Opposition Brief — Estate of Madison Jody Jensen, by Her Personal Representative Jared Jensen, Petitioner v. Kennon Tubbs

No. 21-152

IN THE

Supreme Court of the United States

————

THE ESTATE OF MADISON JODY JENSEN,

BY HER PERSONAL REPRESENTATIVE JARED JENSEN,

v.

Petitioner,

KENNON TUBBS, M.D.,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

————

BRIEF IN OPPOSITION

————

CORTNEY KOCHEVAR

Counsel of Record

KRISTINA H. RUEDAS

NELSON | NAEGLE

222 South Main Street

Suite 1740

Salt Lake City, UT 84101

(385) 292-4400

ckochevar@nelsonnaegle.com

kruedas@nelsonnaegle.com

Counsel for Respondent

September 3, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether private medical personnel working in

correctional or mental-health facilities can assert

qualified immunity.1

1

While this is the question formally presented by Petitioner,

at times the Petition appears to request certiorari on the issue of

whether any medical personnel—even those employed directly by

the state—can assert qualified immunity.

(i)

ii

CORPORATE DISCLOSURE STATEMENT

There are no publicly held corporations involved in

this proceeding.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

CORPORATE DISCLOSURE STATEMENT .....

ii

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

v

RESPONDENT’S BRIEF IN OPPOSITION ......

1

STATEMENT OF THE CASE ............................

1

REASONS FOR DENYING THE PETITION ....

5

I. The Court should deny the Petition

because there is no circuit split ................

5

A. The Supreme Court has established a

consistent two-part analysis for the

question presented ..............................

5

B. The circuit courts of appeal have

consistently applied this two-part

analysis ................................................

10

1. Petitioner’s alleged “majority view”

circuits apply the same two-part

analysis as the alleged “minority

view” ...............................................

11

2. Petitioner’s alleged “minority view”

correctly applies the two-part analysis to various factual scenarios ....

14

3. The Eighth Circuit’s recent decision on this issue demonstrates

that there is no confusion among

the circuit courts ............................

19

II. The question presented does not merit

the Court’s attention .................................

21

iv

TABLE OF CONTENTS—Continued

Page

III. The Tenth Circuit correctly decided

Jensen v. Clyde based on its specific facts

and relevant policy considerations ...........

25

CONCLUSION ....................................................

27

v

TABLE OF AUTHORITIES

CASES

Page(s)

Bracken v. Okura,

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

24

Currie v. Chhabra,

728 F.3d 626 (7th Cir. 2013) .....................

10

Davis v. Buchanan County, Missouri,

— F.4th —, 2021 WL 3729050 ...... 10, 19-20, 22

Clark v. Walker,

865 F.3d 544 (7th Cir. 2017) ...... 4, 10, 13-15, 20

Filarsky v. Delia,

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

Gregg v. Ham,

678 F.3d 333 (4th Cir. 2012) ..................... 11, 24

Hinson v. Edmond,

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

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

2000) ................................................ 4, 13, 20, 22

Jensen v. Clyde,

989 F.3d 848 (10th Cir. 2021) ............ 2-4, 18, 25

Jensen v. Lane Cty.,

222 F.3d 570 (9th Cir. 2000) ...... 4, 12-13, 20, 22

Lockett v. Fallin,

137 S. Ct. 2298,

198 L. Ed. 2d 751 (2017) ........................... 25-26

McCullum v. Tepe,

693 F.3d 696 (6th Cir. 2012) ...... 4, 10-12, 20, 22

Perniciaro v. Lea,

901 F.3d 241 (5th Cir. 2018) ..................... 14-15

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Rasho v. Elyea,

856 F.3d 469 (7th Cir. 2017) .....................

13

Richardson v. McKnight,

521 U.S. 399 (1997) ............................. 4-7, 23-24

Sanchez v. Oliver,

995 F.3d 461 (5th Cir. 2021) ................ 15-16, 20

Tanner v. McMurray,

989 F.3d 860 (10th Cir. 2021) .......... 5, 16-17, 20

Lockett v. Fallin,

841 F.3d 1098, 1108 (10th Cir. 2016) ....... 24-26

Wyatt v. Cole,

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

6

STATUTES

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

6

OTHER AUTHORITIES

2010 United States Census Report ..............

2

Aaron Littman, et. al, Protecting Rural

Jails from Coronavirus, The Justice

Collaborative Institute (Apr. 2020) ..........

22

Jails: Inadvertent Health Care Providers,

The PEW Charitable Trusts (Jan. 2018) .

22

Steve Coll, The Jail Health-Care Crisis,

The New Yorker (Feb. 25, 2019) ..............

23

RESPONDENT’S BRIEF IN OPPOSITION

The Court should deny certiorari on the question of

whether private medical personnel working in correctional or mental-health facilities can assert qualified

immunity because the applicable rule of law is properly

stated and has been consistently applied among the

circuit courts of appeal. Respondent respectfully requests

that the Court deny Petitioner’s Petition for a Writ of

Certiorari for at least three reasons:

First, contrary to Petitioner’s contention, there is no

circuit split regarding the circumstances under which

private medical personnel working in correctional or

mental-health facilities can assert qualified immunity.

Second, the question does not merit the Court’s

attention because the standard for assessing a privateactor’s eligibility for qualified immunity does not need

to be clarified, and the fact-specific, two-part analysis

is an effective method for lower courts to decide these

issues.

Third, the Tenth Circuit’s decision was correct

because both the historical analysis as set forth in

Filarsky and the public policy considerations set

forth in Richardson and Filarsky strongly support

Dr. Tubbs’s qualified immunity defense. And, allegations of “erroneous factual findings or the misapplication

of a properly stated rule of law” rarely justify granting

certiorari.

STATEMENT OF THE CASE

While Petitioner’s summary of the factual and

procedural history of this case is largely accurate,

Respondent perceives some misstatements of fact and

law that must be corrected. The following factual assertions appear in the record as well as in the factual

2

findings identified by the Tenth Circuit Court of

Appeals in Estate of Jensen by Jensen v. Clyde, 989

F.3d 848 (10th Cir. 2021).

Dr. Tubbs contracted with the Duchesne County1

Jail to provide some medical services for the inmates

at the Jail. Id. at 852 (emphasis added). Specifically,

Dr. Tubbs agreed to provide medical services such as

telephone on-call service for consultation and a oncea-week sick call. See id. Dr. Tubbs subcontracted with

a physician’s assistant (“PA”), who made weekly visits

to the jail to provide medical care. See id. It is undisputed that the Jail and nursing staff (including Nurse

Jana Clyde) knew that they could call Dr. Tubbs or his

PA any time with medical questions or concerns. See

id.

The Duchesne County Jail directly employed Nurse

Jana Clyde, the only full-time medical provider at the

Jail. See id. While Dr. Tubbs agreed to “provide

training, instruction, support, and a supervisory role”

to Nurse Clyde “on how to appropriately handle triage,

sick call, medical protocols, and health care complaints/

grievances,” he did not have the authority to fire or

discipline Nurse Clyde. Id. at 856. Furthermore, Dr.

Tubbs did not contract to create medical protocols or

policies for the jail. See id.

The Petition points out that Nurse Clyde had “not

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

policies and procedures.” However, the Petition does

1

Duchesne County is a rural county in northeastern Utah. As

of the 2010 United States Census, there were 18,607 people in the

county. The median income for a household in the county was

$31,298, and 16.8% of the population lived below the poverty line.

See 2010 United States Census Report, https://www.census.gov/

quickfacts/fact/table/duchesnecountyutah/PST045219.

3

not mention that Nurse Clyde knew that she should

call Dr. Tubbs if an inmate was violently vomiting over

a 12-hour period or if she had seen an inmate’s vomit.

Id. Because Dr. Tubbs’ contract with the Jail is for

telephonic on-call services and a once-a-week in-person

sick call, Dr. Tubbs must rely on County employees to

contact him with any inmate’s medical concerns. Dr.

Tubbs was never contacted regarding Madison Jensen’s

condition. See id. at 854. Furthermore, in Dr. Tubbs’

19 years of experience, he had never had any inmate

die as a result of opiate withdrawal. See id.

The Tenth Circuit found that Dr. Tubbs’ employment with the Duchesne County Jail was strikingly

different from employment with a private prison. See

id. at 856. Dr. Tubbs essentially ran a two-man shop

(including his subcontract with his PA) providing a

discrete function to the Jail. See id. While Dr. Tubbs

had some leeway in his decisions, it was Duchesne

County that was charged with implementing policies

and training its employees, including Nurse Clyde and

enforcement officers. See id. Dr. Tubbs was required to

provide care in accordance with Utah Department of

Corrections and Utah Medicaid guidelines, the County

had to authorize any elective care, and Dr. Tubbs could

only prescribe medication from the prison’s formulary.

See id. Even though Dr. Tubbs had agreed to supervise

and provide some training to Nurse Clyde, she was a

County employee, whom Dr. Tubbs had no ability to

discipline or fire. See id. Given these facts, the Tenth

Circuit found that had Dr. Tubbs been working as a

doctor for the County on a full-time basis, he would

have certainly been able to raise a qualified immunity

defense, fulfilling the historical common law analysis

addressed in Filarsky v. Delia, 566 U.S. 377 (2012).

See id.

4

Petitioner also wrongly asserts that the Tenth

Circuit “acknowledged an entrenched circuit split

about whether ‘qualified immunity is . . . available to

a private medical professional providing services to a

jail.’” Pet. at 11 & Pet.App.14a-15a. The Tenth Circuit

did not acknowledge such a split, but instead found

that “the circumstances of this case—i.e., an individual

doctor with limited control over policy working alongside government employees — compel a different result

[than the circuit decisions denying qualified immunity

to private medical providers in other contexts.]” Jensen,

989 F.3d at 857 (emphasis added). In doing so, the

Tenth Circuit did not acknowledge a circuit split.2

Instead, the court concluded that Dr. Tubbs’ situation

is factually dissimilar to employees of large private

firms that are systematically organized to perform a

major administrative task for profit—like the employees who were not entitled to qualified immunity in

Richardson v. McKnight, 521 U.S. 399 (1997). Rather,

his situation is similar to the individual defendant who

was entitled to qualified immunity in Filarsky v. Delia,

566 U.S. 377 (2012).

Petitioner’s characterization that “[t]he Tenth

Circuit sided with the Fifth Circuit’s minority view”

and “reject[ed] the majority position” is not accurate.

In fact, on the same day that the Tenth Circuit allowed

Dr. Tubbs to assert qualified immunity, using the

same two-part analysis defined by Richardson and

2

To support Petitioner’s argument that a circuit split exists,

Petitioner relies upon Estate of Clark v. Walker, 865 F.3d 544 (7th

Cir. 2017); McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012);

Hinson v. Edmond, 192 F.3d 1342 (11th Cir. 1999); and Jensen v.

Lane County, 222 F.3d 570 (9th Cir. 2000). As demonstrated

below, these cases employ the same two-part analysis used by the

alleged “minority view.”

5

Filarsky, the Tenth Circuit held that the employees of

a large, private medical provider were not entitled to

qualified immunity based on the facts of that case. See

Tanner v. McMurray, 989 F.3d 860, 862 (10th Cir.

2021).

REASONS FOR DENYING THE PETITION

I. The Court should deny the Petition because

there is no circuit split.

Petitioner declares this case to be about “the interaction of [the Richardson and Filarsky] precedents,” and

requests certiorari based on the inaccurate premise

that Richardson and Filarsky present inconsistent

standards that the circuit courts of appeal have

“struggled to reconcile.” Pet. at 1. In reality, both

Richardson and Filarsky support a two-part analysis

for determining whether a private person can assert a

qualified immunity defense: (1) whether there is a

historical tradition of immunity applicable to that

class of persons; and (2) whether three key policies

underlying the immunity doctrine support the assertion of a qualified immunity defense. See Richardson,

521 U.S. at 404.

A. The Supreme Court has established a

consistent two-part analysis for the

question presented.

Contrary to Petitioner’s assertions, the standard

for evaluating whether private persons can assert a

qualified immunity defense is clear and consistent.

Building on this Court’s decision in Wyatt, Richardson

and Filarsky establish a clear, two-part analysis where

courts look to both history and the purposes of the

qualified immunity doctrine to determine whether a

private person can assert the defense of qualified

immunity.

6

Although the text of 42 U.S.C. § 1983 does not

contain any explicit exceptions for governmental

immunity, the Supreme Court has long accorded

certain government officials either absolute or qualified

immunity. Wyatt v. Cole, 504 U.S. 158, 163 (1992).

Qualified immunity for government officials was

recognized where it was necessary to preserve the

individual’s ability to serve the public good or to

ensure that talented candidates were not deterred

by the threat of damages suits from entering public

service. Id. at 167. Wyatt held that qualified immunity

was not available for private defendants “who consipire

with state officials to violate constitutional rights” by

invoking state replevin, garnishment, or attachment

statute.” Wyatt explicitly limited its holding to what it

called a “narrow” question and did not foreclose the

possibility that private defendants may be entitled to

qualified immunity in other situations. See Richardson,

521 U.S. at 404 (quoting Wyatt, 504 U.S. at 168-169).

Five years after Wyatt was decided, the Supreme

Court analyzed and applied the Wyatt standard to the

question of whether employees of a private prison

management firm were entitled to assert qualified

immunity. See id. To answer that question, Wyatt

instructed courts to look “both to history and to the

purposes that underlie government employee immunity.”

Id. (emphasis added). Importantly, Richardson noted

that the Wyatt majority, concurrence, and dissent all

agreed that both the history and public policy factors

should be analyzed. Id.

Richardson first found that history did not reveal a

“firmly rooted” tradition of immunity applicable to

privately employed prison guards. Id. Therefore, history did not provide significant support for allowing

7

the private defendants to assert a qualified immunity

defense. Id. at 407.

Significantly, Richardson did not find the historical

factor dispositive, and did not end its inquiry there.

The Court next turned to the question of whether the

immunity doctrine’s purposes warranted immunity for

private prison guards, finding that presented a closer

question than the historical analysis. Id. at 407-408.

The Supreme Court evaluated three distinct public

policies: (1) discouraging timidity in performing government duties; (2) ensuring that talented candidates are

not deterred by the threat of damages suits from

entering public service; and (3) limiting the number of

lawsuits that may distract employees from their duties.

See id. at 408-412. Richardson ultimately denied the

availability of the qualified immunity defense to the

employees of the private prison management firm. Id.

Richardson “answered the immunity question narrowly, in the context in which it arose.” Id. at 413. It

defined that narrow context as one in which a private

firm, systematically organized to assume a major lengthy

administrative task (managing an institution) with

limited direct supervision by the government, undertakes that task for profit and potentially in competition

with other firms.” Id. Richardson explicitly differentiated the case at hand from a case involving “a private

individual briefly associated with a government body,

serving as an adjunct to government in an essential

governmental activity, or acting under close official

supervision.” Id.

In 2012, the Court distinguished between public

employees and private individuals retained by the

government to perform essential governmental activity—

the very question explicitly left open by Richardson.

Filarsky, 566 U.S. at 384. In Filarsky, a small city in

8

California initiated an investigation into one of its

fire department’s employees. See id. at 381. The city

hired an experienced employment lawyer to assist the

fire department with this investigation. See id. The

employee alleged this investigation violated his

constitutional rights and sued the city along with four

individual defendants: three individuals from the fire

department, and the private employment attorney.

See id. at 382. The Ninth Circuit granted qualified

immunity to the three individuals who worked directly

for the city but denied qualified immunity to the private attorney because he was not a public employee.

See id. at 384.

In determining whether this private versus public

distinction was a valid basis to deny qualified immunity, the Filarsky court looked to the “general principles

of tort immunities and defenses” applicable at common

law when Section 1983 was enacted, and the reasons

the Court had afforded protection from suit under

Section 1983. Id.

As in Richardson, the Court’s inquiry began with

the common law as it existed when Congress passed

Section 1983 in 1871. See id. The Court recognized the

nature of government in 1871, when government was

smaller in both size and reach. See id. “Local governments faced tight budget constraints, and generally

had neither the need nor the ability to maintain an

established bureaucracy staffed by professionals.” Id.

Private citizens were actively involved in government

work. See id. at 385. The Filarsky court found

“examples of individuals receiving immunity for actions

taken while engaged in public service on a temporary

or occasional basis” that were “as varied as the reach

of government itself.” Id. at 388–89. The Court

concluded that “immunity under § 1983 should not

9

vary depending on whether an individual working for

the government does so as a full-time employee, or on

some other basis.” Id. at 389.

Following the Wyatt and Richardson framework of

analysis, Filarsky then turned to the question of

whether the immunity doctrine’s purposes supported

qualified immunity in the case at hand. The Court

found that affording qualified immunity to private

persons who act on behalf of the government in a

position substantially similar to a public employee

furthered the purposes of the immunity doctrine. Id.

at 389-90. It does so by helping to avoid the “unwarranted timidity” in performance of public duties, ensuring

that talented candidates are not deterred from public

service, and preventing the harmful distractions from

carrying out the work of government that can often

accompany damages suits. Id.

Filarsky affirmed Richardson’s own recognition of

its self-consciously “narrow” decision. Id. The Filarsky

court found that the private attorney who had been

hired to assist a small city with an employment investigation was distinguishable from the “private firm,

systematically organized to assume a major lengthy

administrative task with limited direct supervision by

the government, undertaking that task for profit and

potentially in competition with other firms” analyzed

in Richardson. See id. at 392.

Therefore, despite Petitioner’s assertions, Richardson

and Filarsky are not inconsistent with each other.

Instead, they arose from different factual scenarios

and come to opposite conclusions while applying the

same standard. Petitioner creates a false dichotomy

between the two decisions by arguing that policy

considerations can never justify an extension of immunity in the absence of specific and nearly factually

10

identical historical examples of immunity. Pet. at 27.

But as demonstrated above, neither Wyatt, Richardson,

nor Filarsky intended the historical factor to be dispositive, and each of those cases analyzed both history

and the policies underlying the immunity doctrine

regardless of the ultimate outcome. Therefore, the

two-part analysis set forth by this Court is clear.

B. The circuit courts of appeal have consistently applied this two-part analysis.

Contrary to Petitioner’s assertion, the courts of

appeals are not divided. Consistent with Richardson

and Filarsky, the Fifth, Sixth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuit Courts of Appeal have

each engaged in a two-part analysis in deciding

whether a private medical provider could assert a

qualified immunity defense.3

By engaging in this two-part analysis, each of these

circuits correctly concluded that private medical personnel working for “large firms that are systematically

organized to perform a major administrative task

for profit are not entitled to assert the defense of

qualified immunity.” Davis v. Buchanan County,

Missouri, — F.4th —, 2021 WL 3729050 *9. However,

when presented with different factual scenarios involving private medical providers who are not employed by

large, for profit firms, but instead worked alongside

government employees in similar positions, the Fifth

3

In Estate of Clark v. Walker, 865 F.3d 544 (7th Cir. 2017), the

Seventh Circuit held that a privately employed nurse at the jail

was ineligible for qualified immunity. In doing so, the court ended

its analysis at the historical prong, but adopted the reasoning in

Currie v. Chhabra, 728 F.3d 626 (7th Cir. 2013), which relies on

the two-part analysis conducted in McCullum v. Tepe, 693 F 3d

696 (6th Cir. 2012).

11

and Tenth Circuits decided those private medical

personnel could assert a qualified immunity defense.

There is no circuit split on this question—only different results from the application of the same standard

to different factual scenarios.

1. Petitioner’s alleged “majority view”

circuits apply the same two-part analysis as the alleged “minority view.”

Petitioner asserts that there is a majority view of

four circuits, “[r]elying primarily on Richardson,” who

have held that private medical personnel can never

assert qualified immunity. However, a closer analysis

of the cases cited by Petitioner reveals that the Sixth,

Seventh, Ninth, and Eleventh Circuits followed the

two-part analysis, looking at both historical immunity

and public policy. These cases also all arose from

lawsuits against employees of large, private corporations, subject to market forces and incentivization. Not

only is the applicable two-part analysis accepted, but

also every circuit has uniformly denied qualified

immunity to the employees of private corporations

that manage prisons or healthcare in prisons for profit.

The decisions from the Sixth, Ninth, and Eleventh

Circuits each engage in the same two-part analysis set

forth in Richardson and later Filarsky.4 In McCullum

v. Tepe, decided just four months after Filarsky, the

Sixth Circuit analyzed each of the following questions:

4

The Fourth Circuit has also applied the two-part analysis test

set forth in Richardson (albeit in a law enforcement context)

finding that the Filarsky decision “did nothing to disturb the test

outlined in Richardson but instead, by looking to history and the

purposes of § 1983, endorsed the [two-part] analysis” of historical

and public policy factors. See Gregg v. Ham, 678 F.3d 333, 340 n.

4 (4th Cir. 2012).

12

whether there was a firmly rooted history of immunity

for similarly situated parties at common law, and

whether granting immunity would be consistent with

the history and purpose of Section 1983. See 693 F.3d

696, 700 (6th Cir. 2012). The Sixth Circuit decided 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 703. The

Sixth Circuit did not find this element dispositive,

instead recognizing that “[t]he first piece of the

Richardson analysis” suggests it should not allow the

defendant to assert qualified immunity. Id. The Sixth

Circuit then moved to “[t]he policy element” of its

analysis, finding—unsurprisingly—that the three goals

of Section 1983 would not be furthered by allowing an

employee of a large, for-profit private entity to assert

qualified immunity. Id.

The Ninth and Eleventh Circuits’ cases cited by

Petitioner were decided before Filarsky, and therefore

have questionable utility. Even so, both the Ninth and

Eleventh Circuit engaged in the two-part analysis,

looking at both history and policy before denying qualified immunity to the private defendant. In Jensen v.

Lane Cty., the Ninth Circuit was presented with “[l]imited

information . . . on the historical availability of

immunity for doctors asked by the government to

make a decision to commit persons suspected of

mental illness.” 222 F.3d 570, 576 (9th Cir. 2000).

Therefore, the Ninth Circuit concluded that there was

insufficient historical evidence to support a finding of

qualified immunity. See id. at 577. Again, the Ninth

Circuit did not stop its inquiry there, and moved to the

“next step” of examining the policy justifications for

qualified immunity. See id. The Ninth Circuit concluded that the governmental concerns about timidity,

distraction, and deterrence were not present when the

13

defendant was the employee of a large, private

organization subject to market forces and incentives.

See id. at 577-78.

The Eleventh Circuit followed the same two-part

analysis framework in Hinson v. Edmond. The Eleventh

Circuit found a lack of historical support for immunity

for the defendant, a privately employed prison physician.

See 192 F.3d 1342, 1346 (11th Cir. 1999), amended,

205 F.3d 1264 (11th Cir. 2000). It also found that “[i]n

addition to the lack of historical support for immunity,

the public policy reasons for qualified immunity do not

justify the extension of qualified immunity in this

case.” Id. The court’s analysis of the policies underlying the immunity doctrine—taking up more time

and space than the historical analysis—yielded a

similar conclusion that qualified immunity was not

warranted. See id. at 1346-47.

In 2017, the Seventh Circuit was presented with the

question of whether a private healthcare contractor

was entitled to assert qualified immunity, and is the

only case cited by Petitioner that did not overtly

engage in the two-part analysis. Est. of Clark v.

Walker, 865 F.3d 544, 550 (7th Cir. 2017). However,

the Seventh Circuit recognized that it had recently

addressed that issue, holding that private medical

personnel in prisons are not entitled to the protection

of qualified immunity. See id. (citing Rasho v. Elyea,

856 F.3d 469, 479 (7th Cir. 2017) (“This Court has

construed the Supreme Court's holding that employees

of privately-operated prisons may not assert a

qualified-immunity defense also to deny that defense

to employees of private corporations that contract with

the state to provide medical care for prisoners.”). The

Seventh Circuit rejected the defendant’s argument

that Filarsky had overruled Richardson, instead find-

14

ing that Filarsky reaffirmed the categorical rejection

of immunity for employees of private companies that

contract to run correctional facilities for profit. See id.

The Seventh Circuit found the Sixth Circuit’s reasoning in McCullum v. Tepe—which analyzed both the

historical and public policy prongs—to be persuasive,

and denied qualified immunity to the privately

employed nurse at issue. Id. at 550-51.

While the Seventh Circuit did not explicitly analyze

both the historical and public policy prongs of the

requisite analysis, it did rely heavily on prior precedents that had analyzed both prongs and reached the

same conclusion in similar factual scenarios: that

private persons are not entitled to assert qualified

immunity when they are employees of private firms,

systematically organized to assume a major lengthy

administrative task with limited direct supervision by

the government, undertaking that task for profit and

potentially in competition with other firms.

2. Petitioner’s alleged “minority view”

correctly applies the two-part analysis to various factual scenarios.

In 2018, the Fifth Circuit was presented with the

question of whether two psychiatrists from a nearby

university, who contracted to provide psychiatric

treatment to a mental-health facility, were eligible to

assert the qualified immunity defense when they were

not state employees. Perniciaro v. Lea, 901 F.3d 241,

251 (5th Cir. 2018). The Fifth Circuit found that after

considering the facts of the case “in light of the history

and purposes of immunity,” the cases disallowing

immunity to medical providers who were employed by

private companies were distinguishable. See id. When

it analyzed the historical prong post-Filarsky, the

Fifth Circuit found significant that at common law,

15

courts “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. (citing Filarsky, 566

U.S. at 387) Because it was clear that the private

defendants’ public counterparts would be entitled to

assert qualified immunity, the Fifth Circuit found that

general principles of immunity at common law supported

their right to raise the qualified immunity defense. Id.

The Fifth Circuit then went on to analyze the purposes

of qualified immunity in detail, to determine if they

also supported an extension of qualified immunity to

the private defendants. See id. at 252-55.

By issuing its decision in Perniciaro, the Fifth

Circuit did not categorically grant qualified immunity

to all private medical professionals in correctional

facilities, as Petitioner argues. Instead, as demonstrated by Sanchez v. Oliver, 995 F.3d 461 (5th Cir.

2021), the Fifth Circuit has successfully employed the

two-part analysis set forth in Richardson and later in

Filarsky to address the application of qualified immunity in a thoughtful and fact-specific manner.

In Sanchez, the circuit court reversed the district

court’s decision granting qualified immunity to a privately employed social worker,5 who provided mental

health services in correctional facilities. Id. at 466–

5

The social worker was employed by CHC—“a major corporation in the business of administering correctional health care

services. CHC derives well over a billion dollars annually from its

contracts in jails and prisons.” Sanchez, 995 F.3d at 467. Given

these facts, the court determined that CHC was “systematically

organized to perform the major administration task of providing

health care at state facilities." Id. CHC was also the employer at

issue in Estate of Clark v. Walker, 865 F.3d 544, 550–51 (7th Cir.

2017).

16

472. Because the court could find no tradition of

immunity at common law6 and the purposes of qualified immunity, on balance, weighed against extending

immunity, the court held that “as an employee of a

large firm systematically organized to perform a major

administrative task for profit, [the social worker] is

categorically ineligible to assert the defense of qualified immunity.” Id. at 472 (internal citation omitted).

This outcome, which Petitioner may characterize as

at odds with Perniciaro, does not demonstrate that

Richardson and Filarsky have caused confusion

among the circuit courts. Instead, this outcome shows

that the circuit courts are consistently and appropriately applying the two-part fact-specific analysis.

Similarly, the Tenth Circuit recently demonstrated

the effectiveness of the two-part analysis when it

decided two cases involving this question of whether

the assertion of qualified immunity was warranted, on

the same day, to opposite results. On the same day the

Tenth Circuit decided that Dr. Tubbs is entitled to

assert qualified immunity, the Tenth Circuit (including

one of the same panel judges) reached the opposite

conclusion in another case involving a private party

asserting qualified immunity. See Tanner v. McMurray,

989 F.3d 860, 862 (10th Cir. 2021). An analysis of

these two cases, Tanner v. McMurray and Jensen v.

Clark, shows not only that there is not a circuit split

6

In response to criticism, like that lodged by the Petitioner,

that the Fifth Circuit had failed to undertake a historical analysis

in Perniciaro, the court clarified that the first prong is not a

question of “whether a modern public counterpart would be

entitled to immunity, but, rather, whether general principles of

tort immunities and defenses under ‘the common law as it existed

when Congress passed § 1983 in 1871’ support the availability of

qualified immunity to a private party.” Id. at 467.

17

that would warrant granting certiorari, but also that

the thoughtful and fact-specific analysis championed

by this Court in Filarsky and Richardson is understood and followed by the circuit courts.

In Tanner, the Tenth Circuit reversed a district

court’s grant of qualified immunity to full-time employees of Correct Care Solutions, LLC. See id. The

question presented was whether employees of a multistate corporation, organized to provide medical services

in correctional institutions, can assert qualified immunity. Id. at 864.

The court acknowledged, in accordance with

Richardson and Filarsky, the “availability of qualified

immunity to private parties performing governmental

functions depends on (1) ‘the common law as it existed

when Congress passed § 1983 in 1871,’ and (2) the

policy reasons the Supreme Court has ‘given for

recognizing immunity under § 1983.” Id. at 867 (citing

Filarsky, 566 U.S. at 384). The court specified that this

is “a disjunctive test: Private individuals are entitled

to assert qualified immunity if their claim is supported

by historical practice or based on public policy considerations.” Id. (interior citation omitted). In doing so,

the Tenth Circuit joined the Fifth, Sixth, Seventh,

Eighth, and Ninth circuit courts in denying qualified

immunity to “private medical professionals employed

full-time by a multi-state, for-profit corporation systemically organized to provide medical care in correctional

facilities” because “neither late 19th century common

law nor present-day policy considerations counsel in

favor of extending qualified immunity.” Id. at 865, 874.

Due to this fact-specific analysis, this holding was

limited to circumstances similar to those presented in

Tanner. See id. at 865.

18

Applying the same test in Jensen v. Clyde, the Tenth

Circuit granted qualified immunity to Dr. Tubbs, a

sole practitioner who was engaged part-time by the

Duchesne County Jail to provide medical services to

the inmates. The Tenth Circuit again looked “both to

history and to the special policy concerns involved in

suing government officials.” Jensen, 989 F.3d at 855.

Beginning with history, the Tenth Circuit considered

“the common law as it existed when Congress passed

§ 1983 in 1871. Id. (citing Filarsky, 566 U.S. at 384).

One of the common law principles existing in 1871 “is

that immunity should not vary depending on whether

the individual works for the government on a parttime or full-time basis.” Id. Petitioner does not dispute

that Nurse Clyde, who was directly employed by

Duchesne County, was entitled to assert a qualified

immunity defense. Since Dr. Tubbs would have been

able to raise such a defense if he too worked for

Duchesne County on a full-time basis, the Jensen

court found a historical basis for extending qualified

immunity to him. See id. at 855-56.

The Jensen court then turned to the policy considerations underlying the doctrine of qualified immunity.

See id. Taking each of those policy considerations in

turn, the Tenth Circuit found that the “unique facts of

this case” support the conclusion that Dr. Tubbs could

raise a qualified immunity defense. See id. at 856-57.

Petitioner cannot conflate the different conclusions

reached in these cases with an assumption that the

courts applied different standards. The recent Tenth

Circuit decisions demonstrate the efficacy and flexibility of the two-part analysis in resolving the applicability

of a qualified immunity defense to private persons.

19

3. The Eighth Circuit’s recent decision

on this issue demonstrates that

there is no confusion among the

circuit courts.

Since the Petition for Writ of Certiorari was filed,

the Eighth Circuit published a decision demonstrating

that there is no confusion among the circuit courts of

appeal as to the standard to apply to the question of

whether a private person is entitled to assert qualified

immunity. In Davis v. Buchanan County, Missouri,

the Eighth Circuit addressed whether employees of

Advanced Correctional Healthcare, an Illinois corporation whose employees provided on-site nursing coverage

to correctional facilities were entitled to qualified

immunity. 2021 WL 3729050 at *2, 4. The court

applied the factors outlined by this Court in

Richardson and Filarsky):

(1) the “general principles of tort immunities

and defenses applicable at common law,

and

(2) “the reasons we have afforded protection

from suit under § 1983.”

See Filarsky, 566 U.S. at 384 (internal quotations and

citation omitted).

When assessing the general principles of tort immunities and defenses applicable at common law, the

Court rejected the medical defendants’ reliance on

Filarsky, holding that as “employees of systematically

organized private firms, tasked with assuming a major

lengthy administrative task. They are factually dissimilar to the individuals entitled to assert qualified

immunity in Filarsky . . . but like those not entitled

to assert qualified immunity in Richardson.” Davis,

2021 WL 3729050, *7. In doing so, the Davis court cited

20

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

v. McMurray, 989 F.3d 860 (10th Cir. 2021); Est. of

Clark v. Walker, 865 F.3d 544 (7th Cir. 2017);

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2021);

Jensen v. Lane Cty., 222 F.3d 570 (9th Cir. 2000); and

Hinson v. Edmond, 192 F.3d 1342 (11th Cir. 1999),

which also did not recognize “a firmly rooted tradition

of immunity for similarly situated privately-employed

medical professionals.” Davis, 2021 WL 3729050 *5.

It is noteworthy, that unlike Petitioner, the Eighth

Circuit did not note any confusion, circuit splits, or

inconsistencies in the approach taken by the circuit

courts in applying and assessing the historical common

law prong.

Following its assessment of the common law, the

Eighth Circuit did not cease its analysis by finding

that the historical prong was dispositive. Instead, the

court moved on to assess the second factor—the weight

of the policy reasons for affording protection from suit

under section 1983. Id. at *7. After assessing each

policy consideration (unwanted timidity, attracting

talented candidates to public service, and preventing

harmful distractions caused by lawsuits), the court

held that “the purposes of qualified immunity, on

balance, do not favor extending immunity” to employees

of large firms systemically organized to perform a

major administrative task for profit.

The Eighth Circuit’s recent decision in Davis demonstrates that the circuit courts of appeal are not at odds,

but are consistently applying the factors outlined in

Richardson and Filarsky. And that the alleged circuit

split, which Petitioner has championed in the Petition

for Writ of Certiorari, is not the result of diverging

standards, but the result of the courts appropriately

undertaking the same fact-specific, two-part analysis

21

to determine whether a private person providing

health care in a correctional facility is entitled to

qualified immunity. Respondent, therefore respectfully

requests that this Court deny Petitioner’s Petition for

Writ of Certiorari.

II. The question presented does not merit the

Court’s attention.

The question presented by Petitioner does not merit

the Court’s attention because the circuit courts are

uniformly applying the same fact-specific, two-part

analysis to determine whether a private person providing health care in a correctional facility is entitled to

assert qualified immunity. The purposes underlying

qualified immunity are best served by the current

fact-specific, two-part analysis used by the courts.

Petitioner’s claim that certiorari would be helpful to

illuminate this standard for private actors seeking

immunity in other contexts is similarly unfounded;

courts apply the Richardson and Filarsky standard

consistently, albeit reaching different conclusions

depending on the facts of the case.

Petitioner points to the trend of privatization of

health care services in correctional facilities to support

its request that the Court grant certiorari. Petitioner

argues that the alleged confusion surrounding whether

a private health care provider can assert a qualified

immunity defense will hinder private medical personnel in reaching mutually agreeable terms for the

provision of healthcare to detainees. This concern is

unfounded. As demonstrated in Section I, above, there

is no split among the circuit courts of appeal on this

issue, and each circuit applies the same fact-specific,

two-part analysis. Furthermore, the circuit courts

have unanimously held that employees of large firms

that are systematically organized to perform a major

22

administrative task for profit cannot assert a qualified

immunity defense. See, e.g., Davis, 2021 WL 3729050;

Estate of Clark, 865 F.3d 544; McCullum, 693 F.3d

696; Hinson, 192 F.3d 1342; Jensen, 222 F.3d 570.

Therefore, the question of whether, and under what

circumstances, a private healthcare provider can

assert a qualified immunity defense is clearer than

Petitioner suggests.

Petitioner’s request for certiorari—and its implicit

request that qualified immunity be categorically

denied to all private health care providers—would

undermine the purposes of qualified immunity and

hinder small rural counties, like Duchesne County,

from obtaining health care services for its inmates.

Small jails, primarily located in rural areas, often

report a lack of funding and personnel that limits their

ability to offer critical services, including health care.

See Jails: Inadvertent Health Care Providers, The

PEW Charitable Trusts (Jan. 2018), https://www.pew

trusts.org/-/media/assets/2018/01/sfh_jails_inadvertent_

health_care_providers.pdf. Rural jails tend to hold

fewer people than urban ones, and therefore lack the

resources that are available in large urban jails

because they cannot benefit from economies of scale.

See Aaron Littman, et. al, Protecting Rural Jails from

Coronavirus, The Justice Collaborative Institute (Apr.

2020), https://www.filesforprogress.org/memos/rural-jailscoronavirus.pdf. Larger, urban jails are more likely to

have (and afford) full-time medical care providers with

advanced credentials; smaller, rural jails are more

likely to have only part-time nursing staff, supervised

remotely. See id. Administrators of jails in rural or

poor counties often complain that they have neither

the resources nor the expertise to hire, train, and

supervise doctors and nurses in the particular

23

demands that their facilities require. See Steve Coll,

The Jail Health-Care Crisis, The New Yorker (Feb. 25,

2019), https://www.newyorker.com/magazine/2019/03/

04/the-jail-health-care-crisis.

The public policies supporting the qualified immunity doctrine are aimed at protecting the government’s

ability to carry out its activities. See Richardson, 521

U.S. at 408-412. The fact-specific, two-part analysis

currently employed by lower courts furthers the government’s interest in providing healthcare to inmates

in rural or poor counties. These counties—much like

Duchesne County—may be unable to afford or may

lack access to a full-time medical provider or a large,

for-profit healthcare company. In Utah, doctors cannot

be insured against punitive damages and medical

malpractice coverage does not generally cover intentional torts. Therefore private doctors providing

healthcare services on behalf of the government cannot

rely on private malpractice insurance to ensure them

against § 1983 claims, but must self-insure against

prisoners’ lawsuits if qualified immunity is not available. Furthermore, private doctors providing healthcare

services in correctional institutions cannot select their

patients; have a much more vulnerable patient population than the general populous; do not have ready

access to specialists for consultation; and must provide

healthcare under the parameters necessary to secure

the safety and security of the health care providers ,

jail staff, and inmates. For these reasons among others,

contrary to Petitioner’s assertion, § 1983 lawsuits

are not comparable to malpractice suits. If qualified

immunity is categorically denied to all private medical

providers, counties like Duchesne County will have a

significant barrier to obtaining quality healthcare for

its inmates.

24

Petitioner also asks this Court to grant certiorari to

address the “very same rift” in cases addressing the

availability of immunity for private actors in other

contexts. Once again, the cases cited by Petitioner all

apply the same two-part analysis from Richardson

and Filarsky, but reach different conclusions as to

whether a private actor can assert immunity depending on the specific factual scenario. In Bracken v.

Okura, the Ninth Circuit “followed the Supreme

Court’s instruction to ‘look both to history and to the

purposes that underlie government employee immunity in order to find the answer.’” 869 F.3d 771, 777 (9th

Cir. 2017) (citing Richardson, 521 U.S. at 404; Jensen,

222 F.3d at 576). Applying that framework, Bracken

found that immunity was not historically available for

off-duty officers acting as private security guards. Id.

Bracken then found that the policies underpinning

qualified immunity did not “warrant invoking the

doctrine here.” Id. at 778. The Fourth Circuit applied

the same test in Gregg v. Ham, stating that if history

does not reveal a firmly rooted tradition of immunity

and the policy considerations underlying qualified

immunity do not apply to that category of private

persons, then it would not allow the private defendant

to assert qualified immunity. 678 F.3d 333, 340 (4th

Cir. 2012).

In Lockett, the Tenth Circuit looked to both history

and to the purposes that underlie government employee

immunity to determine whether qualified immunity

applied to a private physician carrying out an execution at a prison. The Est. of Lockett by & through

Lockett v. Fallin, 841 F.3d 1098, 1108 (10th Cir. 2016).

The Tenth Circuit adopted Richardson’s finding that

there was no conclusive evidence of a historical

tradition of immunity for private parties carrying out

prison-management activities. See id. However, the

25

Lockett court found that the private executioner was

ultimately entitled to assert qualified immunity because

the purposes of qualified immunity, as set forth in

Richardson and Filarsky, supported its application given

the unique facts of the case. See id. at 1108-09. Significantly, the Supreme Court denied certiorari. Lockett v.

Fallin, 137 S. Ct. 2298, 198 L. Ed. 2d 751 (2017).

Therefore, the question presented by Petitioner does

not merit this Court’s attention.

III. The Tenth Circuit correctly decided

Jensen v. Clyde based on its specific facts

and relevant policy considerations.

The Court should not grant certiorari based on

Petitioner’s allegations that the Tenth Circuit’s decision was simply wrong. “A petition for a writ of

certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a properly stated rule of law.” U.S. Sup. Ct.

R. 10.

As demonstrated above, this Court has clearly

established precedents for determining when a private

actor may invoke qualified immunity, which every

circuit has followed. In Estate of Jensen by Jensen v.

Clyde, the Tenth Circuit followed the historical analysis set forth in Filarsky, looking to the common law

principles in existence in 1871. 989 F.3d at 855–56.

Petitioner wrongly claims that there was nothing

“historical” about the Jensen court’s reliance on Filarsky.

Petitioner misstates that this Court has “consistently

embraced history as dispositive.” Pet. at 31. As

demonstrated above, the Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth, Tenth, and Eleventh Circuits have

each looked to both history and public policy in determining whether qualified immunity is warranted. See

26

Section I, supra. And in Lockett, the Tenth Circuit

found little historical support for qualified immunity,

but found the public policy analysis sufficient to extend

the qualified immunity defense to a private actor.

The Estate of Lockett by and through Lockett v. Fallin,

841 F.3d 1098, 1108–09 (10th Cir. 2016). This Court

declined to grant certiorari for that decision. Lockett v.

Fallin, 137 S.Ct. 2298.

Finally, public policy strongly weighs in favor of

allowing Dr. Tubbs to assert a qualified immunity

defense. Petitioner cites no support for its claim that

avoiding unwarranted timidity “is not a serious

concern for medical professionals.” Pet. at 33.

Petitioner also cites no support for its claim that

Section 1983 exposes medical professionals to less

liability than ordinary malpractice suits. Petitioner

points out in its Petition that detainee deaths are on

the rise, and prisoner deaths due to drug or alcohol

intoxication have more than quadrupled in the past

twenty years. Pet. at 21. Petitioner also points out that

the nation’s prison population is aging. Pet. at 20.

Physicians who provide healthcare at a jail or prison

are exposed to significant liability from a healthcompromised population. Since Utah prohibits insurance coverage for punitive damages and malpractice

insurance covering intentional acts is not easily

available, these physicians will be unable to obtain

malpractice insurance that can cover the allegations

and potential damages involved in Section 1983

lawsuits. What talented candidate would not be

deterred or distracted by the prospect of self-insuring

themselves against an inevitable Section 1983 action

from an inmate or inmate’s family? This is particularly

true when a rural county jail with a limited budget is

27

contracting with an individual doctor, not a large, forprofit prison or company, to obtain health care.

Boiled down, Petitioner’s complaint seems to be less

that the Tenth Circuit misapplied the correct standard, but rather a fundamental antipathy towards the

very existence of the qualified immunity doctrine,

including its extension to any private actor. See Pet. at

28 & n. 5. The Court should decline to grant certiorari

to entertain Petitioner’s quarrels with the general

doctrine of qualified immunity.

CONCLUSION

The petition should be denied.

Respectfully submitted,

CORTNEY KOCHEVAR

Counsel of Record

KRISTINA H. RUEDAS

NELSON NAEGLE

222 South Main Street

Suite 1740

Salt Lake City, UT 84101

(385) 292-4400

ckochevar@nelsonnaegle.com

kruedas@nelsonnaegle.com

Counsel for Respondent

September 3, 2021