Sheila McCullum v. Kenneth Tepe

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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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., 1835

WL 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.