Sanchez v. Oliver ( 2021 )


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  • Case: 20-50282      Document: 00515836518          Page: 1     Date Filed: 04/26/2021
    United States Court of Appeals
    for the Fifth Circuit                                   United States Court of Appeals
    Fifth Circuit
    FILED
    April 26, 2021
    No. 20-50282                           Lyle W. Cayce
    Clerk
    Kathy R. Sanchez, individually and as dependent administrator of, and
    on behalf of, The Estate Of Eli Gauna, JR. and Eli Gauna,
    JR.’s heirs-at-law,
    Plaintiff—Appellant,
    versus
    Natalee G. Oliver,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:19-CV-221
    Before Jones, Clement, and Graves, Circuit Judges.
    Edith Brown Clement, Circuit Judge:
    Eli Gauna, Jr., took his own life while being held in the Bell County jail
    as a pretrial detainee. His mother, Kathy Sanchez, sued—among others—
    licensed clinical social worker Natalee Oliver, the mental health professional
    who evaluated Gauna and took him off suicide watch. The district court
    granted summary judgment for Oliver, holding that she was entitled to
    qualified immunity and had not acted with deliberate indifference to Gauna’s
    serious medical needs. Because Oliver, as an employee of a private
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    No. 20-50282
    organization systematically organized to perform a major administrative task,
    is not entitled to qualified immunity, and Sanchez has provided sufficient
    evidence regarding what Oliver knew about Gauna’s suicide risk to raise a
    genuine dispute of material fact over whether Oliver was deliberately
    indifferent to Gauna’s medical needs, we REVERSE and REMAND.
    I. Facts and Proceedings
    Gauna was arrested on December 30, 2017, and taken to the Bell
    County jail. At intake, he was assessed as a suicide risk based on answers to a
    screening questionnaire, was placed on 15-minute checks, and was scheduled
    to be evaluated by a mental health professional. Later that day, Gauna met
    with Oliver for evaluation. Oliver was an employee of Correctional
    Healthcare Companies, LLC (“CHC”), which contracted with Bell County
    to provide healthcare services, including mental healthcare, to inmates,
    juveniles, and pretrial detainees in the County’s custody.
    Gauna asked to be placed in the infirmary, but Oliver instead took him
    off suicide watch and placed him among the general population. She advised
    him to continue taking his medication, to stay active, and to inform staff if his
    mood declined. She also recommended mandatory follow up meetings with
    mental health staff. Two days later, Gauna committed suicide by hanging.
    Sanchez sued, both individually and on behalf of Gauna’s estate,
    alleging causes of action against Oliver, CHC, and Bell County under 
    42 U.S.C. § 1983
     for violating Gauna’s well-established constitutional right to
    be protected from a known risk of suicide. See, e.g., Converse v. City of Kemah,
    
    961 F.3d 771
    , 775 (5th Cir. 2020) (“We have repeatedly held that pretrial
    detainees have a Fourteenth Amendment right to be protected from a known
    risk of suicide.”).
    Oliver moved for summary judgment, claiming qualified immunity,
    and arguing that there was insufficient evidence that she had acted with
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    deliberate indifference towards Gauna. Sanchez argued that Oliver, as an
    employee of a private, for-profit service provider, was not entitled to assert
    the defense of qualified immunity. The magistrate judge recommended
    finding that Oliver was entitled to qualified immunity, had not been
    deliberately indifferent, had not acted unreasonably (relative to the deliberate
    indifference standard), and was entitled to summary judgment. The district
    court adopted the magistrate’s report and recommendation, and granted
    summary judgment for Oliver. Sanchez successfully moved to designate the
    order a final judgment under Rule 54(b) and timely appealed.
    II. Standard of Review
    This court reviews a grant of summary judgment de novo, applying
    the same standard as the district court. See Hyatt v. Thomas, 
    843 F.3d 172
    ,
    176 (5th Cir. 2016). A court shall grant summary judgment where “there is
    no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is
    material if it “might affect the outcome of the suit under the governing law.”
    Hyatt, 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    ,
    248 (1986)). In evaluating a motion for summary judgment, a court must
    “construe ‘all facts and inferences in the light most favorable to the
    nonmoving party.’” Romero v. City of Grapevine, 
    888 F.3d 170
    , 175 (5th Cir.
    2018) (quoting Dillon v. Rogers, 
    596 F.3d 260
    , 266 (5th Cir. 2010)).
    III. Discussion
    “To state a claim under § 1983, a plaintiff must allege a violation of a
    right secured by the Constitution and laws of the United States, and must
    show that the alleged deprivation was committed by a person acting under
    color of state law.” West v. Atkins, 
    487 U.S. 42
    , 48 (1988). It has been clearly
    established in this Circuit since at least 1989 that “pretrial detainees have a
    Fourteenth Amendment right to be protected from a known risk of suicide,”
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    and “it is well-settled law that jail officials violate this right if ‘they [have]
    actual knowledge of the substantial risk of suicide and respond[ ] with
    deliberate indifference.’” Converse, 961 F.3d at 775 (quoting Hare v. City of
    Corinth, 
    74 F.3d 633
    , 650 (5th Cir. 1996) (Hare II)).
    Here, there is no question that Oliver, as a medical professional
    treating a pretrial detainee on behalf of a governmental entity, was acting
    under color of state law for purposes of § 1983. See West, 
    487 U.S. at 54
    . As
    a private actor, Oliver may be liable for acting under color of state law under
    § 1983, but “it does not necessarily follow that [she] may assert qualified
    immunity.” Perniciaro v. Lea, 
    901 F.3d 241
    , 251 (5th Cir. 2018); see also
    Brewer v. Hayne, 
    860 F.3d 819
    , 823 (5th Cir. 2017) (“A defendant may act
    under color of state law for the purposes of § 1983 without receiving the
    related protections of qualified immunity.”).
    A.
    Whether private actors may assert qualified immunity depends on
    “(1) principles of tort immunities and defenses applicable at common law
    around the time of § 1983’s enactment in 1871 and (2) the purposes served
    by granting immunity.” Perniciaro, 901 F.3d at 251 (citing Filarsky v. Delia,
    
    566 U.S. 377
    , 383–84 (2012)). The purposes of qualified immunity identified
    by the Supreme Court are “(1) preventing unwarranted timidity in the
    exercise of official duties; (2) ensuring that highly skilled and qualified
    candidates are not deterred from public service by the threat of liability; and
    (3) protecting public employees—and their work—from all of the distraction
    that litigation entails.” 
    Id.
     at 253 (citing Richardson v. McKnight, 
    521 U.S. 399
    ,
    407–12 (1997), and Filarsky, 
    566 U.S. at
    389–90). Of these, preventing
    unwarranted timidity is most important. Richardson, 
    521 U.S. at 409
    .
    In holding that Oliver was entitled to assert the defense of qualified
    immunity, the district court relied heavily on this court’s ruling in Perniciaro
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    that two private mental health providers employed by the state through
    Tulane University were entitled to qualified immunity. However, the
    Perniciaro court took pains to emphasize that Tulane University “is not
    ‘systematically organized’ to perform the ‘major administrative task’ of
    providing mental-health care at state facilities.” 901 F.3d at 254 (quoting
    Richardson, 
    521 U.S. at 409
    ).
    By contrast, Oliver’s employer, CHC, is—according to its marketing
    materials—a major corporation “in the business of administering
    correctional health care services.” CHC derives well over a billion dollars
    annually from its contracts in jails and prisons. Tanner v. McMurray, 
    989 F.3d 860
    , 871 (10th Cir. 2021). In other words, Oliver’s employer is
    “systematically organized to perform the major administrative task of
    providing mental-health care at state facilities.” Perniciaro, 801 F.3d at 254
    (cleaned up). Our sister circuits unanimously agree that employees of such
    entities—including, specifically, CHC in two cases—are not entitled to
    assert qualified immunity. See Tanner, 989 F.3d at 874 (Correct Care
    Solutions, LLC (“CCS”), a for-profit successor entity to CHC) 1; Estate of
    Clark v. Walker, 
    865 F.3d 544
    , 550–51 (7th Cir. 2017) (CHC); McCullum v.
    Tepe, 
    693 F.3d 696
    , 704 (6th Cir. 2012) (Community Behavioral Health, a
    large non-profit entity); Jensen v. Lane Cnty., 
    222 F.3d 570
    , 578–79 (9th Cir.
    2000)       (Psychiatric   Associates,   “a   privately   organized   group   of
    psychiatrists”); Hinson v. Edmond, 
    192 F.3d 1342
    , 1347 (11th Cir. 1999)
    (Wexford Health Sources, a for-profit company). After considering the
    historical tradition of immunity at common law around the time § 1983 was
    1
    CHC, formerly CCS, is now known as “Wellpath.” A Wellpath executive
    explained: “Wellpath was formerly known as Correct Care Solutions, LLC, which was
    formerly known as Correctional Healthcare Companies, LLC.” Accordingly, we treat
    references to Wellpath, CCS, and CHC as referring to the same entity.
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    enacted and the policy considerations underlying qualified immunity, we
    agree with our sister circuits that Oliver—as an employee of a large firm
    systematically organized to perform the major administrative task of
    providing mental healthcare at state facilities—is categorically ineligible for
    qualified immunity.
    (1)
    The district court held that the common law tradition of immunity
    prong supported qualified immunity, but offered no further analysis beyond
    noting that a public counterpart to Oliver would be entitled to assert qualified
    immunity. This may be understandable, as this court also declined, in
    Perniciaro, to engage in the in-depth historical analysis that the Supreme
    Court applied in Filarsky and Richardson. However, the Perniciaro court made
    clear that the facts of that case were closely analogous to Filarsky, which
    facilitated a less verbose analysis of the historical basis for immunity at
    common law. See 901 F.3d at 251–52. To clarify: the question is not whether
    a modern public counterpart would be entitled to immunity, but, rather,
    whether general principles of tort immunities and defenses under “the
    common law as it existed when Congress passed § 1983 in 1871” support the
    availability of qualified immunity to a private party. Filarsky, 
    566 U.S. at 384
    .
    In Filarsky, the Court conducted an in-depth historical survey of the
    common law in the late nineteenth century, and found that “examples of
    individuals receiving immunity for actions taken while engaged in public
    service on a temporary or occasional basis are as varied as the reach of
    government itself.” 
    Id.
     at 388–89. However, the Filarsky Court expressly
    distinguished the case of an individual retained, as an individual, to perform
    discrete government tasks from the “private firm, systematically organized
    to assume a major lengthy administrative task . . . with limited direct
    supervision by the government, undertak[ing] that task for profit and
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    potentially in competition with other firms” that was at issue in Richardson.
    Id. at 593 (quoting Richardson, 
    521 U.S. at 413
    ).
    In that light, the Perniciaro court’s invocation of Filarsky should not
    lead this court to conclude that we may shirk our responsibility to conduct a
    robust historical inquiry. Rather, Perniciaro is better understood as having
    recognized that the psychiatrists in that case were more closely comparable
    to the independent attorney retained by the government in Filarsky than the
    employees of a large firm at issue in Richardson, and, therefore, that they were
    entitled to qualified immunity protections similar to those afforded their
    public-sector counterparts. See Perniciaro, 901 F.3d at 251–52 (“Here, as in
    Filarsky, Drs. Thompson and Nicholl are private individuals who work in a
    public institution and alongside government employees, but who do so as
    something other than full-time public employees.” (internal citation
    omitted)).
    We must therefore conduct an independent inquiry into whether
    history reveals a “‘firmly rooted’ tradition of immunity applicable to
    privately employed” medical professionals. See Richardson, 
    521 U.S. at 404
    .
    We begin by noting that all of our sister circuits to have considered the issue
    have found no compelling history of immunity for private medical providers
    in a correctional setting. See Tanner, 989 F.3d at 867–68 (“No circuit that has
    considered this issue has uncovered a common law tradition of immunity for
    full-time private medical staff working under the color of state law.”); Estate
    of Clark, 865 F.3d at 550–51; McCullum, 693 F.3d at 703 (“[T]he precedents
    that do exist point in one direction: there was no special immunity for a
    doctor working for the state.”); Jensen, 
    222 F.3d at 577
     (“We have been
    unable to uncover even a suggestion that Oregon has a ‘firmly rooted
    tradition’ of immunity . . . .”); Hinson, 192 F.3d at 1345 (“Under common
    law, no ‘firmly rooted’ tradition of immunity applicable to privately
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    employed prison physicians exists under circumstances such as these.”).
    Oliver also points us to no such history or tradition.
    On the other hand, the Supreme Court has hinted in dicta that such a
    history might exist. See Richardson, 
    521 U.S. at 407
     (“Apparently the law did
    provide a kind of immunity for certain private defendants, such as doctors or
    lawyers who performed services at the behest of the sovereign.”). The
    historical treatise the Richardson Court cited indicates that both private and
    public physicians enjoyed at least some level of immunity for negligence,
    although they could be sued or even criminally prosecuted for acts amounting
    to recklessness. See Joel P. Bishop, Commentaries on Non-
    Contract Law § 708 (1889) (indicating that, under English and
    American common law, a physician was probably “not liable for the
    consequences of simple negligence or want of skill”).
    We agree with our sister circuits that the key to untangling whether
    there is a tradition of immunity applicable to private citizens in Oliver’s
    position is the nature of the claims against her. As discussed below, regardless
    of the availability of qualified immunity, to state a § 1983 claim for a violation
    of Fourteenth Amendment rights, a plaintiff must show that a medical
    provider acted with deliberate indifference to a serious medical need, which
    the Supreme Court has compared to a recklessness standard. See Farmer v.
    Brennan, 
    511 U.S. 825
    , 839–40 (1994). Our sister circuits have noted that
    there appears to have been no tradition of immunity for a doctor who acted
    recklessly. See, e.g., Hinson, 192 F.3d at 1345–46 (“For acts amounting to
    recklessness or intentional wrongdoing, . . . immunity did not exist . . . .”).
    Since a constitutional claim under § 1983 effectively requires reckless
    conduct, this history counsels against finding a common law tradition of
    immunity. We find that there is no sufficient historical tradition of immunity
    at common law to support making the qualified immunity defense available
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    to a mental healthcare provider employed by a large, for-profit company
    contracted by a government entity to provide care in a correctional setting.
    (2)
    We turn next to the three purposes served by qualified immunity to
    determine whether immunity is necessary to “protect[ ] ‘government’s
    ability to perform its traditional functions.’” Richardson, 
    521 U.S. at 408
    (quoting Wyatt v. Cole, 
    504 U.S. 158
    , 167 (1992)). We again concur with the
    unanimous opinion of our sister circuits that policy considerations do not
    favor extending qualified immunity to employees of a large entity
    systematically organized to perform a major administrative task like Oliver.
    (i)
    The first, and most important, purpose of qualified immunity is
    avoiding unwarranted timidity by those carrying out the government’s work.
    Where a private employee works for a firm that is “systematically organized
    to perform a major administrative task for profit,” market forces are likely to
    “provide the private firm with strong incentives to avoid overly timid,
    insufficiently vigorous, unduly fearful, or ‘nonarduous’ employee job
    performance.” Richardson, 
    521 U.S. at
    409–10. In Richardson, the Court
    noted that the private firm in that case had a three-year contract (with
    renewal periods), so “its performance [was] disciplined . . . by pressure from
    potentially competing firms who can try to take its place.” 
    Id. at 410
    . The
    Court also noted that the firm was required to buy insurance to compensate
    victims of civil rights torts and operated with “relatively less ongoing direct
    state supervision.” 
    Id.
     at 409–10.
    Similarly, the contract between CHC and Bell County provided for a
    three-year term, with two, one-year renewal periods. CHC operates
    nationally within a competitive marketplace, subject to the perpetual threat
    of replacement by a more efficient firm if they are unable or unwilling to
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    perform their contracted-for tasks. Like the firm in Richardson, CHC was
    required to maintain substantial insurance coverage: Medical Malpractice /
    Professional Liability Insurance coverage “not less than $1,000,000 per
    occurrence and $3,000,000 in the aggregate,” plus the same amount of
    “Comprehensive General Liability” coverage. In its contract proposal, CHC
    also touted its full-time risk management and legal defense team—including
    “an in-house legal team of attorneys and paralegals” ready to “aggressively
    address each claim or lawsuit”—which should mitigate the type of liability
    risk that might provoke timidity. As in Richardson, “ordinary marketplace
    pressures are present here” to effectively diffuse the risk of timidity. 
    Id. at 409
    .
    We also note, echoing our colleagues on the Tenth Circuit, that
    [c]oncerns of ‘unwarranted timidity’ are [ ]
    significantly   less   pressing     for      medical
    professionals—who face potential liability both
    for choosing a course of treatment that is too
    aggressive and for choosing a course not
    aggressive enough—than for police officers and
    prison guards, who rarely face liability for, as an
    example, not using enough force.
    Tanner, 989 F.3d at 869. This court recognized that mental health
    professionals may nonetheless be improperly influenced by the risk of
    litigation when their employer’s “primary function is not providing health-
    care services, whether by contract or directly,” and the marketplace
    pressures applicable to them (as university professors) were not “fine-tuned
    to preventing overly timid care.” Perniciaro, 901 F.3d at 254. Here, however,
    the market pressures are precisely the opposite—CHC’s primary function is
    providing healthcare services. Unlike the Tulane professors in Perniciaro,
    Oliver does not point us to extensive conflicting duties that could dilute
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    CHC’s ability to evaluate her performance based on the mental healthcare
    services she provides.
    Finally, the district court relied on contract language indicating that
    “Bell County retained authority to set the ‘policies and procedures related
    to healthcare [or] mental healthcare.’” There is, however, no evidence that
    this contractual language in any meaningful way distinguishes this case from
    Richardson—or is anything other than a standard requirement that a service
    provider perform in accordance with the client’s wishes. What the record
    does reveal is substantial evidence that Oliver was overseen by CHC, and
    CHC took the lead in developing policy. CHC developed and maintained the
    County’s “healthcare Policies and Procedures Manual,” the County could
    not fire or discipline CHC employees—they had to submit a written notice
    of dissatisfaction for adjudication by CHC, and Oliver testified that the
    decision to take Gauna off suicide watch was solely at her own discretion—in
    fact, County employees lacked the authority to do so.
    The most important purpose of qualified immunity—preventing
    overly timid performance—strongly indicates that it should not be extended
    to an employee in Oliver’s situation.
    (ii)
    The second purpose of qualified immunity is to “ensur[e] that
    talented candidates are not deterred from public service.” Filarsky, 
    566 U.S. at
    389–90. The district court noted only that the record did not indicate the
    extent to which Oliver’s pay was responsive to the risk of liability and that
    she was closely supervised by Bell County. As discussed above, the district
    court substantially overstates the level of control Bell County exerted over
    CHC employees. The district court also misapprehends the applicability of
    Perniciaro. Unlike the Tulane professors in Perniciaro, there is no evidence
    that Oliver’s job included a broad range of duties other than the provision of
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    mental healthcare. Oliver was hired as a “Mental Health Professional,”
    implying that she was evaluated on the basis of her performance in providing
    mental healthcare. Her primary job purpose is described as “provid[ing]
    clinical services . . . to inmates [and] mental health consultation and training
    to facility staff.”
    More to the point, the district court opinion appears to misapprehend
    the nature of this aspect of the qualified immunity test. As the Eleventh
    Circuit noted, the issue is not so much whether Oliver’s pay actually was
    higher than a comparable government employee’s pay would have been, but,
    rather, that tools are available to a private company to recruit talented
    candidates. See Hinson, 192 F.3d at 1347 (“Employee indemnification,
    increased benefits and higher pay are all tools at the disposal of a private
    company like Wexford; and they can be used to attract suitable employees.”).
    CHC had substantial latitude to ensure that Oliver (and other
    employees like her) were adequately motivated. Her hiring letter indicates
    that Oliver was strictly an “at will” employee, meaning that she could be
    discharged without cause. Her wages, conditions of employment, and
    availability of benefits were determined by CHC, and the record provides no
    indication that CHC couldn’t increase her compensation or other incentives,
    such as by offering to upgrade Oliver from part-time to full-time employment
    with benefits. To the contrary, the record reveals Oliver enjoyed precisely
    such a part-time to full-time upgrade.
    As noted above, CHC was contractually required to procure
    insurance, and was free to offer insurance and/or indemnity to employees.
    This “increases the likelihood of employee indemnification and to that extent
    reduces the employment-discouraging fear of unwarranted liability.”
    Richardson, 
    521 U.S. at 411
    .
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    Finally, the record directly contradicts the notion that subjecting
    CHC to liability would impede its capacity to attract qualified talent. As of its
    December 2013 proposal to Bell County, CHC was a massive organization
    that “serve[d] more than 240 correctional facilities throughout the United
    States” and “support[ed] the provision of medical services to more than
    70,000 inmates daily.” Its successor, Wellpath, boasts of serving 394
    facilities and 130,000 inmates and juveniles. To support this enormous
    undertaking, CHC “employ[s] more than 2,750 employees and
    contractors.” In other words, CHC specifically markets its ability to attract
    qualified people to public service as an aspect of its sales pitch to government
    clients. Further, CHC and its employees have known for some time now that
    they could be subject to liability without the benefit of qualified immunity.
    Five circuit courts have said as much, see, e.g., McCullum, 693 F.3d at 704
    (6th Cir.); Jensen, 
    222 F.3d at
    578–79 (9th Cir.); Hinson, 192 F.3d at 1347
    (11th Cir.). In fact, two of these courts specified CHC itself. See Tanner, 989
    F.3d at 874 (10th Cir.) 2; Estate of Clark v. Walker, 865 F.3d at 550–51 (7th
    Cir.). Yet CHC still attracts qualified employees. Denying Oliver recourse to
    qualified immunity will not deter qualified individuals from public service.
    (iii)
    The final purpose of qualified immunity is to “protect[ ] public
    employees from frequent lawsuits that might distract them from their official
    duties.” Perniciaro, 901 F.3d at 254. This is likely the least weighty purpose
    of qualified immunity; the Supreme Court has noted that “the risk of
    2
    Given its recency, one might consider that possible effects for CHC in the Tenth
    Circuit following Tanner may not yet have fully materialized, but over five years ago a
    district court within that Circuit also specifically found that CHC employees were
    categorically ineligible for qualified immunity. See Atchison v. Corr. Healthcare Cos., Inc.,
    No. CV 15-00039 WJ/SCY, 
    2016 WL 10587985
    , at *6 (D.N.M. Mar. 8, 2016). CHC and
    its employees have been on notice that qualified immunity may not be available.
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    ‘distraction’ alone cannot be sufficient grounds for an immunity.”
    Richardson, 
    521 U.S. at 411
    . In Perniciaro, this court recognized that “the
    distraction of a lawsuit against a private individual will ‘often also affect
    public employees with whom they work by embroiling those employees in
    litigation.’” 901 F.3d at 254 (quoting Filarsky, 
    566 U.S. at 391
    ). Here, Oliver
    testified that she had close relationships with jail employees, at least some of
    whom will likely be required to testify or otherwise become involved in this
    litigation.
    However, as noted above, CHC maintains full-time risk management
    and legal teams to mitigate the impact of litigation. Its contract with the
    County also provides for CHC to supply personnel on a man-hour (rather
    than individual employee) basis. This permits flexibility for CHC to replace
    employees distracted by litigation with comparable professionals during
    those hours when the sued employees are distracted. In other words, CHC
    employees are only distracted by litigation in their private capacity; the
    contract with Bell County permits CHC to ensure that public needs are met
    (even if it requires CHC to provide a substitute employee).
    As in Richardson, it appears Bell County contemplated at least some
    level of distraction by litigation when it contracted with CHC. See 
    521 U.S. at
    411–12. The contract provides that CHC will indemnify the County for
    liability caused by CHC or “its agents, employees or independent
    contractors.” In return, the County promised to notify CHC of lawsuits and
    to “fully cooperate in the defense of such claim[s].”
    Thus, although permitting lawsuits against CHC personnel is likely to
    have the secondary effect of distracting public employees with whom they
    work, the harmful impact is mitigated by CHC’s legal team, the structure of
    its contract with the County, and the fact that the County “can be understood
    to have anticipated a certain amount of distraction.” 
    Id. at 412
    . This purpose
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    favors Oliver’s eligibility for qualified immunity, but only mildly. It is also the
    least important of the three purposes and is not “enough virtually by itself to
    justify providing an immunity.” 
    Id.
    Because we can find no tradition of immunity at common law to
    support Oliver’s claim to qualified immunity, and the purposes of qualified
    immunity, on balance, weigh against extending immunity, we hold that
    Oliver, as an employee of a large firm “systematically organized to perform a
    major administrative task for profit,” is categorically ineligible to assert the
    defense of qualified immunity. 
    Id. at 409
    .
    B.
    This court “may affirm the district court’s judgment on any grounds
    supported by the record.” Stewart v. Capital Safety USA, 
    867 F.3d 517
    , 520
    (5th Cir. 2017) (cleaned up). So, we find it prudent to consider the district
    court’s finding that Oliver was not deliberately indifferent and, therefore, not
    liable under § 1983 for violating Gauna’s Fourteenth Amendment rights,
    since that finding could independently dispose of Sanchez’s Fourteenth
    Amendment claims. We hold that the district court erred.
    There is a confusing relationship between the “objective
    reasonableness” standard applicable to qualified immunity and the
    “subjective deliberate indifference” standard applicable to a Fourteenth
    Amendment claim. See Converse, 961 F.3d at 775. Sanchez asserted a § 1983
    claim, and “a state jail official’s constitutional liability to pretrial detainees
    for episodic acts or omissions should be measured by a standard of subjective
    deliberate indifference . . . .” Hare II, 
    74 F.3d at 643
    . “[T]o satisfy this high
    standard, a prison official ‘must both be 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.’” Converse, 961 F.3d at 775 (quoting Farmer,
    
    511 U.S. at 837
    ). What a prison official subjectively knew “is a question of
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    No. 20-50282
    fact subject to demonstration in the usual ways.” Farmer, 
    511 U.S. at 842
    . On
    the other hand, “[w]hether an official’s conduct was objectively reasonable
    is a question of law for the court, not a matter of fact for the jury,” Brown v.
    Bolin, 500 F. App’x 309, 312 (5th Cir. 2012) (unpublished).
    “Deliberate indifference is an extremely high standard to meet.”
    Gobert v. Caldwell, 
    463 F.3d 339
    , 346 (5th Cir. 2006) (quoting Domino v. Tex.
    Dep’t of Crim. Just., 
    239 F.3d 752
    , 756 (5th Cir. 2001)). “Unsuccessful
    medical treatment, acts of negligence, or medical malpractice do not
    constitute deliberate indifference. . . .” 
    Id.
     However, if an official has
    subjective knowledge that a pretrial detainee is a substantial suicide risk, the
    “official shows a deliberate indifference to that risk ‘by failing to take
    reasonable measures to abate it.’” Converse, 961 F.3d at 776 (quoting Hare II,
    
    74 F.3d at 648
    ).
    Here, the key factual dispute is whether Oliver subjectively knew that
    Gauna was at a substantial risk of attempting suicide. We have held in the
    past that giving obvious ligatures to a detainee who is known to be at risk of
    suicide constitutes deliberate indifference. See, e.g., Converse, 961 F.3d at
    778–79 (finding deliberate indifference where some steps were taken to
    prevent suicide, including removing the detainee’s shoelaces and placing him
    in a cell with video monitoring, but the detainee was nonetheless given a
    blanket and left in a cell with obvious tie-off points).
    On the other hand, we do not demand perfection. For example, in
    Hyatt, the defendant officer removed the blanket (the most obvious potential
    ligature) from the detainee’s cell and “placed him under continuous, if
    ultimately imperfect, video surveillance.” 843 F.3d at 179. The officer’s
    failure to thoroughly inspect the decedent’s cell for “any other potential
    ligatures,” including the plastic garbage bag he eventually used to hang
    himself, “was perhaps negligent,” but not deliberate indifference. Id.
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    Here, however, Gauna was placed in general population, with ready
    access to blankets, other potential ligatures, and tie-off points, along with
    whatever other means of self-harm might be present in what appears to be
    the complete absence of suicide watch or other meaningful suicide
    precautions. If Oliver knew that Gauna was a suicide risk, then the evidence
    Sanchez has presented supports the inference that Oliver’s decision to take
    Gauna off suicide watch and place him in general population was, if anything,
    even more reckless than the officers’ conduct in Converse. Thus, the question
    is whether Sanchez has presented evidence from which a reasonable jury
    could infer that Oliver knew Gauna was at risk of suicide and ignored the risk.
    The district court, in finding that Oliver had merely misdiagnosed
    Gauna, indulged numerous inferences in Oliver’s favor, concluding that her
    ultimate diagnosis—that Gauna was not a substantial suicide risk because he
    professed to have no suicidal intent “at the moment”—reliably indicates a
    genuine failure to perceive the obvious risk that Gauna was suicidal. To the
    contrary, Sanchez presented extensive evidence from which one could
    reasonably infer that Oliver was aware of the risk and chose to ignore it.
    Oliver was aware that at least one other Bell County staff member had
    determined that Gauna was a serious suicide risk, as her evaluation was to
    determine whether to keep Gauna on suicide watch. Gauna filled out a
    screening form that asked whether he was “thinking of killing or injuring
    [him]self today;” he responded, “Yes Maybe not sure.” He indicated that
    he felt depressed “all the time” and had attempted suicide by hanging “a
    couple months ago.” Oliver’s evaluation notes indicate that Gauna shared
    with her his history of seven prior suicide attempts. He told her he had active
    suicidal ideation “all the time,” that it “always crosses [his] mind,” and
    “there is always a plan” to carry it out. Oliver acknowledged later that she
    had discussed Gauna’s history of auditory hallucinations, including an
    incident five days prior to their interview (Christmas Day) when Gauna had
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    suffered auditory hallucinations so severe that he had physically harmed
    himself.
    The district court credited Oliver with having performed a reliable
    diagnostic test, the Columbia-Suicide Severity Rating Scale (“C-SSRS”), to
    reach the diagnosis that he was not a suicide risk, even though she allegedly
    did so orally rather than in writing. 3 However, during her deposition, Oliver
    was asked to describe the C-SSRS test that she had administered. She was
    unable to properly recite a single question, nor could she even remember that
    there were six questions, testifying, when asked how many questions there
    were (whether there were four), that there “might be five.” The district
    court did not see this as evidence that Oliver did not have the C-SSRS
    questions competently memorized two years prior to her deposition, but—
    indulging inferences in favor of the nonmovant—this is at least evidence that
    Oliver was not able to administer the C-SSRS from memory.
    Sanchez’s expert also produced a publicly available copy of the C-
    SSRS developed specifically for the correctional setting. It clearly states that
    any report of prior suicide attempts within the prior three months should lead
    to officials taking “immediate suicide precautions.” Every copy of the test
    produced by either party similarly indicates that the information Gauna is
    known to have provided Oliver should have raised red flags.
    Gauna was already on suicide watch, Oliver had sole authority to take
    him off, and he was asking to be placed in the infirmary for further
    observation. Given that, had Oliver simply declined to perform the test in any
    meaningful way, then she likely deliberately ignored Gauna’s obvious needs.
    3
    Sanchez’s expert witness, Dr. Arthur Joyce, indicated that use of a standard C-
    SSRS form, rather than recitation of questions from memory, is necessary to accurately
    conduct the evaluation and that Oliver therefore could not be considered to have done so.
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    If, on the other hand, she administered the test and the results told her that
    Gauna needed to remain on suicide watch, and she put him in general
    population anyway, that also likely constitutes deliberate indifference.
    Whether Oliver’s inability to remember the C-SSRS and failure to complete
    a written version indicates that she effectively failed to administer a test, or
    whether the extensive evidence that a proper administration should have
    provided obvious indications that Gauna was suicidal, there is adequate
    evidence of deliberate indifference to submit the question to a jury. See
    Farmer, 
    511 U.S. at 842
     (“[A] factfinder may conclude that a prison official
    knew of a substantial risk from the very fact that the risk was obvious.”).
    This case is readily distinguished from this court’s Domino opinion.
    
    239 F.3d 752
    . In Domino, the allegation was that the risk of suicide was
    sufficiently obvious that the doctor should have perceived it, not that he
    actually had perceived it. 
    Id. at 754
     (“Ms. Domino claims Reddy should have
    recognized that Domino was suicidal . . . .” (emphasis added)); see also Brief
    of Plaintiff-Appellee at 22–25, Domino v. Tex. Dep’t of Crim. Just., 
    239 F.3d 752
     (5th Cir. 2001) (No. 99-41486), 
    2000 WL 33992278
     (arguing that the
    defendant’s poor diagnostic procedure “rose to deliberate indifference”
    without arguing that defendant actually knew Domino was suicidal).
    More importantly, in Domino, there was a long-standing doctor–
    patient relationship lasting for over a year. 
    239 F.3d at
    753–54. The doctor
    had a clear reason for not believing that Domino was suicidal: Domino had
    asked for sleeping pills and, when denied them, told the doctor “I can be
    suicidal.” 
    Id. at 753
    . The doctor concluded that “Domino’s statement was
    an attempt to achieve ‘secondary gain,’ such as sedatives or a single cell,”
    and that he was not actually a suicide risk. 
    Id.
     The doctor “presented
    evidence that Domino had been a difficult, often uncooperative patient.” 
    Id. at 756
    . The Domino court concluded that the doctor “did not believe the
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    No. 20-50282
    threat was genuine. [His] diagnosis was wrong. But . . . an incorrect diagnosis
    does not amount to deliberate indifference.” 
    Id.
    Here, plaintiffs have alleged that Oliver actually knew Gauna was
    suicidal, but declined to keep him on suicidal watch regardless. There was no
    pre-existing provider–patient relationship. Oliver had no reason to believe
    that Gauna’s expressed desire for protection in the infirmary from his own
    suicidal tendencies was for secondary gain or in any other way insincere. To
    the contrary, her notes described Gauna as “cooperative,” albeit “very, very
    depressed.” Gauna told Oliver that he had active suicidal ideation, and
    experienced it “all the time,” that “it always crosses my mind,” and that
    “there is always a plan” for how he would commit suicide. Oliver had access
    to ample evidence that Gauna was genuinely suicidal, and has offered no
    evidence other than a five-word diagnostic note (“no intent ‘at the
    moment’”) to indicate that she did not actually perceive this risk.
    Nonetheless, she made the decision—that was solely within her purview to
    make—that Gauna be taken off suicide watch and placed into the general
    population, where he would have access to tie-off points and ligatures,
    including the bedsheets with which he eventually hanged himself. Sanchez
    has presented enough evidence from which a reasonable jury could conclude
    that Oliver was aware of facts from which she could draw the inference that
    Gauna was suicidal, and that she actually did draw that inference but
    responded with deliberate indifference, to avoid summary judgment on her §
    1983 claim under the Fourteenth Amendment.
    IV. Conclusion
    As an employee of a private firm systematically organized to perform
    the major administrative task of delivering healthcare services to inmates,
    detainees, and juveniles, Oliver is categorically ineligible to claim qualified
    immunity. Further, Sanchez has put forth enough evidence for a reasonable
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    trier of fact to infer that Oliver knew Gauna was at serious risk of suicide, and
    chose to ignore the risk. We REVERSE and REMAND.
    21