Garner et al v. Mohave County et al

Filing 135

ORDER denying #79 Motion for Partial Judgment on the Pleadings Regarding the Applicability of Qualified Immunity. See order for details. Signed by Senior Judge Paul G Rosenblatt on 2/22/2016.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Garner, et al.
Plaintiffs,

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vs.
Mohave County, et al.,
Defendants.

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No. CV-15-08147-PCT-PGR
ORDER

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Pending before the Court is Defendant John Anastasoff’s Motion for Partial

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Judgment on the Pleadings Regarding the Applicability of Qualified Immunity (Doc.

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79), to which defendant Donovan Schmidt has filed a joinder (Doc. 77), as have

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defendants Jonnie Rothermel and Margaret Saltsgiver (Doc. 80). Having considered

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the parties’ memoranda, the Court finds that the motion and its joinders should be

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denied because it concludes as a matter of law that the individual medical

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defendants are not within the class of persons to whom qualified immunity is

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afforded.

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The plaintiffs allege in their First Amended Complaint, which contains two

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federal claims pursuant to 42 U.S.C. § 1983 and a state law wrongful death claim,

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that Karen Garner, then an inmate in the Mohave County Adult Detention Facility

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(the “jail”) died as a result of the defendants’ deliberate indifference to her serious

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medical needs and their failure to provide her with reasonable medical care while

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she was incarcerated. Among the defendants are nurse John Anastasoff, nurse

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Jonnie Rothermel, nurse Margaret Saltsgiver, and Dr. Donovan Schmidt (collectively

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the “defendants”), all of whom are non-Mohave County employees who worked at

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the jail for the private corporate entity, alleged by the defendants to be defendant

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Corizon Health, Inc., that had a contract with Mohave County to provide medical

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care to the inmates in the jail.

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The defendants argue, first, that they are eligible to claim qualified immunity

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for the constitutional violations alleged against them in the plaintiffs’ § 1983 claims

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and, second, that they are in fact entitled to qualified immunity based on the current

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record such that the § 1983 claims must be dismissed. Because the Court is not

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persuaded that the defendants are eligible for qualified immunity, it does not reach

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the issue of their entitlement to it.

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The defendants, who were not public employees at the time of the events at

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issue, contend that their eligibility for qualified immunity should not be denied merely

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because they provided the public function of medical care and treatment to the jail

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inmates through the county’s private medical care contractor. Relying on Filarsky

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v. Delia, ___ U.S. ___, 132 S.Ct. 1657 (2012), they argue that they should be eligible

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for the defense of qualified immunity as would county employees performing the

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same function. The plaintiffs argue that the defendants are not eligible for qualified

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immunity pursuant to Richardson v. McKnight, 521 U.S. 399 (1997). While the law

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on qualified immunity for private actors performing governmental duties in similar

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circumstances is not completely settled in this circuit inasmuch as the Ninth Circuit

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has not examined the reach of Filarsky’s holding in light of Richardson and its Ninth

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Circuit progeny, the Court agrees with the plaintiffs that the circumstances of this

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action are more analogous to those of Richardson than those of Filarsky and that the

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defendants are not eligible for qualified immunity under Richardson.

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In Richardson, the Supreme Court held that prison guards employed by a

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large, for-profit multistate private prison management company that had contracted

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with the state to manage the prison were not entitled to qualified immunity in a

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prisoner’s § 1983 action against them. In deciding not to extend qualified immunity

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to the privately-employed guards, the Supreme Court looked at the history and

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purposes of qualified immunity. It first concluded that while prisons had historically

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been run by both public and private state actors, no firmly rooted tradition of

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immunity for private prison guards had developed around the time § 1983 was

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adopted in the late Nineteenth Century. It next looked at the purposes behind

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qualified immunity, which it noted were (1) protecting against unwarranted timidity

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on the part of government officials, (2) ensuring that talented candidates are not

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deterred from entering public service, and (3) preventing the distraction of

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governmental officials by lawsuits. It concluded that none of these purposes

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mandated qualified immunity for the guards because the problem of unwarranted

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timidity would be overcome by ordinary market forces as private firms vied to provide

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the contractual services, because the flexibility of privatization could provide higher

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pay and benefits and insurance and indemnification to reduce the deterrence factor,

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and because the distraction of litigation was alone insufficient to justify qualified

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immunity. 521 U.S. at 409-12.

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In reliance on Richardson, the Ninth Circuit, in Jensen v. Lane County, 222

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F.3d 570 (9th Cir.2000), subsequently held that a psychiatrist, who was affiliated with

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a private psychiatric group that contracted with a county facility to provide mental

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health care, was not entitled to qualified immunity in a § 1983 action by a prisoner

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whose detention was temporarily extended by the psychiatrist for a mental health

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evaluation. The Ninth Circuit, noting that the case was similar enough to Richardson

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to warrant using its rationale, concluded there was no definitive common law history

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of immunity that would support a finding of qualified immunity under the

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circumstances of the case, and that the same market forces and privatization

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flexibility contemplated in Richardson overcame the timidity and deterrence factors

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because the private psychiatric group that employed the defendant “must provide

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psychiatric services for the County with the market threat of replacement for failure

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to complete [its] duties adequately” and because “the potential for insurance,

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indemnification agreements, and higher pay all may operate to encourage qualified

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candidates to engage in this endeavor and to discharge their duties vigorously.” 222

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F.3d at 578.

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In Filarsky, the more recent case on which the defendants rely, the Supreme

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Court held that a private attorney temporarily retained by a municipality to assist in

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an internal investigation of a city employee accused of wrongdoing was entitled to

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seek qualified immunity in a § 1983 action by the employee. It rejected the Ninth

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Circuit’s underlying decision that the attorney was not entitled to qualified immunity

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solely because he was not a permanent, full-time city employee, noting that the

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common law did not draw such a distinction and there was no reason to do so under

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§ 1983. In determining that the private attorney was eligible for qualified immunity,

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the Supreme Court did not call its prior decision in Richardson into question; rather

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it noted that its decision was not contrary to Richardson. It adopted Richardson’s

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historical and policy factors underlying qualified immunity in § 1983 actions, but

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distinguished Richardson’s outcome on the basis that Richardson was a narrow

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decision that was not meant to foreclose all claims of immunity by private individuals;

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instead, it looked to the fact that Richardson “emphasized that the particular

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circumstances of that case - a private firm, systematically organized to assume a

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major lengthy administrative task (managing an institution) with limited direct

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supervision by the government, undertaking that task for profit and potentially in

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competition with other firms - combined sufficiently to mitigate the concerns

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underlying recognition of governmental immunity under § 1983.” 132 S.Ct. at 1667

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(internal quotation marks and brackets omitted). The Supreme Court concluded that

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“[n]othing of the sort” was involved in Filarsky. Id.

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But something of the Richardson sort is involved here, and the Court agrees

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with those post-Filarsky cases that have refused to extend Filarsky to privately-

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employed health care providers working in detention centers or correctional facilities.

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For example, in McCollum v. Tepe, 693 F.3d 696 (6th Cir.2012), the court concluded

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that a physician, employed by an independent non-profit organization, who worked

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part-time for a county as a prison psychiatrist, could not invoke qualified immunity

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in a § 1983 action arising out of his activities at the prison. Following the Richardson

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historical and policy factors, the court concluded, after acknowledging Filarsky, that

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there “does not appear to be any history of immunity for a private doctor working for

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the government, and the policies that animate our qualified-immunity cases do not

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justify our creating an immunity unknown to the common law.” Id. at 704. Also, in

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Currie v. Chhabra, 728 F.3d 626 (7th Cir.2013), which involved a § 1983 action

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brought against medical professionals employed by a private company providing

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medical care to the jail inmates under a contract with the county, affirmed the denial

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of qualified immunity to the defendants. Although the court concluded that it need

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not definitively decide the issue of whether the defendants were eligible for qualified

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immunity after Filarsky, it noted that it found the Sixth Circuit’s post-Filarsky

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reasoning in McCullum on the qualified immunity eligibility issue to be “persuasive.”

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Id. at 632; see also, Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 794 n.3

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(7th Cir.2014) (“Although Richardson involved a private prison, some circuits

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(including our own) have applied Richardson to private medical providers, holding

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that they are similarly barred from asserting immunity under § 1983.”) Therefore,

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IT IS ORDERED that Defendant John Anastasoff’s Motion for Partial

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Judgment on the Pleadings Regarding the Applicability of Qualified Immunity (Doc.

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79), including all joinders thereto, is denied on the ground that the defense of

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qualified immunity is not available to the individual medical defendants.

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DATED this 22nd day of February, 2016.

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