Brenda Davis v. Michelle L. Munger

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 20-1842

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook; Mike

Strong; Jody Hovey; Brian Gross; Natalie A. Bransfield; Dustin Nauman;

Advanced Correctional Healthcare, Inc.; Catherine Van Voorn, MD; Ann Marie

Slagle, LPN; Ryan Crews, Warden; Corizon Health, Inc., Dft. terminated on

5/7/2018. Dft added back on 9/4/2018, Amended Complaint, Doc. 78.; Donna

Euler, RN; April Powers, also known as April Griffin, also known as April Helsel;

Amy Mowry; Alice Bergman; Fredrick Covillo

Defendants

Michelle Munger

Defendant - Appellant

Karen S. Williams

Defendant

___________________________

No. 20-1843

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook; Mike

Strong; Jody Hovey; Brian Gross; Natalie A. Bransfield; Dustin Nauman;

Advanced Correctional Healthcare, Inc.; Catherine Van Voorn, MD; Ann Marie

Slagle, LPN; Ryan Crews, Warden; Corizon Health, Inc., Dft. terminated on

5/7/2018. Dft added back on 9/4/2018, Amended Complaint, Doc. 78.; Donna

Euler, RN; April Powers, also known as April Griffin, also known as April Helsel;

Amy Mowry; Alice Bergman

Defendants

Fredrick Covillo

Defendant - Appellant

Michelle Munger; Karen S. Williams

Defendants

___________________________

No. 20-1845

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook; Mike

Strong; Jody Hovey; Brian Gross; Natalie A. Bransfield; Dustin Nauman;

Advanced Correctional Healthcare, Inc.; Catherine Van Voorn, MD; Ann Marie

Slagle, LPN; Ryan Crews, Warden

Defendants

Corizon Health, Inc.

Defendant - Appellant

-2-

Donna Euler, RN; April Powers, also known as April Griffin, also known as April

Helsel; Amy Mowry; Alice Bergman; Fredrick Covillo; Michelle Munger; Karen

S. Williams

Defendants

___________________________

No. 20-1846

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook; Mike

Strong; Jody Hovey; Brian Gross; Natalie A. Bransfield; Dustin Nauman

Defendants

Advanced Correctional Healthcare, Inc.

Defendant - Appellant

Catherine Van Voorn, MD

Defendant

Ann Marie Slagle, LPN

Defendant - Appellant

Ryan Crews, Warden; Corizon Health, Inc., Dft. terminated on 5/7/2018. Dft added

back on 9/4/2018, Amended Complaint, Doc. 78.; Donna Euler, RN

Defendants

April Powers, also known as April Griffin, also known as April Helsel

Defendant - Appellant

-3-

Amy Mowry; Alice Bergman; Fredrick Covillo; Michelle Munger; Karen S.

Williams

Defendants

___________________________

No. 20-2075

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook

Defendants

Mike Strong; Jody Hovey

Defendants - Appellants

Brian Gross; Natalie A. Bransfield; Dustin Nauman; Advanced Correctional

Healthcare, Inc.; Catherine Van Voorn, MD; Ann Marie Slagle, LPN; Ryan Crews,

Warden; Corizon Health, Inc., Dft. terminated on 5/7/2018. Dft added back on

9/4/2018, Amended Complaint, Doc. 78.; Donna Euler, RN; April Powers, also

known as April Griffin, also known as April Helsel; Amy Mowry; Alice Bergman;

Fredrick Covillo; Michelle Munger; Karen S. Williams

Defendants

___________________________

No. 20-2076

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

-4-

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook; Mike

Strong; Jody Hovey

Defendants

Brian Gross

Defendant - Appellant

Natalie A. Bransfield; Dustin Nauman; Advanced Correctional Healthcare, Inc.;

Catherine Van Voorn, MD; Ann Marie Slagle, LPN; Ryan Crews, Warden;

Corizon Health, Inc., Dft. terminated on 5/7/2018. Dft added back on 9/4/2018,

Amended Complaint, Doc. 78.; Donna Euler, RN; April Powers, also known as

April Griffin, also known as April Helsel; Amy Mowry; Alice Bergman; Fredrick

Covillo; Michelle Munger; Karen S. Williams

Defendants

___________________________

No. 20-2292

___________________________

Brenda Davis; Frederick Stufflebean

Plaintiffs - Appellees

v.

Buchanan County, Missouri; Harry Roberts; Dan Hausman; Ron Hook; Mike

Strong; Jody Hovey

Defendants

Brian Gross

Defendant – Appellant

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Natalie A. Bransfield

Defendant

Dustin Nauman

Defendant - Appellant

Advanced Correctional Healthcare, Inc.; Catherine Van Voorn, MD; Ann Marie

Slagle, LPN; Ryan Crews, Warden; Corizon Health, Inc., Dft. terminated on

5/7/2018. Dft added back on 9/4/2018, Amended Complaint, Doc. 78.; Donna

Euler, RN; April Powers, also known as April Griffin, also known as April Helsel;

Amy Mowry; Alice Bergman; Fredrick Covillo; Michelle Munger; Karen S.

Williams

Defendants

____________

Appeal from United States District Court

for the Western District of Missouri - St. Joseph

____________

Submitted: June 17, 2021

Filed: August 24, 2021

____________

Before GRUENDER, BENTON, and STRAS, Circuit Judges.

____________

BENTON, Circuit Judge.

Justin A. Stufflebean died after allegedly being denied necessary medication

while incarcerated at the Buchanan County Jail and the Western Reception

Diagnostic and Correctional Center. His parents, Brenda Davis and Frederick

Stufflebean, asserted 42 U.S.C. § 1983 and wrongful death claims against, among

others: Jerry Michael Strong, Jody W. Hovey, Brian M. Gross, Dustin R. Nauman,

Dr. Frederick V. Covillo, Michelle L. Munger, Ann Marie Slagle, April L. Helsel,

Advanced Correctional Healthcare, Inc, and Corizon, LLC. The district court denied

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the defendants’ motions to dismiss and motions for summary judgment, ruling they

are not entitled to qualified or official immunity.1 They appeal. Having jurisdiction

under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands for

proceedings consistent with this opinion.

I.

On October 26, 2015, Justin Stufflebean was sentenced to 15 years in prison

by the Circuit Court of Buchanan County, Missouri. That day, during his sentencing

hearing, Stufflebean’s longtime doctor testified on the severity of his Addison’s

disease and hypoparathyroidism—both endocrine disorders. Addison’s disease is

characterized by the adrenal glands’ failure to produce enough cortisol, an essential

hormone that helps the body cope with stress and is critical to maintaining normal

blood pressure and cardiovascular function. The disease also causes the adrenal

glands to insufficiently control the body’s calcium levels. Hypoparathyroidism

causes decreased function of the parathyroid glands, which can lead to low levels of

calcium.

Stufflebean’s doctor testified he was “dependent upon the cortisol to be given

to him exogenously,” especially during times of stress. He testified, “Stufflebean

suffers from one of the lowest calcium levels that any of us doctors have ever seen

in the hospital and that can make him quite—makes him quite ill and very badly

damaging to a body and can be life-threatening in and of itself also and has to be

controlled.” He testified that without medication, Stufflebean’s Addison’s disease

would “flare up,” resulting in “fatigue, malaise that’s followed by severe nausea,

vomiting, [and] dehydration.” He testified that “if not intervened upon in the

hospital . . . , it can be death within 24 to 48 hours.” He testified that in the past

calendar year, Stufflebean was hospitalized 16 times for treatment, not counting

1

See, e.g., Davis v. Buchanan Cty., Mo., 2019 WL 7172200 (W.D. Mo. Dec.

23, 2019); Davis v. Buchanan Cty., Mo., 2019 WL 7116360 (W.D. Mo. Dec. 23,

2019); Davis v. Buchanan Cty., Mo., 2020 WL 1527164 (W.D. Mo. Mar. 30, 2020).

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numerous emergency room and doctor visits. He also testified that Stufflebean was

taken to the emergency room the week before his sentencing.

Sheriff’s Deputy Brian Gross was assigned to the courtroom during

Stufflebean’s sentencing hearing, including during the doctor’s medical testimony.

His duties included maintaining courtroom order and transporting those sentenced

from the courthouse to the Buchanan County Jail. As the transporting officer, he

was expected to tell the jail booking officer if he believed a new inmate was a

medical, mental health or suicide risk when brought to the jail.

After sentencing, Gross took Stufflebean into custody and walked him across

the street to the jail. Per the jail’s Medical Intake Screening questionnaire, the

booking officer, Sheriff’s Deputy Dustin Nauman, asked Gross if he “believe[s] that

inmate is a medical, mental health or suicide risk now?” Gross did not report

Stufflebean’s medical conditions or treatments to Nauman. Nauman recorded “No”

to the question on Stufflebean’s intake form.

Nauman completed the remaining intake questions with Stufflebean.

Stufflebean was previously booked by the jail in 2014 and was labeled on his

previous intake form as having a “Special Conditions—Medical.” Nauman

answered “No” to the question “Was inmate a medical, mental health or suicide risk

during any prior contact or confinement with department?” In response to the

question “Are you currently under a physician’s care? If yes, explain,” Nauman

answered “No.” In response to the question “Are you currently taking any

medications? If yes, list types, dosage, and frequency,” Nauman listed Stufflebean’s

various medications, but not their dosages or frequencies. He recorded Stufflebean’s

various ailments, including abdominal pain, asthma, ulcers, runny nose, nasal

congestion, unexplained weight loss, loss of appetite, night sweats, and fatigue. He

answered “Yes” to the question “Did you refer the inmate to medical?” He did not

classify Stufflebean as “High Risks—Medical” or “Special Conditions—Medical.”

He testified that the day Stufflebean was booked, he contacted a nurse to let them

know he “booked in somebody that has medical issues.”

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Advanced Correctional Healthcare, an Illinois corporation providing

healthcare at jails, provided on-site licensed practical nursing coverage to the jail.

Nurse Ann Slagle, an ACH employee, was on duty when Nauman referred

Stufflebean to the nurses for medical treatment. It is alleged she was the nurse

contacted by Nauman. Stufflebean was not visited by a nurse during his 11 hours in

the holding cell booking area immediately after intake.

The day of Stufflebean’s booking, Slagle received his medications, brought to

the jail by his mother, Brenda Davis—NATPARA2, melatonin, hydrocodone,

ondansetron, fludrocortisone, paroxetine, Calcitriol, prednisone, and Vitamin D.

Slagle did not contact a doctor for an order to administer Stufflebean’s medications

that day. She also did not enter the medications into the jail’s system before 7 a.m.

the following day, October 27. Because medications must be entered by 7 a.m. to

be administered that same day, Stufflebean received no medications on October 27.

That day, Stufflebean filed a formal request for his medication, stating: “I called to

have my medicine brought in. I have Addison’s and hypoparathyroid disease.

Medications brought to jail.” Slagle entered the medications into the jail’s system

after 7 a.m. on October 27, but did not contact a doctor for approval to administer

them that day.

Nurse April Helsel, an ACH employee, was on duty the morning of October

28. It is disputed whether Helsel administered Stufflebean’s medications on October

28 after the medical director approved it. While she testified she did, she had no

recollection of giving them and could not point to supporting medical records.

Having not received his medication daily, Stufflebean’s condition deteriorated

during his three days at the jail—he was not eating, getting weaker, and vomited at

least once.

2

Davis brought specialized injection tips, necessary to administer

Stufflebean’s NATPARA, to the jail the following day, on October 27.

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ACH’s policies and its contract with the County established a system to

oversee ACH’s operations at the jail. Per the contract, Sheriff Mike Strong, the final

decisionmaker for policies and procedures at the jail, was to attend Continuing

Quality Improvement meetings with ACH to review its healthcare reports on the

operation of its healthcare services and the general health of inmates at the jail.

Strong testified, however, that he had no system in place to monitor the accuracy of

ACH’s healthcare reports, trusting ACH was providing proper care. He also testified

he never compared prisoners’ medical grievances to ACH’s reports to verify the

accuracy of ACH’s claimed “zero medical grievances” reporting from 2014 to 2015.

Captain Jody Hovey, the Jail Administrator and Responsible Health

Authority, was responsible to oversee the medical operations of the jail, including

arranging and ensuring the quality and accessibility of all health services to inmates.

He was also responsible for monitoring to ensure all aspects of inmate care for the

treatment of illnesses classified as “serious.” Although Strong expected Hovey was

exercising “constant oversight” over ACH, Hovey did not implement a “formal

process or analysis” to systemically monitor inmates’ medical grievances.

On October 29, Stufflebean was transferred from the jail to the Western

Reception Diagnostic and Correctional Center, a receiving center for the Missouri

Department of Corrections. The Department contracted with Corizon, LLC to

provide medical services, including nurses and doctors, at the Center.

During intake, Stufflebean told the on-duty nurse he had Addison’s disease

and hypoparathyroidism, had current symptoms of vomiting, weakness, and

tachycardia (a heart rate over 100 beats per minute), and had been to the hospital to

see a physician 16 times in the last year for complications from Addison’s disease.

The nurse recorded his blood pressure at 121/89. The nurse noted that Stufflebean

was “carrying or taking” various medications, including fludrocortisone,

NATPARA (including injection tips for administration), vitamin D, paroxetine, and

prednisone. The nurse did not ask when he last took his medications. The nurse

also recorded that Stufflebean was lethargic with a weak gait, but also that he did

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not show signs of “obvious pain, bleeding, injuries, illness or other symptoms

suggesting need for immediate referral.”

On October 30, Dr. Frederick Covillo, a Corizon employee, performed a

physical examination on Stufflebean. During the examination, Dr. Covillo charted

Stufflebean’s Addison’s disease and hypoparathyroidism. Dr. Covillo testified

Stufflebean “seemed very stable,” not showing symptoms of the nausea, vomiting,

dizziness, and tachycardia that were reported the day before. He admitted that

Stufflebean’s blood pressure was not taken on the day of his exam, and that he had

access only to Stufflebean’s blood pressure taken by the nurse the day before. It is

disputed whether Dr. Covillo ordered medications to treat Stufflebean. Dr. Covillo

did not attempt to determine when Stufflebean last took his medications. It is not

disputed, however, that Stufflebean did not receive his medications at the

Correctional Center.

Stufflebean’s health significantly deteriorated while at the Center. In the early

hours of October 31, two separate “Code 16” medical emergency calls were made

on his behalf. The nurses on duty did not document the reason for the first call. For

the second call, a nurse documented the next day that Stufflebean was found lying

on his abdomen on the floor of his cell after falling due to feeling weak. A towel

with greenish liquid on it was close to his bunk. A nurse reported asking Stufflebean

whether he had recently eaten. He responded that he “took a few bites of corn a

couple days ago, because I don’t like food.” He also told the nurse he was nauseated.

On the morning of October 31, shortly after the second Code 16 call,

Stufflebean was brought to the Center’s infirmary, delivered to the care of Nurse

Michelle Munger, a Corizon employee. He told her that he had Addison’s disease,

had been experiencing a flare up since he was sentenced, had not eaten in three days,

and that when ill like this in the past, he would go to the hospital and receive

intravenous fluids. Munger gave him Promethazine (an anti-nausea medication) and

milk. She told him that he needed to eat, sent a medical service request to mental

health to help with his stress, and told him to make a service request to Dr. Covillo

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if he needed to see him again. She did not contact a doctor or report his condition

to the oncoming nurse.

Munger released Stufflebean to his cell. The officer who escorted Stufflebean

back to his cell reported he was “weak and incoherent” and looked “dazed like he

was sick.” He also recalled that Stufflebean stumbled and fell down after ten to

twenty steps, falling first down to his knees and then slowly down to his face. The

officer said that Stufflebean didn’t say anything and only “made grunting noises.”

The officer then got a wheelchair and wheeled the slumped-over Stufflebean to his

cell and helped him into his bunk.

Less than three hours after returning to his cell, a third Code 16 was called on

Stufflebean’s behalf after he was found not moving on the floor of his cell. He was

brought to the infirmary. He soon became “unresponsive.” A fourth Code 16 was

called. The medical staff performed CPR until an ambulance arrived. Stufflebean

died in the hospital two weeks later on November 16, 2015. A Jackson County

medical examiner declared his cause of death as “complications of polyglandular

endocrinopathy.”

Stufflebean’s parents, Brenda Davis and Frederick Stufflebean, asserted

42 U.S.C. § 1983 and wrongful death claims against, among others: Strong, Hovey,

Gross, Nauman, Dr. Covillo, Munger, Slagle, Helsel, ACH, and Corizon. On

summary judgment, the district court ruled that Gross, Dr. Covillo, Munger, Slagle,

and Helsel are not entitled to qualified immunity from the section 1983 deliberate

indifference claim. The court concluded that the Monell claim against ACH

survives, and that Corizon cannot assert qualified immunity. The court determined

that Sheriff Strong and Captain Hovey are not entitled to qualified immunity from

supervisor liability under section 1983. The court also ruled that Gross and Nauman

are not entitled to official immunity under Missouri law for the wrongful death

claim. Ten of the defendants appeal.

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II.

This court reviews de novo the denial of summary judgment based on a

rejection of claims of qualified immunity and official immunity. McLean v.

Gordon, 548 F.3d 613, 616 (8th Cir. 2008). On appeal, this court considers the

evidence most favorably to the nonmoving party, including all reasonable

inferences. Id. Summary judgment is appropriate 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).

III.

According to Dr. Covillo and nurses Munger, Slagle, and Helsel, the district

court erred in denying them qualified immunity from the parents’ section 1983

deliberate indifference claim.

A threshold issue is whether these medical defendants, employees of private

medical-services-providers, may assert the defense of qualified immunity in

response to the parents’ section 1983 claim. This court has not directly addressed

whether employees of private medical-services-providers are entitled to assert the

defense of qualified immunity. See Langford v. Norris, 614 F.3d 445, 457 (8th Cir.

2010) (recognizing, but not directly holding, that employees of Correctional Medical

Services, Inc., a medical services provider and direct predecessor to Corizon,

“cannot claim qualified immunity”).

Although private employees, these medical defendants are considered state

actors for purposes of the parents’ section 1983 claim. See West v. Atkins, 487 U.S.

42, 57 (1988) (because the provision of medical services to inmates is “state action

fairly attributable to the State,” medical personnel acts “under color of state law for

purposes of § 1983.”); Montano v. Hedgepeth, 120 F.3d 844, 849–50 (8th Cir. 1997)

(“physicians working in state prisons, who help to fulfill the state’s Eighth

Amendment obligation to inmates and who typically are the only health

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professionals available to care for incarcerated persons, are persons who may fairly

be said to be state actors.”). See also Filarsky v. Delia, 566 U.S. 377, 383 (2012)

(“Anyone whose conduct is fairly attributable to the State can be sued as a state actor

under § 1983.” (internal quotations and citation omitted)).

But private individuals, as state actors, are not necessarily entitled to assert

the defense of qualified immunity in defending section 1983 claims. Domina v. Van

Pelt, 235 F.3d 1091, 1096 (8th Cir. 2000) (private individuals acting under the color

of state law “are not necessarily shielded from liability under § 1983 by the

immunity afforded public officials.” (citation omitted)).

To determine whether these medical defendants are entitled to assert qualified

immunity, this court applies the factors outlined by the Supreme Court in Richardson

v. McKnight, 521 U.S. 399 (1997) and Filarsky v. Delia, 566 U.S. 377 (2012).

According to the Court, the availability of qualified immunity to state actors depends

on two factors: the “general principles of tort immunities and defenses applicable at

common law, and the reasons we have afforded protection from suit under § 1983.”

Filarsky, 566 U.S. at 384 (internal quotations and citation omitted), applying the

general principles of Richardson, 521 U.S. at 403–04. Applying these factors, this

court concludes that these medical defendants are not entitled to assert the defense

of qualified immunity.

A.

The first factor—the historical availability of immunity—does not support

these medical defendants asserting qualified immunity.

Historical analysis does not reveal a firmly rooted tradition of qualified

immunity for employees of private, systematically organized medical providers like

ACH and Corizon. See Richardson, 521 U.S. at 406 (finding “no evidence that the

law gave purely private companies or their employees any special immunity from

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such suits.” (citation omitted)). These medical defendants have not identified a

tradition of immunity, and this court has not independently identified one.

All other circuits have not found a firmly rooted tradition of immunity for

similarly situated privately-employed medical professionals defending claims like

those of the parents. See Sanchez v. Oliver, 995 F.3d 461, 468 (5th Cir. 2021) (“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.” (citations

omitted)); Tanner v. McMurray, 989 F.3d 860, 867 (10th Cir. 2021) (“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.”). See also

Est. of Clark v. Walker, 865 F.3d 544, 550–51 (7th Cir. 2017) (agreeing with the

Sixth Circuit 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”

(citation omitted)), cert. denied, 138 S. Ct. 1285 (2018); McCullum v. Tepe, 693

F.3d 696, 703 (6th Cir. 2012) (“the precedents that do exist point in one direction:

there was no special immunity for a doctor working for the state.”); Jensen v. Lane

Cty., 222 F.3d 570, 577 (9th Cir. 2000) (“We have been unable to uncover even a

suggestion that Oregon has a ‘firmly rooted tradition’ of immunity”); Hinson v.

Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999) (“Under common law, no ‘firmly

rooted’ tradition of immunity applicable to privately employed prison physicians

exists under circumstances such as these.”).

These medical defendants cite dicta from Richardson, where the Supreme

Court noted, “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.” Richardson, 52 U.S. at 406 (emphasis in original), citing Tower v.

Glover, 467 U.S. 914, 921 (1984), and J. Bishop, Commentaries on Non–Contract

Law §§ 704, 710 (1889). But the “kind of immunity” for doctors at common law

would not apply to the types of claims made by the parents here. The historical

treatise cited by the Richardson Court states that publicly and privately employed

physicians had some level of immunity from “simple negligence or want of skill,”

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but were “indictable” when “criminally guilty of malpractice.” Commentaries on

Non–Contract Law § 708. See Sanchez, 995 F.3d at 468 (“both private and public

physicians . . . could be sued or even criminally prosecuted for acts amounting to

recklessness” (alteration added)); McCullum, 693 F.3d at 701. This court has

likened the “level of culpability required to demonstrate deliberate indifference on

the part of prison officials” to “criminal recklessness.” Johnson v. Leonard, 929

F.3d 569, 576 (8th Cir. 2019) (citation omitted); Gregoire v. Class, 236 F.3d 413,

418 (8th Cir. 2000) (“the official is entitled to qualified immunity if he could

reasonably believe that his response to the risk was not deliberately indifferent

(or reckless) to that risk.” (citations omitted)); Sanchez, 995 F.3d at 469 (same).

Even if private physicians had some immunity from tort claims under common law,

the deliberate indifference claims here (akin to criminal recklessness) are outside its

scope.

These medical defendants also argue that, in analyzing a history of immunity,

this court’s focus should be on the nature of the work itself, not the nature of

employment. Cf. Fourte v. Faulkner Cty., Ark., 746 F.3d 384, 390 (8th Cir. 2014)

(government-employed doctor and nurse were not deliberately indifferent to an

inmate’s serious medical needs after unintentionally delaying the administration of

medications). They point to Filarsky, where the Supreme Court held that “immunity

under § 1983 should not vary depending on whether an individual working for the

government does so as a full-time employee, or on some other basis.” Filarsky, 566

U.S. at 389. In its historical analysis, the Filarsky Court did say, “Private citizens

were actively involved in government work, especially where the work most directly

touched the lives of the people.” Id. at 385. It came as “no surprise” to the Court

that “the common law did not draw a distinction between public servants and private

individuals engaged in public service in according protection to those carrying out

government responsibilities.” Id. at 387.

But Filarsky’s context is relevant here. The Supreme Court’s historical

analysis centered on whether an independent attorney retained by the government

could raise the defense of qualified immunity. See Sanchez, 995 F.3d at 468. The

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Filarsky Court expressly distinguished that case from Richardson, where the

employees of a private prison—“a private firm, systematically organized to assume

a major lengthy administrative task (managing an institution) with limited direct

supervision by the government, undertak[ing] that task for profit and potentially in

competition with other firms”—could not assert qualified immunity. Filarsky, 566

U.S. at 393 (alteration in original), citing Richardson, 521 U.S. at 413. Unlike the

approach of these medical defendants, the Filarsky Court did not abandon the need

for particularized historical analysis. Rather, it held there is a deep history of

immunity for “an individual” like Filarsky—an attorney not employed by a private

firm, systematically organized to assume a major lengthy administrative task, like in

Richardson. Id. at 389. Filarsky’s particular historical analysis is not applicable

here, where these medical defendants are more similar to the employees in

Richardson than the individual attorney in Filarsky. See Sanchez, 995 F.3d at 469.

In a similar vein, these medical defendants assert that this court’s holding in

Lawyer supports their position that this court’s focus should be on the nature of the

employee’s work. See Lawyer v. Kernodle, 721 F.2d 632 (8th Cir. 1983). There,

this court held that a private-physician who performed an autopsy for Pettis County

was entitled to assert the defense of qualified immunity. Id. at 635. See §§ 58.451,

70.220, RSMo 1978. This court explicitly rejected the argument that the physician

could not assert qualified immunity because he “was not a public official.” Lawyer,

721 F.2d at 635. According to this court, “[w]hether [the physician] was a public

official or not we find immaterial under § 1983.” Id. (alterations added). Because

the physician was “engaged under the statute to perform official duties, he was

performing those duties under color of state law and he clearly enjoyed the same

immunity privilege the coroner could assert.” Id.

This court’s holding in Lawyer does not control here. Like in Filarsky, the

individual physician was tasked with performing a limited and discrete task for the

state. See Filarsky, 566 U.S. at 381. See also Est. of Jensen by Jensen v. Clyde,

989 F.3d 848, 855–57 (10th Cir. 2021) (individual physician working part time with

a county jail could assert qualified immunity); Perniciaro v. Lea, 901 F.3d 241, 254

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(5th Cir. 2018) (psychiatrist-employees of Tulane University—an employer “not

‘systematically organized’ to perform the ‘major administrative task’ of providing

mental-health care at state facilities”—could assert qualified immunity from claims

arising from their work at a state mental health facility); Est. of Lockett ex rel.

Lockett v. Fallin, 841 F.3d 1098, 1109 (10th Cir. 2016) (private physician engaged

by a prison to administer an execution could assert qualified immunity). These

medical defendants are employees of systematically organized private firms, tasked

with assuming a major lengthy administrative task. They are factually dissimilar to

the individuals entitled to assert qualified immunity in Filarsky and Lawyer, but like

those not entitled to assert qualified immunity in Richardson.

B.

The second factor—the weight of the policy reasons for affording protection

from suit under section 1983—does not support permitting these medical defendants

to assert qualified immunity.

The Supreme Court applies three policy considerations to determine whether

private individuals, as state actors, may assert qualified immunity: “avoid[ing]

‘unwarranted timidity’ in performance of public duties, ensuring that talented

candidates are not deterred from public service, and preventing the harmful

distractions from carrying out the work of government that can often accompany

damages suits.” Filarsky, 566 U.S. at 389–90 (alteration added), citing

Richardson, 521 U.S. at 409–11. On balance, these factors weigh against affording

immunity here.

1.

The first policy consideration—unwarranted timidity—is the “most

important.” Richardson, 521 U.S. at 409. “Ensuring that those who serve the

government do so with the decisiveness and the judgment required by the public

good, is of vital importance regardless whether the individual sued as a state actor

-18-

works full time or on some other basis.” Filarsky, 566 U.S. at 390 (internal

quotations and citation omitted).

This concern is “less likely present, or at least is not special, when a private

company subject to competitive market pressures” works as a state actor.

Richardson, 521 U.S. 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 a more effective job.”). The Richardson Court emphasized that

various “marketplace pressures” give private firms “strong incentives to avoid

overly timid, insufficiently vigorous, unduly fearful, or ‘nonarduous’ employee job

performance.” Id. at 410. Those marketplace pressures include being

“systematically organized to perform a major administrative task for profit,”

performing that task “independently, with relatively less ongoing direct state

supervision,” being insured to cover tort claims, and being pressured by “potentially

competing firms.” Id. at 409–10.

Like Richardson, various marketplace pressures are present here, sufficiently

reducing the risk of unwarranted timidity. ACH and Corizon are for profit entities

that contracted with the County and the Department of Corrections respectively to

provide medical care for inmates. They were both insured, and there is no indication

their insurance would not cover the types of claims made by the parents.

While these medical defendants, ACH, and Corizon were supervised by

County and state officials, there is no indication the oversight “in any meaningful

way distinguishes this case from Richardson.” Sanchez, 995 F.3d at 470

(determining that contract language between the county and medical provider,

stating the county “retained authority to set the ‘policies and procedures related to

healthcare [or] mental healthcare,’ ” did not support the conclusion that the provider

did not perform its administrative task independently, with relatively less ongoing

-19-

direct state supervision (alteration in original)). See Tanner, 989 F.3d at 873 (“The

mere existence of a contract does not establish close supervision”).

ACH and Corizon had their own procedures and policies for their medical

personnel to follow. While ACH’s contract with the County dictated its performance

was reviewed by the County, in practice, Strong and Hovey’s oversight was

apparently negligible. Strong testified he had no system in place to monitor the

accuracy of ACH’s healthcare reports, simply trusting they were properly caring for

prisoners. He also testified he never verified the accuracy of ACH’s “zero medical

grievances” reports. And while Strong testified he expected Hovey was exercising

“constant oversight” of ACH, Hovey testified he had “no formal process or analysis

done” to review prisoner’s medical grievances. Corizon also had its own extensive

internal policies for patient treatment protocol, outlining procedures for various

medical situations. Like the County and ACH, there is no indication that the

Department of Corrections had significant oversight over Corizon’s medical

operations.

Last, ACH and Corizon are presumably pressured by potential competitors

that provide similar services. ACH’s contract with the County covered a three-year

period, allowing competition at the expiration of its contract. See Richardson, 521

U.S. at 410 (“since the firm’s first contract expires after three years, its performance

is disciplined, not only by state review, but also by pressure from potentially

competing firms who can try to take its place.”). Corizon also faced competition

from other firms, losing at least two state contracts in the years before Stufflebean’s

death.

Together, these marketplace pressures support the conclusion that

unwarranted timidity is less likely present, or at least not special, here. See id. at

409.

-20-

2.

The second policy consideration—attracting talented candidates to public

service—does not favor allowing these medical defendants to assert qualified

immunity.

Generally, private individuals “have freedom to select other work—work that

will not expose them to liability for government actions.” Filarsky, 566 U.S. at 390.

“Because government employees will often be protected from suit by some form of

immunity, those working alongside them could be left holding the bag—facing full

liability for actions taken in conjunction with government employees who enjoy

immunity for the same activity.” Id. at 391. These factors make it “more likely that

the most talented candidates will decline public engagements if they do not receive

the same immunity enjoyed by their public employee counterparts.” Id. at 390. See

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 167 (2016) (“Qualified immunity

reduces the risk that contractors will shy away from government work.”).

But private firms have the ability to remedy these concerns. The Richardson

Court recognized that “ ‘privatization’ helps to meet the immunity-related need ‘to

ensure that talented candidates’ are ‘not deterred by the threat of damages suits from

entering public service.’ ” Richardson, 521 U.S. at 411 (citations omitted), quoting

Wyatt v. Cole, 504 U.S. 158, 167 (1992). Generally, private firms insure themselves

to cover claims against themselves and their employees, are not subject to various

“civil service law restraints,” and, unlike the government, may “offset any increased

employee liability risk with higher pay or extra benefits.” Id.

This second policy consideration similarly does not favor allowing these

medical defendants to assert qualified immunity. ACH and Corizon “can operate

like other private firms; [they] need not operate like a typical government

department.” Id. (alteration added). See Tanner, 989 F.3d at 869 (“Because CCS

is a private firm, it has the capacity, unlike a government department, to offset any

increased employee liability risk with higher pay or extra benefits.” (internal

-21-

quotations and citation omitted)). ACH and Corizon have various tools available to

attract and retain talented employees, even if their employees can seek alternative,

non-government employment.

3.

The third policy consideration—preventing harmful distractions caused by

lawsuits—slightly favors allowing these medical defendants to assert qualified

immunity.

Lawsuits “may well distrac[t] these employees from their . . . duties . . . .”

Richardson, 521 U.S. at 411 (third alteration added) (internal quotations and

citations omitted). Even “routine lawsuits” can distract employees, affecting private

employees’ “performance of any ongoing government responsibilities” and

“embroiling” public employees with whom they work in litigation. Filarsky, 566

U.S. at 391.

Private medical personnel, though, may be uniquely equipped to handle these

litigation distractions. Doctors and nurses in private practice generally “face a

constant threat of claims leading to litigation.” Tanner, 989 F.3d at 870. “Facing

constitutional tort claims with a higher burden of proof is not any more daunting or

distracting than dealing with the medical malpractice claims with which they are

familiar.” Id. Additionally, ACH and Corizon’s legal teams may “mitigate the

impact of litigation” by bearing the brunt of legal work. Sanchez, 995 F.3d at 472.

Even if these medical defendants may be distracted by litigation, the “risk of

distraction alone cannot be sufficient grounds for an immunity.” Richardson, 521

U.S. at 411 (“Our qualified immunity cases do not contemplate the complete

elimination of lawsuit-based distractions.”) (internal quotations and citation

omitted). Because the other policy considerations—including preventing

unwarranted timidity, the most important consideration—do not favor immunity,

this factor does not necessitate the conclusion that qualified immunity is favored

-22-

here. On balance, the policy considerations support the conclusion that these

medical defendants are not entitled to assert the defense of qualified immunity.

C.

Because this court has found no firmly rooted history of immunity, and the

purposes of qualified immunity, on balance, do not favor extending immunity, these

medical defendants, as employees of large firms “systematically organized to

perform a major administrative task for profit,” are not entitled to assert the defense

of qualified immunity. Id. at 409. See Sanchez, 995 F.3d at 472; Tanner, 989 F.3d

at 874; Clark, 865 F.3d at 551; Petties v. Carter, 836 F.3d 722, 734 (7th Cir. 2016)

(en banc), cert. denied, 137 S. Ct. 1578 (2017); McCullum, 693 F.3d at 704;

Harrison v. Ash, 539 F.3d 510, 525 (6th Cir. 2008); Jensen, 222 F.3d at 580;

Hinson, 192 F.3d at 1347.

Lacking the ability to assert qualified immunity, these medical defendants are

unable to immediately appeal the district courts’ denials of motions to dismiss and

motions for summary judgment. See Payne v. Britten, 749 F.3d 697, 700 (8th Cir.

2014) (“Ordinarily, our court lacks jurisdiction to review denials of motions to

dismiss and motions for summary judgment because neither is a final decision.

When a denial turns on qualified immunity, however, our court has appellate

jurisdiction to decide whether, as a purely legal matter, the denial was erroneous.”

(citations omitted)). This court expresses no opinion on the ultimate validity of the

parents’ underlying section 1983 claim against these medical defendants.

This holding similarly precludes immediate appellate review of ACH and

Corizon’s appeals here. Neither asserts its own right to qualified immunity. Rather,

they assert they are not liable because there is no underlying constitutional violation

by their employees. See Webb v. City of Maplewood, 889 F.3d 483, 487 (8th Cir.),

cert. denied, 139 S. Ct. 389 (2018). They argue this court has pendent jurisdiction

to hear their appeals because resolution of their appeal is inextricably intertwined

with these medical defendants’ assertion of qualified immunity. See Muir v.

-23-

Decatur Cty., Iowa, 917 F.3d 1050, 1053 (8th Cir. 2019). But because these medical

defendants are not entitled to assert qualified immunity, ACH and Corizon’s appeals

are not inextricably intertwined to an immediately appealable assertion of qualified

immunity.3 The appeals of Dr. Covillo; nurses Munger, Slagle, and Helsel; and

ACH and Corizon are dismissed for lack of jurisdiction.

IV.

According to Strong, Hovey, and Gross, the district court erred in denying

them qualified immunity from the parents’ section 1983 deliberate indifference

claim.

A public official is entitled to qualified immunity unless: (1) their conduct

violated a constitutional right, and (2) that right was clearly established. Williams

v. Mannis, 889 F.3d 926, 931 (8th Cir. 2018) (citations omitted). A right is “clearly

established” when “[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Id.

(alterations in original) (citations omitted). Qualified immunity is “appropriate

where no reasonable fact finder could conclude that the facts when viewed in a light

most favorable to the plaintiff show that the officers’ conduct violated a clearly

established constitutional right.” Id. (citations omitted).

It is “well established that [d]eliberate indifference to a prisoner’s serious

medical needs is cruel and unusual punishment in violation of the Eighth

Amendment.” Langford, 614 F.3d at 459 (alteration in original) (internal quotations

and citations omitted). To establish a constitutional violation based on deliberate

indifference, the parents must show that Stufflebean “suffered from an objectively

serious medical need” and that County officials had “actual knowledge of that need

but deliberately disregarded it.” Barton v. Taber, 908 F.3d 1119, 1124 (8th Cir.

3

ACH and Corizon do not claim that their appeals are closely related or

inextricably intertwined with the appeals of Strong, Hovey, Gross, and Nauman. See

Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080, 1083 (8th Cir. 2005).

-24-

2018) (citations omitted). See Thompson v. King, 730 F.3d 742, 746 (8th Cir. 2013)

(“A plaintiff claiming deliberate indifference must establish objective and subjective

components.” (citation omitted)).

This court has defined a “serious medical need” as “one that has been

diagnosed by a physician as requiring treatment, or one that is so obvious that even

a layperson would easily recognize the necessity for a doctor’s attention.”

Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). On appeal, Strong, Hovey,

and Gross do not dispute that Stufflebean suffered from a serious medical need.

Under the subjective prong, to show deliberate indifference, the official “must

know[] of and disregard[]” the inmate’s serious medical need. Letterman v. Does,

789 F.3d 856, 862 (8th Cir. 2015) (alterations in original) (internal quotations

omitted), quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994). See Barton, 908

F.3d at 1124 (“the plaintiff must establish a mental state akin to criminal

recklessness: disregarding a known risk to the [arrestee’s] health.” (alteration in

original) (citations omitted)). In other words, the “evidence must show that the

[official] recognized that a substantial risk of harm existed and knew that their

conduct was inappropriate in light of that risk.” Letterman, 789 F.3d at 862

(alteration added) (emphasis in original), quoting Krout v. Goemmer, 583 F.3d 557,

567 (8th Cir. 2009). “Generally, the actor manifests deliberate indifference by

intentionally denying or delaying access to medical care, or intentionally interfering

with treatment or medication that has been prescribed.” Id. (internal quotations and

citations omitted). When considering whether an official deliberately disregarded a

risk, this court “must avoid determining the question with hindsight’s perfect

vision.” Id. (internal quotations and citation omitted).

A.

Strong and Hovey seek qualified immunity from the parents’ section 1983

deliberate indifference claim. They assert the supervisor liability allegation fails

-25-

because they did not directly participate in Stufflebean’s treatment and were not put

on notice of a pattern of constitutional violations.

A supervisor may be liable under section 1983 if their “failure to properly

supervise and train the offending employee caused a deprivation of constitutional

rights.” Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (citation omitted).

When a “supervising official who had no direct participation in an alleged

constitutional violation is sued for failure to train or supervise the offending actor,

the supervisor is entitled to qualified immunity unless plaintiff proves that the

supervisor (1) received notice of a pattern of unconstitutional acts committed by a

subordinate, and (2) was deliberately indifferent to or authorized those acts.” S.M.

v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015), citing Livers v. Schenck, 700 F.3d

340, 355 (8th Cir. 2012); Andrews, 98 F.3d at 1078 (same).

This “rigorous standard” requires proof that the “supervisor had notice of a

pattern of conduct by the subordinate that violated a clearly established

constitutional right.” Krigbaum, 808 F.3d at 340. “Notice is the touchstone of

deliberate indifference in the context of § 1983 municipal liability.” Atkinson v.

City of Mtn. View, Mo., 709 F.3d 1201, 1216 (8th Cir. 2013). “Allegations of

generalized notice are insufficient.” Krigbaum, 808 F.3d at 340. “To impose

supervisory liability, other misconduct must be very similar to the conduct giving

rise to liability.” Id. (citation omitted). In other words, the supervisor must have

“notice of a pattern of conduct that was sufficiently egregious in nature.” Id. A

“single incident, or a series of isolated incidents, is usually insufficient to infer a

pattern.” Brewington v. Keener, 902 F.3d 796, 803 (8th Cir. 2018), citing Howard

v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989). See Mick v. Raines, 883 F.3d 1075,

1080 (8th Cir. 2018) (“affidavits of three detainees describing alleged constitutional

violations are not sufficient to establish a genuine issue of material fact regarding

whether there was a widespread custom or practice of unconstitutional misconduct,

known to and unaddressed by policymaking officials.”). Similarly, a “number of

individual and isolated incidences of medical malpractice or negligence do not

amount to deliberate indifference without some specific threat of harm from a related

-26-

system wide deficiency . . . .” Dulany v. Carnahan, 132 F.3d 1234, 1245 (8th Cir.

1997) (alteration added). A supervisor’s “mere negligence in failing to detect and

prevent a subordinate’s conduct is not enough for liability under Section 1983.”

Ripson v. Alles, 21 F.3d 805, 809 (8th Cir. 1994) (citation omitted).

In denying qualified immunity to Strong and Hovey, the district court ruled

they received notice of a pattern of constitutional violations and were deliberately

indifferent to them. The district court emphasized that Strong and Hovey were

named as defendants in two lawsuits—Wilkerson v. Turner, et al., No. 5:12-cv-

00618 (W.D. Mo. 2015) and Fee v. Buchanan Cty., et al., No. 5:15-cv-06130 (W.D.

Mo. 2016). In each, former inmates alleged ACH’s medical personnel failed to

provide medications, and that Strong and Hovey were deliberately indifferent as

supervisors for failing to supervise and train.

According to the district court, these cases put Strong and Hovey on notice of

constitutional violations like the one alleged by the parents. The court determined

that, despite the allegations in the lawsuits, neither Strong nor Hovey took any effort

to oversee ACH’s medical personnel to ensure adequate treatment. The district court

concluded that, having notice, their inaction could be construed as deliberate

indifference. See generally Ripson, 21 F.3d at 809 (“The supervisor must know

about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear

of what [he] might see.” (alteration in original) (citation omitted)).

This court has not held that two separate lawsuits, like those here, meet the

rigorous standard for putting supervisors on notice of a pattern of constitutional

violations. It is unlikely that two allegations of inadequate care by two inmates can

put a supervisor on notice of systematic failures. See Brewington, 902 F.3d at 803

(a single incident or series of isolated incidents is usually insufficient to infer

systematic failures); Dulany, 132 F.3d at 1245 (there must be notice of “system

wide deficiency,” not just a number of individual and isolated incidents of

malpractice or negligence).

-27-

The Wilkerson and Fee lawsuits are insufficient to put Strong and Hovey on

notice of a pattern of constitutional violations in the jail. While each plaintiff

claimed deliberate indifference by failing to provide medications, their allegations

alone do not give notice. Strong and Hovey denied the allegations, one case was

dismissed by the district court, and the other was settled by the parties. They do not

meet the rigorous standard to give notice.

In Wilkerson, plaintiff filed a federal complaint, claiming an ACH employed

physician and County officials were deliberately indifferent to his serious medical

needs while incarcerated at the jail. Second Amended Complaint at ¶ 44, Wilkerson,

No. 5:12-cv-00618 (Doc. No. 41). He alleged he was denied his medications for

schizophrenia, causing him to fall from his bed. Id. at ¶ 29. He alleged he broke his

back from the fall, but was not treated for his injury. Id. The plaintiff named Strong

and Hovey as defendants, claiming they were liable under section 1983 for failure

to supervise and train. Id. at ¶¶ 5, 7.

This lawsuit is insufficient to put Strong and Hovey on notice of a pattern of

constitutional violations. Strong and Hovey, as well as the other state and medical

defendants, denied the allegations. See Answer to Amended Complaint, Wilkerson,

No. 5:12-cv-00618 (Doc. No. 46, 66). The district court dismissed the suit on

summary judgment, ruling that Strong was not liable as a supervisor because he did

not have notice of improper training and there was no underlying violation of

plaintiff’s constitutional rights. Order Granting Summary Judgment at 17,

Wilkerson, No. 5:12-cv-00618 (Doc. No. 192). The court also ruled that Hovey was

incorrectly named as a defendant in the case, because at the time of the suit, he was

not a captain or Jail Administrator, and was not involved in supervising the medical

professionals at the jail or contracting with ACH. Id. at 18.

After the district court dismissed the federal lawsuit, Wilkerson sued in

Missouri state court, alleging medical malpractice, medical negligence, and

negligent supervision against an ACH employed doctor and ACH itself. See

Wilkerson v. Van Voorn, No. 14BU-CV2595 (Mo. Cir. Ct. Buchanan Cty. 2016).

-28-

The state complaint did not name Strong, Hovey, or any other County official as

defendants, and did not allege constitutional violations. See Dulany, 132 F.3d at

1245. The lawsuit was settled by the plaintiff and ACH in 2016, after Stufflebean’s

death.

In Fee, the plaintiff sued in Missouri state court, claiming Strong and Hovey

were deliberately indifferent as supervisors to their serious medical needs under

section 1983. Petition at ¶ 8–9, Fee v. Buchanan Cty., et al., No. 15BU-CV02918

(Mo. Cir. Ct. Buchanan Cty. 2015). The plaintiff alleged that jail officials and ACH

medical personnel failed to administer their medications for their seizure disorder,

depression, muscle spasms, and severe anxiety attacks, causing him to suffer a

seizure and strike his head. Id. at ¶¶ 32, 45. The plaintiff alleged that Strong and

Hovey failed to supervise and train the medical personnel, resulting in the inadequate

treatment. Id. at ¶ 8–9.

The Fee lawsuit is similarly insufficient to put Strong and Hovey on notice of

a pattern of constitutional violations. After removal to federal district court, Strong,

Hovey, and the other defendants denied the allegations of constitutional violations.

Answer to Amended Complaint, Fee, No. 5:15-cv-06130 (Doc. No. 5, 6). After

Stufflebean’s death, the plaintiff settled the lawsuit with Strong, Hovey, and the

other state defendants, leaving only the ACH defendants. Order Dismissing County

Defendants, Fee, No. 5:15-cv-06130 (Doc. No. 36). With no federal questions

remaining, the district court remanded the case to Missouri state court. See Order

Granting Remand, Fee, No. 5:15-cv-06130 (Doc. No. 43). The state lawsuit was

settled by the plaintiff and the ACH defendants in 2017. Even if Strong and Hovey

accepted responsibility in their settlement, this individual complaint is insufficient

to establish a “pattern” of constitutional violations. See Krigbaum, 808 F.3d at 340.

The parents counter that Strong and Hovey had the duty to investigate

complaints, and their failure to do so shows deliberate indifference. See Mettler v.

Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999) (“Evidence that a police department

has failed to investigate previous incidents similar to the incident in question may

-29-

support a finding that a municipal custom exists, and that such a custom encourages

or allows officers to use excessive force without concern for punishment.” (citations

omitted)). See also Mick, 883 F.3d at 1080 (supervisors may be liable where

plaintiffs have “produced evidence of prior complaints sufficient to demonstrate that

the municipalities and their officials ignored” misconduct (citations omitted)). But

answering the Wilkerson and Fee complaints and denying the allegations necessarily

required an investigation into the claims and the determination that they were false.

The investigation in Wilkerson went even further, completing discovery for the

unsuccessful lawsuit. Strong and Hovey did not fail to investigate the claims. Cf.

Mettler, 165 F.3d at 1205 (an investigation into complaints, even if “flawed,” does

not amount to a failure to investigate that supports a finding of ignoring misconduct).

The parents also argue that Strong and Hovey’s failure to review the accuracy

of ACH’s “zero medical grievances” reports makes them liable as supervisors under

section 1983. See Farmer, 511 U.S. at 843 n.8 (a supervisor “would not escape

liability if the evidence showed that he merely refused to verify underlying facts that

he strongly suspected to be true, or declined to confirm inferences of risk that he

strongly suspected to exist”); Walton v. Dawson, 752 F.3d 1109, 1119 (8th Cir.

2014) (“Farmer’s subjective standard does not invite prison supervisors to bury their

heads in the sand.” (citation omitted)). The parents’ expert identified about 250

medication errors and 26 medical grievances that were not included in ACH’s

reports. The expert concluded that Strong and Hovey’s lack of oversight “breaches

the administrative standard of care.” But this lack of oversight and breach of the

standard of care, while arguably negligent, does not meet the rigorous standard to

show deliberate indifference. Strong and Hovey did not know about ACH’s

systematic failures because ACH presented inaccurate reporting. This is not an

instance of supervisors ignoring obvious signs of constitutionally inadequate

medical care.

Like the Wilkerson and Fee lawsuits, Strong and Hovey’s failure to verify the

accuracy of ACH’s reporting is insufficient to create liability under section 1983.

-30-

B.

Gross seeks qualified immunity from the parents’ section 1983 deliberate

indifference claim.

The district court ruled that a reasonable juror could find that Gross was

deliberately indifferent to Stufflebean’s serious medical needs because he knew that

Stufflebean was in need of special medical attention when he took him to the jail,

yet consciously chose not to report that information to the jail booking officer.

In determining that a reasonable juror could find that Gross actually heard the

doctor’s medical testimony, the district court relied on the dramatic nature of the

testimony about Stufflebean’s dire, life-threatening condition. Gross admitted it was

“rare” for doctors to testify at sentencing hearings, that he could typically hear

witnesses when they testified, and that he had a duty to report known medical

conditions to the jail booking officer when answering the medical intake. The

district court also relied on a photo and measurements of the empty courtroom,

showing Gross’s usual seat about 30 feet from the witness chair. 4

It is disputed whether Gross paid attention to the testimony or even the nature

of the offense. Viewing the evidence most favorably to the parents, Gross had the

potential to hear the doctor’s testimony. It is undisputed that Gross had several

duties in the courtroom and that his primary job was the security of the courtroom

and supervising inmates. For any given hearing, in Gross’s uncontradicted words:

4

The district court footnoted that a reasonable juror could draw the inference

that, after hearing the medical testimony, Gross deliberately chose not to report

Stufflebean’s medical conditions because Stufflebean had been found guilty of a sex

offense. Because there is no evidentiary support for this footnote, this court on de

novo review will disregard this speculation. See Reed v. City of St. Charles, Mo.,

561 F.3d 788, 790–91 (8th Cir. 2009) (“A plaintiff may not merely point to

unsupported self-serving allegations, but must substantiate his allegations with

sufficient probative evidence that would permit a finding in his favor, without resort

to speculation, conjecture, or fantasy.” (internal quotations and citations omitted)).

-31-

“There could be tons of things going on to where I will not listen to testimony

because, quite frankly, my job is security, not to listen to testimony.”

Regardless, Gross did not violate Stufflebean’s constitutional right to receive

medical care for his serious medical needs. Officials are entitled to qualified

immunity if they act without the “subjective intent to cause harm.” Newman v.

Holmes, 122 F.3d 650, 653 (8th Cir. 1997) (“[d]eliberate indifference, i.e., the

subjective intent to cause harm, cannot be inferred from a prison guard’s failure to

act reasonably” (alteration in original) (citation omitted)). See Wilson v. Seiter, 501

U.S. 294, 300 (1991) (characterizing Eighth Amendment violations as a “deliberate

act intended to chastise or deter” or “punishment [that] has been deliberately

administered for a penal or disciplinary purpose” (alteration added) (internal

quotations and citations omitted)). Officials are also entitled to qualified immunity

if they “could reasonably believe” that their “response to the risk was not deliberately

indifferent (or reckless) to that risk.” Gregoire, 236 F.3d at 418 (citations omitted).

Here, the parents have not shown that Gross had the subjective intent to cause

harm, or that he could not reasonably believe that his response was not deliberately

indifferent or reckless. Before Stufflebean’s death, Gross had been a transporting

officer for about one to two years, and previously was a booking officer for about

ten years (which included medical intake screening for the jail). Due to this work

experience, Gross knew that Stufflebean would complete the medical intake form

during booking. Per the form, Gross knew that Stufflebean would be asked whether

he was under a physician’s care, if he was currently taking any medications, if he

currently needed medical attention, and if he had any physical ailments, among other

questions. Gross testified he had no training on spotting or reporting medical issues

when bringing an inmate to booking. The parents did not contradict Gross’s

testimony that the inmates are “best at explaining their medical [problems] than a

transporting officer” because inmates “know all their medical than we do.” Gross

also knew that if Stufflebean reported certain conditions (as he did here), the booking

officer was required to report him to medical, where he would meet with ACH

medical staff who specialized in treating inmates. In contrast, even if the

-32-

transporting officer reported they believed an inmate was a medical risk, the intake

form had no express requirement for the booking officer to refer that inmate to

medical. From Gross’s knowledge, there was ample opportunity for Stufflebean to

be referred to medical and meet with medical professionals to address his health

issues. Cf. id. at 419 (“The question is not whether the jailers did all they could have,

but whether they did all the Constitution requires.” (citation omitted)).

The parents counter that, under the jail’s policies, Gross was supposed to listen

to courtroom testimony and report known medical conditions. But, Gross’s

“[f]ailure to follow written procedures does not constitute per se deliberate

indifference.” Luckert v. Dodge Cty., 684 F.3d 808, 819 (8th Cir. 2012) (alteration

added). This court’s focus is instead on whether his acts violated Stufflebean’s

constitutional rights. Perry v. Adams, 993 F.3d 584, 587 (8th Cir. 2021) (“the issue

is whether the government official violated the Constitution or federal law, not

whether he violated the policies of a state agency”), quoting Cole v. Bone, 993 F.2d

1328, 1334 (8th Cir. 1993). Because there is no constitutional violation, Gross is

entitled to qualified immunity.

V.

According to Gross and Nauman, the district court erroneously denied them

official immunity from the parents’ state-law wrongful death claim. See N.S. v.

Kansas City Bd. of Police Comm’rs, 933 F.3d 967, 970 (8th Cir. 2019)

(“Official immunity, like qualified immunity, is a threshold issue and subject

to interlocutory appellate review.”), citing Div. of Emp’t Sec. v. Bd. of Police

Comm’rs, 864 F.3d 974, 978 (8th Cir. 2017), State ex rel. Barthelette v. Sanders,

756 S.W.2d 536, 539 (Mo. banc 1988), and State ex rel. Mo. Dep’t of Agric. v.

McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985).

Under Missouri law, official immunity “protects public officials sued in their

individual capacities from liability for alleged acts of negligence committed during

the course of their official duties for the performance of discretionary acts.” State

-33-

ex rel. Helms v. Rathert, 624 S.W.3d 159, 163 (Mo. banc 2021), quoting State ex

rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc 2019).

The purpose of official immunity is “to allow public officials to make

judgments affecting the public safety and welfare without [t]he fear of personal

liability.” Alsup, 588 S.W.3d at 190 (alteration in original) (internal quotations and

citations omitted). In line with that purpose, official immunity is broadly applied.

See id. at 191. “Courts applying the doctrine of official immunity must be cautious

not to construe it too narrowly lest they frustrate the need for relieving public

servants of the threat of burdensome litigation.” Id. (internal quotations and citation

omitted).

There is a “narrow exception to the application of the official immunity

doctrine—i.e., when a public officer fails to perform a ministerial duty required of

him by law, he may be personally liable for the damages caused.” Helms, 624

S.W.3d at 163 (emphasis in original), quoting Alsup, 588 S.W.3d at 191. This

exception “focuses on the nature of a ministerial act.” Alsup, 588 S.W.3d at 191. A

ministerial act is an act that is “merely clerical.” Id. (internal quotations and citation

omitted). It “compels a task of such a routine and mundane nature that it is likely to

be delegated to subordinate officials.” Id. (citations omitted). It is “to be performed

upon a given state of facts in a prescribed manner in obedience to the mandate of

legal authority, and without regard to [the public official’s] judgment or opinion

concerning the propriety or impropriety of the act to be performed.” Helms, 624

S.W.3d at 163 (alteration in original), quoting Alsup, 588 S.W.3d at 191.

An act is discretionary, conversely, where “there is any room whatsoever for

variation in when and how a particular task can be done.” Id. (internal quotations

and citation omitted). See Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d

760, 763 (Mo. banc 2006) (“Whether an act is discretionary or ministerial depends

on the degree of reason and judgment required to perform the act.” (internal

quotations and citation omitted)). “That an official might exercise poor judgment in

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a given case does not remove the conduct from the category of discretionary acts.”

K.B. v. Waddle, 764 F.3d 821, 825 (8th Cir. 2014).

An act is not ministerial simply because the official was commanded to

perform the act. That a policy or supervisor conveys authority or a duty to “act in a

given situation says nothing about whether the act authorized or compelled is the

sort of ministerial or clerical act to which official immunity does not

extend.” Helms, 624 S.W.3d at 163 (citation omitted). Official immunity still

applies if “the official retains authority to decide when and how that act is to be

done.” Id. (citation omitted).

The determination of whether an act is discretionary or ministerial is made on

a “case-by-case basis,” considering: “(1) the nature of the public employee’s duties;

(2) the extent to which the act involves policymaking or exercise of professional

judgment; and (3) the consequences of not applying official immunity.” Waddle,

764 F.3d at 825, quoting Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo.

banc 2008).

A.

Gross seeks official immunity from the parents’ wrongful death claim,

asserting that his duty to report Stufflebean’s medical conditions to the booking

officer was discretionary.

After walking Stufflebean to the jail, Gross discussed with Nauman whether

he, as the transporting officer, “believe[s] that inmate is a medical, mental health or

suicide risk now.” Gross reported that he did not believe Stufflebean was a risk now.

The district court determined that Gross was not entitled to official immunity

because he failed to perform his ministerial duty to report known special medical

conditions to the booking officer. The court concluded that a reasonable factfinder

could find that Gross heard Stufflebean’s doctor testify on his dire medical

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conditions and need for medication. According to the court, although Gross

understood that Stufflebean could die without his medication, he did not report the

information to jail officials.

The parents point to County policies and deposition testimony to assert that

Gross had the clear and unequivocal duty to report medical needs. They assert this

duty was ministerial, with no room for Gross’s judgment. The County Sheriff’s

Department policies state: “When a detainee requiring special needs care is

identified, the facts surrounding the case shall be relayed to the jail commander (or

designee) and the medical staff.” Additionally, Sheriff Strong testified:

Q. Yeah, you’re saying that if the deputies at the sentencing hearing have

information of a special medical condition, they are supposed to report it when

they bring the prisoner over to the jail for booking, correct?

A. Correct.

Q. Okay. And so they’re supposed to be watching out for that information

during the sentencing hearings, correct?

A. I can’t answer yes to that. They have several duties . . . to do right

then.

....

Q. Okay. So it’s the transporting deputy’s responsibility to report a special

medical condition upon transporting the prisoner over to booking, correct?

A. If they are aware of it, yes.

Q. And -- and the question for you is this, because the booking officer asks

that question of the transporting officer, did you expect your transporting

officer to be aware of and paying attention for any special medical conditions

or other medical risks to be able to answer the question in the medical intake

screening questionnaire?

A. If he is aware of that information, yes.

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Q. Right. And I understood that, but was -- because the question is here,

there was an expectation that the transporting officer would be paying

attention, fair?

A. Correct.

The jail’s policy that officers must report if they believe an inmate is a medical

risk does not speak to the nature of the duty for official immunity purposes. See

Helms, 624 S.W.3d at 163; Alsup, 588 S.W.3d at 191. Rather, this court must look

to the nature of the duty itself, and whether Gross needed a sufficient degree of

reason and judgment to perform the act, to determine whether it is ministerial or

discretionary. See Waddle, 764 F.3d at 825.

The Waddle case is instructive about whether an official’s duty to report in

this context is ministerial or discretionary. There, plaintiff, a minor, argued that

officials had knowledge that another individual would sexually assault her, but failed

to report that information to her parents before she was assaulted. Id. at 822–23.

This court held that Missouri’s child-abuse reporting statute—“any . . . person with

responsibility for the care of children has reasonable cause to suspect that a child has

been or may be subjected to abuse . . . , that person shall immediately report to the

division”—creates a discretionary duty because it “requires an exercise of discretion

and personal judgment.” Id. at 825 (alterations in original), citing § 210.115.1,

RSMo Supp. 2002. A “reasonable cause determination,” according to this court,

“requires an exercise of discretion and personal judgment, which takes the matter

out of the realm of a ministerial act.” Id. (internal quotations omitted), quoting

Larson v. Miller, 76 F.3d 1446, 1457 (8th Cir. 1996) (en banc).

Notably, the Waddle court also rejected the argument that Missouri’s common

law creates the ministerial duty for a health care professional to warn an intended

victim when they “know[]” or “should have known” that a patient presents a “serious

danger of future violence to a readily identifiable victim.” Id. (alteration added),

quoting Bradley v. Ray, 904 S.W.2d 302, 312 (Mo. Ct. App. 1995). Even with this

duty and knowledge requirement—the professional must know or should have

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known—the officials’ duty was “discretionary under Missouri law, because it

required an exercise of discretion and personal judgment.” Id. at 826.

Like the duty to report a danger of future violence to a readily identifiable

victim, Gross’s response to whether he “believe[s]” Stufflebean was a

“medical risk” “now” required an exercise of discretion and personal judgment.

Even if Gross heard the testimony, he was still required to use his judgment to

determine whether he believed Stufflebean was a “medical risk,” per the jail’s

standards, now, that is, at the time of booking. See Helms, 624 S.W.3d at 163; Davis,

193 S.W.3d at 763. That his determination was incorrect or poor judgment does not

bring the duty into the realm of being ministerial. See Waddle, 764 F.3d at 825. He

is thus entitled to official immunity.

The parents argue that this court’s holding in Letterman directs a different

result. See Letterman v. Does, 859 F.3d 1120, 1126 (8th Cir. 2017). There, this

court held that a prison’s “close observation policy” created a ministerial duty to

report a medical emergency when one of the policy’s “criteria is met.” Id. at 1123,

1126. The policy required an officer to “check on the inmate every fifteen minutes

and report as a medical emergency any instance when they cannot observe

movement or obtain a verbal response or when it appears that the inmate is not

breathing.” Id. at 1126. The officer’s duty to report a medical emergency was

“mandatory” and did “not depend on the officer’s assessment of whether a medical

emergency actually exists.” Id. Here, unlike Letterman, there are not specific

circumstances that a transporting officer must report to the booking officer. Per the

medical intake, Gross was asked whether he believed Stufflebean was a medical risk

now. Because Gross’s duty was discretionary, he is entitled to official immunity.

B.

Nauman seeks official immunity from the parents’ wrongful death claim,

asserting that his responses to the questions on Stufflebean’s intake form were

discretionary.

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The district court denied Nauman official immunity, determining he did not

accurately complete the intake form, a ministerial duty.

Nauman’s duty, per the County’s medical policies and procedures, was to

“review and be familiar with those policies and procedures.” This required him to

“conduct the Medical Intake Screening carefully and with an eye towards identifying

prisoners with chronic conditions or special needs so they would be addressed

properly throughout their incarceration and not fall through the cracks.” This duty

“inherently required him to be attentive to the questioning and the answers.”

The first question on the intake form asked if the inmate was a “medical,

mental health or suicide risk during any prior contact or confinement with the

department.” Stufflebean was previously booked by the jail eleven months prior, in

2014. He was classified as “Special Conditions—Medical” on his intake form

during that booking. The prior form asked “Do you currently need medical

attention? If yes, why?” The booking officer responded “Yes. BECAUSE OF A

CALCIUM DEFICIENCY.” However, when booked days before Stufflebean died,

Nauman answered “No” to the question on whether Stufflebean was a medical risk

during prior contact or confinement with the department.

If Nauman had access to the prior form, his duty to correctly answer whether

Stufflebean was a medical risk during his prior contact with the department was

ministerial. He would have to view the prior form, see Stufflebean was reported as

“Special Condition—Medical,” and answer “Yes” to the question “Was inmate a

medical, mental health or suicide risk during any prior contact with the

department[.]” Answering that particular question was clerical, not requiring him to

exercise his own judgment. See Helms, 624 S.W.3d at 163; Alsup, 588 S.W.3d at

191. It additionally did not require any explanation on Stufflebean’s past intake.

See Letterman, 859 F.3d at 1126 (prison’s “close observation policy” was

ministerial, as the “duty to report a medical emergency” when officers could not

observe an inmate’s movement or obtain a verbal response, or it appeared the inmate

was not breathing, was “mandatory and [did] not depend on the officer’s assessment

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of whether a medical emergency actually exists.” (alteration added) (applying

Missouri law)); Jungerman v. City of Raytown, 925 S.W.2d 202, 206 (Mo. banc

1996) (a booking officer’s “inventorying, recording and storing” an inmate’s

property is ministerial), abrogated on other grounds by Southers, 263 S.W.3d 603.

See also Jungerman, 925 S.W.2d at 206 (“The fact that written procedures cannot

anticipate every circumstance does not transform a ministerial activity into a

discretionary function.”).

Nauman argues his duty to accurately report Stufflebean’s prior status as a

medical risk was not ministerial because he did not have access to Stufflebean’s

2014 intake form. He asserts that without it, he could not answer the question in a

routine or mundane way. See Alsup, 588 S.W.3d at 191. From his deposition

testimony, it is unclear whether he had access to Stufflebean’s prior intake form. He

gave inconclusive testimony on the question, stating:

Q. Was this December 23, 2014, medical intake screening form available

to you when you were booking Mr. Stufflebean in October of 2015?

A. No.

Q. Where would you have been able to access it, or could you have

accessed it if you wanted to?

A. I’m not sure.

Nauman’s inconclusive testimony on accessing Stufflebean’s prior records

precludes summary judgment on this issue. See Wealot v. Brooks, 865 F.3d 1119,

1128 (8th Cir. 2017) (on summary judgment, “Disputed factual issues and

conflicting testimony should not be resolved by the district court.” (citations

omitted)); Hutson v. Walker, 688 F.3d 477, 486 (8th Cir. 2012) (on summary

judgment, official immunity is appropriate “if no genuine issue of material fact

remains as to whether the ministerial obligations . . . were completed” (alteration

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added)). If, as discussed, he had access to the form, his duty to answer the particular

question is ministerial. 5

*******

The judgment is affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.

______________________________

5

In an affidavit filed months after his deposition, Nauman declared: “While

booking Justin Stufflebean into the jail on October 26, 2015, I did not have access

to the medical information from his prior detention in 2014.” This declaration, being

“inconsistent” with his deposition testimony that he was “not sure” about his ability

to access the prior form, and giving no explanation for that inconsistency, does not

resolve the genuine issue of material fact. Camfield Tires, Inc. v. Michelin Tire

Corp., 719 F.2d 1361, 1365 (8th Cir. 1983) (“If testimony under oath, however, can

be abandoned many months later by the filing of an affidavit, probably no cases

would be appropriate for summary judgment.”). See McLean, 548 F.3d at 616 (on

summary judgment, considering the evidence most favorably to the nonmoving

party, including all reasonable inferences).

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