Sheila McCullum v. Kenneth Tepe , 693 F.3d 696 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0287p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SHEILA MCCULLUM, Individually and as
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Administratrix of the Estate of Timothy
Hughes, -
Plaintiff-Appellee, -
No. 11-3424
,
>
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v.
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Defendant-Appellant, -
KENNETH TEPE,
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BUTLER COUNTY, OHIO; BUTLER COUNTY
BOARD OF COMMISSIONERS; RICHARD K. -
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JONES; LEAH JOHNSON; THERESA DIETZ,
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Sergeant; JANE OR JOHN DOE #1; WILLIAM
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ROGERS; RESOLUTIONS COMMUNITY
SOLUTIONS, INC.; COMMUNITY BEHAVIORAL -
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N
HEALTH, INC.,
Defendants.
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:08-cv-387—Timothy S. Black, District Judge.
Argued: July 24, 2012
Decided and Filed: August 28, 2012
Before: BOGGS, GILMAN, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: David C. Calderhead, CALDERHEAD, LOCKEMEYER & PESCHKE
LAW OFFICE, Milford, Ohio, for Appellant. Jennifer L. Branch, GERHARDSTEIN
& BRANCH CO. LPA, Cincinnati, Ohio, for Appellee. ON BRIEF: David C.
Calderhead, Joshua F. DeBra, Joel L. Peschke, CALDERHEAD, LOCKEMEYER &
PESCHKE LAW OFFICE, Milford, Ohio, for Appellant. Jennifer L. Branch, Alphonse
A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for
Appellee.
1
No. 11-3424 McCullum v. Tepe, et al. Page 2
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OPINION
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BOGGS, Circuit Judge. Timothy Hughes died after hanging himself from his
bed in the Butler County Prison. Hughes showed no outward signs that he was suicidal,
but he did have a history of depression and asked to see Dr. Kenneth Tepe, the prison
psychiatrist, about anti-depression medication. Hughes and Dr. Tepe never met.
Hughes’s mother filed this § 1983 suit, alleging that Tepe was deliberately indifferent
to her son’s serious medical need. Tepe sought summary judgment, arguing that he was
entitled to qualified immunity. The district court held that Tepe could not assert a
qualified-immunity defense. We agree. There does not seem to be a history of
immunity from suit at common law for a privately paid physician working for the public,
and the policy rationales that support qualified immunity are not so strong as to justify
our ignoring this history, or lack of history. We therefore affirm the district court’s
decision denying Tepe’s request for qualified immunity.
I
Hughes, incarcerated in the Butler County Prison on charges of robbery,
contributing to the delinquency of a minor, and abuse of the drugs cocaine and Concerta
(a drug similar to Ritalin), hanged himself with a bed sheet. He died the next day from
his injuries. Sheila McCullum, Hughes’s mother, sued, seeking damages against Tepe,
inter alia.1
Tepe had provided psychiatric services to inmates of the Butler County Prison
for approximately ten years. Until 2005, the County paid Tepe directly. At the time of
Hughes’s suicide, however, Tepe worked for Community Behavioral Health, a non-
profit entity that provides crisis counseling, mental-health screening and mental-health
1
McCullum also sued a social worker who had met with Hughes about his psychiatric needs, the
non-profit organization that employed both Tepe and the social worker, Butler County, the physician in
charge of medical services in the prison, and other prison personnel involved in the events that led to
Hughes’s death.
No. 11-3424 McCullum v. Tepe, et al. Page 3
assessments for Butler County Prison inmates. The Prison’s psychiatric-services
program, which Tepe designed, had two steps. First, a social worker would conduct
“triage,” deciding which inmates Tepe should see. Then, if the social worker so
recommended, the inmate would meet with Tepe in person. Tepe spent approximately
two hours each Tuesday morning at the Prison, and was on call twenty-four hours a day.
Hughes arrived at the Prison on March 14, 2007. He told the officer booking him
that he had attempted suicide within the last year and that, in the past, he had been
hospitalized for suicidal ideation. Hughes, however, also told the officer that he was not
currently contemplating suicide. In response, a prison social worker put a suicide alert
for Hughes in the Prison’s computer system. Ten days later, on March 24, a paramedic
conducting a routine medical screening noted that Hughes had a history of depression
and that he had not taken Seroquel, his prescribed medication, in over a year. She
therefore declined to approve Hughes for a food-service job. Nevertheless, the
paramedic wrote that Hughes had “no medical complaints at this time” and decided not
to refer him to a doctor.
On the same day, Hughes filled out an “inmate service request,” asking to “talk
to Dr. Tepe about geting [sic] back on my Depression and bipolar meds.” Hughes
elaborated: “I didn’t relize [sic] that when I took my selfe [sic] of [sic] I didn’t need
them. But now I know I think I need them again.” Social worker Leah Johnson2
reviewed Hughes’s request on March 27 and spoke to Hughes in person. During their
conversation, Hughes was “comfortable [and] jovial” and “joked with [Johnson].”
According to Johnson’s contemporaneous report,3 Hughes explained that he had not
taken his medication for more than a year, opting instead to medicate himself with
2
Johnson is a licensed social worker. Under Ohio law, she cannot diagnose patients, develop
treatment plans, or provide counseling without clinical supervision by a physician or licensed independent
social worker. Although both Tepe and licensed-social-worker Chris Connolly—who was also the
Assistant Vice President of Community Behavioral Health—supervised Johnson, Tepe took responsibility
for overseeing any decisions she made about medications. Tepe did not review Johnson’s determinations
that a patient should not see him.
3
After Hughes’s suicide, Johnson wrote a more detailed report. For our purposes, detailed
discussion of this document is not necessary.
No. 11-3424 McCullum v. Tepe, et al. Page 4
marijuana, alcohol, and cocaine.4 Johnson’s report also noted that Hughes did not
display any psychosis and denied having any suicidal ideation. Johnson declined
Hughes’s request to see Tepe.
A number of family members visited Hughes in the days that followed. None
believed that he was suicidal. On April 6, Hughes had an altercation with his cell-mate.
He filed charges against the cell-mate, and charges were filed against him. In the
aftermath of this incident, Hughes met with a sergeant. During that meeting, Hughes
denied that he was thinking about committing, or planning to commit, suicide.
The sergeant put Hughes in an isolation cell where, late in the evening, he wrote
letters to family members. Hughes’s first letter, addressed to his father, expressed anger
at being “put in the hole” because his cell-mate hit him. “Wats [sic] fucked up the
most,” Hughes wrote, “is I dident [sic] even set to hit [him] back and they still put me
in the hole this is bull shit.” Hughes concluded by writing: “I love and miss you so much
. . . P.S. write back and send pictures please.” The second letter that Hughes wrote was
to his mother. He asked that she “get that lawyer now” because of the fight, and again
expressed anger that his cell-mate “hit me and I go to the hole.” In a third letter, also to
his mother, Hughes wrote: “Thank you and grandma for every thang [sic] you all have
done and will do for me when I get out. I will need everyones [sic] help to stay off the
drugs. And stay away from all my old friends that I got them from . . . I cant [sic] wait
to come home.” Hughes’s last letter was to his grandmother. He apologized for making
her worry and “promis[ed] to stairtin [sic] my life up when I get out and get a good job.
And quit doing drugs and stealing.” He concluded: “I love you so much and I wish I
would have listened to you along [sic] time ago but I could’ent [sic] cause of the drugs.
And I’m sorry for that . . . P.S. Please write me back. I Love You So much and miss
you.”
4
Johnson’s longer report indicates that, when she told Hughes that he could not immediately get
Seroquel because he had not been treated by a physician within the last year, he claimed still to be taking
the drug. Hughes told Johnson that he had been purchasing Seroquel illegally from a friend who had a
prescription.
No. 11-3424 McCullum v. Tepe, et al. Page 5
The next day, Hughes hanged himself from the side of his bunk with a bedsheet.
He died the following day, April 8, in the hospital. Hughes did not leave a suicide note.
Nor did he ever see Tepe.
McCullum, Hughes’s mother, filed this § 1983 suit against Community
Behavioral Health, an organization related to Community Behavioral Health called
Resolutions, and Tepe just under two years later on March 27, 2009.5 She alleged that
the defendants were liable under § 1983 for deliberate indifference to Hughes’s serious
medical need, to wit: a suicidal tendency. McCullum also made a wrongful-death claim
under Ohio law. On December 1, 2010, Tepe moved for summary judgment on
qualified-immunity grounds and other grounds not relevant here. The district court held
that Tepe was not entitled to qualified immunity. It first noted that Tepe was not a
government official automatically entitled to invoke the doctrine. The district court then
found that Tepe could not claim qualified immunity as a private actor performing a
government function because he could show neither: (1) a firmly rooted tradition of
immunity applicable to private defendants like him at common law; nor (2) that the
purposes underlying the doctrine of qualified immunity supported immunity in his case.
Tepe appeals.
II
Title 42 U.S.C. § 1983 creates a private right of action against “[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory . . . subjects, or causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws.” Liability, though, is not automatic, even when an official act violates the
Constitution. “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a statutory
or constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). When a district
5
On December 9, 2009, the district court consolidated the suit with another suit that McCullum
had filed earlier against various other Prison personnel involved in the events described above.
No. 11-3424 McCullum v. Tepe, et al. Page 6
court denies qualified immunity, we review its legal conclusions de novo. Grawey v.
Drury, 567 F.3d 302, 310 (6th Cir. 2009).6
The issue in this appeal is whether Tepe, a physician employed by an
independent non-profit organization, but working part-time for the County as a prison
psychiatrist, can invoke qualified immunity in a lawsuit arising out of his activities at the
prison. A physician who contracts to provide medical services to prison inmates, the
Supreme Court has held, acts under color of state law for purposes of § 1983. West v.
Atkins, 487 U.S. 42, 54 (1988). But a party is not entitled to assert qualified immunity
simply because he is amenable to suit under § 1983. Harrison v. Ash, 539 F.3d 510, 521
(6th Cir. 2008).
Section 1983 “creates a species of tort liability that on its face admits on no
immunities.” Imbler v. Pachtman, 424 U.S. 409, 417 (1976). The Supreme Court,
however, has “accorded certain government officials either absolute or qualified
immunity from suit if the tradition of immunity was so firmly rooted in the common law
and was supported by such strong policy reasons that Congress would have specifically
so provided had it wished to abolish the doctrine.” Wyatt v. Cole, 504 U.S. 158, 163–64
(1992) (internal quotation marks omitted). Thus, if a party seeking immunity would
have been “shielded from tort liability when Congress enacted the Civil Rights Act of
1871—§ 1 of which is codified at 42 U.S.C. § 1983—we infer from legislative silence
that Congress did not intend to abrogate such immunities when it imposed liability for
actions taken under color of state law.” Id. at 164. But even with such an inference, and
“irrespective of the common law support, we will not recognize an immunity available
at common law if § 1983’s history or purpose counsel against applying it in § 1983
actions.” Ibid. Thus, when a private party—including a private person working for the
government part-time, Filarsky v. Delia, 132 S. Ct. 1657, 1667–68 (2012)—seeks
qualified immunity from a § 1983 suit, we determine whether: (1) there was a firmly
rooted history of immunity for similarly situated parties at common law; and (2) whether
6
When reviewing the denial of a motion for qualified immunity, questions of fact are beyond the
scope of our review. Johnson v. Jones, 515 U.S. 304, 319–20 (1995). Because the facts relevant to our
analysis are not in dispute, Johnson has no impact here.
No. 11-3424 McCullum v. Tepe, et al. Page 7
granting immunity would be consistent with the history and purpose of § 1983. See id.
at 1662 (explaining that, to determine whether a party may assert qualified immunity,
“we look to the ‘general principles of tort immunities and defenses’ applicable at
common law, and the reasons we have afforded protection from suit under § 1983”
(quoting Imbler, 424 U.S. at 418)); Richardson v. McKnight, 521 U.S. 399, 404 (1997)
(noting that, to determine whether prison guards employed by a private corporation were
entitled to qualified immunity, the Court would “look both to history and to the purposes
that underlie government employee immunity”).7 We address each question in turn.
A
In Richardson, the Supreme Court held that privately employed prison guards
could not assert qualified immunity. The Court also noted, however, that “[a]pparently
the [common] 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.” Id. at 407.
For this proposition, it cited Tower v. Glover, 467 U.S. 914, 921 (1984), which dealt
with qualified immunity for public defenders, and Joel Prentiss Bishop, Commentaries
on Non-Contract Law (1889), which suggested that, at common law, a physician was
subject to the same immunity rules as a barrister, and that an action for damages could
not lie against a barrister because his services were considered “honorary.”8 Id. §§ 704,
7
As a recent commentator observed, the Supreme Court has not specified “whether policy and
history form a conjunctive or disjunctive test, instead leaving their roles uncertain.” Developments in the
Law—State Action and the Public/Private Distinction, III. Private Party Immunity from Section 1983 Suits,
123 Harv. L. Rev. 1266, 1271 (2010). Although Wyatt’s plain language points to a conjunctive test, see
504 U.S. at 164, Richardson analyzed policy concerns, even after concluding that “history [did] not
provide significant support for the [defendants’] immunity claim.” 521 U.S. at 407; id. at 407–412. We
follow Richardson out of an abundance of caution. But it may be questionable whether the Supreme
Court’s jurisprudence in this area would allow a court to extend qualified immunity where there was no
history of immunity at common law, even if sound policy justified the extension.
8
“Professing to follow the example of the Roman Orators, English Barristers and Serjeants did
not demand compensation, as a matter of right. When they accepted a fee, they did not receive it as an
equivalent for services rendered, but as a gratuity, or an honorary gift.” Seeley v. Crane, 15 N.J.L., 1835WL 2033, at *2 (N.J. 1835). Physicians were on the same footing. As Lord Chief Justice Kenyon
explained in Chorley v. Boclot, (1791) 100 Eng. Rep. 1040, 1041 (K.B.), “it has been understood in this
country that the fees of a physician are honorary, and not demandable of right; and it is much more for the
credit and rank of that honourable body.”
No. 11-3424 McCullum v. Tepe, et al. Page 8
708. Neither the Bishop treatise nor the Supreme Court cited any case law suggesting
that a doctor would have been immune from an action for damages at common law.9
Soon after Richardson, the Eleventh Circuit decided that a prison
physician working for a private company could not assert qualified immunity against a
§ 1983 deliberate-indifference claim. Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir.
1999). “The parties,” the court began, “have not been able to point to, and independent
research—including a look at the sources cited by the Supreme Court in
Richardson—does not reveal, cases which show a common law tradition of immunity
from liability for privately employed prison physicians for acts amounting to
recklessness or intentional wrongdoing.” Id. at 1345. The court, citing Georgia law
from the mid-Twentieth Century, continued: “Instead, case law shows that even state
physicians may be subject to liability for intentional torts.” Ibid. Similarly, in Jensen
v. Lane County, 222 F.3d 570, 577 (9th Cir. 2000), the Ninth Circuit held that a doctor
accused of wrongfully committing a patient to a mental hospital could not claim
qualified immunity because there was no common-law history of immunity for such an
act. Like Hinson, Jensen cited no pre-Twentieth Century case or treatise to support its
holding, relying instead on Oregon cases and statutes from after 1950.
We cited both Hinson and Jensen with approval in our published Harrison
opinion, relying on both for the conclusion “that there is no ‘firmly rooted’ common law
practice of extending immunity to private [nurses working at a county jail].” 539 F.3d
at 522. Likewise, our unpublished opinion in Cook v. Martin, 148 F. App’x 327, 340–41
(6th Cir. 2005), relied on Hinson and Jenson to bolster its conclusion that there was no
firmly rooted tradition of immunity at common law for a private physician’s assistant
working in a public jail.
9
Bishop’s text read: “Probably, within the rule applicable to barristers, [a physician] was not
liable civilly for the consequences of simple negligence or want of skill; hence the English reports furnish
us no precedents on our present subject, as to licensed physicians.” Bishop, Commentaries § 708. Bishop
was mistaken. As the cases cited below illustrate, physicians were held civilly liable in England as early
as the mid 1300’s.
No. 11-3424 McCullum v. Tepe, et al. Page 9
After Filarsky, however, Hinson and Jenson’s historical analyses—which rested
on Twentieth Century law—are suspect, at best. Filarsky, 132 S. Ct. at 1660, addressed
the question whether an attorney who worked for a city part-time could assert qualified
immunity. It held that he could. Id. at 1668. Although Filarsky dealt with a lawyer, not
a doctor, it is relevant here because it shows us how to determine whether there was a
history of immunity for a particular kind of actor at common law. Id. at 1662–65.
Filarsky’s history section focused on the state of the law around the time when Congress
enacted § 1983. Indeed, the Court did not cite one case decided after 1900 to support
its historical analysis. And while Filarsky did not impose a rigid date limit, it does
illustrate the scope of the relevant inquiry: whether a person in the same position as the
party asserting qualified immunity would have been immune from liability under the
common law of the late Nineteenth Century. See id. at 1662 (“Under our precedent, the
inquiry begins with the common law as it existed when Congress passed § 1983 in
1871.”); Wyatt, 504 U.S. at 164 (“If parties seeking immunity were shielded from tort
liability when Congress enacted the Civil Rights Act of 1871—§ 1 of which is codified
at 42 U.S.C. § 1983—we infer from legislative silence that Congress did not intend to
abrogate such immunities when it imposed liability for actions taken under color of state
law.”).
With this in mind, we consider whether a private doctor working for a state
institution would have been immune from a suit for damages at common law.10 In
England, “mala praxis [was] a great misdemesnor [sic] and offence at common law,
whether it be for curiosity and experiment or by neglect;11 because it breaks the trust
which the party had placed in his physician, and tends to the patient’s destruction.”
4 William Blackstone, Commentaries, *122; see also Dr. Groenvelt’s Case, (1697)
91 Eng. Rep. 1038 (K.B.) (discussing the case a of doctor imprisoned for malpractice);
Andrew A. Sandor, The History of Professional Liability Suits in the United States,
10
Harrison and Cook are not particularly helpful because neither involved a doctor. The former
involved private nurses; the latter, private physician’s assistants. Furthermore, both relied uncritically on
cases analyzing law that postdated the passage of § 1983 by seventy-five to one hundred years.
11
This observation casts doubt on cases like Hinson that distinguish between a suit against a
doctor for negligence and a suit against a doctor involving a more culpable mental state.
No. 11-3424 McCullum v. Tepe, et al. Page 10
163 J. Am. Med. Ass’n 459, 459 (1957) (citing English civil medical-malpractice cases
decided as early as 1374). Bishop is correct that there is little British civil-malpractice
case law. However, contrary to Bishop’s unsupported speculation, it does not appear
that doctors generally enjoyed any special kind of immunity. See Sandor, supra, at 459
(collecting cases).
The first reported American medical-malpractice case appears to be Cross v.
Guthery, 2 Root 90, 1794 WL 198 (Conn. Super. 1794). There, a man retained a doctor
to perform surgery on a tumor in his wife’s breast. The doctor “promised to perform
[the] operation with skill and safety to the wife of the plaintiff,” but instead “performed
said operation in the most unskillful, ignorant and cruel manner, contrary to all the
well-known rules and principles of practice in such cases; and . . . after said operation,
the plaintiff’s wife languished for about three hours and then died of the wound given
by the hand of the defendant.” Id. at *1. The plaintiff recovered forty pounds for the
loss “of the service, company and consortship of his said wife.” Ibid. Although the
doctor defended vigorously, he did not argue that he was immune from damages because
he was a doctor.
But the doctor in Cross was a private doctor working for a private client. Tepe
was a private doctor working for a public institution. Hence, the question: even if
doctors generally had no immunity at common law, what of a private doctor who, like
Tepe, worked for the government? There is little directly applicable case law. But the
precedents that do exist point in one direction: there was no special immunity for a
doctor working for the state.
In Landon v. Humphrey, 9 Conn. 209, 1832 WL 76, at *1 (Conn. June 1832), a
doctor contracted with the town of Salisbury to vaccinate residents against “small or kine
pox.” The doctor, or his agent,12 “so unfaithfully, unskillfully and ignorantly treated the
plaintiff, that he cut a tendon, cord, ligament and nerve of the plaintiff’s arm and
inoculated her in an improper, unusual and dangerous place on her arm.” Ibid. The
12
It appears that the doctor’s agent actually caused the plaintiff’s injury, but the court still
analyzed the case in terms of the doctor’s lack of due care in administering the vaccination.
No. 11-3424 McCullum v. Tepe, et al. Page 11
plaintiff won damages at trial, and the Supreme Court of Errors of Connecticut affirmed.
The defendant raised a number of objections, but neither he nor the court mentioned
immunity. Similarly, the Kentucky Court of Appeals—Kentucky’s highest court until
1976—affirmed a money judgment against a doctor, hired “at the instance of a
neighboring justice of the peace, acting for the county . . . [and] under instructions to
give his patient all necessary attention, but not to run the county to unnecessary
expense.” Williams v. Nally, 45 S.W. 874, 874 (Ky. Ct. App. 1898). The doctor had
treated a man with a broken leg, but “because the wound was unskillfully attended to
. . . gangrene set up in the foot of the patient, and amputation of his leg became
necessary.” Ibid. The doctor defended by arguing that a number of jurors were biased
and that the plaintiff was responsible for the gangrene because he failed to follow
instructions. But neither the doctor nor the court mentioned immunity. Last is DuBois
v. Decker, 29 N.E. 313 (N.Y. 1891). There, a man
undertook to jump onto an engine of the Ulster and Delaware railroad, in
the city of Kingston, and in doing so slipped, and his left foot was caught
by a tender and a portion thereof crushed. Being destitute, he was taken
to the city alms-house, where he was treated by . . . one of the city
physicians having the care of the patients therein . . . . Thereafter . . . [the
physician] amputated the plaintiff’s leg above the ankle joint, and six or
seven days thereafter, gangrene having set in, he again amputated the leg
at the knee joint. After the second amputation the leg did not properly
heal, but became a running sore, and at the time of the trial the bone
protruded some three or four inches.
Id. at 314. The physician defended on a variety of grounds, including the principle that
a doctor could not be liable for an error in judgment, the lower court’s decision not to
issue a favorable jury instruction, ibid., and a number of evidentiary decisions at trial,
id. at 315. The doctor also asserted that, because he “treated the plaintiff gratuitously,
he is liable, if at all, only for gross negligence; which was refused.” Ibid. The court
responded:
It has been held that the fact that a physician or surgeon renders services
gratuitously does not affect his duty to exercise reasonable and ordinary
care, skill and diligence.
No. 11-3424 McCullum v. Tepe, et al. Page 12
But we do not deem it necessary to consider or determine this question
for it appears that the plaintiff’s services were not gratuitously rendered.
He was employed by the city as one of the physicians to attend and treat
the patients that should be sent to the alms-house. The fact that he was
paid by the city instead of the plaintiff did not relieve him from the duty
to exercise ordinary care and skill.
Ibid. (emphasis added). This last sentence is suggestive. The doctor in DuBois would
have had a stronger claim to immunity than Tepe: the city, not a private company, paid
his wage. Still, the doctor did not raise, and the court did not mention, immunity.
Rather, the court held that, regardless of who paid the doctor, the standard of care was
the same, and affirmed a money judgment in favor of the plaintiff.
These cases, as well as the American and English cases involving private
physicians in private practice, and the absence of any indicia that a paid physician
(whether remunerated from the public or private fisc) would have been immune from
suit at common law, convince us that there was no common-law tradition of immunity
for a private doctor working for a public institution at the time that Congress passed
§ 1983. The first piece of the Richardson analysis, then, suggests that we should not
allow Tepe to assert qualified immunity.
B
The policy element of our analysis hinges on three of § 1983’s goals:
(1) “protecting the public from unwarranted timidity on the part of public officials;”
(2) “ensur[ing] that talented candidates were not deterred by the threat of damages suits
from entering public service;” Richardson, 521 U.S. at 408, and (3) guarding against the
distraction from job duties that lawsuits inevitably create. Id. at 411.
We acknowledge that it is somewhat odd for a government actor to lose the right
to assert qualified immunity, not because his job changed, but because a private entity,
rather than the government, issued his paycheck. But just as market pressures, a private
firm’s ability to “offset any increased employee liability risk with higher pay or extra
benefits,” ibid., the “continual . . . need for deterring constitutional violations[,] and . . .
[the] sense that the [private] firm’s tasks are not enormously different in respect to their
No. 11-3424 McCullum v. Tepe, et al. Page 13
importance from various other publicly important tasks carried out by private firms,” id.
at 412, vitiated any policy-based concerns in Richardson, these same factors suggest that
immunity would be inappropriate here. And, even if we could create an immunity not
recognized at common law based on policy alone, see supra note 7, we would not do so
here.
III
Despite the Supreme Court’s somewhat cryptic comment in Richardson
that a doctor may have had immunity from damages at common law, there does not
appear to be any history of immunity for a private doctor working for the government,
and the policies that animate our qualified-immunity cases do not justify our creating an
immunity unknown to the common law. Thus, although we express no opinion on the
ultimate validity of McCullum’s claims, we AFFIRM the district court’s conclusion that
Tepe is not entitled to assert qualified immunity.