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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Joseph Garner, et al. Plaintiffs, 11 12 13 vs. Mohave County, et al., Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) No. CV-15-08147-PCT-PGR ORDER 16 Pending before the Court is Defendant John Anastasoff’s Motion for Partial 17 Judgment on the Pleadings Regarding the Applicability of Qualified Immunity (Doc. 18 79), to which defendant Donovan Schmidt has filed a joinder (Doc. 77), as have 19 defendants Jonnie Rothermel and Margaret Saltsgiver (Doc. 80). Having considered 20 the parties’ memoranda, the Court finds that the motion and its joinders should be 21 denied because it concludes as a matter of law that the individual medical 22 defendants are not within the class of persons to whom qualified immunity is 23 afforded. 24 The plaintiffs allege in their First Amended Complaint, which contains two 25 federal claims pursuant to 42 U.S.C. § 1983 and a state law wrongful death claim, 26 that Karen Garner, then an inmate in the Mohave County Adult Detention Facility 1 (the “jail”) died as a result of the defendants’ deliberate indifference to her serious 2 medical needs and their failure to provide her with reasonable medical care while 3 she was incarcerated. Among the defendants are nurse John Anastasoff, nurse 4 Jonnie Rothermel, nurse Margaret Saltsgiver, and Dr. Donovan Schmidt (collectively 5 the “defendants”), all of whom are non-Mohave County employees who worked at 6 the jail for the private corporate entity, alleged by the defendants to be defendant 7 Corizon Health, Inc., that had a contract with Mohave County to provide medical 8 care to the inmates in the jail. 9 The defendants argue, first, that they are eligible to claim qualified immunity 10 for the constitutional violations alleged against them in the plaintiffs’ § 1983 claims 11 and, second, that they are in fact entitled to qualified immunity based on the current 12 record such that the § 1983 claims must be dismissed. Because the Court is not 13 persuaded that the defendants are eligible for qualified immunity, it does not reach 14 the issue of their entitlement to it. 15 The defendants, who were not public employees at the time of the events at 16 issue, contend that their eligibility for qualified immunity should not be denied merely 17 because they provided the public function of medical care and treatment to the jail 18 inmates through the county’s private medical care contractor. Relying on Filarsky 19 v. Delia, ___ U.S. ___, 132 S.Ct. 1657 (2012), they argue that they should be eligible 20 for the defense of qualified immunity as would county employees performing the 21 same function. The plaintiffs argue that the defendants are not eligible for qualified 22 immunity pursuant to Richardson v. McKnight, 521 U.S. 399 (1997). While the law 23 on qualified immunity for private actors performing governmental duties in similar 24 circumstances is not completely settled in this circuit inasmuch as the Ninth Circuit 25 has not examined the reach of Filarsky’s holding in light of Richardson and its Ninth 26 -2- 1 Circuit progeny, the Court agrees with the plaintiffs that the circumstances of this 2 action are more analogous to those of Richardson than those of Filarsky and that the 3 defendants are not eligible for qualified immunity under Richardson. 4 In Richardson, the Supreme Court held that prison guards employed by a 5 large, for-profit multistate private prison management company that had contracted 6 with the state to manage the prison were not entitled to qualified immunity in a 7 prisoner’s § 1983 action against them. In deciding not to extend qualified immunity 8 to the privately-employed guards, the Supreme Court looked at the history and 9 purposes of qualified immunity. It first concluded that while prisons had historically 10 been run by both public and private state actors, no firmly rooted tradition of 11 immunity for private prison guards had developed around the time § 1983 was 12 adopted in the late Nineteenth Century. It next looked at the purposes behind 13 qualified immunity, which it noted were (1) protecting against unwarranted timidity 14 on the part of government officials, (2) ensuring that talented candidates are not 15 deterred from entering public service, and (3) preventing the distraction of 16 governmental officials by lawsuits. It concluded that none of these purposes 17 mandated qualified immunity for the guards because the problem of unwarranted 18 timidity would be overcome by ordinary market forces as private firms vied to provide 19 the contractual services, because the flexibility of privatization could provide higher 20 pay and benefits and insurance and indemnification to reduce the deterrence factor, 21 and because the distraction of litigation was alone insufficient to justify qualified 22 immunity. 521 U.S. at 409-12. 23 In reliance on Richardson, the Ninth Circuit, in Jensen v. Lane County, 222 24 F.3d 570 (9th Cir.2000), subsequently held that a psychiatrist, who was affiliated with 25 a private psychiatric group that contracted with a county facility to provide mental 26 -3- 1 health care, was not entitled to qualified immunity in a § 1983 action by a prisoner 2 whose detention was temporarily extended by the psychiatrist for a mental health 3 evaluation. The Ninth Circuit, noting that the case was similar enough to Richardson 4 to warrant using its rationale, concluded there was no definitive common law history 5 of immunity that would support a finding of qualified immunity under the 6 circumstances of the case, and that the same market forces and privatization 7 flexibility contemplated in Richardson overcame the timidity and deterrence factors 8 because the private psychiatric group that employed the defendant “must provide 9 psychiatric services for the County with the market threat of replacement for failure 10 to complete [its] duties adequately” and because “the potential for insurance, 11 indemnification agreements, and higher pay all may operate to encourage qualified 12 candidates to engage in this endeavor and to discharge their duties vigorously.” 222 13 F.3d at 578. 14 In Filarsky, the more recent case on which the defendants rely, the Supreme 15 Court held that a private attorney temporarily retained by a municipality to assist in 16 an internal investigation of a city employee accused of wrongdoing was entitled to 17 seek qualified immunity in a § 1983 action by the employee. It rejected the Ninth 18 Circuit’s underlying decision that the attorney was not entitled to qualified immunity 19 solely because he was not a permanent, full-time city employee, noting that the 20 common law did not draw such a distinction and there was no reason to do so under 21 § 1983. In determining that the private attorney was eligible for qualified immunity, 22 the Supreme Court did not call its prior decision in Richardson into question; rather 23 it noted that its decision was not contrary to Richardson. It adopted Richardson’s 24 historical and policy factors underlying qualified immunity in § 1983 actions, but 25 distinguished Richardson’s outcome on the basis that Richardson was a narrow 26 -4- 1 decision that was not meant to foreclose all claims of immunity by private individuals; 2 instead, it looked to the fact that Richardson “emphasized that the particular 3 circumstances of that case - a private firm, systematically organized to assume a 4 major lengthy administrative task (managing an institution) with limited direct 5 supervision by the government, undertaking that task for profit and potentially in 6 competition with other firms - combined sufficiently to mitigate the concerns 7 underlying recognition of governmental immunity under § 1983.” 132 S.Ct. at 1667 8 (internal quotation marks and brackets omitted). The Supreme Court concluded that 9 “[n]othing of the sort” was involved in Filarsky. Id. 10 But something of the Richardson sort is involved here, and the Court agrees 11 with those post-Filarsky cases that have refused to extend Filarsky to privately- 12 employed health care providers working in detention centers or correctional facilities. 13 For example, in McCollum v. Tepe, 693 F.3d 696 (6th Cir.2012), the court concluded 14 that a physician, employed by an independent non-profit organization, who worked 15 part-time for a county as a prison psychiatrist, could not invoke qualified immunity 16 in a § 1983 action arising out of his activities at the prison. Following the Richardson 17 historical and policy factors, the court concluded, after acknowledging Filarsky, that 18 there “does not appear to be any history of immunity for a private doctor working for 19 the government, and the policies that animate our qualified-immunity cases do not 20 justify our creating an immunity unknown to the common law.” Id. at 704. Also, in 21 Currie v. Chhabra, 728 F.3d 626 (7th Cir.2013), which involved a § 1983 action 22 brought against medical professionals employed by a private company providing 23 medical care to the jail inmates under a contract with the county, affirmed the denial 24 of qualified immunity to the defendants. Although the court concluded that it need 25 not definitively decide the issue of whether the defendants were eligible for qualified 26 -5- 1 immunity after Filarsky, it noted that it found the Sixth Circuit’s post-Filarsky 2 reasoning in McCullum on the qualified immunity eligibility issue to be “persuasive.” 3 Id. at 632; see also, Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 794 n.3 4 (7th Cir.2014) (“Although Richardson involved a private prison, some circuits 5 (including our own) have applied Richardson to private medical providers, holding 6 that they are similarly barred from asserting immunity under § 1983.”) Therefore, 7 IT IS ORDERED that Defendant John Anastasoff’s Motion for Partial 8 Judgment on the Pleadings Regarding the Applicability of Qualified Immunity (Doc. 9 79), including all joinders thereto, is denied on the ground that the defense of 10 qualified immunity is not available to the individual medical defendants. 11 DATED this 22nd day of February, 2016. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -6-

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