Henricks v. Pickaway Correctional Institution et al

Filing 246

REPORT AND RECOMMENDATIONS re 238 MOTION for Order to GRANT LEAVE TO PURSUE A QUALIFIED IMMUNITY DEFENSE BY ESTABLISHING THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT WHICH WOULD REQUIRE EMPANELLING A JURY filed by Doctor Gonzales, Maynard. It is RECOMMENDED that defendants' Motion be GRANTED with regard to defendant Maynard's assertion of a qualified immunity defense at trial, and DENIED with respect to defendant Gonzalez. The parties are DIRECTED to propose a revised schedule within 14 days. Objections to R&R due by 12/14/2015. Signed by Magistrate Judge Norah McCann King on 11/25/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN K. HENRICKS,
Plaintiff,
Case No. 2:08-cv-00580
Judge Smith
Magistrate Judge King

v.

PICKAWAY CORRECTIONAL INSTITUTION,
et al.,
Defendants.

REPORT AND RECOMMENDATION
This is a civil rights action under 42 U.S.C. § 1983 in which
plaintiff alleges that, while he was incarcerated at the Pickaway
Correctional Institution (“PCI”), Dr. Ida Gonzalez and Corrections
Officer Michael Maynard (collectively, “defendants”) were deliberately
indifferent to plaintiff’s serious medical needs.1 This matter is now
before the court on Defendants Dr. Ida Gonzalez and Officer Michael
Maynard’s Motion for Leave to Pursue a Qualified Immunity Defense by
Establishing That There Is No Genuine Issue of Material Fact Which
Would Require Empanelling a Jury, ECF 238 (“Motion for Leave”).
Because resolution of the Motion for Leave may foreclose a significant
defense and will certainly significantly impact the trial in this
action, the undersigned issues only a recommended disposition of the
motion.

1

Although plaintiff originally asserted additional claims against additional
defendants, only these claims against defendants Gonzalez and Maynard remain.

1

Background
Earlier in these proceedings, this Court struck defendants’
affirmative defenses based on failure to exhaust administrative
remedies and qualified immunity because defendants had failed to raise
the defenses in an answer. Order and Report and Recommendation, ECF
226; Order, ECF 229. On interlocutory appeal, the United States Court
of Appeals for the Sixth Circuit held that this Court had not abused
its discretion in finding a waiver of the defense of qualified
immunity. Henricks v. Pickaway Correctional Institution, 782 F.3d 744
(6th Cir. 2015).2 However, the Sixth Circuit also expressly held that
this Court “on remand may determine that the defendants’ waiver of
qualified immunity in pre-trial proceedings does not preclude the
defendants from asserting the defense at trial.” Id. at 752.
At a status conference held in this case following the issuance
of the mandate of the Court of Appeals, defendants indicated that they
intended to pursue a qualified immunity defense.

See Order, ECF 236.

This Court therefore directed defendants to file a motion seeking
leave to do so and addressing, “at a minimum, (1) whether defendants
may pursue a qualified immunity defense, (2) the discovery, if any,
necessary to the litigation of that defense, and (3) the effect of the
denial of leave to pursue that defense.” Id. Defendants thereupon
filed their Motion for Leave. Plaintiff opposes the Motion for Leave.
Plaintiff’s Memorandum in Opposition, ECF 238. Defendants have filed a
reply. Defendants Dr. Ida Gonzalez and Officer Michael Maynard’s Reply

2

The Sixth Circuit also held that it lacked jurisdiction to determine whether
this Court had properly ordered stricken defendants’ defense based on
exhaustion of administrative remedies. Henricks, 782 F.3d at 752.

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in Support of Their Motion for Leave to Pursue Qualified Immunity as
Authorized by the Court in Order (Document # 236), ECF 241 (“Reply”).
Discussion
The Motion for Leave takes the position that defendants are
entitled to the protection of the defense of qualified immunity and
that trial on plaintiff’s claims is unnecessary because of “the lack
of evidence demonstrating a clearly established violation of the law.
. . .” Id. at PAGEID# 1857. Defendants ask that the Court “either
convert [the Motion for Leave] to a summary judgment pleading pursuant
to Fed. R. Civ. P. 56, or allow additional briefing on this issue.”
Id. Attached to the Motion for Leave are a number of declarations of
individuals who address the merits of plaintiff’s claims. Declaration
of Andrew D. Eddy, M.D. (with attached exhibits); Declaration of
Gregory M. Figg, M.D. (with attached exhibits); Declaration of Agnes
M. Hurtuk, M.D. (with attached exhibits); Declaration of Sorabh
Khandelwal, M.D. (with attached exhibits); and Declaration of Nneka
Ezeneke, M.D. Referring to this proffered evidence, defendants argue
that there is “no evidence of deliberate indifference and accordingly,
no evidence of a violation of a clearly established constitutional
right.” Motion for Leave, PAGEID# 1853.
In response, plaintiff characterizes the Motion for Leave as an
impermissible second motion for summary judgment and argues that,
because defendants failed to raise the defense of qualified immunity
in an answer, they should not be permitted to assert that defense even
at trial. Indeed, plaintiff contends, because defendants failed to
file an answer, they have admitted the allegations in the Complaint

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and should not be permitted to submit evidence that controverts those
allegations. Plaintiff further argues that, because defendant Gonzalez
was acting as an independent contractor, she is not entitled to invoke
the protection of qualified immunity. In any event, plaintiff
contends, there are genuine issues of material fact that preclude
summary judgment in favor of the defendants. See generally Plaintiff’s
Memorandum in Opposition.
Qualified immunity is an affirmative defense that must be
affirmatively pleaded. English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994). The defense may be raised “in a motion to dismiss, after
discovery in a motion for summary judgment, or as an affirmative
defense at trial.” Id. at 1089. Accordingly, if a party waives, fails
to raise, or is denied the protection of qualified immunity at the
motion for summary judgment stage, that party remains free to raise
the defense at trial. See Bolick v. City of East Grand Rapids, 580
F.App’x 314, 322 (6th Cir. 2014). However, where the defense is raised
at trial, the issue is resolved by the trial record, not by the record
on summary judgment. Id. (citing Ortiz v. Jordan, 562 U.S. 180
(2011)).
As noted supra, this Court ordered stricken the defense of
qualified immunity and denied defendants’ motion for summary judgment.
Order and Report and Recommendation, ECF 226; Order, ECF 229. It would
therefore be inappropriate, in the view of this Court, to permit
defendants to raise that defense at the pretrial stage, in a renewed
motion for summary judgment or otherwise. However, the Court of
Appeals left open the possibility that defendants might pursue that

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defense at trial. Henricks, 782 F.3d at 752; see also English, 23 F.3d
at 1090 (“the trial court has discretion to find a waiver...[; s]uch a
waiver, however, need not waive the defense for all purposes but would
generally only waive the defense for the stage at which the defense
should have been asserted”).
Ordinarily, federal courts favor resolution of claims and
defenses on the merits rather than “on the basis of procedural
missteps.” United States v. $22,050.00 U.S. Currency, 595 F.3d 318,
322 (6th Cir. 2010).

In determining whether a party who has waived the

defense of qualified immunity at one stage of the proceedings may be
found to have waived the defense at a subsequent stage, a court must
consider whether the delay in raising the defense was intentional and
the extent to which the plaintiff will suffer prejudice. English, at
1090 n.1.
In the case presently before the Court, the waiver of the defense
of qualified immunity was a consequence of inaction on the part of
defense counsel, not the parties, and it would be harsh indeed to
impose on an individual litigant a penalty for a default of counsel.
Moreover, although the Court declines to consider at this juncture the
evidence attached to the Motion for Leave, and although this Court
declines to speculate at this juncture as to the merits of such a
defense, the Court is nevertheless persuaded that a colorable defense
of qualified immunity may be presented at trial.
The Court acknowledges that plaintiff may be prejudiced by the
delay associated with the assertion of the defense of qualified
immunity at trial. There has already been extraordinary delay in

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bringing this litigation to final resolution. Some of that delay has
been justified; some of that delay has not. Moreover, additional
discovery may be required because at least some of the evidence upon
which defendants intend to rely at trial3 originates with individuals
whom defendants failed to previously disclose to plaintiff. See
Plaintiff’s Memorandum in Opposition, PAGEID# 1915. However, the Court
concludes that this prejudice may be ameliorated to an extent by
reopening discovery for a very brief period of time in order to permit
the parties to prepare for a trial at which all parties have the
opportunity to fully address the merits of all claims and defenses. To
that end, the Court will expect counsel for the parties to confer with
each other with a view to proposing a schedule that permits the
parties to conduct the necessary additional discovery.
Plaintiff contends that, even if the defense of qualified
immunity has not been waived for all purposes, defendant Gonzalez may
not properly invoke the protection of that defense.

The parties agree

that, during the relevant period, defendant Gonzalez was employed –
not by the States of Ohio – but by Clinicare Consultants, Inc., a
medical practice hired by PCI or the Ohio Department of Rehabilitation
and Correction to provide medical services to prison inmates. March
20, 2013 Deposition of Ida Gonzalez Lockhart, M.D., ECF 208-14,
PAGEID# 1430, 1437; Plaintiff’s Memorandum in Opposition, PAGEID#
1913; Reply, PAGEID# 1949.

3

The proffered evidence would presumably relate to the merits of the case, in
addition to the defense of qualified immunity.

6

It has long been established that physicians who render medical
services to inmates pursuant to a contract with a state act under
color of state law for purposes of § 1983. West v. Atkins, 487 U.S. 42
(1988). However, “a party is not entitled to assert qualified immunity
simply because he is amenable to suit under § 1983.” McCullum v. Tepe,
693 F.3d 696, 700 (6th Cir. 2012)(psychiatrist employed by non-profit
entity to provide services in county jail not entitled to assert
qualified immunity). It is only if “(1) there was a firmly rooted
history of immunity for similarly situated parties at common law; and
(2) whether granting immunity would be consistent with the history and
purpose of § 1983,” that the party may invoke the protections of the
defense. Id. (citing Filarsky v. Delia, -- U.S. --, 132 S.Ct. 1657,
1662 (2012)).
The Sixth Circuit expressly held in McCullum that “there does not
appear to be any history of immunity for a private doctor working for
the government, and the policies that animate our qualified-immunity
cases do not justify our creating an immunity unknown to the common
law.” Id. at 704. District courts within the Sixth Circuit have
applied the reasoning of McCullum to hold that independent contractors
providing medical care in state prisons or county jails are not
entitled to the protections of qualified immunity.

McDaniel v. Sevier

County, No. 3:13-cv-208, 2013 WL 1120866, at *5 (E.D. Tenn. Mar. 18,
2013)(physician in county jail); Hamilton v. Pike County, No. 11-99ART, 2013 WL 529936, at *9-10 (E.D. Ky. Feb. 11, 2013)(physician in
Kentucky county jail). See also Estate of Pridemore v. Bluegrass
Regional Mental Health-Mental Retardation Bd. 2012 WL 6691597 (E.D.

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Ky. Dec. 21, 2012)(licensed clinical social worker). See also Harrison
v. Ash, 539 F.3d 510, 519-24 (6th Cir. 2008)(Michigan prison nurses
employed by private entity not entitled to invoke qualified immunity).
Lee v. Willey, 543 F.App’x 503 (6th Cir. 2013), in which the
Sixth Circuit held that a psychiatrist working on a contract basis for
the Michigan Department of Corrections could not assert the
protections of the defense of qualified immunity, reaffirmed McCullum
on this issue. Lee, at 503-04. In doing so, the Sixth Circuit rejected
the propositions that (1) previous Supreme Court decisions provided
for common-law immunity for private doctors; (2) the McCullum Court
erroneously assumed that nineteenth century courts’ silence on this
issue meant that immunity did not exist; (3) physicians are not
distinguishable from other protected functions; and (4) McCullum
applies only to private prisons and private prison employees. Id. at
506-07.
Defendants cite Reilly v. Vadlamudi, 680 F.3d 617 (6th Cir. 2012)
and Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997), for the
proposition that certain private employees working for state or local
entities are entitled to the protection of qualified immunity. See
Reply, PAGEID# 1950. In Cullinan, however, the relevant defendants
were outside attorneys acting directly as agents for the City of
Louisville, Kentucky. See id. at 310. Furthermore, and although Reilly
involved a physician working in a Michigan prison, both Reilly and
Cullinan were decided before the issue was clarified by the Sixth
Circuit in McCullum and reaffirmed in Lee.

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In support of defendant Gonzalez’ claim to qualified immunity,
defendants also refer to Santiago v. Ringle, 734 F.3d 585 (6th Cir.
2013), in which “the Sixth Circuit . . . determined that two (2)
physicians, who were incidentally also employed as was Dr. Gonzalez,
through Clinicare Consultants, Inc., were entitled to an award of
qualified immunity.” Reply, PAGEID# 1950. However, although the Sixth
Circuit in Santiago affirmed the district court’s award of qualified
immunity to the doctors working in an Ohio prison, the court did so on
the basis that the plaintiff had not established a violation of a
constitutional right. Id. at 593.
Defendant Gonzalez also argues that, although she worked at the
relevant time for an entity other than the State of Ohio, she is
nevertheless a state “employee” entitled to the defense of qualified
immunity. Ohio law includes in the definition of “[o]fficer or
employee” of the State a “person that [sic], at the time of a cause of
action against the person . . . is rendering medical . . . services
pursuant to a personal services contract . . . with a [state]
department, agency, or institution”). O.R.C. § 109.36(A)(1)(b).
Defendants note that defendant Gonzalez is, like defendant Maynard,
represented in this action by the Ohio Attorney General and they
specifically represent4 that defendant Gonzalez, if found liable, will
be indemnified by the State of Ohio. Id.
This Court has found no authority construing the effect of O.R.C.
§ 109.36(A)(1)(b) on the availability of the defense of qualified

4

Defendants provide no evidence in support of this representation; however,
they offer to do so upon request. Reply, PAGEID# 1949.

9

immunity to a prison doctor employed by a private entity, and the
parties have pointed to none. However, it is significant that it was
not defendant Gonzalez who contracted with the State of Ohio to
provide medical services to prison inmates; it was her employer that
did so. A number of Ohio courts have held that a physician employed by
an independent contractor is not a state employee within the meaning
of § 109.36(A)(1)(b). Marotto v. Ohio State Univ. Med. Ctr., 2014Ohio-4549, ¶¶ 44-45, 21 N.E.3d 643, 654 (Ohio 10th Dist. Ct. App.
2014); Smith v. Ohio State Univ. Hosp., 110 Ohio App. 3d 412 (Ohio 10th
Dist. Ct. App. 1996); Cullen v. Ohio Department of Rehabilitation and
Correction, 125 Ohio App. 3d 758, 765 (10th Dist. Ct. App. 1998);
Nichols v. Villarreal, 94 Ohio App. 3d 173 (10th Dist. Ct. App. 1994);
Ballengee v. Ohio Dept. of Rehab. & Corr., 79 Ohio Misc. 2d 69, 76
(Ohio Ct. Cl. 1996).
This Court concludes that defendant Gonzalez may not invoke the
defense of qualified immunity. This defendant has failed to point to
any firmly rooted tradition of immunity conferred on private parties
like her, nor does the history and purpose of § 1983 justify extending
this defense to her. See McCollum.
It is therefore RECOMMENDED that defendants’ Motion for Leave,
ECF No. 238, be GRANTED with regard to defendant Maynard’s assertion
of a qualified immunity defense at trial, and DENIED with respect to
defendant Gonzalez. The parties are DIRECTED to propose a revised
schedule within 14 days.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file

10

and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

to

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
November 25, 2015

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