Employees of Private Medical Providers at Jails and Prisons are Not Entitled to Qualified Immunity

Employees of Private Medical Providers at Jails and Prisons are Not Entitled to Qualified Immunity

It is increasingly common for jails and prisons to contract with a private company to provide medical care to pre-trial detainees and prisoners. In a recent civil rights case involving the tragic death of a 16-year-old boy being held in an adult jail, we sued such a private medical company and its employees. In response, the company argued that it and its employees were entitled to assert the qualified immunity defense, which offers strong protections to government workers sued under section 1983 and other civil rights laws. The need to overcome the qualified immunity defense—which can shield a government employee from liability even where the employee made a mistake—is one of the reasons why civil rights cases are so difficult. In the words of the late Justice Scalia, the defense protects “all but the plainly incompetent or those who knowingly violate the law.” So rebutting the private medical company’s assertion that it could assert the defense was crucial.

Thankfully, the law is on our side. In Richardson v. McKnight, the Supreme Court considered whether guards at a private prison, who were employed by the private company that ran the prison pursuant to a contract with the state, were entitled to qualified immunity simply because they were considered state actors subject to liability under § 1983. Rejecting a simple one-to-one correspondence between § 1983 exposure and entitlement to qualified immunity, the Supreme Court instead held that qualified immunity should be permitted only if historical context and public policy demand it. Richardson, 521 U.S. at 410-13

For private prison guards, the Richardson Court determined there was no such demand that they be entitled to qualified immunity. Various sources, including historical treatises and state common law cases from the 1800’s, showed that private prison contractors had not historically enjoyed any special protections from lawsuits related to their jobs. Id. at 405-06. Furthermore, there were no policy reasons sufficient to justify extension of the qualified immunity doctrine to cover private prison employees. Qualified immunity is generally justified on the grounds that public employees must have certain protections so that they can perform their jobs without a “timidity” born of fear of lawsuits. Id. at 408-09. Qualified immunity is also justified by the need to offer public employees protections so that talented people will be willing to apply for the positions. Id. at 411-12. The Richardson Court held that neither of these reasons justified extending the doctrine to private employees of a private corporation. The Court noted that ordinary competitive pressures of the marketplace would weed out overly timid employees or companies. Id. at 408-10. Further, the availability of and general requirement that companies procure comprehensive insurance policies would serve to ensure that talented people would be willing to apply for jobs at private employers without fear of potential personal liability. Id. at 411-12. Considering these facts, the Court held that private prison guards were not entitled to qualified immunity in a § 1983 lawsuit. Id. at 412.

The Richardson case strongly suggests that private medical providers, just like private prison guards, do not enjoy qualified immunity protection. And that is in fact what all court to have considered the question have held: Employees of private medical providers in a jail or prison are not entitled to qualified immunity. Although the Fifth Circuit where I work has apparently not reached this issue, a District Court in the Southern District of Texas presented a lucid analysis in Cheek v. Nueces County Texas, No. 13-cv-26, 2013 U.S. Dist. LEXIS 110039; 2013 WL 4017132 (W.D. La. August 5, 2013). In that case, the Court held that there was no material difference between private medical providers and the private guards discussed in Richardson. In each case, there is no historical basis for extending qualified immunity to these private actors. Id. at 61-64. Furthermore, just as in Richardson, competitive market forces and the availability of insurance serve to ameliorate any problems associated with overly timid workers and difficulties attracting qualified candidates. There was thus no policy basis for granting qualified immunity to the private health care company employees, and the Court declined to do so. Id. at 61-64, 66.

The Cheek Court also collected a host of cases from other circuits that have reached the same conclusion in very similar contexts. See McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) (holding that privately employed doctor working at county jail was not entitled to qualified immunity); Rosewood Services, Inc. v. Sunflower Diversified Servs., 413 F.3d 1163, 1169 (10th Cir. 2005) (applying “market forces” element to deny qualified immunity to non-profit organization supplying services to the developmentally disabled under government contract); Jensen v. Lane County, 222 F.3d 570, 579 (9th Cir. 2000) (denying qualified immunity to contract psychiatrist); Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999), amended, 205 F.3d 1264 (11th Cir. 2000) (finding no reason to distinguish privately employed physicians from privately employed prison guards and denying qualified immunity; withdrawing any opinion on the merits of the constitutional claim); Halvorsen v. Baird, 146 F.3d 680, 685-86 (9th Cir. 1998) (non-profit detoxification facility not entitled to qualified immunity). See also Currie v. Chhabra, 728 F.3d 626, 631-32 (7th Cir. 2013) (affirming denial of qualified immunity for private health care providers for jail).

As for the company itself, courts have long recognized that qualified immunity shields only individuals, not legal entities. Owen v. City of Independence, Mo., 445 U.S. 622, 100 S. Ct. 1398 (1980); Trent v. Wade, 776 F.3d 368, 388 (5th Cir. 2015).

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