Deborah Harrison v. Tracey Kirk ( 2008 )


Menu:
  •                            RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 08a0323p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    DEBORAH HARRISON, Personal Representative for
    Plaintiff-Appellee, -
    the ESTATE OF CHARLES KEVIN JONES,
    -
    -
    Nos. 07-2077/2078
    ,
    v.                                           >
    -
    -
    -
    ASH, C.O., HARRELL, C.O., FELSNER, C.O., ERIC
    Defendants-Appellants (07-2077), -
    OKE, Officer, PETE MARTIN, DAVID ABBOTT, Sgt.,
    -
    -
    -
    TRACEY KIRK, R.N., JULIANNE MUNRO, L.P.N.,
    Defendants-Appellants (07-2078). -
    N
    Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.
    No. 05-70454—Arthur J. Tarnow, District Judge.
    Argued: June 3, 2008
    Decided and Filed: August 28, 2008
    Before: MERRITT, CLAY, and GILMAN, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Kristen M. Netschke, PLUNKETT & COONEY, Bloomfield Hills, Michigan, Brian
    J. Richtarcik, CHAPMAN & ASSOCIATES, P.C., Bloomfield Hills, Michigan, for Appellants.
    Joseph Kelly Carley, JAQUES ADMIRALTY LAW FIRM, Detroit, Michigan, for Appellee.
    ON BRIEF: Kristen M. Netschke, PLUNKETT & COONEY, Bloomfield Hills, Michigan, Mary
    Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, Brian J. Richtarcik, Ronald W.
    Chapman, CHAPMAN & ASSOCIATES, P.C., Bloomfield Hills, Michigan, for Appellants. Joseph
    Kelly Carley, JAQUES ADMIRALTY LAW FIRM, Detroit, Michigan, for Appellee.
    _________________
    OPINION
    _________________
    CLAY, Circuit Judge. Charles Kevin Jones, an inmate serving a 35-day sentence for failure
    to pay child support, died after suffering a severe asthma attack at the Macomb County Jail.
    Plaintiff, Deborah Harrison, personal representative of the estate of Charles Kevin Jones, brought
    suit pursuant to 42 U.S.C. § 1983 against Defendant-Appellants, nurses Tracey Kirk and Julianne
    1
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                               Page 2
    Munro and jail officers William Ash, David Abbott, Eric Oke, Pete Martin, Harrell and Felsner.1
    Harrison alleged that Defendants were deliberately indifferent to Jones’ serious medical needs in
    violation of the Eighth and Fourteenth Amendments. Defendants moved for summary judgment and
    now appeal from an order entered by the district court denying summary judgment to Defendants
    Kirk and Munro and denying qualified immunity to Defendants Ash, Abbott, Oke, Martin, Harrell
    and Felsner. For the reasons described below, we REVERSE the district court’s denial of qualified
    immunity with respect to Defendant officers and DISMISS Defendant nurses’ appeal for lack of
    jurisdiction.
    BACKGROUND
    A.         Factual Background
    On May 10, 2004, Charles Jones (“Jones”) began serving a 35-day sentence for failure to pay
    child support at the Macomb County Jail. During the intake process at the Jail, Jones reported that
    he suffered from asthma for which he was prescribed an Albuterol inhaler and Prednisone, a steroid.
    Jones needed to ingest in 1-2 puffs from the inhaler every 4-6 hours.
    At 9:00 p.m. on June 6, 2004, Jones began complaining of tightness in his chest and
    shortness of breath. Jones’ complaints were communicated to an officer on duty, who then escorted
    Jones to the Jail’s medical unit for treatment. Macomb County contracted with Correctional Medical
    Services (“CMS”) to provide medical services and personnel for the facility. Pursuant to CMS
    protocols, when an inmate arrives at the medical unit with symptoms of asthma, nurses were
    required to evaluate the severity of the asthma attack utilizing a peak flow meter and to immediately
    call a doctor for further instructions.
    When Jones was taken to the medical unit for treatment, he was examined by Tracey Kirk,
    R.N., a CMS employee, who observed that his Albuterol inhaler was empty. Kirk noted that Jones
    was wheezing “on inspiration and expiration.” (J.A. at 188) Upon further examination, Kirk
    measured Jones’ blood pressure and his blood oxygen level via a pulse oximeter.
    The pulse oximeter indicated that Jones was absorbing approximately 95% of the air in the
    room, which was within normal ranges. Thereafter, Kirk administered four puffs from an Albuterol
    inhaler to Jones. After approximately five minutes, Jones was examined again and it was noted that
    Jones’ wheezing had subsided and his blood oxygen level increased to 98%. Jones was then
    returned to his cell.
    At approximately 10:30 p.m., Jones was returned to the medical unit, again complaining that
    his chest “felt tight” and that he was experiencing difficulty breathing. Jones was examined by
    Julianne Munro, L.P.N. During the examination, Munro observed that Jones was wheezing when
    he inhaled and exhaled and that he was using “accessory muscles” to breathe. Munro   also noted that
    Jones had a blood oxygen level of 94%. Munro administered an updraft treatment2 of Albuterol and
    noted some improvement. She further advised Jones to increase his fluid intake and to make the
    nursing staff “aware if his condition worsens.” (J.A. at 197)
    At 11:00 p.m., Jones again complained of breathing difficulty. Upon return to the medical
    unit, Munro measured Jones’ blood oxygen level and noted that it was within normal ranges at 95%.
    1
    The record does not disclose the first names of Officers Harrell and Felsner. We therefore reference the two
    officers by their last names throughout the opinion.
    2
    “Updraft treatment” refers to the administration of Albuterol through a mask. (J.A. at 278).
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                            Page 3
    Although Munro provided no additional treatment, Jones was admitted to the medical unit for
    observation and placed in an infirmary cell.
    At 11:50 p.m., Jones once again reported difficulty breathing. Munro noted that Jones
    continued to experience wheezing and that his blood oxygen level had dropped to 93%. Munro
    administered another Albuterol updraft treatment, which brought Jones’ blood oxygen level to 99%.
    Approximately ten minutes later, at 12:00 a.m., Jones’ blood oxygen level decreased to 95%. Jones
    continued to experience wheezing when inhaling and exhaling.
    On June 7, 2004 at 2:30 a.m., Jones contacted Officer Eric Oke through the Jail’s intercom
    system and complained of shortness of breath and requested to go to the hospital. Officer Oke
    contacted Nurse Kirk “to check on [Jones].” (J.A. at 424) After speaking with Oke, Kirk came to
    Jones’ cell to examine him. Nurses Munro and Jeanene Goodwin were also present during the
    examination. Kirk noted that Jones’ blood oxygen level had dropped to 60%. Jones was placed on
    oxygen and given another Albuterol updraft treatment. Although Jones’ oxygen level increased, he
    continued to complain of difficulty breathing and reiterated his request to go to the hospital. The
    nursing staff notified Dr. Bedina, the Jail physician, of Jones’ condition. Thereafter, Dr. Bedina
    authorized Jones to be transferred to a hospital. Munro contacted Officer Abbott, who was stationed
    at the Jail’s booking desk, and requested that he call an ambulance to transport Jones. Officer
    Abbott called an ambulance at approximately 2:37 a.m.
    At 2:44 a.m., the ambulance arrived and emergency medical personnel were escorted to the
    medical unit by Officers Harrell and Felsner. Another officer, William Ash, was also present to
    observe Jones being transported from the medical unit to the ambulance. Although Jones’ transport
    to the hospital was momentarily delayed because one of the nurses told emergency personnel “that
    the inmate’s vital signs were improving and that he may be faking,” Jones was placed in a
    wheelchair and escorted to the ambulance. (J.A. at 412) While Jones was being transported to the
    booking garage where the ambulance vehicle was located, Jones suffered a grand mal seizure and
    went into cardiac and respiratory arrest. After unsuccessful attempts to resuscitate Jones, he was
    transported to Mt. Clemens General Hospital. Officer Pete Martin instructed Officer Abbott to drive
    the ambulance while emergency personnel continued to work on Jones en route to the hospital.
    Once there, Jones was pronounced dead at 4:11 a.m. An autopsy later determined that Jones died
    as a result of a severe asthma attack.
    B.       Procedural Background
    Deborah Harrison (“Harrison”), as personal representative of Jones’ estate, filed the instant
    suit pursuant to 42 U.S.C. § 1983 alleging that a number of individuals were deliberately indifferent
    to Jones’ serious medical needs in violation of the Fourth, Eighth and Fourteenth Amendments.
    Harrison also alleged that the actions of the named defendants constituted gross negligence under
    the Michigan Tort Liability Act. Harrison named Nurses Kirk, Munro, and Goodwin (“Defendant
    nurses”) as well3 as Officers Ash, Harrell, Felsner, Oke, Martin and Abbott (“Defendant officers”)
    as Defendants. Harrison alleged that Kirk, Munro and Goodwin were deliberately indifferent as
    a result of their failure to follow the nursing procedures established by CMS. Specifically, Harrison
    contended that Defendant nurses failed to utilize required diagnostic tools, such as a peak flow
    meter, and that CMS staff failed to contact a doctor when Jones presented symptoms of a severe
    asthma attack. With respect to the Defendant officers, Harrison contended that the officers were
    deliberately indifferent as a result of their failure to obtain proper medical treatment for Jones when
    it became clear that the nursing staff was either unable or unwilling to properly treat his asthma.
    3
    Harrison also named Macomb County as a defendant. Macomb County moved for summary judgment, which
    was granted by the district court. The district court’s judgment with respect to Macomb County, however, is not the
    subject of this appeal.
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                  Page 4
    All Defendants moved for summary judgment. With respect to Defendant nurses, the district
    court denied the motion in part and granted the motion in part. The district court found that Nurse
    Goodwin was entitled to summary judgment but that there were genuine issues of material fact that
    precluded summary judgment with respect to nurses Munro and Kirk. The district court denied
    Defendant officers’ motion for summary judgment in its entirety. This timely appeal followed.
    DISCUSSION
    Standard of Review
    This Court reviews a district court's denial of summary judgment de novo. Monette v.
    Electronic Data Sys. Corp., 
    90 F.3d 1173
    , 1176 (6th Cir. 1996). Summary judgment is appropriate
    if, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the pleadings, depositions,
    answers to interrogatories, and admissions on file, together with the affidavits, if any, “show that
    there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a
    matter of law.” Fed. R. Civ. P. 56(c). As the moving parties, Defendants bear the burden of
    showing the absence of a genuine issue of material fact as to at least one essential element on each
    of Harrison’s claims. See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 324 (1986). Harrison, as the non-
    moving party, must then present sufficient evidence from which a jury could reasonably find for her.
    See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 252 (1986). This Court must then determine
    “whether the evidence presents a sufficient disagreement to require submission to a jury or whether
    it is so one-sided that one party must prevail as a matter of law.” 
    Id. at 251-52.
    In making this
    determination, this Court must draw all reasonable inferences in favor of Harrison. See Nat’l
    Enters., Inc. v. Smith, 
    114 F.3d 561
    , 563 (6th Cir. 1997).
    I.      Denial of Qualified Immunity to Defendant Officers
    A.      Jurisdiction
    While most denials of summary judgment are nonfinal orders which cannot be appealed
    pursuant to 28 U.S.C. § 1291, it is well established that an order denying qualified immunity is
    immediately appealable. In Mitchell v. Forsyth, 
    472 U.S. 511
    (1985), the Supreme Court held that
    a denial of qualified immunity is subject to an interlocutory appeal that this Court has jurisdiction
    to hear pursuant to the “collateral order” doctrine under § 1291. 
    Id. at 525-27.
    Under this doctrine,
    the immediate review of a qualified immunity determination is based on the fact that “the qualified
    immunity doctrine exists partly to protect officials from having to stand trial; a defendant wrongly
    forced to go to trial loses the benefit of the immunity even if he or she is exonerated after trial;
    therefore, the order cannot effectively be reviewed after trial and is considered final.” Phelps v. Coy,
    
    286 F.3d 295
    , 298 (6th Cir. 2002).
    This Court’s jurisdiction regarding orders denying qualified immunity, however, is narrow.
    This Court may exercise jurisdiction “only to the extent that a summary judgment order denies
    qualified immunity based on a pure issue of law.” Gregory v. City of Louisville, 
    444 F.3d 725
    , 742
    (6th Cir. 2006). Indeed, “a defendant entitled to invoke a qualified immunity defense may not
    appeal a district court’s summary judgment order insofar as that order determines whether or not the
    pretrial record sets forth a ‘genuine’ issue of material fact for trial.” Johnson v. Jones, 
    515 U.S. 304
    ,
    319-20 (1995). Rather, “the defendant must be prepared to overlook any factual dispute and to
    concede an interpretation of the facts in the light most favorable to the plaintiff’s case.” Berryman
    v. Rieger, 
    150 F.3d 561
    , 562 (6th Cir. 1998); see also Booher v. Northern Kentucky Univ. Board of
    Regents, 
    163 F.3d 395
    , 396-97 (6th Cir. 1999). Thus, to the extent that the denial of qualified
    immunity is based on a factual dispute, such a denial falls outside of the narrow jurisdiction of this
    Court. 
    Berryman, 150 F.3d at 563
    ; 
    Gregory, 444 F.3d at 742
    . In the instant case, Defendant officers
    have conceded the facts in the light most favorable to Harrison and raise a pure issue of law
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                  Page 5
    regarding Harrison’s establishment of deliberate indifference in violation of the Eighth Amendment.
    Thus, we have jurisdiction over Defendant officers’ qualified immunity appeal.
    B.       Qualified Immunity and the Deliberate Indifference Standard
    Qualified immunity or “‘good faith’ immunity is an affirmative defense that must be pleaded
    by a defendant official.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 814 (1982). As noted above, this
    defense allows a government official to invoke “an entitlement not to stand trial or face the other
    burdens of litigation.” Saucier v. Katz, 
    533 U.S. 194
    , 200 (2001) (internal citations omitted). To
    determine whether qualified immunity was properly denied, this Court must examine: (1) whether,
    considering the evidence in the light most favorable to the party injured, a constitutional right has
    been violated; and (2) whether that right was clearly established. See Estate of Carter v. City of
    Detroit, 
    408 F.3d 305
    , 310-11 (6th Cir. 2005); Comstock v. McCrary, 
    273 F.3d 693
    , 701 (6th Cir.
    2001).
    In Farmer v. Brennan, 
    511 U.S. 825
    , 833 (1994), the Supreme Court noted that “having
    stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside
    aid, the government and its officials are not free to let the state of nature take its course.” Thus, in
    Estelle v. Gamble, 
    429 U.S. 97
    (1976), the Court held that the Eighth Amendment requires the
    government “to provide medical care for those whom it is punishing by incarceration” because the
    failure to do so “may actually produce physical torture or a lingering death” or “[i]n less serious
    cases, . . . may result in pain and suffering which no one suggests would serve any penological
    purpose.” 
    Id. at 103
    (internal citations omitted). The failure to provide such medical care may result
    in a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. 
    Id. In Estelle,
    the Supreme Court held that
    deliberate indifference to serious medical needs of prisoners constitutes the
    unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.
    This is true whether the indifference is manifested by prison doctors in their response
    to the prisoner’s needs or by prison guards in intentionally denying or delaying
    access to medical care or intentionally interfering with the treatment once prescribed.
    
    Id. at 104
    (internal citations omitted). The Court has noted, however, that the term deliberate
    indifference “describes a state of mind more blameworthy than negligence.” 
    Farmer, 511 U.S. at 835
    . Indeed, “[m]edical malpractice does not become a constitutional violation merely because the
    victim is a prisoner.” 
    Estelle, 429 U.S. at 105
    .
    The failure to address a serious medical need rises to the level of a constitutional violation
    where both objective and subjective requirements are met. See 
    Farmer, 511 U.S. at 833
    . First, the
    failure to protect from risk of harm must be objectively “sufficiently serious.” 
    Id. To meet
    this
    requirement, Harrison must show “the existence of a ‘sufficiently serious’ medical need.” Blackmore
    v. Kalamazoo County, 
    390 F.3d 890
    , 895 (6th Cir. 2004). Second, to satisfy the subjective
    requirement, Harrison must show “a sufficiently culpable state of mind in delaying medical care.”
    
    Id. (internal citations
    omitted). This subjective requirement is met where a plaintiff demonstrates
    that prison officials acted with “deliberate indifference” to a serious medical need. An official is
    deliberately indifferent where “the official knows of and disregards an excessive risk to inmate
    health or safety; the official must both be aware of the facts from which the inference could be
    drawn that a substantial risk of harm exists, and he must also draw the inference.” 
    Farmer, 511 U.S. at 837
    . An Eighth Amendment claimant, however, “need not show that a prison official acted or
    failed to act believing that harm actually would befall an inmate; it is enough that the official acted
    or failed to act despite his knowledge of a substantial risk of serious harm.” 
    Id. at 842.
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                Page 6
    C.      Analysis
    Before the district court, Harrison alleged that Macomb County Jail Officers Ash, Harrell,
    Felsner, Oke, Martin and Abbott were deliberately indifferent to Jones’ serious medical needs in
    violation of the Eighth Amendment. Harrison asserted that Defendant officers were deliberately
    indifferent as a result of their failure to contact a doctor when it became clear that Jones’ condition
    was not improving. Defendant officers, however, contend that they were not deliberately indifferent
    to Jones’ medical needs because they reasonably responded to Jones’ requests for medical attention
    in a timely manner. In particular, Defendant officers argue that they were entitled to rely upon the
    medical treatment of CMS nurses once they obtained medical care for Jones. Therefore, Defendant
    officers argue, the district court erroneously denied qualified immunity. We agree.
    To establish a cognizable claim of deliberate indifference in violation of the Eighth
    Amendment, Harrison must first establish that Jones’ medical needs were “sufficiently serious.” A
    serious medical need is “one that has been diagnosed by a physician as mandating treatment or one
    that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
    attention.” 
    Blackmore, 390 F.3d at 897
    (citing Gaudreault v. Municipality of Salem, 
    923 F.2d 203
    ,
    208 (1st Cir.1990)). In the instant case, the parties do not dispute the fact that asthma satisfies the
    “objective” requirement of Harrison’s deliberate indifference claim. Indeed, the symptoms
    associated with an asthma attack–wheezing, difficulty breathing, tightness in the chest–are quite
    obvious and recognizable even to a lay person. See Estate of 
    Carter, 408 F.3d at 311-12
    (finding
    that the plaintiff’s medical need was “sufficiently serious” because he was “exhibiting the classic
    signs of an impending heart attack”). The parties differ, however, with respect to Harrison’s
    satisfaction of the “subjective” requirement of her claim. Specifically, Defendant officers contend
    that although they were aware of the serious risk facing Jones as a result of his asthma attack, that
    they were not deliberately indifferent to his serious medical needs.
    In the instant case, the evidence, even when viewed in the light most favorable to Harrison,
    does not establish a dispute of material fact with respect to deliberate indifference on the part of
    Defendant officers. As noted above, a defendant is deliberately indifferent where it can be shown
    that “the official knows of and disregards an excessive risk to inmate health or safety; the official
    must both be aware of the facts from which the inference could be drawn that a substantial risk of
    harm exists, and he must also draw the inference.” 
    Farmer, 511 U.S. at 837
    . However, in cases
    where prison officials “actually knew of a substantial risk to inmate health or safety[, they] may be
    found free from liability if they reasonably respond to the risk, even if the harm ultimately was not
    averted.” 
    Id. at 844.
    Here, each of the Defendant officers, Oke, Abbott, Ash, Harrell, Felsner, and
    Martin, reasonably responded to the substantial risk to Jones’ health and were not, therefore,
    deliberately indifferent to Jones’ serious medical needs.
    1.      Officer Oke
    At 2:30 a.m., Jones contacted Defendant Oke via intercom from his cell in the medical unit
    to report that he was having difficulty breathing. Thereafter, Defendant Oke contacted Nurse Kirk
    “to check on [Jones].” After examining Jones and discovering his significant deterioration, Kirk
    contacted Dr. Bedina and had Nurse Munro arrange for emergency medical transport to the hospital.
    Although Harrison contends that Defendant Oke was deliberately indifferent to Jones’ serious
    medical needs as a result of Oke’s failure to contact a doctor, that is precisely what occurred once
    Oke notified the nursing staff of Jones’ complaints. Moreover, the record reflects that Oke began
    monitoring the medical observation unit at 12:00 a.m. and Harrison has not alleged any facts that
    demonstrate that Oke ignored signs that Jones was in distress between 12:00 a.m. and 2:30 a.m.,
    when Jones requested to go to the hospital. Thus, Oke reasonably responded to Jones’ serious
    medical needs by contacting the nursing staff at the jail for medical assistance. Consequently, Oke
    is entitled to qualified immunity.
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                                 Page 7
    2.       Officers Abbott and Martin
    Similar to Defendant Oke, Defendants Abbott and Martin’s contact with Jones was limited
    to the period when emergency services were summoned to transport Jones to the hospital. At
    approximately 2:37 a.m., Abbott was contacted by Defendant Munro to request that an ambulance
    be called for Jones. Consistent with these instructions, Defendant Abbott contacted an ambulance.
    Defendant Martin, who also was present when Jones went into cardiac arrest, instructed Defendant
    Abbott to drive the ambulance so that emergency medical staff could treat Jones while in route to
    the hospital. Thus, although Defendants Abbott and Martin “actually knew of a substantial risk to
    inmate health or safety,” they are entitled to qualified immunity because “they reasonably
    respond[ed] to the risk, even if the harm ultimately was not averted.” 
    Farmer, 511 U.S. at 844
    .
    3.       Officers Ash, Harrell and Felsner
    Defendants Ash, Harrell and Felsner’s contact with Jones was even more limited than that
    of Oke, Abbott or Martin. At approximately 2:45 a.m., Defendant Ash was assigned to the “booking
    station.” (J.A. at 411) The only evidence on the record regarding Ash’s response to Jones’ asthma
    attack was that he left the booking station to go to the medical unit to see if he could assist the
    nursing staff in treating Jones. At that time, Ash “didn’t know what the problem was yet, [he] just
    knew that there was a problem.” (J.A. at 412) However, Defendants Kirk and Munro were
    administering oxygen to Jones when he arrived.
    Within a few minutes after Defendant Ash arrived at the medical unit, Defendants Harrell
    and Felsner escorted two emergency medical technicians to the unit where Jones was being treated.
    Clearly, Defendants Ash, Harrell and Felsner had minimal contact with Jones and were tangentially
    involved with his transportation to the hospital once an ambulance was called. Thus, it cannot be
    said that Defendants acted unreasonably or that Defendants were deliberately indifferent to Jones’
    serious medical needs.
    In sum, we find that Harrison has not sufficiently demonstrated that any of the Defendant
    officers were deliberately indifferent to Jones’ serious medical needs.4 Even after taking the facts
    in a light most favorable to Harrison, the record does not demonstrate that any of the individual
    Defendant officers disregarded a serious risk to Jones’ health by failing to report Jones’ symptoms
    to the medical staff at the jail. While there may be occasions where deliberate indifference could
    be found where prison officials fail to obtain medical assistance when the local jail staff has
    provided inadequate treatment, this is not such an occasion. In the instant case, each of the named
    Defendant officers was present at the latter stage of Jones’ deterioration, when it was clear that
    emergency medical treatment was required and emergency medical care was already en route or on
    the scene. Despite Harrison’s assertions, there is no evidence in the record indicating that any of
    the named Defendants observed Jones’ deterioration, between 9:00 p.m. and 2:30 a.m., during the
    course of his treatment by medical staff. Thus, it cannot be said that any of the Defendant officers
    were deliberately indifferent to Jones’ serious medical needs and they are therefore entitled to
    qualified immunity. See Clark-Murphy v. Foreback, 
    439 F.3d 280
    , 287(6th Cir. 2006) (finding that
    two defendant prison guards were entitled to qualified immunity because each took “reasonable
    steps to ensure that [the other defendants] looked out for [decedent’s] care” and “had no reason to
    4
    Harrison asserts that Defendant officers are not entitled to qualified immunity because Macomb County had
    an inadequate policy regarding the treatment of inmates with asthma, thus evincing deliberate indifference to Jones’
    serious medical needs. (Pl’s Br. at 33-36) To advance this argument, Harrison relies on a number of cases including
    City of Canton v. Harris, 
    489 U.S. 378
    (1989), and Russo v. Cincinnati, 
    953 F.2d 1036
    (6th Cir. 1992). Harris and
    Russo, however, set forth the standard for establishing deliberate indifference on the part of municipalities rather than
    individual defendants. Thus, Harrison’s argument is unavailing with respect to Defendant officers.
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                  Page 8
    expect that [the other defendants] charged with [decedent’s] care would fail to secure [the necessary]
    help”).
    II.     Denial of Summary Judgment to Defendant Nurses
    Defendant nurses also appeal the district court’s denial of their motion for summary
    judgment. As a general rule, however, 28 U.S.C. § 1291 grants appellate courts jurisdiction to hear
    only “final judgments” rendered by district courts. See 28 U.S.C. § 1291 (“The courts of appeals
    (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of
    appeals from all final decisions of the district courts of the United States . . . .”). Thus, a denial of
    summary judgment, which is not a final order by a district court, is not immediately appealable.
    Johnson v. Jones, 
    515 U.S. 304
    , 313 (1995) (holding the district court’s disposition, finding that the
    summary judgment record raised genuine issues of material fact regarding the merits of plaintiff’s
    claim, was not a “final order” within the meaning of § 1291).
    As noted above with respect to Defendant officers, however, under the “collateral order”
    doctrine, a district court’s order denying summary judgment is immediately appealable where “(1)
    the defendant was a public official asserting a defense of ‘qualified immunity;’ and (2) the issue
    appealed concerned, not which facts the parties might be able to prove, but, rather, whether or not
    certain given facts showed a violation of ‘clearly established’ law.” 
    Id. at 311.
    In the instant case,
    the district court denied Defendant nurses’ motion for summary judgment on Harrison’s § 1983
    claim. Thus, this Court lacks jurisdiction to consider the district court’s non-final order denying
    summary judgment under 28 U.S.C. § 1291 unless Defendant nurses are eligible to raise a qualified
    immunity defense. We find, however, that as employees of a private medical provider, rather than
    Macomb County itself, Defendant nurses may not assert a defense of qualified immunity and thus
    we lack jurisdiction to hear their appeal.
    As an initial matter, it is undisputed that Defendant nurses are subject to suit under § 1983
    because they acted “under color of state law.” “It is well settled that private parties that perform
    fundamentally public functions, or who jointly participate with a state to engage in concerted
    activity, are regarded as acting ‘under the color of state law’ for purposes of § 1983.” Bartell v.
    Lohiser, 
    215 F.3d 550
    , 556 (6th Cir. 2000). In the instant case, Defendant nurses were acting under
    the color of state law when the alleged constitutional violation occurred because of the contractual
    relationship between Macomb County and CMS. Indeed, in West v. Atkins, 
    487 U.S. 42
    (1988), the
    Supreme Court held that a private doctor under contract to provide medical care to inmates at a state
    prison acted under color of state law and was therefore subject to suit under § 1983. 
    Id. at 56.
    The
    Supreme Court reached this conclusion after noting that “[c]ontracting out prison medical care does
    not relieve the State of its constitutional duty to provide adequate medical treatment to those in its
    custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth
    Amendment rights.” 
    Id. Being subject
    to suit under § 1983, however, does not mean that a party has the right to assert
    qualified immunity. Although § 1983 “creates a species of tort liability that on its face admits of
    no immunities,” Wyatt v. Cole, 
    504 U.S. 158
    , 163 (1992), the Supreme Court has carved out areas
    of immunity from suit where 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.’” 
    Id. at 164
    (citations omitted). In Richardson v. McKnight,
    
    521 U.S. 399
    (1997), for example, the Supreme Court examined historical precedent and the policy
    considerations undergirding the doctrine of qualified immunity to find that qualified immunity was
    not available to prison guards who worked for a private, for profit corporation that was under
    contract with the state to manage a prison. Accord Duncan v. Peck, 
    844 F.2d 1261
    , 1264 (6th Cir.
    1988) (finding that private parties are not eligible for immunity from suit based on common law
    practices and policy rationales). Thus, this Court must engage in a context specific analysis,
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                                Page 9
    examining the common law tradition of immunity as well as the policy considerations supporting
    qualified immunity, to determine whether nurses employed by a private medical provider are eligible
    to assert qualified immunity in a § 1983 action. See 
    Richardson, 521 U.S. at 408-09
    ; 
    Wyatt, 504 U.S. at 168-69
    .
    In Richardson, the Court examined the common law prior to the enactment of § 1983 to find
    that there was no “firmly rooted” history of providing immunity for private parties who operated
    prisons or other punitive establishments. While this finding might otherwise be dispositive of our
    inquiry into the historical record regarding immunity, the Court also observed that “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.” 
    Richardson, 521 U.S. at 407
    . As the Eleventh Circuit noted
    in Hinson v. Edmond, 
    192 F.3d 1342
    , 1345 (11th Cir. 1999), however, “[t]he sources cited by the
    Court suggest that, under certain circumstances, English doctors and lawyers were immune from
    liability for acts amounting to negligence. For acts amounting to recklessness or intentional
    wrongdoing, as are alleged here, immunity did not exist . . . . ” Indeed, it is well settled that claims
    of deliberate indifference must be supported by more than mere negligence.5 Johnson v. Karnes,
    
    398 F.3d 868
    , 875 (6th Cir. 1995). Thus, to the extent that the deliberate indifference claim at issue
    turns on Harrison’s establishment of recklessness, like Richardson, we conclude that there is no
    “firmly rooted” common law practice of extending immunity to private actors under the
    circumstances present in this case. See Jensen v. Lane County, 
    222 F.3d 570
    , 579 (9th Cir. 2000)
    (denying qualified immunity to a private psychiatrist employed by a county to evaluate patients
    temporarily detained at the county mental health hospital).
    Nor do the policy rationales undergirding qualified immunity counsel in favor of extending
    immunity to Defendant nurses. As the Court noted in Wyatt v. Cole, the doctrine of qualified
    immunity “strikes a balance between compensating those who have been injured by official conduct
    and protecting government’s ability to perform traditional 
    functions.” 504 U.S. at 167
    . Indeed, on
    the one hand, § 1983 is one of the most important vehicles for the vindication of constitutional and
    statutory rights and to insure that persons acting under of the color of state law comply with
    constitutional mandates. On the other hand, the threat of such suits can also dampen the vigorous
    exercise of official discretion and the discharge of essential governmental functions. Thus, qualified
    immunity allows suits which allege the violation of a clearly established constitutional right to go
    forward while insulating officers against suits that are frivolous or where a reasonable officer
    attempting to serve the public would not have known that his conduct violated a constitutional right.
    “In short, the qualified immunity [doctrine] . . . acts to safeguard government, and thereby to protect
    the public at large, not to benefit its agents.” 
    Id. at 167-68.
           In Richardson, the Court stated that the policy rationales for extending qualified immunity
    include “protecting the public from unwarranted timidity on the part of public officials” and
    “encouraging the vigorous exercise of official 
    authority.” 521 U.S. at 408
    . Additionally, the Court
    noted that qualified immunity is intended to prevent lawsuits from distracting officials from
    5
    However, even if, as a general matter, private medical providers could raise immunity from suit in the context
    of negligence actions, there is no such history of immunity in the state of Michigan. See Rambus v. Wayne County
    General Hospital, 
    483 N.W.2d 455
    , 457-58 (Mich. Ct. App. 1992) (finding that private medical provider was not entitled
    to governmental immunity despite the fact that the provider and its employees contracted with a governmental agency
    to provide such medical services); Roberts v. City of Potomac, 
    440 N.W.2d 55
    , 57 (Mich Ct. App. 1989) (denying
    governmental immunity to private health provider that contracted with a county hospital after finding “no reason to
    extend the protection of governmental immunity to a private entity merely because it contracts with the government”).
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                                 Page 10
    adequately carrying out their6duties and “ensur[ing] that talented candidates [are] not deterred from
    entering public service.” 
    Id. In considering
    the first of the policy rationales supporting qualified immunity in the context
    of private prisons, the Court noted that “the most important special government immunity-producing
    concern–unwarranted timidity–is less likely present, or at least not special, when a private company
    subject to competitive market pressures operates a prison.” 
    Id. at 409.
    “Competitive pressures mean
    not only that a firm whose guards are too aggressive will face damages that raise costs, thereby
    threatening its replacement, but also that a firm whose guards are too timid will face threats of
    replacement by other firms with records that demonstrate their ability to do both a safer and more
    effective job.” 
    Id. The Court
    observed that the corporation was required to buy insurance to
    compensate victims of civil rights torts, and that its performance was regularly reviewed by
    government authorities, thus creating “pressure from potentially competing firms who can try to take
    its place.” 
    Id. at 410.
    Thus, the Court concluded that because the private firm possessed the
    “freedom to respond to those market pressures through rewards and penalties that operate directly
    upon its employees,” the private guard defendants “resemble those of other private firms and differ
    from government employees.” 
    Id. Additionally, the
    Court found that the private prison would be able to insure that talented
    candidates are not deterred by the threat of damages even in the absence of qualified immunity.
    Indeed, private firms may obtain comprehensive insurance and do not operate under “civil service
    law restraints” and were therefore better able to “offset increased employee liability risk with higher
    pay or extra benefits.” 
    Id. at 411.
    Moreover, the Court held that although the possibility of being
    brought into court for an alleged civil rights violation could distract the employees of the private
    prison, “the risk of distraction alone cannot be sufficient grounds for an immunity. Our qualified
    immunity cases do not contemplate the complete elimination of lawsuit-based distractions.” 
    Id. Thus, the
    Court held that the private prison was not entitled to qualified immunity. In reaching this
    conclusion, however, the Court limited its denial of qualified immunity to the context of “a private
    firm, systematically organized to assume a major lengthy administrative task (managing an
    institution) with limited direct supervision by the government,  [which] undertakes that task for profit
    and potentially in competition with other firms.”7 
    Id. at 413.
          Applying the wisdom of Richardson to the instant case, we find that the purposes of qualified
    immunity do not support the extension of the doctrine to nurses employed by a private medical
    6
    In reaching this conclusion, the Supreme Court rejected a “functional approach” to determining whether private
    defendants may assert qualified immunity. 
    Richardson, 521 U.S. at 408
    . Rather, the Court concluded that whether the
    private guards were performing the same work as public guards was irrelevant to the question of whether the private
    guard defendants could invoke qualified immunity. 
    Id. (noting that
    the Court never “held that the mere performance of
    a governmental function could make the difference between unlimited § 1983 liability and qualified immunity, especially
    for a private person who performs a job without government supervision or direction”). Noting the logical absurdity of
    such an approach, the Court observed that “a purely functional approach bristles with difficulty, particularly since, in
    many areas, government and private industry may engage in fundamentally similar activities, ranging from electricity
    production, to waste disposal, to even mail delivery.” 
    Id. at 408-09.
             7
    The Court, however, reserved the question of whether “a private individual briefly associated with a
    government body, serving as an adjunct to government in an essential governmental activity, or acting under close
    official supervision” may assert qualified immunity in a § 1983 suit. 
    Id. at 413.
    Based on this reservation, this Court
    has permitted defendants acting under close official supervision to assert qualified immunity in the face of a § 1983 suit.
    See 
    Bartell, 215 F.3d at 557
    . In Bartell, for example, we held that a non-profit firm that contracted with a state social
    services agency for the provision of foster care services was eligible to assert qualified immunity. We reached this
    conclusion because the defendant was “closely supervised” by the state and because the particular function filled by the
    defendant, non-profit foster care services, “require[d] the deliberate and careful exercise of official discretion in ways
    that few public positions can match.” 
    Id. at 557.
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                                Page 11
    provider. With respect to unwarranted timidity, the most important rationale underlying qualified
    immunity, it is clear that market forces will operate to insure that CMS and its employees will
    effectively execute their contractual duties. Like the private prison in Richardson, CMS must
    compete with other firms to obtain contracts to provide medical services in prisons and jails. At the
    time of the alleged constitutional violation, CMS was under a two-year agreement with Macomb
    County to “provide for the delivery of reasonable and necessary medical, dental, mental health and
    limited psychiatric care to individuals under the custody and control of the County.” (J.A. at 249)
    Moreover, under the terms of the agreement, CMS was required to maintain liability insurance to
    cover claims arising out of the performance of its contractual duties. To the extent that CMS
    performs its contractual duties in a manner that is overly cautious or unduly concerned with its
    bottom line at the expense of inmate care, its performance will be subject to review at the end of the
    contractual term and it will likely face “pressure from potentially competing firms who can try to
    take its place.” 
    Richardson, 521 U.S. at 410
    . Thus, CMS and its employees have an incentive to
    perform in a manner that comports with constitutional standards and with the expectations of the
    contracting governmental entity.
    Additionally, a finding that CMS nurses are ineligible for qualified immunity will not deter
    talented candidates from serving in such a capacity. Even in the absence of qualified immunity,
    CMS may attract candidates for nursing and other positions by increasing pay, benefits packages
    and obtaining adequate insurance coverage. Although such measures will not entirely eliminate the
    distraction caused by the threat of damages from a § 1983 suit, any distraction caused by the threat
    of suit is certainly no greater than the threat of malpractice suits faced by other medical
    professionals.
    In short, we find that, like Richardson, public policy considerations do not militate in favor
    of qualified immunity for Defendant nurses. Here, as in Richardson, there are no special concerns
    to distinguish CMS from other private firms and thus, there is no need to extend qualified immunity
    to Defendant nurses. Importantly, like the company in Richardson, CMS is a for-profit entity that
    has undertaken the major administrative task of providing health care to Macomb County inmates,
    operates with little supervision from Jail authorities, and is subject to the pressures of the
    marketplace. Under these circumstances, extending qualified immunity to Defendant nurses would
    do little to quell the “concern that threatened liability would, in Judge Hand’s words, ‘dampen the
    ardour of all but the most resolute, or the most irresponsible,’ public officials” and thus qualified
    immunity must be denied in this circumstance. 
    Richardson, 521 U.S. at 408
    (citation omitted); see
    also Cook v. Martin, 148 F. App’x 327, 342 (6th Cir. 2005); Manis v. Corrections Corporation of
    America, 
    859 F. Supp. 302
    , 306 (M.D. Tenn. 1994).
    We are not alone in reaching this conclusion. In Cook v. Martin, 148 F. App’x 327 (6th Cir.
    2005), a panel of this Court held that a physician’s assistant employed by a subcontractor of CMS
    was not entitled to qualified immunity. The Cook court found that the extension of qualified
    immunity was inappropriate inasmuch as an examination of “the history and purposes of qualified
    immunity does not reveal anything sufficiently special about the work of private prison medical
    providers that would warrant providing such providers with governmental immunity.” 
    Id. at 342.
    Moreover, other circuits have denied qualified immunity to private medical providers under similar
    circumstances. See 
    Jensen, 222 F.3d at 580
    (finding that the policy justifications for qualified
    immunity did not support the availability of the defense to private psychiatrist that contracted with
    a county-run hospital); Halvorsen v. Baird, 
    146 F.3d 680
    , 685-86 (9th Cir. 1998) (private non-profit
    organization that contracted with municipality to provide involuntary detoxification services could
    not assert qualified immunity); Rosewood Services, Inc. v. Sunflower Diversified Services, 
    413 F.3d 1163
    , 1169 (10th Cir. 2005) (finding that policy considerations did not justify extending qualified
    immunity protection to non-profit firm that was under contract with the government to provide
    services to developmentally disabled individuals); Hinson v. Edmond, 
    192 F.3d 1342
    , 1347 (11th
    Cir. 1999) (privately employed jail physician ineligible for qualified immunity). In sum, the history
    Nos. 07-2077/2078 Harrison v. Ash, C.O., et al.                                              Page 12
    and purpose of qualified immunity, as well as the case law interpreting the scope of the doctrine, are
    clear that Defendant nurses, as employees of CMS, are not eligible for qualified immunity in a
    § 1983 suit. 
    Richardson, 521 U.S. at 413
    . Thus, we lack jurisdiction to hear Defendant nurses’
    appeal of the district court’s denial of summary judgment.
    CONCLUSION
    For the reasons described above, we REVERSE the district court’s denial of qualified
    immunity with respect to Defendant officers and DISMISS Defendant nurses’ appeal for lack of
    jurisdiction.
    

Document Info

Docket Number: 07-2078

Filed Date: 8/28/2008

Precedential Status: Precedential

Modified Date: 9/22/2015

Authorities (27)

Glenn W. Phelps, Jr. v. Robert M. Coy, Jr., Christin Stutes , 286 F.3d 295 ( 2002 )

98-cal-daily-op-serv-4441-98-daily-journal-dar-6126-donald , 146 F.3d 680 ( 1998 )

Rambus v. Wayne County General Hospital , 193 Mich. App. 268 ( 1992 )

City of Canton v. Harris , 109 S. Ct. 1197 ( 1989 )

Estelle v. Gamble , 97 S. Ct. 285 ( 1976 )

Farmer v. Brennan , 114 S. Ct. 1970 ( 1994 )

National Enterprises, Inc. v. Paul Smith , 114 F.3d 561 ( 1997 )

Kevin Booher, Plaintiff-Appellee/cross-Appellant v. ... , 163 F.3d 395 ( 1999 )

Roger Monette and Doris Monette v. Electronic Data Systems ... , 90 F.3d 1173 ( 1996 )

Roberts v. City of Pontiac , 176 Mich. App. 572 ( 1989 )

jerry-richard-jensen-v-lane-county-richard-sherman-individually-and-in , 222 F.3d 570 ( 2000 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Manis v. Corrections Corp. of America , 859 F. Supp. 302 ( 1994 )

James E. Duncan, Cross-Appellee v. Mr. & Mrs. Harold Peck, ... , 95 A.L.R. Fed. 69 ( 1988 )

Philip Berryman v. Dean Rieger, C. Kukla, Diane Holzheuer , 150 F.3d 561 ( 1998 )

ella-bartell-v-loretta-lohiser-gerald-rein-michael-roxberry-lloyd-fett , 215 F.3d 550 ( 2000 )

Richardson v. McKnight , 117 S. Ct. 2100 ( 1997 )

Tjymas Blackmore v. Kalamazoo County , 390 F.3d 890 ( 2004 )

karen-s-russo-individually-and-as-administrator-of-the-estate-of-thomas , 953 F.2d 1036 ( 1992 )

View All Authorities »