion for summary judgment, a court must consider the evidence ‘in the light most favorable to the party opposing the motion.’ ” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Mattox’s claim against Dr. Jordan was dismissed on the face of the complaint. We review de novo the district court’s dismissal at the pleading stage for failure to exhaust administrative remedies. See, e.g. Fry v. Napoleon Cmty. Sch., 788 F.3d 622, 624 (6th Cir. 2015); Hall v. Knott Cty. Bd. of Educ., 941 F.2d 402, 406 (6th Cir. 1991). “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by [an affirmative defense], the complaint is subject to dismissal for failure to state a claim.” Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

B. Applicable Legal Principles

The Prison Litigation Reform Act requires state prisoners to follow and exhaust all applicable state grievance procedures before filing suit in a federal court. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This requirement is not jurisdictional; rather, exhaustion is an affirmative defense that must be pleaded and proved by the defendants. Jones, 549 U.S. at 212, 127 S.Ct. 910. When the defendants in prisoner civil rights litigation move for summary judgment on administrative exhaustion- grounds, they must prove that no reasonable jury could find that the plaintiff exhausted his administrative remedies. Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012).

There is no uniform federal exhaustion standard. A prisoner exhausts his remedies when he complies with the grievance procedures put forward by his correctional institution. Jones, 549 U.S. at 217-19, 127 S.Ct. 910. “This court requires an inmate to make ‘affirmative efforts to comply with the administrative procedures,’ and analyzes whether those ‘efforts to exhaust were sufficient under the circumstances.’ ” Risher, 639 F.3d at 240 (quoting Napier v. Laurel Cty., 636 F.3d 218, 224 (6th Cir. 2011)).

The relevant grievance procedures for Michigan inmates are set forth in Michigan Department of Corrections Policy Directive 03.02.130 (effective July 9, 2007), available at http://www.michigan.gov/ documents/corrections/03_02_130_200872_ 7.pdf (“MDOCPD 130”). MDOCPD 130 creates a three-step grievance procedure Michigan prisoners must follow in order to exhaust their administrative remedies. Relevant here, MDOCPD 130 requires prisoners to provide the following informa-, tion at Step I of the grievance procedure:

The issues [underlying the grievance] should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of all those involved in the issue being grieved are to be included.

MDOCPD 130 ¶ R (underlining in original, italics added).

We have explained that a prisoner ordinarily does not comply with MDOCPD 130 — and therefore does not exhaust his administrative remedies under the PLRA — when he does not specify the names of each person from whom he seeks relief. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010) (“Requiring inmates to exhaust prison remedies in the manner the State provides — by, say, identifying all relevant defendants — not only furthers [the PLRA’s] objectives, but it also prevents inmates from undermining these goals by intentionally defaulting their claims at each step of the grievance process, prompting unnecessary and wasteful federal litigation in the process.”). An exception to this rule is that prison officials waive any procedural irregularities in a grievance when they nonetheless address the grievance on the merits. See id. at 325. We have also explained that the purpose of the PLRA’s exhaustion requirement “is to allow prison officials ‘a fair opportunity’ to address grievances on the merits, to correct prison errors that can and should be corrected and to create an administrative record for those disputes that eventually end up in court.” Id. at 324.

C. Interaction Between the PLRA and Rule 15

Mattox argues that his fourth and fifth grievances properly exhausted his Ra-nexa-based claims against the three doctor defendants. The magistrate judge and district court disagreed, concluding that grievances exhausted after the commencement of a lawsuit can never satisfy the PLRA’s exhaustion requirement. Mattox challenges this conclusion by arguing that: (i) nothing in the PLRA purports to disrupt the normal operation of Federal Rule of Civil Procedure 15(d), which allows plaintiffs to file a supplemental complaint alleging claims based on events that occurred after the lawsuit was filed; and (ii) permitting plaintiffs to amend their complaints to allege newly exhausted claims is consistent with the purpose of the PLRA’s exhaustion requirement. After a careful review of the relevant law, we agree with Mattox.

Federal Rule of Civil Procedure 15(d) provides that:

On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event, that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

Fed. R. Civ. P. 15(d). Rule 15 sets a liberal policy in favor of permitting parties to amend their pleadings, and courts have interpreted the rule to allow parties to add new claims, defenses, and parties to the lawsuit. See Charles A. Wright & Arthur R. Miller, et al., Federal Practice and Procedure § 1504 (3d ed. 2016) (collecting cases).

Our sister circuits have unanimously concluded that Rule 15 permits a prisoner to amend his complaint to add new claims that have only been exhausted after the commencement of the lawsuit. See Cano v. Taylor, 739 F.3d 1214, 1221 (9th Cir. 2014) (vacating district court’s dismissal of prisoner’s claims “because it was based on the determination that Cano had not exhausted his administrative remedies prior to the filing of his initial complaint, rather than his amended complaint.”); Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“Defendants’ argument that the PLRA requires the newly-added claims in the SAC to have- been exhausted before the original complaint was ‘brought’ on January 4, 2002, fails because it ignores the general rule of pleading that the SAC completely supercedes any earlier complaint, rendering the original complaint non-existent and, thus, its filing date irrelevant.”); Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) (per curiam); Boone v. Nose, 530 Fed.Appx. 112, 113 n.1 (3d Cir. 2013) (“Under the Prison Litigation Reform Act, prisoners may file supplemental complaints if the claims in question 1) have truly accrued since the beginning of the suit and 2) are exhausted per 42 U.S.C. § 1997e(a) before the supplement is filed.”).

We find the reasoning of these cases compelling. As we have noted, the PLRA’s exhaustion requirement is designed to give prison officials a fair opportunity to address a prisoner’s claims on the merits before federal litigation is commenced. Reed-Bey, 603 F.3d at 324. If a prisoner exhausts some of his claims after a proper federal lawsuit has been filed as to other claims, and then moves to amend his complaint to add the newly exhausted claims, the policy behind the PLRA’s exhaustion requirement is still met because prison officials will have had a fair opportunity to address the new claims on the merits. As the Seventh Circuit has persuasively explained:

The district court dismissed the [plaintiffs] claims ... because [the plaintiff] failed to exhaust his administrative remedies on those claims before filing his original complaint. The court correctly noted that a prisoner may not file a lawsuit before exhausting his administrative remedies, even if he exhausts those remedies while the litigation is pending. See [Perez v. Wisc. Dep’t of Corrs., 182 F.3d 532, 535 (7th Cir. 1999) ]. As we have previously observed, this exhaustion requirement is designed to alert prison officials to perceived problems and to enable them to take corrective action without first incurring the hassle and expense of litigation. See [Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) ]; Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004); McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir. 2002). Permitting a prisoner to sue first and then ask the prison to address issues that are now the subject of pending litigation defeats the purpose of the PLRA’s exhaustion requirement.
But [the plaintiffs] 1998 grievance concerning the alleged attack at [the prison] gave prison officials precisely the type of opportunity to address his complaints that the PLRA contemplates. The sole objective of § 1997e(a) is to permit the prison’s administrative process to run its course before litigation begins. See Ford, 362 F.3d at 399. [The plaintiffs] November 1998 grievance apprised prison officials of the alleged attack at [the prison], and he did not hale those defendants into court until he had pursued all of the administrative remedies available to him. That he raised these claims by amending his complaint in an already pending case rather than initiating an entirely new proceeding is irrelevant to the objectives of§ 1997e(a).

Cannon, 418 F.3d at 719 (emphasis added). Moreover, we note the Supreme Court has admonished that “courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns” when interpreting the PLRA, further lending support to the idea that the ordinary operation of Rule 15(d) should be allowed in his case. See Jones, 549 U.S. at 212, 127 S.Ct. 910.

In reaching the contrary conclusion, the court below determined that it was bound by our decision in Cox v. Mayer, 332 F.3d 422, 428 (6th Cir. 2003). There, we held that the PLRA’s exhaustion requirement applies to persons who are incarcerated when the federal lawsuit is filed, but have been released from custody when the exhaustion issue is litigated. Id. at 424. The plaintiff in Cox had not exhausted his administrative remedies as to any claim before filing suit. Id. The plaintiff argued that this defect could nevertheless be “cured” through application of Rule 15(d). Id. at 428. We held that the plaintiff waived any application of Rule 15(d) by failing to file a motion to supplement his pleadings before the district court. Id. However, in dicta, we briefly stated that:

But, even assuming that plaintiff had made such a motion, the outcome would be no different. This is because a procedural rule “cannot overrule a substantive requirement or restriction contained in a statute (especially a subsequently enacted one).” Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc) (declining-under similar circumstances-to apply Rule 15(d) to excuse plaintiffs failure to comply with an analogous provision of the PLRA, § 1997e(e)).

Id.

The Cox panel’s dicta do not bind us. See, e.g., BDT Prods., Inc. v. Lexmark Int’l, Inc., 602 F.3d 742, 750 (6th Cir. 2010) (“[O]ne panel of [the Sixth Circuit] is not bound by dicta in a previously published panel opinion.” (quoting United States v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993))). But in any event, as Mattox correctly argues, Cox is distinguishable. The plaintiff in Cox had not exhausted any of his claims before filing suit in federal court. Cox, 332 F.3d at 424. The Cox panel was thus likely correct that Rule 15(d) could not save an action that did not comply with the PLRA’s exhaustion requirement in any way. See Floyd v. U.S. Postal Serv., 105 F.3d 274, 278 (6th Cir. 1997), (holding that subsequently enacted federal statutes trump the Rules of Civil Procedure), abrogated on other grounds by Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Here, by contrast, Mattox filed his original complaint after properly exhausting his claims as to Dr. Edelman and P.A. Neff. Therefore, because Mattox had exhausted his remedies before his “action” was “brought,” Cox is inapposite. 42 U.S.C. § 1997e(a).

The parties also dispute the applicability of our decisions in Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005), and Utley v. Campbell, 84 Fed.Appx. 627, 629 (6th Cir. 2003). In Harbin-Bey, we held that the district court did not abuse its discretion in declining to permit the plaintiff prisoner to supplement his complaint and add a new claim against the defendant. 420 F.3d at 580. The Harbin-Bey panel’s sparse reasoning was as follows:

Although Harbin-Bey filed a new administrative grievance against Rutter, he did so only after commencing this lawsuit. This court has held that a prisoner “may not exhaust administrative remedies during the pendency of the federal suit.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.1999) (dismissing an Ohio prisoner’s suit because he filed his federal complaint before completing the administrative process). We therefore conclude that the district court did not abuse its discretion in refusing to allow Harbin-Bey to supplement his complaint.

Id. As Mattox correctly argues, although Harbin-Bey is related to this case, it does not control the outcome here. The issue of whether a prisoner can amend a complaint to assert claims that were only exhausted after the commencement of the lawsuit was not squarely before the Harbin-Bey panel. Rather, the district court denied leave to supplement the complaint “because Harbin-Bey failed to exhaust his administrative remedies through the prison’s grievance procedures with regard to [the defendant’s] most recent alleged misconduct.” Id. Accordingly, Harbin-Bey is distinguishable because the district court there did not allow the prisoner to file a supplemental complaint, and because the prisoner had not fully exhausted the new claims he was trying to add before filing his Rule 15 motion. Here, by contrast, the magistrate judge did allow Mattox to file an amended complaint, and Mattox’s fourth and fifth grievances were fully exhausted before the amended complaint was filed.

Freeman v. Francis, the case cited by the Harbin-Bey panel, does not command a contrary result. In Freeman, as in Cox, the plaintiff had not properly exhausted any claims before filing the original complaint. 196 F.3d at 642. Freeman thus does not speak to the issue of whether an inmate can add newly exhausted claims to a lawsuit originally based on separate, fully exhausted claims.

In Utley, a panel of this Court held that the district court did not abuse its discretion in denying the plaintiffs “second and third motions to amend and supplement the complaint.” 84 Fed.Appx. at 629. In passing, the Utley panel stated that the “district court properly noted that Utley had not exhausted his administrative grievances of the claims he sought to add until after this case was filed, and therefore they could not be appended to this litigation.” Id. Although this language in Utley is on point, Utley was an unsigned, unpublished order with no reasoning beyond a citation to Freeman, which did not address the issue before us in this case. We do not find Utley persuasive in light of the better-reasoned authority we have cited from the Seventh and Ninth Circuits. Accordingly, we disapprove Utley to the extent it conflicts with this opinion.

Finally, Dr. Pandya and Dr. Borgerding argue that the Seventh and Ninth Circuit cases holding that Rule 15 can be used to add new claims that were exhausted after the lawsuit was filed were wrongly decided because they conflict with the plain language of § 1997e(a). Specifically, these defendants argue that when § 1997(e)(a) says that “[n]o action shall be brought” alleging improper prison conditions until after the plaintiff has exhausted prison remedies, it means that no lawsuit may be brought until administrative remedies for every claim asserted in the suit have been exhausted, and therefore, new claims that were exhausted post-filing cannot be added to the suit. Defendants concede that § 1997e(a) would allow a plaintiff to amend a valid lawsuit to assert newly exhausted claims if the word “action” in “no action shall be brought” meant “claim.”

However, as Mattox correctly points out, the Supreme Court has already rejected the argument that the word “action” in § 1997e(a) means something different than “claim.” Jones, 549 U.S. at 220, 127 S.Ct. 910. In Jones, the Court considered whether § 1997e(a) requires courts to dismiss an entire lawsuit if any of the claims in the suit are unexhausted. Id. Similar to Defendants here, the respondents in Jones argued “that if Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, the word ‘claim’ rather than ‘action’ would have been used in [§ 1997e(a) ].” Id. In rejecting this argument, the Court explained that the “statutory phrasing — ‘no action shall be brought’ — is boilerplate language,” and “generally, statutory references to an ‘action’ have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the ‘action’ may proceed.” Id. at 220-21, 127 S.Ct. 910. Accordingly, because the word “action” in § 1997e(a) is synonymous with the word “claim,” Defendants have effectively conceded that Mattox did not run afoul of the PLRA’s exhaustion requirement by amending his complaint to add newly exhausted claims to this lawsuit.

In sum, we hold that the PLRA and Federal Rule of Civil Procedure 15 permit a plaintiff to amend his complaint to add claims that were exhausted after the commencement of the lawsuit, provided that the plaintiffs original complaint contained at least one fully exhausted claim. Because Mattox’s original complaint contained fully exhausted claims, we will now assess whether Mattox’s various grievances properly exhausted his claims as to Dr. Pandya, Dr. Jordan, and Dr. Borgerding.

D. Exhaustion

1. Dr. Pandya

Mattox argues that he exhausted his claims against Dr. Pandya in two ways: (i) by complaining that he was receiving inadequate medication in his first three grievances; and (ii) by protesting his denial of Ranexa in his fourth and fifth grievances. We hold that Mattox’s first three grievances . were insufficient to exhaust claims against Dr. Pandya, but that a jury could find that Mattox’s fifth grievance properly exhausted his claims.

None of Mattox’s first three grievances can be fairly read to request relief from any action ór lack of action attributable to Dr. Pandya. Mattox’s claims against Dr. Pandya fault him for failing to give Mattox the heart drug Ranexa, despite allegedly knowing that Ranexa was more effective than the other drugs Mattox was given. However, as the magistrate judge aptly noted, “Ranexa was not even recommended by any physician until October 7, 2011, after the above grievances were filed.” Mattox II, 2016 WL 398242, at *1. None of Mattox’s original three grievances mentioned Ranexa, or requested anything other than a heart catheterization to determine whether sufficient blood flow was going to Mattox’s heart. We hold that no reasonable jury could find that Mattox’s first three grievances exhausted claims that Dr. Pandya failed to give him a heart drug that was not even at issue until after the grievances were filed, and that Mattox did not yet request.

Mattox argues that his JCF-1747 and JCF-1974 grievances each alleged that the nitroglycerine tablets he was being prescribed were ineffective at treating his symptoms, and therefore prison officials were on notice that Mattox was seeking different medication than the drugs that Dr. Pandya was approving. He alleges that this notice is sufficient for him to have exhausted administrative remedies against Dr. Pandya on his claims that Dr. Pandya violated the Eighth Amendment by failing to prescribe him Ranexa. As the district court correctly determined, however, Mat-tox’s original three grievances consistently and solely requested a cardiac catheterization — and not any particular medication. The grievances did not give prison officials a fair opportunity to address Mattox’s claim on the merits by providing Ranexa, or any other prescription drug, because the grievances can only be fairly read to request a cardiac catheterization.

Mattox additionally argues that his original three grievances generally gave all relevant medical officials notice of his claim that he was receiving inadequate heart treatment, and that this general notice was sufficient to exhaust all possible claims related to his heart treatment. We cannot credit Mattox’s argument, however, because it would effectively collapse the PLRA’s exhaustion requirement. If generalized dissatisfaction with an inmate’s medical care were sufficient to exhaust all possible claims related to that care, then prisoners could bring claims in federal court without ever giving prison staff a fair chance to remedy a prisoner’s complaints. When an inmate is receiving little or no medical care at all, it might arguably be appropriate to generally allege inadequate medical care. However, where, as here, an inmate is receiving care, we hold that the inmate can only exhaust claims where he notifies the relevant prison medical staff as to which facets of his care are deficient. This rule better comports with MDOCPD 130, which requires inmates to describe the “who, what, when, where, why, [and] how” of their claim. Because Mattox repeatedly made clear that the “what” he was requesting was cardiac catheterization, we cannot agree that his first three grievances exhausted claims as to Dr. Pandya’s failure to provide Ranexa.

However, we agree that a jury could find that Mattox’s fifth grievance properly exhausted his claims as to Dr. Pandya. That grievance noted that: (i) Mattox suffers from angina pain; (ii) Mattox had been repeatedly prescribed Ranexa to control his pain; (in) Mattox’s pain was completely eliminated when taking Ranexa; (iv) Dr. Pandya nevertheless denied a request from Mattox’s on-site medical providers to approve the continuation of Mattox’s Ra-nexa prescription; and (v) this denial allegedly violated Mattox’s constitutional right to be free from pain and suffering when relief was readily available. The grievance was sufficient to give prison officials notice that Mattox was challenging Dr. Pandya’s conduct in contributing to the denial of Mattox’s Ranexa prescription, and to satisfy the gatekeeping requirements of MDOCPD130. We therefore hold that the district court erred in granting summary judgment on Mattox’s claims against Dr. Pandya.

. 2. Dr. Jordan and Dr. Borgerding

Next, Mattox argues that a jury could find that his fourth and fifth grievances properly exhausted his claims against Dr. Jordan and Dr. Borgerding. We agree.

Mattox’s fourth grievance specifically named Dr. Jordan, noted that Mattox had been prescribed Ranexa many times by outside doctors, and requested that prison medical staff provide him with Ranexa. Mattox’s fifth grievance complained that an unnamed RMO had contributed to the Ranexa denial, and alleged that the denial violated Mattox’s constitutional right to be free from gratuitous pain and suffering. In Mattox’s step two grievance appeal, Mattox clarified that the unnamed RMO was Dr. Borgerding. A reasonable jury could find that this information was sufficient under the circumstances presented here to satisfy the relatively minimal gatekeeping requirements of MDOCPD130. See Reed-Bey, 603 F.3d at 324 (observing that a prisoner complies with MDOCPD130 by specifying the “ ‘[d]ates, times, places and names of all those involved in the issue being grieved’ in their initial grievance” (citation omitted)); see also Woodford, 548 U.S. at 90, 126 S.Ct. 2378 (a grievance is sufficient if the inmate follows the “critical procedural rules” set out by the prison’s grievance policy). Accordingly, we hold that the district court erred in determining that: (i) Mattox’s failure to exhaust administrative remedies as to Dr. Jordan is apparent from the face of Mattox’s complaint; and (ii) no reasonable jury could find that Mattox exhausted his remedies as to Dr. Borgerding.

II. Claims Against P.A. Neff

A. Standard of Review

We review de novo the district court’s dismissal of a deliberate indifference claim on the pleadings. See, e.g., D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014).

B. Analysis

Mattox’s claim against P.A. Neff alleges that she was deliberately indifferent to his serious medical needs by failing to send him to the emergency room on the night of August 14, 2011, when Mattox presented to the prison infirmary with heart attack symptoms. The district court dismissed Mattox’s claim for failure to plead that Mattox suffered from an objectively serious medical condition on the night in question. Mattox argues that the risk to his health was so patently obvious that he did not need to provide any proof that he actually .suffered a cardiac event. We disagree.

The Eighth Amendment prohibits prison officials and doctors from showing deliberate indifference to an inmate’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In order to establish a deliberate indifference claim, the prisoner must show that the defendant was “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.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Put differently, a deliberate indifference claim “has objective and subjective components.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004). “The objective component requires the existence of a ‘sufficiently serious’ medical need.” Id. (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). “The subjective component requires an inmate to show that prison officials have ‘a sufficiently culpable state of mind in denying medical care.’ ” Id. (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)).

This Circuit recognizes two theories under which a plaintiff can demonstrate the objective component of an Eighth Amendment deliberate indifference claim. First, if a plaintiff suffered from a minor or non-obvióus medical condition, he can show that his condition was objectively serious “if it is ‘one that has been diagnosed by a physician as mandating treatment.’ ” Id at 897 (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)). Second, “where a plaintiff’s claims arise from an injury or illness ‘so obvious that even a layperson would easily recognize the necessity for a doctor’s attention,’ ” the plaintiff can meet the objective prong by showing “that he actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame.” Id. at 899-900 (quoting Gaudreault, 923 F.2d at 208).

Citing Blackmore and our decision in Estate of Carter v. City of Detroit, 408 F.3d 305, 311-12 (6th Cir. 2005), Mattox argues that: (i) his heart attack symptoms were so obvious that he does not need to show medical evidence verifying that he needed treatment; and (ii) there is no requirement that he show that he was actually suffering from a serious medical condition as long as he can show that prison staff failed to respond to circumstances that created a substantial risk of serious harm.

Mattox’s arguments flatly misstate the law. As we explained in Blackmore, when a plaintiff can show that his need for medical care was so obvious that even a layperson should recognize it, he is not required to provide objective evidence that he needed medical care at the time he was experiencing the symptoms. Blackmore, 390 F.3d at 899-900. This makes sense — if a plaintiff has been stabbed, for instance, he should not require a doctor’s diagnosis of internal bleeding before prison staff should be expected to tend to his medical needs. But the “obvious malady” theory does not excuse a plaintiff from showing that he actually needed medical care. As Blackmore itself recognizes, a plaintiff proceeding under this theory must still show “that he actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame.” Id. at 900 (emphasis added).

As the district court correctly noted, it is clear from the face of Mattox’s complaint that he did not actually need medical care on August 14, 2011. The complaint does not allege that Mattox suffered a heart attack that night. Moreover, Mattox was seen by a prison doctor on August 15, 2011, who did not prescribe him any medication. He was then sent to a hospital for consultation with a cardiologist, who also apparently did not prescribe Mattox any medication. When, in April 2012, Mattox received a cardiac catheterization test, it did not show a serious heart problem. Because Mattox has not demonstrated that he actually suffered a heart attack or some similarly serious problem on August 14, 2011, the district court correctly determined that he has not pleaded an objectively serious medical condition.

The cases Mattox relies upon in support of his argument are distinguishable. In Estate of Carter, the plaintiff actually suffered a fatal heart attack. 408 F.3d at 306, Similarly, in Westlake v. Lucas, 537 F.2d 857, 858-60 (6th Cir. 1976), the plaintiff suffered from a formally diagnosed medical condition — a bleeding stomach ulcer— that went untreated. Finally, in Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), the Supreme Court recognized that prisoners can state a deliberate indifference claim for future, as well as present harm. However, the plaintiff in Helling alleged that he was being regularly exposed to toxic tobacco smoke, while Mattox has not alleged any similar ongoing injury here. Id. at 28-29, 113 S.Ct. 2475.

Accordingly, we hold that Mattox failed to plead that he suffered from an objectively serious medical condition on August 14, 2011, and that his claim against P.A. Neff was therefore properly dismissed. Because Mattox did not plead an objectively serious medical condition, there is no need to analyze whether he sufficiently pleaded the subjective prong of his deliberate indifference claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the dismissal of Mattox’s claims against P.A. Neff, and REVERSE the dismissal of his claims against Dr. Pandya, Dr. Jordan and Dr. Borgerding. We REMAND for further proceedings consistent with this opinion.

      . In layman’s terms, the test suggested that part of Mattox’s heart was not receiving sufficient blood or oxygen.

      . Mattox has abandoned his claims against Dr. Edelman and Corizon on appeal, and so we do not discuss them.

      . Mattox is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2)(B)(ii) requires a district court to dismiss an IFP complaint if at any point it determines that the complaint "fails to state a claim on which relief may be granted.” The magistrate judge invoked this authority in sua sponte dismissing Mattox’s claims against Dr. Jordan, despite the fact that Dr. Jordan has not been served and has not answered. See Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) ("[A] court can dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust.”).

      . Specifically, the PLRA's exhaustion provision provides that “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

      . The district court also concluded that Mat-tox waived his right to argue that he was permitted to add newly exhausted claims through Rule 15(d) because he did not challenge "the Magistrate Judge's view of the law” in his objections to the magistrate judge’s Report and Recommendation. Mattox III, 2016 WL 945340, at *6. We disagree. In his objections, Mattox argued that when he “first moved to amend his original complaint, it was only to include discovered defendants whose actions covered plaintiff's original claim of deliberate indifferences resulting from defendants [sic] refusal-to provide adequate medical treatment. Thus, contrary to the magistrate Judge's conclusion, there was never an issue of failure to exhaust administrative remedies at issue in this case, because exhaustion was completed on each named defendant.” (R. 150, Mattox Objections, at 5-6.) This was sufficient to preserve this issue, particularly in light of the liberal standards that apply to filings by pro se litigants. See, e.g., Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) ("Pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings.”). Moreover, we are confident that the district court understood the import of Mattox’s argument because the magistrate judge acknowledged that several cases had determined that claims exhausted post-filing can be validly added via Rule 15(d), and we presume that the district court read the Report and Recommendation it adopted. Mattox II, 2016 WL 398242, at *3 (collecting cases).

      . We have addressed the interaction between the PLRA's exhaustion requirement and Rule 15(d) because the magistrate judge construed Mattox’s motion for leave to amend as a motion pursuant to Rule 15(d). We note, however, that the result would have been the same if Mattox had moved to amend his complaint pursuant to Rule 15(a). See Cannon, 418 F.3d at 720.

      . We note that our opinion only holds that Defendants are not entitled to summary judgment on their administrative exhaustion defense. The issue of whether there are genuine issues of material fact going to the merits of Mattox’s claims is not before us in this appeal. Our opinion should not be misconstrued as precluding the district court from considering any other properly filed dispositive motions on remand.