Employees of for-profit corporations providing prison medical care are not entitled to qualified immunity from § 1983 liability.

The title of this blog post is the holding of a recent Tenth Circuit case, Tanner v. McMurray, https://www.ca10.uscourts.gov/opinions/19/19-2166.pdf (10th Cir. 3/2/2021).  All quotations below (except the statute itself) are from Senior Circuit Judge Lucero’s outstanding opinion for a unanimous panel.  Footnotes, citations and internal brackets are omitted (i.e., bracketed language is mine); most internal quotation marks are omitted.

As we all learned in our first year of law school, 42 U.S. Code § 1983 provides a civil remedy for violation of constitutional rights under color of law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….

The plain language of the statute

creates a species of tort liability that on its face admits no immunities.  [However, the Supreme Court has] granted government officials a level of immunity if the tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine.  According to the Court, [qualified] immunity is necessary to preserve the ability of government officials to serve the public good or to ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service….

I’ve always thought of the qualified immunity defense as being primarily applicable to police officers.  Certainly that’s the context in which it shows up in the news.  But the fact is, it applies to all government employees, including those who provide medical care to prisoners.  An inmate whose medical needs are mistreated or untreated can’t sue a government-employed physician, nurse, P.A., etc. for malpractice in an ordinary state-law tort action.  Rather, suit must be brought under § 1983, and the defendants are entitled to qualified immunity.  This defense can only be overcome by a showing of deliberate indifference to the plaintiff’s serious medical needs, which is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment, as applied to the states through the Fourteenth Amendment:

A deliberate medical indifference claim requires a plaintiff to satisfy two inquiries.  First, under the objective inquiry, the harm claimed must be sufficiently serious to constitute a deprivation of constitutional dimension.  Second, under the subjective inquiry, the official must have known and disregarded an excessive risk to inmate health or safety.  In contrast, a plaintiff may succeed on a medical malpractice claim against a private practitioner…without a showing of knowledge or intent; that plaintiff must only make a straightforward showing of negligence.

“[I]n many areas, government and private industry may engage in fundamentally similar activities, ranging from electricity production, to waste disposal, to even mail delivery.”  Consequently, the Supreme Court has had to consider the circumstances under which a private party performing a governmental function is entitled to qualified immunity.  Three such cases – Wyatt v. Cole, 504 U.S. 158 (1992); Richardson v. McKnight, 521 U.S. 399 (1997); and Filarsky v. Delia, 566 U.S. 377 (2012) – are discussed at length in the Tanner opinion.  In the second case, Richardson, the Court held that prison guards who are employees of a private, for-profit prison management firm are not entitled to qualified immunity.  You would think that this would be dispositive of a claim that employees of a private, for-profit prison medical care firm are entitled to qualified immunity.  And yet, amazingly, the district court in Tanner dismissed Richardson as “‘self-consciously-narrow’ and inapplicable” and granted summary judgment to the defendants on the basis of qualified immunity.  On appeal, the Tenth Circuit resoundingly reversed.

I will not quote the court’s detailed narration of the heartbreaking facts – the brief summary at the outset of the opinion will do:

Tanner was approximately 35 weeks pregnant and in custody at the Metropolitan Detention Center in Bernalillo County, New Mexico when she went into the final stages of her pregnancy.  Over the ensuing thirty hours, commencing with the point at which her water broke, Appellees – [a physician and two nurses who were] employees of a nationwide private medical contractor – ignored and minimized her symptoms, refused to transport her to a hospital, and failed to conduct even a cursory pelvic examination.  Only minimal attention was given to her: water, Tylenol, and sanitary pads.  After thirty hours of pain and trauma, Tanner gave birth to her son. The child was born with his umbilical cord wrapped around his neck. He was not breathing. He had no pulse.

Of course, on appeal of a grant of summary judgment, the court viewed the facts in the light most favorable to the plaintiff as the non-moving party, and at trial there will be contested issues of fact for the jury to decide.  That said, if you read the whole opinion (which I recommend), you will see that a jury finding of deliberate indifference, which would defeat qualified immunity, would be amply justified.  However, the issue before the court was whether the defendants were entitled to raise a qualified immunity defense at all – and it held that they were not, finding Richardson to be “the closest factual analogue.”  The court rejected the district court’s reliance on Filarsky (in which the Supreme Court applied qualified immunity to a private individual) for the simple reason that Mr. Filarsky was a temporary employee of the government, while the defendants in Tanner were employees of an independent contractor – specifically, “full-time employees of a private, for-profit corporation organized specifically to compete in the marketplace of providing comprehensive medical care in correctional facilities.”

I conclude with a longer look at the court’s discussion of Filarsky, because that case is of particular interest to lawyers:

Filarsky answers the question of “whether an individual hired by the government to do its work is prohibited from seeking qualified immunity, solely because he works for the government on something other than a permanent or fulltime basis.”  Steve Filarsky was an attorney with a substantial private practice who specialized in employment law.  He was temporarily engaged by the city of Rialto, California on a discrete employment investigation.  He was sued under § 1983 for his role in the investigation.  On appeal from an adverse decision, the Supreme Court held that he was eligible to assert qualified immunity.  Throughout the opinion, the Court focuses on the fact that Filarsky was not a full-time employee of the Rialto city government, but was instead an attorney with a private practice occasionally hired by the city to assist in employment investigations.  The historical analysis explains that around the time of the passage of § 1983, “government was administered by members of society who temporarily or occasionally discharged public functions.”  The Court identified a common law tradition of providing “immunity for actions taken while engaged in public service on a temporary or occasional basis.”  Its policy analysis follows a similar theme.  Private individuals, especially those with “specialized knowledge or expertise,” have the option to select “work that will not expose them to liability for government actions” because the government is not their sole or even primary source of livelihood.  On this basis, the Court held that Filarsky, who occasionally engaged in temporary work with the city government, was entitled to the same immunity as the government officials who hired him.

So if you get an occasional or part-time government gig, and someone who thinks they were harmed by your government legal work sues you under § 1983, don’t worry about it – you’re covered.

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