Petition for Writ of Certiorari — Estate of Madison Jody Jensen, by Her Personal Representative Jared Jensen, Petitioner v. Kennon Tubbs

No. 21-___

IN THE

Supreme Court of the United States

ESTATE OF MADISON JODY JENSEN,

EX REL. JARED JENSEN,

Petitioner,

v.

KENNON TUBBS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Ryan B. Hancey

Amanda K. Rice

KESLER & RUST

Counsel of Record

68 S. Main St., Suite 200 JONES DAY

Salt Lake City, UT 84101 150 W. Jefferson Ave.

Suite 2100

Detroit, MI 48226

(313) 733-3939

arice@jonesday.com

Amelia A. DeGory

JONES DAY

51 Louisiana Ave., N.W.

Washington, DC 20001

Counsel for Petitioner

i

QUESTION PRESENTED

Whether private medical personnel working in

correctional or mental-health facilities can assert

qualified immunity.

ii

RELATED PROCEEDINGS

Estate of Jensen ex rel. Jensen v. Clyde, No. 204024 (10th Cir.) (judgment entered Mar. 2, 2021).

Estate of Jensen ex rel. Jensen v. Tubbs, No. 204025 (10th Cir.) (judgment entered Mar. 2, 2021).*

Estate of Jensen ex rel. Jensen v. Duchesne Cnty.,

No. 17-cv-1031 (D. Utah) (order entered Jan. 21, 2020).

* Consolidated on March 24, 2020, see Doc. 10727730 (10th

Cir.).

iii

PARTIES TO THE PROCEEDING

AND RULE 29.6 DISCLOSURE STATEMENT

Petitioner is the Estate of Madison Jody Jensen,

by and through her personal representative, Jared

Jensen.

Respondent is Kennon Tubbs.

There are no publicly held corporations involved in

this proceeding.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

RELATED PROCEEDINGS ...................................... ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT ....... iii

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 4

STATUTORY PROVISION INVOLVED ................... 4

STATEMENT ............................................................. 4

REASONS FOR GRANTING THE WRIT ............... 12

I.

II.

THE COURTS OF APPEALS ARE DIVIDED ............. 13

A.

Four Circuits Have Held That

Private Medical Personnel Can

Never Assert Qualified Immunity ........... 13

B.

Two Circuits Have Held That

Some Private Medical Personnel

Can Assert Qualified Immunity .............. 15

C.

The Split Is Well Developed And

Entrenched ............................................... 18

THE QUESTION PRESENTED MERITS

THE COURT’S ATTENTION ................................... 19

III. THE TENTH CIRCUIT’S DECISION

WAS WRONG ...................................................... 27

CONCLUSION ......................................................... 35

v

TABLE OF CONTENTS

(continued)

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Tenth Circuit

(Mar. 2, 2021).................................................... 1a

APPENDIX B: Memorandum Decision and

Order of the United States District Court

for the District of Utah (Jan. 21, 2020) ......... 22a

vi

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Creighton,

483 U.S. 635 (1987) .............................................. 31

Baxter v. Bracey,

140 S. Ct. 1862 (2020) .......................................... 28

Berkshire v. Beauvais.

928 F.3d 520 (6th Cir. 2019) ................................ 14

Bracken v. Okura,

869 F.3d 771 (9th Cir. 2017) ................................ 24

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) ............................................ 21

Est. of Clark v. Walker,

865 F.3d 544 (7th Cir. 2017) .........................passim

Est. of Jensen ex rel. Jensen v. Clyde,

989 F.3d 848 (10th Cir. 2021) .................... 4, 17, 26

Est. of Lockett ex rel. Lockett v. Fallin,

841 F.3d 1098 (10th Cir. 2016) ...................... 17, 24

Farmer v. Brennan,

511 U.S. 825 (1994) .............................................. 33

Filarsky v. Delia,

566 U.S. 377 (2012) .......................................passim

Franco v. Bd. of Cnty. Comm’rs,

609 F. App’x 957 (10th Cir. 2015) ........................ 24

Gaines v. Wardynski,

871 F.3d 1203 (11th Cir. 2017) ............................ 21

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Gregg v. Ham,

678 F.3d 333 (4th Cir. 2012) ................................ 24

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 31

Hinson v. Edmond,

192 F.3d 1342 (11th Cir. 1999) .....................passim

Hoggard v. Rhodes,

No. 20-1066, slip op. (U.S. July 2, 2021) ............. 28

Hughes v. Long,

242 F.3d 121 (3d Cir. 2001).................................. 25

Imbler v. Pachtman,

424 U.S. 409 (1976) ................................................ 4

Jensen v. Lane Cnty.,

222 F.3d 570 (9th Cir. 2000) .........................passim

Malley v. Briggs,

475 U.S. 335 (1986) .............................................. 27

McCullum v. Tepe,

693 F.3d 696 (6th Cir. 2012) .........................passim

Meadows v. Rockford Hous. Auth.,

861 F.3d 672 (7th Cir. 2017) ................................ 25

Mitchell v. Forsyth,

472 U.S. 511 (1985) .............................................. 26

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................. 21

Owen v. City of Independence,

445 U.S. 622 (1980) .................................... 5, 27, 28

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Perniciaro v. Lea,

901 F.3d 241 (5th Cir. 2018) .........................passim

Petties v. Carter,

836 F.3d 722 (7th Cir. 2016) ................................ 15

Pierson v. Ray,

386 U.S. 547 (1967) .............................................. 28

Richardson v. McKnight,

521 U.S. 399 (1997) .......................................passim

Sanchez v. Oliver,

995 F.3d 461 (5th Cir. 2021) .................... 16, 17, 18

Tanner v. McMurray,

989 F.3d 860 (10th Cir. 2021) .......................passim

Tower v. Glover,

467 U.S. 914 (1984) .............................................. 28

Wyatt v. Cole,

504 U.S. 158 (1992) .......................................passim

STATUTES

28 U.S.C. § 1254 .......................................................... 4

28 U.S.C. § 1331 .......................................................... 9

42 U.S.C. § 1983 .................................................passim

Civil Rights Act of 1871, ch. 22, 17 Stat. 13 ............... 4

OTHER AUTHORITIES

E. Ann Carson, Mortality in Local Jails,

2000–2018 – Statistical Tables, U.S.

DOJ, BUREAU OF JUST. STAT. (April 2021) ........... 21

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

W. J. Michael Cody & Andy D. Bennett,

The Privatization of Correctional

Institutions: The Tennessee Experience,

40 VAND. L. REV. 829 (1987) ................................ 20

Developments in the Law – State Action and

the Public/Private Distinction, Private

Party Immunity from Section 1983 Suits,

123 HARV. L. REV. 1266 (2010)............................. 25

Lauren Galik & Leonard Gilroy, PublicPrivate Partnerships in Correctional

Health Care, REASON FOUND. (2014) ................... 20

Margaret H. Lemos, Privatizing Public

Litigation, 104 GEO. L.J. 515 (2016) .................... 22

Pew Charitable Trusts, Prison Health

Care: Costs and Quality (2017) ................ 19, 20, 22

RESTATEMENT (THIRD) OF TORTS: PHYS.

& EMOT. HARM § 41 (2012) ................................... 33

Jason Szep et al., Dying Inside: The Hidden

Crisis in America’s Jails Part Two,

REUTERS (Oct. 26, 2020) ................................. 20, 22

1

INTRODUCTION

42 U.S.C. § 1983 affords individuals a right to

recover from “[e]very person” who violates their

constitutional rights while acting “under color” of state

law. Although the text of that statute admits of no

exceptions, this Court has held that it implicitly

incorporates certain immunities that were available at

common law. Over time, this Court has diverged from

common-law standards with respect to claims of

qualified immunity by government officials. With

respect to private actors, however, it has held firm.

Those actors, this Court has repeatedly made clear,

are entitled to invoke qualified immunity only if (1)

individuals performing similar functions were entitled

to immunity at common law, and (2) public policy

favors the extension of immunity. See Wyatt v. Cole,

504 U.S. 158, 163 (1992).

This Court has twice applied that standard since

first adopting it in Wyatt. In Richardson v. McKnight,

521 U.S. 399 (1997), it found that neither history nor

policy favored immunity for private prison guards. Id.

at 412. And in Filarsky v. Delia, 566 U.S. 377 (2012),

it found that both history and policy favored immunity

for private lawyers working as city investigators. Id.

at 380–84. In the years since Filarsky, however, the

Courts of Appeals have struggled to reconcile those

precedents. As a consequence, they have deeply

divided with respect to the availability of qualified

immunity for a third category of private actors:

medical personnel working in correctional or mentalhealth facilities.

Respondent Kennon Tubbs is one such private

actor. He was contractually responsible for the

2

provision of medical services at the Duchesne County

Jail on November 27, 2016—the day 21-year-old

Madison Jensen was arrested and detained on charges

of drug possession. Upon arrival at the jail, she

immediately began exhibiting symptoms of opioid

withdrawal, including continuous vomiting and severe

diarrhea. But her calls for help were all but ignored.

Madison died of dehydration in her cell just four days

after she arrived. She had lost seventeen pounds in

that short period of time, and no medical treatment

(apart from Gatorade) had ever been provided.

Madison’s Estate sued Dr. Tubbs under 42 U.S.C.

§ 1983. Although the District Court found that a jury

should decide whether Dr. Tubbs was responsible for

a violation of Madison’s constitutional rights, the

Tenth Circuit reversed, holding that qualified

immunity barred the Estate’s claim. In so doing, the

Tenth Circuit acknowledged a now four-to-two circuit

split about whether qualified immunity is “available

to a private medical professional providing services to

a jail.” Pet.App.14a n.2. The Sixth, Seventh, Ninth,

and Eleventh Circuits, the court recognized, have held

that qualified immunity is not available to such

defendants. See id. The Fifth Circuit, by contrast, has

held that at least some private medical personal can

invoke that defense. See id. (citing Perniciaro v. Lea,

901 F.3d 241, 252 n.9 (5th Cir. 2018)). In endorsing

immunity for private doctors like Dr. Tubbs, the Tenth

Circuit threw its lot in with the Fifth. Id.

That division of authority really matters. More

and more often, private medical personnel are

responsible for providing healthcare to detainees

across the country. And the availability of qualified

immunity for those providers is frequently dispositive

3

of detainees’ constitutional claims. Moreover, the

methodological disagreements that underlie the

medical-personnel circuit split have even broader

implications. By answering the question presented,

this Court would provide sorely needed guidance

about the interaction between Richardson and

Filarsky, and about the private-actor immunity

standard more broadly.

In addition, the decision below is wrong. Every

court to have considered the question has concluded

that “there was no special immunity” at common law

“for a doctor working for the state.” McCullum v. Tepe,

693 F.3d 696, 703 (6th Cir. 2012). And the absence of

a “tradition of immunity . . . firmly rooted in the

common law” should be dispositive. Wyatt, 504 U.S. at

163–64. The Tenth Circuit’s contrary approach—

which ignores history and instead asks whether public

employees could claim qualified immunity today—is

irreconcilable with Wyatt and Richardson. And it

misconstrues Filarsky. The Tenth Circuit’s policy

analysis is faulty, too. Doctors are subject to

malpractice suits even for ordinary negligence, so

there is no reason to expect that the possibility of

liability under § 1983 will pose any serious problems.

This Court should grant certiorari and hold that

private medical personnel like Dr. Tubbs are not

entitled to invoke qualified immunity.

OPINIONS BELOW

The District Court’s opinion denying summary

judgment to Respondent Tubbs, Pet.App.22a–63a, is

unpublished but is available at 2020 WL 291398 (D.

Utah Jan. 21, 2020). The Tenth Circuit’s decision

4

reversing that judgment, Pet.App.1a–21a,

published at 989 F.3d 848 (10th Cir. 2021).

is

JURISDICTION

The Tenth Circuit entered judgment on March 2,

2021. This petition was timely filed, consistent with

the Supreme Court’s March 19, 2020 Order, within

150 days of that judgment. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for

redress . . . .

STATEMENT

1. Section 1983 was first enacted in 1871. See

Civil Rights Act of 1871, ch. 22, 17 Stat. 13, 13. It

provides that “[e]very person who, under color of” state

law, “subjects” another “to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured.” 42 U.S.C. § 1983. “[O]n its face,” the statute

“admits of no immunities.” Wyatt, 504 U.S. at 163

(quoting Imbler v. Pachtman, 424 U.S. 409 (1976)).

Nevertheless, this Court has “accorded certain

5

government officials either absolute or qualified

immunity from suit if the ‘tradition of immunity was

so firmly rooted in the common law’” at the time of

§ 1983’s passage “‘and was supported by such strong

policy reasons that “Congress would have specifically

so provided had it wished to abolish the doctrine.”’” Id.

at 163–64 (quoting Owen v. City of Independence, 445

U.S. 622, 637 (1980)).

In Wyatt, the Court considered whether qualified

immunity can extend to “private defendants faced with

§ 1983 liability for invoking a state replevin,

garnishment, or attachment statute.” Id. at 168–69

(emphasis added). Although the Court did “not

foreclose the possibility that private defendants faced

with § 1983 liability” could invoke qualified immunity

in some contexts, it held that the private defendants

at issue could not. Id. Similar actors, the Court

reasoned, were not entitled to immunity at common

law.

See id. at 164–65.

Moreover, the policy

“rationales mandating qualified immunity for public

officials are not applicable to private parties.” Id. at

167.

This Court applied the same history- and policybased standard in Richardson v. McKnight, 521 U.S.

399 (1997). The defendants in that case were “prison

guards who [were] employees of a private prison

management firm.” Id. at 401. After examining case

law from the eighteenth to early twentieth centuries,

the Court found “no conclusive evidence of a historical

tradition of immunity for private parties carrying out”

“prison management activities.” Id. at 407. The Court

further reasoned that extending immunity would not

serve public policy because the “competitive market

pressures” that “a private company” faces suffice to

6

guard against “unwarranted timidity” and the

deterrence of “talented candidates.” Id. at 409–11

(quoting Wyatt, 504 U.S. at 167).

The Court again considered the applicability of

qualified immunity to private individuals in Filarsky

v. Delia, 566 U.S. 377 (2012). This time, the defendant

was a private lawyer who had worked on behalf of a

city in an investigative capacity. Id. at 380–81. It was

undisputed that immunity generally existed at

common law “for the sort of investigative activities at

issue,” such that a full-time government employee

engaged in those activities could invoke immunity. Id.

at 384. The only question was whether the defendant’s

employment “on something other than a permanent or

full-time basis” rendered immunity unavailable. Id. at

380. Looking first to history, the Court determined

that “the common law” in 1871 “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. It then found that no

policy considerations “counsel[ed] against carrying

forward the common-law rule.”

Id. at 389.

Accordingly, the Court held that the defendant could

assert qualified immunity. Id. at 394.

2. This case is about the interaction of these

precedents. It arises from the tragic and eminently

preventable death of Madison Jensen, who died at the

age of 21 while in the custody of the Duchesne County

Jail.

At the time of Madison’s death, the jail

contracted with Respondent Kennon Tubbs, a private

physician, to serve as the jail’s Medical Director and

provide medical services to its inmates. Pet.App.5a.

Pursuant to that contract, Dr. Tubbs provided 24/7 on-

7

demand services to the jail; he also subcontracted with

a physician’s assistant who visited the jail weekly. Id.

In addition, Dr. Tubbs was responsible for “provid[ing]

training, instruction, support, and a supervisory role

[for] nursing staff on how to appropriately handle

triage, sick call, medical protocols, and health care

complaints/grievances.” Id.

The jail itself had a single medical employee, a

licensed practical nurse named Jana Clyde. Id. at 4a.

A licensed practical nurse certification does not

require an associate’s or bachelor’s degree in nursing.

Id. And by law, a licensed practical nurse is forbidden

from conducting health assessments or diagnosing or

treating any medical condition. Id. at 24a. Instead,

Ms. Clyde’s role was merely to administer

medications, check vital signs, and report to her

superiors. Id. at 4a. Although Dr. Tubbs was

responsible for training and supervising Ms. Clyde,

she stated that she had never been “given a Jail

policies and procedures manual” and had “not

receive[d] any training . . . on the Jail’s medical

policies and procedures.” Id. at 32a.

On November 27, 2016, Madison’s father noticed

that she was acting strangely, and she admitted that

she had recently taken heroin and other drugs. Id. at

23a. He called the local sheriff’s office for assistance.

Id. When officers arrived at the Jensen home, they

placed Madison under arrest and then booked her into

the Duchesne County Jail. Id. at 4a. Madison told the

arresting officer that “she was ‘coming off’ heroin.” Id.

And during intake, Madison informed a corrections

officer that she had “recently” used heroin. Id.

Unsurprisingly, moreover, her “urinalysis test was

positive for opiates.” Id. at 26a.

8

Madison spent the next four days going through

opioid withdrawal. Id. at 5a–8a. She vomited

continuously, and she repeatedly suffered from severe

diarrhea. Id. Madison and her cellmate used a call

button over and over to notify jail staff that Madison

was “violently” ill—to the point that a deputy told

them “to stop pushing the call button.” Id. at 27a.

Madison was unable to hold down food or even water,

id. at 6a, and she lost seventeen pounds in the short

period of time she was detained, id. at 8a. Watching

Madison deteriorate, one guard remarked to his wife

that “Madison looked like she was going to die because

‘she was just like a skeleton.’” Id. at 29a.

Despite the severity of Madison’s condition and

the indications that she was experiencing opioid

withdrawal, Ms. Clyde purportedly believed that

Madison only had a stomach flu. Id. at 30a. She gave

Madison Gatorade, id. at 6a, but she did not contact

Dr. Tubbs, monitor Madison’s vital signs, or attempt

to provide any further medical treatment.

Id.

According to Ms. Clyde, “she was not required to take

an inmate’s vital signs each day even if she knew the

inmate was exhibiting obvious symptoms of severe

dehydration.” Id. at 33a. And “there is conflicting

testimony about when she was expected to contact [Dr.

Tubbs] regarding an inmate who was vomiting,

experiencing diarrhea, or exhibiting signs of

dehydration.” Id.

At 1:00 P.M. on December 1, 2019, four days after

Madison had entered the jail, she vomited brown

liquid and then had a seizure, which caused her to roll

out of bed and onto the floor. Id. at 31a. She was

discovered dead in her cell approximately thirty

minutes later. Id. No doctor or physician’s assistant

9

had ever been called, and no medical treatment (apart

from Gatorade) had ever been provided. Id. at 5a–8a.

The cause of Madison’s death was found to be

dehydration due to opioid withdrawal. Id. at 7a. An

autopsy revealed that she had gallstones—evidence of

severe dehydration—and that, at 5’11”, she weighed

just 112 pounds at the time of her death. Id. at 35a;

D. Ct. Dkt. 91, 2d Amended Compl. (“Am. Compl.”)

¶ 150.

3. Madison’s Estate, the Petitioner here, filed suit

against Dr. Tubbs, among others, in the District Court

for the District of Utah. Am. Compl. ¶ 6; see also 28

U.S.C. § 1331 (conferring federal jurisdiction). The

Estate alleged that Dr. Tubbs is liable under § 1983

for failing to implement policies, procedures, and

training regarding how to treat or respond to inmates

showing signs of opioid withdrawal or severe

dehydration. See Am. Compl. ¶¶ 290–329. Dr. Tubbs

moved for summary judgment, arguing that he was

entitled to qualified immunity from the Estate’s suit

as a matter of law. D. Ct. Dkt. 141.

The District Court denied his motion. “Dr. Tubbs

acknowledge[d] that he was responsible for Nurse

Clyde’s training.” Pet.App.58a. But he presented “no

evidence” that any such training had been provided.

Id. And there were “no written procedures, policies, or

training materials.”

Id. at 57a.

Moreover, in

Madison’s case, Ms. Clyde had “failed to document

Madison’s condition” and had “failed to engage in basic

follow up,” “call[ing] into question what kind of

training [she] had received.” Id. at 58a. Indeed, there

was “no evidence that [Ms.] Clyde was trained in how

to find out or document relevant information from

patients.” Id. And “[i]f there were no protocols or

10

training for obtaining relevant information from

patients,” the court reasoned, “a constitutional

violation was certain to occur at some point.” Id. at

59a. “[W]hether or not qualified immunity is available

to a contract doctor,” the court thus concluded,

“questions of fact regarding Dr. Tubbs’ potential

supervisory liability preclude[ ] the application of

[that] defense prior to trial.” Id. at 60a.

4. The Tenth Circuit took an interlocutory appeal

and reversed. The court began with the question

whether Dr. Tubbs, as “a private physician,” was

“entitled to claim qualified immunity.” Id. at 10a. The

court read Filarsky to establish that, under common

law principles, “immunity should not vary depending

on whether the individual works for the government

on a part-time or full-time basis.” Id. at 11a. Dr.

Tubbs, the court reasoned, “would have certainly been

able to raise a qualified-immunity defense” “had [he]

been working as a doctor for the county on a full-time

basis.” Id. at 11a–12a. “Thus,” the court concluded,

“common law principles support Dr. Tubbs’ ability to

raise a qualified-immunity defense.” Id. at 12a.

The Tenth Circuit then turned to public policy

considerations, which it found also favored qualified

immunity. In particular, the court opined that the

defense would both prevent “‘unwarranted timidity’”

and minimize the “distract[ions]” of litigation. Id.

(quoting Richardson, 521 U.S. at 408–11). It also

expressed concern that “talented candidates could be

deterred” absent qualified immunity because “a

physician like Dr. Tubbs does not ‘depend on the

government for [his] livelihood.’” Id. at 13a (alteration

in original) (quoting Filarsky, 566 U.S. at 390). The

“‘market pressures at play within a purely private

11

firm,’” the court asserted, “‘simply do not reach’”

“private doctors providing services at a jail.” Id.

(quoting Perniciaro, 901 F.3d at 253).

In holding that “Dr. Tubbs may claim qualified

immunity,” the Tenth Circuit acknowledged an

entrenched circuit split about whether “qualified

immunity is . . . available to a private medical

professional providing services to a jail.” Id. at 14a–

15a & n.2. The Sixth, Seventh, Ninth, and Eleventh

Circuits, it recognized, have said “no.” Id.; see

McCullum, 693 F.3d at 704; Est. of Clark v. Walker,

865 F.3d 544, 551 (7th Cir. 2017); Jensen v. Lane

Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (“Lane

County”); Hinson v. Edmond, 192 F.3d 1342, 1347

(11th Cir. 1999), amended, 205 F.3d 1264 (11th Cir.

2000). The Fifth Circuit, on the other hand, has said

“yes.” Pet.App.14a n.2; see also Perniciaro, 901 F.3d

at 255. The Tenth Circuit sided with the Fifth

Circuit’s minority view. In rejecting the majority

position, the court suggested that decisions denying

qualified immunity to private prison doctors “may not

align precisely with Filarsky’s mode of analysis.”

Pet.App.14a n.2 (citing Perniciaro, 901 F.3d at 252

n.9).

Having found qualified immunity available, the

Tenth Circuit then turned to its application. The

Estate, it concluded, had failed to “establish the

requisite degree of personal involvement, causation,

and state of mind” and to present “enough” case law

“to make it clear to Dr. Tubbs that he was violating

Ms. Jensen’s rights in this context.” Id. at 16a–18a.

12

Accordingly, the court held that “Dr. Tubbs is entitled

to qualified immunity” from the Estate’s suit. Id.1

REASONS FOR GRANTING THE WRIT

The Courts of Appeals have split four-to-two on the

question whether private medical personnel working

in correctional or mental-health facilities can assert

qualified immunity. That split is both entrenched and

acknowledged.

It directly affects thousands of

prisoners and prison workers throughout the country.

And the methodological disagreements from which it

stems have implications for the availability of

qualified immunity in other contexts, too. Moreover,

the decision below is wrong: As every circuit to have

considered the question has concluded, doctors were

not entitled to immunity at common law, even when

performing government services. And even if policy

were enough to overcome a dearth of historical

support, the policy rationales that justify immunity for

government officials do not extend to private

physicians. Certiorari should be granted.

1 Separately, the Tenth Circuit “affirm[ed] the district

court’s decision that Ms. Clyde [was] not entitled to qualified

immunity.” Pet.App.21a. “Despite th[e] obvious risk to Ms.

Jensen,” it reasoned, “Ms. Clyde failed to take any reasonable

measures.” Id. at 19a. And it was “clearly established” that

“ignoring” a detainee’s “obvious and serious medical needs . . .

necessarily violates the detainee’s constitutional rights.” Id. at

20a. That ruling is not at issue here.

13

I.

THE COURTS OF APPEALS ARE DIVIDED.

A. Four Circuits Have Held That Private

Medical Personnel Can Never Assert

Qualified Immunity.

The Sixth, Seventh, Ninth, and Eleventh Circuits

have held that private medical personnel in

correctional and mental-health facilities categorically

cannot raise a qualified-immunity defense. Relying

primarily on Richardson, these circuits have reached

that result by asking whether a person performing the

defendant’s functions would have had immunity in

1871.

1. In Hinson v. Edmond, the Eleventh Circuit

considered whether “a privately employed prison

physician[ ]” working at a county jail could invoke

qualified immunity. 192 F.3d at 1343. In so doing, the

court first considered whether a “‘firmly rooted’

tradition of immunity applicable to privately employed

prison physicians exists.” Id. at 1345. It found no such

tradition “for acts amounting to recklessness or

intentional wrongdoing.” Id. It further found that

“the public policy reasons for qualified immunity [did]

not justify the extension of qualified immunity” to

private prison doctors like the defendant. Id. at 1346.

The court therefore held that private prison

physicians are “ineligible to advance the defense of

qualified immunity.” Id. at 1343.

2. The Ninth Circuit reached the same result in

Jensen v. Lane County, which involved “a private

medical practitioner” “asked by the government to

make a decision to commit persons suspected of

mental illness.” 222 F.3d at 572, 576. Like the

Eleventh Circuit, the Ninth Circuit first considered

14

“the historical availability of immunity” for such

practitioners. Id. at 576. The court found no

“definitive common law history of immunity.” Id. at

577. It also found that public policy militated against

the extension of immunity. Id. at 578. Accordingly,

the court held that private practitioners cannot invoke

qualified immunity. See id. at 572.

3. The Sixth Circuit adopted the same rule, for the

same reasons, in McCullum. 693 F.3d at 696. First,

the court determined 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.” Id. at 704. Although the court noted that it

was “questionable whether” courts could rely on policy

to “extend qualified immunity where there was no

history of immunity at common law,” it nevertheless

considered policy “out of an abundance of caution.” Id.

at 700 n.7. And it concluded that the “same factors”

the Court considered in Richardson rendered

immunity “inappropriate here.” Id. at 704. The court

therefore held that “private doctor[s] working for the

government” cannot invoke qualified immunity. Id.

And the Sixth Circuit recently reaffirmed that rule in

Berkshire v. Beauvais. 928 F.3d 520, 531 (6th Cir.

2019) (relying on McCullum for the proposition that “a

private doctor working for the government is not

entitled to qualified immunity”).

4. The Seventh Circuit endorsed “the Sixth

Circuit’s reasoning” in Estate of Clark v. Walker, 865

F.3d 544, 551 (7th Cir. 2017). The proper “historical

inquiry,” the court explained, is “whether the person

asserting qualified immunity would have been

immune from liability under the common law in 1871.”

Id. at 550. In “‘the absence of any indicia that a paid

15

physician . . . would have been immune from suit at

common law,’” the court held that “private medical

personnel in prisons are not afforded qualified

immunity.” Id. at 550–51 (quoting McCullum, 693

F.3d at 704). That result, the court further explained,

was consistent with its prior rulings in other “other

post-Filarsky cases.” Id. at 551 (citing, e.g., Petties v.

Carter, 836 F.3d 722, 734 (7th Cir. 2016), as amended

(Aug. 25, 2016) (“[Q]ualified immunity does not apply

to private medical personnel in prisons.”)).

B. Two Circuits Have Held That Some

Private Medical Personnel Can Assert

Qualified Immunity.

By contrast, the Fifth and Tenth Circuits have

held that qualified immunity extends to at least some

private medical personnel working in correctional and

mental-health facilities.

Relying primarily on

Filarsky, these circuits have reached that result by

asking whether a full-time government employee

performing the defendant’s functions would have

immunity today.

1. In Perniciaro v. Lea, the Fifth Circuit granted

qualified immunity to psychiatrists employed by a

private university who provided services at a state-run

mental-health facility.

901 F.3d at 246.

The

availability of qualified immunity, the court

emphasized, should not turn “on whether an

individual working for the government does so as a

full-time employee, or on some other basis.” Id. at 252

(quoting Filarsky, 566 U.S. at 389). And because the

defendants’ “public counterparts would be entitled to

assert qualified immunity,” the court held that

“general principles of immunity at common law

16

support [the defendants’] right . . . to raise th[at]

defense” too. Id. The court further found that policy

considerations supported extending immunity to

private physicians, citing concerns about whether

“‘ordinary marketplace pressures’” would otherwise

“suffice to incentivize vigorous performance and

prevent unwarranted timidity.” Id. at 253 (quoting

Richardson, 521 U.S. at 409–10).

In reaching this conclusion, the Fifth Circuit

expressly disagreed with the “contrary conclusions in

[Lane County] and Hinson,” as well as in “McCullum.”

Id. at 252 n.9. In particular, the court criticized its

sister circuits for “fram[ing] the relevant question as

whether there was a firmly-rooted tradition of

immunity for private doctors performing some

government-related function.”

Id.

Instead—and

while noting particular “respect for [the Sixth]

[C]ircuit’s deep historical analysis of whether doctors

had any special immunity at common law”—the Fifth

Circuit read Filarsky to require consideration only of

whether the common law generally supported

distinguishing between public and private individuals.

Id.2

2. In the decision below, the Tenth Circuit

followed the Fifth. See supra at 10–12. The key

2 The Fifth Circuit recently reaffirmed Perniciaro’s holding

that private physicians are generally entitled to assert qualified

immunity. Sanchez v. Oliver, 995 F.3d 461, 467 (5th Cir. 2021)

(discussing Perniciaro, 901 F.3d at 254). The court held, however,

that employees of “a major corporation ‘in the business of

administering correctional health care services’” cannot invoke

qualified immunity, because neither history nor policy supports

the extension of immunity to that particular context. Id. at 466–

72.

17

common-law “principle[ ],” the court explained, “is

that immunity should not vary depending on whether

the individual works for the government on a parttime or full-time basis.” Pet.App.11a. Accordingly, the

court held that “a private doctor” who had contracted

with a jail “to provide some medical services” could

assert qualified immunity, because a doctor providing

the same services for the jail “on a full-time basis . . .

would have certainly been able to raise a qualifiedimmunity defense.” Id. at 5a, 11a–12a; see also Estate

of Lockett ex rel. Lockett v. Fallin, 841 F.3d 1098, 1109

(10th Cir. 2016) (holding that “a private doctor” hired

to carry out an execution could assert qualified

immunity because “a permanent government

employee” who performed the same job would be able

to raise the defense).

In so holding, the Tenth Circuit acknowledged

that four “other circuits” had “conclud[ed] that

qualified immunity is not available to a private

medical professional providing services to a jail.”

Pet.App.14a n.2 (emphasis added)). The court did not

question those circuits’ conclusion that “there was no

common-law tradition of immunity for private doctors”

in 1871. Id. at 15a. Like the Fifth Circuit, the court

simply “read Filarsky to require a different focus.” Id.

(quoting Perniciaro, 901 F.3d at 252 n.9).3

The Tenth Circuit reaffirmed that a “doctor who [i]s

engaged part time by a county jail” can “assert the defense” of

qualified immunity in another decision issued the very same day

as this one. Tanner v. McMurray, 989 F.3d 860, 864 (10th Cir.

2021) (citing Est. of Jensen, 989 F.3d 848). But like the Fifth

Circuit in Sanchez, the court held in that case that “full-time

employees of a for-profit, multi-state corporation organized to

3

18

C. The Split Is

Entrenched.

Well

Developed

And

The Courts of Appeals have thus sharply defined

the crux of their disagreement. All agree that

physicians did not enjoy any special immunity from

suit in 1871. See, e.g., Sanchez v. Oliver, 995 F.3d 461,

468 (5th Cir. 2021) (“[A]ll of our sister circuits to have

considered the issue have found no compelling history

of immunity for private medical providers in a

correctional setting.”). And none disputes that state

physicians can assert qualified immunity today. See,

e.g., Perniciaro, 901 F.3d at 252 (“[I]t is clear that their

public counterparts would be entitled to assert

qualified immunity[.]”). They diverge, however, as to

which of these two undisputed propositions controls

the availability of qualified immunity for private

physicians working in state facilities.

That divergence stems from tensions in this

Court’s own case law. On the one hand, Richardson

framed the historical inquiry as whether an actor

performing the same function in 1871 would be

immune from suit. 521 U.S. at 404–07. The circuits

principally relying on Richardson have thus held that

qualified immunity is categorically unavailable to

private medical personnel like Dr. Tubbs. See, e.g.,

Clark, 865 F.3d at 550 (following Richardson because

“Filarsky did not overrule Richardson”). On the other

hand, Filarsky can be read to focus on whether

common-law principles support treating defendants

that work for the government on a part-time basis

differently from those who work for the government

provide contract medical care in detention facilities” cannot

invoke qualified immunity. Id. at 861.

19

full-time. Filarsky, 566 U.S. at 384–89. The circuits

principally relying on Filarsky have thus held that

qualified immunity is available to private medical

personnel like Dr. Tubbs. See, e.g., Perniciaro, 901

F.3d at 252 n.9 (criticizing circuits denying qualified

immunity for “follow[ing] Richardson’s lead” when

“Filarsky . . . require[s] a different focus”).

Only this Court can resolve the perceived tension

between Richardson and Filarsky and restore

uniformity to the law.

II. THE QUESTION PRESENTED MERITS THE COURT’S

ATTENTION.

The question presented is important. An

increasing majority of the nation’s correctional

facilities employ private medical professionals to care

for prisoners. And prisoner deaths—including from

alcohol- or drug-related causes—are on the rise. The

availability of qualified immunity for private

physicians often proves dispositive of prisoners’

constitutional

claims.

Moreover,

broader

methodological questions about the interaction

between Richardson and Filarsky have implications

for the availability of immunity in myriad other

contexts. This case is an ideal vehicle not only for

resolving the division of authority about qualified

immunity for private prison doctors, but also for

clarifying the standard for private-actor immunity

claims more broadly.

1. In fiscal year 2015, Pew reported that twenty

states contracted out “most health care service

delivery” in their prisons, and another eight states

relied on “a roughly even mix of state employees and

contracted vendors.” Pew Charitable Trusts, Prison

20

Health Care: Costs and Quality 10 (2017),

https://tinyurl.com/3zzcs2z9; see also Lauren Galik &

Leonard Gilroy, Public-Private Partnerships in

Correctional Health Care, REASON FOUND., 2–3 (2014),

https://tinyurl.com/f243azev (noting that thirty-six

states contracted out at least some of their prison

healthcare services to private vendors in 2014). And a

2020 Reuters survey of 500 jails across the country

revealed that reliance on private medical professionals

has only increased over time, with 62% of those jails

reporting at least some use of private medical

providers. See Jason Szep et al., Dying Inside: The

Hidden Crisis in America’s Jails Part Two, REUTERS

(Oct. 26, 2020), https://tinyurl.com/hz8wpsev.

All signs suggest that trend will continue. The

nation’s prison population is aging. See Pew

Charitable Trusts, supra, at 25–26 (“From 1999 to

2015, the number of people age 55 or older in state and

federal prisons . . . increased 264 percent. . . . [T]he

share of individuals age 55 and over [has] increased in

nearly every state prison system.”).

And older

prisoners require substantially more medical care

than their younger counterparts. Id. at 27. States will

have to spend more and more on healthcare as their

prison populations age, increasing incentives to cut

costs through privatization. Cf. W. J. Michael Cody &

Andy D. Bennett, The Privatization of Correctional

Institutions: The Tennessee Experience, 40 VAND. L.

REV. 829, 847 (1987) (cited in Richardson, 521 U.S. at

402) (explaining that “reducing costs is probably the

most important reason for privatizing correctional

facilities”). That means, in all likelihood, that States

will continue to rely on private medical personnel in

their correctional and mental-health facilities.

21

Detainee deaths are also on the rise. See E. Ann

Carson, Mortality in Local Jails, 2000–2018 –

Statistical Tables, U.S. DOJ, BUREAU OF JUST. STAT. 1–

2

(April

2021),

https://bjs.ojp.gov/content/pub/

pdf/mlj0018st.pdf. Indeed, prisoner deaths due to

drug or alcohol intoxication have more than

quadrupled in the past twenty years. See id. And

prisoners who died of drug or alcohol intoxication in a

local jail had served a median of just one day before

death. Id. at 3. As these statistics reveal, deaths like

Madison’s are all too common—and it is often private

doctors, not state employees, who are potentially

responsible.

2. The availability of qualified immunity for

private medical personnel really matters. A defendant

who can assert qualified immunity can be held liable

only if “existing precedent [has] place[d] the

lawfulness of the particular [action] beyond debate.”

City of Escondido v. Emmons, 139 S. Ct. 500, 504

(2019) (third alteration in original). As a result,

“qualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

Mullenix v. Luna, 577 U.S. 7, 12 (2015). And the

availability of qualified immunity is often dispositive

of whether a prisoner who has suffered a

constitutional injury at the hands of a private medical

professional has any meaningful remedy. See, e.g.,

Gaines v. Wardynski, 871 F.3d 1203, 1210 (11th Cir.

2017) (acknowledging that an immunity defense

“almost always protects the defendant”). The circuit

split, accordingly, means that the availability of

redress for violations of a prisoner’s constitutional

rights can turn on where in the country she happens

to be detained.

22

The split also makes it difficult for medical

professionals working in correctional facilities and the

governments that engage them. “A contractor’s price

must depend upon its costs,” and lawsuits—“even . . .

lawsuits that have been insured against”—invariably

“increase costs.” Richardson, 521 U.S. at 419 & n.3

(Scalia, J., dissenting). So long as it remains uncertain

whether private medical personnel can assert

qualified immunity, medical contractors will not be

able to accurately assess the costs of working in state

facilities.

And that uncertainty will hinder

contractors and governments from reaching mutually

agreeable terms for the provision of healthcare to

detainees.

For just these sorts of reasons, this Court has

twice granted certiorari in the wake of Wyatt to resolve

divisions of authority regarding the scope of qualified

immunity for private persons. See id. at 401; Filarsky,

566 U.S. at 380. But in the nearly ten years since

Filarsky, the Courts of Appeals have struggled to

reconcile those precedents. And the question whether

qualified immunity is available to private doctors is

arguably even more important than the ones this

Court has taken up previously. More prisoners are

held in jails that rely on private medical providers

than in private prisons (the issue in Richardson).

Compare Dying Inside, supra (noting that 62% of the

surveyed jails relied on privatized medical care in

2018), with Pew Charitable Trusts, supra, at 14

(noting that “[n]early nine in 10 inmates . . . were

housed in state-run prisons” in 2015). Moreover,

prison medical personnel are much more likely to be

private actors than are government lawyers (the issue

in Filarsky). See Margaret H. Lemos, Privatizing

23

Public Litigation, 104 GEO. L.J. 515, 517 (2016)

(noting that “our system [has] ‘publicized’ most

litigation in the name of the government, shifting

control from private actors to salaried public

servants”).

3. The question presented also has implications

for the availability of qualified immunity for private

individuals in other contexts. In attempting to apply

Richardson and Filarsky, lower courts agree that

common-law tradition and public policy are both

relevant to determining whether a private person can

invoke qualified immunity. But they do not agree

about how that common-law inquiry should be

conducted, or about how public policy figures in. These

methodological questions are not limited to cases

involving medical personnel; they arise every time

courts are asked to decide whether private actors can

raise an immunity defense.

With respect to common-law methodology,

decisions denying qualified immunity to private

medical providers ask, in reliance on Richardson,

whether a person performing the defendant’s

particular functions would have had immunity in

1871. See Clark, 865 F.3d at 550–51; McCullum, 693

F.3d at 700; Lane County, 222 F.3d at 577; Hinson, 192

F.3d at 1345–46. By contrast, decisions granting

qualified immunity to private medical providers ask,

in reliance on Filarsky, whether a full-time

government employee performing the defendant’s

functions would have immunity today. See Pet.App.

15a; Perniciaro, 901 F.3d at 252 & n.9.

The very same rift is apparent in cases addressing

the availability of immunity for private actors in other

24

contexts. In Bracken v. Okura, for example, the Ninth

Circuit held that an off-duty officer acting as a private

security guard could not invoke qualified immunity

because there was “no ‘firmly rooted’ tradition of

immunity” for such actors. 869 F.3d 771, 777 (9th Cir.

2017). Likewise, in Gregg v. Ham, the Fourth Circuit

held that a bail-bond provider could not invoke

qualified immunity because “there is no evidence that

bail bondsmen have historically been afforded

immunity for their actions.” 678 F.3d 333, 340–41 (4th

Cir. 2012). Conversely, in Estate of Lockett ex rel.

Lockett v. Fallin, the Tenth Circuit held that a private

contractor who performed an execution could assert

qualified immunity because “he was a private party

hired to do a job for which a permanent government

employee would have received qualified immunity.”

841 F.3d at 1109. And in Franco v. Board of County

Commissioners, the same court held that an

“independently contracted probation officer” could

raise qualified immunity because “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.” 609 F.

App’x 957, 959 (10th Cir. 2015) (Gorsuch, J.) (quoting

Filarsky, 566 U.S. at 1665).

With respect to public policy, lower courts disagree

about whether policy considerations can justify

extending immunity to private actors even in the

absence of an established common-law tradition. See,

e.g., McCullum, 693 F.3d at 700 n.7 (raising the

question “whether . . . a court [could] extend qualified

immunity where there was no history of immunity at

common law, even if sound policy justified the

extension”). Some courts have held that qualified

25

immunity is available to private actors only when

history and policy both favor it. See, e.g., Hughes v.

Long, 242 F.3d 121, 127 n.3 (3d Cir. 2001) (concluding

that “public policy” is “an insufficient basis” for

granting immunity). But others (including the Tenth

Circuit) understand the history-and-policy standard to

be “a disjunctive test,” whereby policy alone can

suffice. Tanner v. McMurray, 989 F.3d 860, 867 (10th

Cir. 2021).

As the Sixth Circuit observed, this disagreement

stems from perceived tension between this Court’s

precedents: “Wyatt’s plain language points to a

conjunctive test,” but Richardson, which “analyzed

policy concerns, even after concluding that ‘history

[did] not provide significant support for the

[defendants’] immunity claim,’” arguably cuts the

other way. McCullum, 693 F.3d at 700 n.7 (alterations

in original) (quoting Richardson, 521 U.S. at 407); cf.

also Developments in the Law – State Action and the

Public/Private Distinction, Private Party Immunity

from Section 1983 Suits, 123 HARV. L. REV. 1266, 1271

(2010) (“Richardson never explained whether policy

and history form a conjunctive or disjunctive test,

instead leaving their roles uncertain.”).

This

methodological disagreement has not yet proven

dispositive in doctor cases, as courts have

(conveniently) found either that both considerations

favor immunity or that neither consideration does.

See supra at 13–17. But it has vast implications for

the availability of immunity for private actors more

broadly. See, e.g., Meadows v. Rockford Hous. Auth.,

861 F.3d 672, 677–78 (7th Cir. 2017) (holding that

employees of a private security firm could assert

26

qualified immunity solely on the basis of policy

concerns, without analyzing the common law).

4. This case is an ideal vehicle for this Court to

resolve the split regarding the availability of qualified

immunity for private medical personnel and, in so

doing, provide sorely needed guidance about the

interaction of Wyatt, Richardson, and Filarsky. The

question whether private prison doctors like Dr. Tubbs

are entitled to assert qualified immunity was fully

briefed below. Pet.App.10a–15a, 55a–60a. The Tenth

Circuit definitively answered it in a detailed opinion.

Id. at 10a–15a.

And its opinion squarely

acknowledged contrary rulings from four other

circuits. Id. at 14a–15a & n.2.

Moreover, the District Court found that a jury

should get to decide “whether Dr. Tubbs’ failure to

implement protocol and training” caused a deprivation

of Madison’s “constitutional rights.” Id. at 59a. So if

this Court grants certiorari and holds that Dr. Tubbs

is not entitled to invoke qualified immunity—the only

basis for interlocutory appellate jurisdiction below, 4

see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)—her

Estate’s § 1983 claim against Dr. Tubbs will proceed

to trial.

4 See Pet.App.8a (“[W]hen the district court denies qualified

immunity to a public official, that decision is immediately

appealable when it involves an abstract issue of law[.]”); Opening

Br. of Appellant Tubbs at 8–9, Est. of Jensen, 989 F.3d 848 (No.

20-4025), 2020 WL 3833304, at *8–10 (asserting only the denial

of qualified immunity as the basis for interlocutory appellate

jurisdiction).

27

III. THE TENTH CIRCUIT’S DECISION WAS WRONG.

This Court has made clear that private actors may

invoke qualified immunity—in contravention of

§ 1983’s plain text—only if similarly situated public

employees could historically have done so. As every

Court of Appeals to consider the question has

recognized, state medical personnel were not entitled

to immunity at common law. Accordingly, private

actors like Dr. Tubbs cannot invoke qualified

immunity today.

The Tenth Circuit’s contrary

approach neglects the historical analysis this Court’s

precedents require, and is premised on a misreading

of Filarsky. In addition, policy considerations—which

cannot justify an extension of immunity in the absence

of historical support—disfavor immunity, too.

1. The “question of the scope of a[n individual’s]

immunity from liability under § 1983 is essentially one

of statutory construction.” Owen, 445 U.S. at 635; see

also Malley v. Briggs, 475 U.S. 335, 342 (1986) (“[O]ur

role is to interpret the intent of Congress in enacting

§ 1983, not to make a freewheeling policy choice[.]”).

Accordingly, “the starting point” for any immunity

analysis “must be the language of the statute itself.”

Owen, 445 U.S. at 635. Section 1983 provides that

“[e]very person” who violates the Constitution under

color of state law “shall be liable” (emphasis added).

“Its language is absolute and unqualified; no mention

is made of any privileges, immunities, or defenses that

may be asserted.” Owen, 445 U.S. at 635.

Despite § 1983’s unqualified language, this Court

has “recognized that substantive doctrines of privilege

and immunity may limit the relief available in § 1983

28

litigation.” Tower v. Glover, 467 U.S. 914, 920 (1984).5

But it has never asserted the power to create new

immunities that did not already exist in 1871. It has

simply recognized that § 1983 “gives no clear

indication that Congress meant to abolish wholesale

all common-law immunities.” Pierson v. Ray, 386 U.S.

547, 554 (1967). Accordingly, where “a tradition of

immunity was . . . firmly rooted in the common law

and was supported by . . . strong policy reasons,” this

Court has presumed that “Congress would have

specifically so provided had it wished to abolish the

doctrine.” Owen, 445 U.S. at 637. But where such a

tradition does not exist, the statutory text controls and

immunity is unavailable. See Wyatt, 504 U.S. at 164–

65; Richardson, 521 U.S. at 403.

Consistent with these principles, this Court held

in Wyatt that private actors are entitled to invoke

qualified immunity only if similarly situated

individuals “were shielded from tort liability when

Congress enacted the Civil Rights Act of 1871” and

5 Some Justices have rightly questioned whether that ruling

was correct in the first instance, and suggested that the doctrine

of qualified immunity should be reconsidered. See, e.g., Hoggard

v. Rhodes, No. 20-1066, slip op. 1, 3 (U.S. July 2, 2021) (Thomas,

J., respecting the denial of certiorari) (noting that qualified

immunity “cannot be located in § 1983’s text and may have little

basis in history” and suggesting, as a result, that the Court

“reconsider . . . the judicial doctrine” altogether); Baxter v.

Bracey, 140 S. Ct. 1862, 1862–65 (2020) (Thomas, J., dissenting

from denial of certiorari) (similar). The Court not need reach that

question in this case, because private physicians like Dr. Tubbs

are not entitled to qualified immunity even if such immunity is

generally available to government officials. But doubts regarding

the viability of the doctrine are all the more reason to cabin its

reach.

29

policy considerations support immunity. 504 U.S. at

164. Wyatt was clear, moreover, that the history-andpolicy standard is conjunctive. See id. (framing policy

as an “[a]dditional[ ]” requirement that applies

“irrespective of the common law support”); id. at 165

(“Even if there were sufficient common law support to

conclude that respondents . . . should be entitled to a

good faith defense, that would still not entitle them to

. . . qualified immunity.” (emphasis removed)). And

this Court applied the same conjunctive standard in

Richardson and Filarsky. See Richardson, 521 U.S. at

403 (“[T]his Court . . . accord[s] immunity where a

‘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.”’”

(emphasis added) (quoting Wyatt, 504 U.S. at 164));

Filarsky, 566 U.S. at 384 (explaining that the

availability of qualified immunity turns both on

“common law, and [on] the reasons we have afforded

protection from suit under § 1983” (emphasis added)).

Consistent with this conjunctive standard, policy

alone cannot justify the extension of immunity to a

private actor; a common-law tradition is strictly

required. And here, every Court of Appeals to have

considered the question has recognized that, at

common law, medical personnel working for the state

were not immune from suit. See Clark, 865 F.3d at

550–51; McCullum, 693 F.3d at 702–04; Lane County,

222 F.3d at 577; Hinson, 192 F.3d at 1345–46; supra

at 13–15. That should be dispositive. Because medical

personnel were not “shielded from tort liability when

Congress enacted the Civil Rights Act of 1871,” Wyatt,

505 U.S. at 164, neither is Dr. Tubbs.

30

2. The Tenth Circuit’s “historical” approach,

which asks whether a publicly employed medical

professional could assert qualified immunity today, is

wrong.

For starters, Tenth Circuit’s approach is

irreconcilable with this Court’s precedents. Wyatt

squarely held that immunity is available only if the

defendant would have been “shielded from tort

liability when Congress enacted the Civil Rights Act of

1871.” Id.; see id. at 164–67 (looking to history).

Richardson said the very same thing. 521 U.S. at 403;

see also id. at 404–07 (looking to history). And

Filarsky looked to history, too. See 566 U.S. at 384–

89.

The Tenth Circuit, however, made no attempt to

examine the common law as it stood in 1871. Instead,

it held that “common law principles support Dr. Tubbs’

ability to raise a qualified-immunity defense” because

“he would have certainly been able to raise [that]

defense” if he had “been working as a doctor for the

county on a full-time basis” today. Pet.App.11a–12a.

The careful historical analysis that this Court has

consistently undertaken in deciding whether to extend

immunity to private actors under § 1983 is wholly

absent from the Tenth Circuit’s opinion.

The Tenth Circuit’s approach is also internally

incoherent. The court said that it was “[b]eginning

with history.” Id. at 11a. But its so-called historical

analysis started and ended with the proposition that

Dr. Tubbs would have been entitled to raise an

immunity defense if he had been working for the

county full time. Id. There is nothing “historical”

about that approach. Indeed—and as this case

31

demonstrates—it results in the creation of new

immunities unheard of in 1871. See Tanner, 989 F.3d

at 867–68 (“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.”).

To be sure, this Court “ha[s] diverged to a

substantial degree from the historical standards” of

immunity “[i]n the context of qualified immunity for

public officials.” Wyatt, 504 U.S. at 170 (Kennedy, J.,

concurring); see also Anderson v. Creighton, 483 U.S.

635, 645 (1987) (“Harlow [v. Fitzgerald, 457 U.S. 800

(1982)] . . . completely reformulated qualified

immunity along principles not at all embodied in the

common law . . . .”). But “whether or not it was

appropriate for the Court in Harlow to depart from

history” in the context of public officials, Wyatt, 504

U.S. at 171 (Kennedy, J., concurring), it does not follow

that this Court should “extend that approach to other

contexts.” Id.; see also supra at 28 n.5. In assessing

immunity defenses asserted by private individuals,

this Court has consistently embraced history as

dispositive.

See Wyatt, 504 U.S. at 164–67;

Richardson, 521 U.S. at 404–07; Filarsky, 566 U.S. at

384–89.

3. Filarsky does not support the Tenth Circuit’s

rule. That case presented the question whether a

private attorney hired by the government to

investigate an employee’s claim for sick leave could

assert qualified immunity. 566 U.S. at 380–81. In

answering that question, the Court took as a given

that state employees performing the “the sort of

investigative activities at issue” would have been

immune from suit at common law. See id. at 384. The

32

only historical analysis the Court thus undertook was

about whether, in 1871, a defendant’s status as a

private individual would have affected his entitlement

to immunity. See id. at 384–89. After finding that

common law did not distinguish between public and

private actors in similar law-enforcement contexts, the

Court held that the defendant was entitled to

immunity. Id. at 389.

Here, by contrast, it is clear that no immunity

existed for the activity Tubbs performed at the time

Congress passed § 1983. See Clark, 865 F.3d at 550–

51; McCullum, 693 F.3d at 702–04; Lane County, 222

F.3d at 577; Hinson, 192 F.3d at 1345–46; supra at 13–

15. So Wyatt, Richardson, and Filarsky compel the

conclusion that no such immunity exists today—

regardless whether other precedents support a

different, ahistorical result for full-time public

employees performing a similar function. Indeed, this

Court embraced exactly that distinction between

private and public employees in Richardson. 521 U.S.

at 407 (finding that “[h]istory . . . d[id] not provide

significant support for the immunity claim” of

employees of a private prison, even though their

publicly employed counterparts could assert qualified

immunity).

Reading Filarsky more broadly, such that private

contractors are entitled to immunity whenever their

modern public counterparts are, would effectively

overrule both Wyatt, 504 U.S. at 164 and Richardson,

521 U.S. at 403. And Filarsky could hardly have been

clearer that it did no such thing. See 566 U.S. at 392

(“Our decisions in Wyatt . . . and Richardson . . . are

not to the contrary.”).

33

4. Finally, although courts need not consider

policy in the absence of historical support, policy also

disfavors immunity for private prison doctors.

First, avoiding “unwarranted timidity,” “the most

important” policy consideration in immunity cases, is

not a serious concern for medical professionals.

Richardson, 521 U.S. at 400. Indeed, doctors are much

more likely to face a § 1983 suit for failing to act than

for acting too aggressively. See Tanner, 989 F.3d at

869. This dynamic—as the Tenth Circuit simply failed

to recognize (despite its manifestation in Madison’s

own case)—distinguishes doctors from “police officers

and prison guards, who rarely face liability for, as an

example, not using enough force.” Id.

Second, “talented candidates” will “not [be]

deterred by the threat of damages suits from entering

public service,” because—as the Tenth Circuit again

failed to recognize—§ 1983 exposes medical

professionals to less liability than ordinary

malpractice suits. Richardson, 521 U.S. at 411. In

private settings, doctors are usually liable for

malpractice if they are merely negligent.

See

RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM

§ 41, cmt. h (2012) (“[T]he physician’s duty to the

patient . . . encompasses . . . the ordinary duty not to

harm the patient through negligent conduct[.]”).

Liability under § 1983, by contrast, typically requires

recklessness or specific intent. See, e.g., Farmer v.

Brennan, 511 U.S. 825, 835 (1994) (“Eighth

Amendment liability” for deliberate indifference

“requires ‘more than ordinary lack of due care for the

prisoner’s interests or safety.’”). So there is no reason

to think that the possibility of liability under § 1983

will deter doctors from working in public settings.

34

Third, and for similar reasons, § 1983 lawsuits will

not significantly “distract” medical personnel “from

their duties.” Richardson, 521 U.S. at 411 (cleaned

up). Since doctors face at least as much risk of

malpractice lawsuits in private practice, they are not

likely to be meaningfully distracted by § 1983 suits

arising from their work in state prisons or mentalhealth facilities. In any event, “the risk of ‘distraction’

alone cannot be sufficient grounds for an immunity.”

Id.

In the end, extending qualified immunity to

private medical professionals furthers no clear policy

objective. To the contrary, it undermines both the text

and purpose of § 1983 by leaving families like the

Jensens without recourse against the doctor

ultimately responsible for the tragic and unnecessary

death of their daughter.

35

CONCLUSION

The petition for a writ of certiorari should be

granted.

July 30, 2021

Respectfully submitted,

Ryan B. Hancey

KESLER & RUST

68 S. Main St., Suite 200

Salt Lake City, UT 84101

Amanda K. Rice

Counsel of Record

JONES DAY

150 W. Jefferson Ave.

Suite 2100

Detroit, MI 48226

(313) 733-3939

arice@jonesday.com

Amelia A. DeGory

JONES DAY

51 Louisiana Ave., N.W.

Washington, DC 20001

Counsel for Petitioner