Reply 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

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

REPLY IN SUPPORT 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

TABLE OF CONTENTS

Page

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

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

ARGUMENT ............................................................... 2

I.

THE COURTS OF APPEALS ARE

DEEPLY DIVIDED .................................................. 2

II.

THE QUESTION PRESENTED IS IMPORTANT .......... 6

III. THE TENTH CIRCUIT’S MINORITY RULE

IS WRONG ............................................................ 7

CONCLUSION ......................................................... 11

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Benjamin v. Galeno,

415 F. Supp. 2d 254 (S.D.N.Y. 2005) ................... 10

City of Canton v. Harris,

489 U.S. 378 (1989) ................................................ 7

Davis v. Buchanan Cnty.,

— F.4th —, 2021 WL 3729050

(8th Cir. Aug. 24, 2021) .................................passim

Democratic Nat’l Comm. v. Wis.

State Legislature,

141 S. Ct. 28 (2020) ................................................ 9

Est. of Clark v. Walker,

865 F.3d 544 (7th Cir. 2017) .......................... 2, 5, 7

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

841 F.3d 1098 (10th Cir. 2016) .............................. 9

Estelle v. Gamble,

429 U.S. 97 (1976) ................................................ 11

Filarsky v. Delia,

566 U.S. 377 (2012) ........................................ 3, 4, 8

Freeman v. Fairman,

916 F. Supp. 786 (N.D. Ill. 1996) ......................... 11

Hinson v. Edmond,

192 F.3d 1342 (11th Cir. 1999) .......................... 3, 5

Jensen v. Lane Cnty.,

222 F.3d 570 (9th Cir. 2000) .......................... 2, 5, 6

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Knight v. Grossman,

No. 16-CV-1644, 2019 WL 1298569

(E.D. Wis. Mar. 21, 2019) ....................................... 5

Lee v. Willey,

543 F. App’x 503 (6th Cir. 2013) ............................ 6

McCullum v. Tepe,

693 F.3d 696 (6th Cir. 2012) ...................... 2, 5, 6, 8

Owen v. City of Indep.,

445 U.S. 622 (1980) ................................................ 8

Perniciaro v. Lea,

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

Richardson v. McKnight,

521 U.S. 399 (1997) .................................. 4, 5, 8, 10

Sanchez v. Oliver,

995 F.3d 461 (5th Cir. 2021) .............................. 4, 6

Tanner v. McMurray,

989 F.3d 860 (10th Cir. 2021) ........................ 3, 6, 9

West v. Atkins,

487 U.S. 42 (1988) ................................................ 10

Wyatt v. Cole,

504 U.S. 158 (1992) ............................................ 1, 8

STATUTES

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

1

INTRODUCTION

This should be a straightforward grant. The

Courts of Appeals are deeply divided about whether

private medical personnel working in correctional or

mental-health facilities can assert qualified

immunity. 1 That split—which the Tenth Circuit

acknowledged below—has deepened even since this

petition was filed. Respondent’s Opposition only

underscores that this issue is recurring and

important. The decision below is wrong. And

Respondent makes no attempt to argue that this case

is anything other than an ideal vehicle.

In opposing certiorari, Respondent makes two

primary arguments. Both miss their mark. First,

Respondent tries to explain away the division of

authority by pointing out that the Courts of Appeals

are all purporting to apply the history-and-policy test

this Court endorsed in Wyatt v. Cole, 504 U.S. 158

(1992), and its progeny. But Respondent ignores their

deep disagreement about how that test works and how

it applies to private medical personnel. The fact of the

matter is that Dr. Tubbs would not be able to invoke

qualified immunity in five circuits; in two, he can. And

Respondent’s attempt to reconcile the circuits’

disparate approaches by proposing his own standard—

which turns on whether the defendant is employed by

a large, for-profit corporation, Opp. 10–11—falls flat.

Respondent’s proposed standard does not track the

reasoning of most courts, does not account for

decisions denying immunity to employees of smaller or

Contrary to Respondent’s suggestion, Opp. i, n.1, the

Question Presented, circuit split, and arguments in support of

certiorari are limited to private actors.

1

2

non-profit outfits, and has no basis in this Court’s

precedents.

Second, Respondent doubles down on the Tenth

Circuit’s policy analysis, insisting that qualified

immunity is necessary to protect prison healthcare

providers, particularly in rural and under-resourced

areas. Notably, however, Respondent identifies no

historical precedent for extending qualified immunity

to private medical personnel. And his suggestion that

qualified immunity can be justified on policy alone is

irreconcilable both with the text of § 1983 and with

this Court’s prior rulings. Respondent gets the policy

calculus wrong in any event. There is no good reason

to believe that private medical personnel will be any

more deterred or distracted by § 1983 lawsuits than

they are by ordinary malpractice suits. And there is

every reason to believe that extending qualified

immunity will leave people like Madison without a

remedy for violations of their constitutional rights.

This Court should grant certiorari, reverse the

decision below, and allow the Estate’s claim to proceed

on the merits.

ARGUMENT

I.

THE COURTS OF APPEALS ARE DEEPLY DIVIDED.

A. In the decision below, the Tenth Circuit

recognized what was then a four-to-two split among

the Courts of Appeals. See Pet.App.14a n.2; Pet. 13–

17. The Tenth Circuit disagreed with those circuits

holding that “qualified immunity is not available to a

private medical professional providing services to a

jail.” Pet.App.14a n.2 (citing McCullum v. Tepe, 693

F.3d 696, 704 (6th Cir. 2012); Est. of Clark v. Walker,

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

3

Cnty., 222 F.3d 570, 577 (9th Cir. 2000); Hinson v.

Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999),

amended, 205 F.3d 1264 (11th Cir. 2000)). Instead, it

endorsed the Fifth Circuit’s contrary “read[ing] [of]

Filarsky” v. Delia, 566 U.S. 377 (2012), and held that

private medical personnel like Dr. Tubbs can invoke

qualified immunity. Pet.App.15a (quoting Perniciaro

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

B. That divide has only deepened in the six weeks

since this petition was filed. In Davis v. Buchanan

County, — F.4th —, 2021 WL 3729050 (8th Cir. Aug.

24, 2021), the Eighth Circuit faced a set of facts

tragically similar to those of Madison’s case. Id. at *1

(“Justin A. Stufflebean died after allegedly being

denied necessary medication” just six days after

entering custody). And it joined the Sixth, Seventh,

Ninth, and Eleventh Circuits in holding that

“employees of private medical-services-providers” “are

not entitled to assert the defense of qualified

immunity.” Id. at *4–5. In so doing, the Eighth

Circuit found that neither history nor policy supported

extending immunity to private medical personnel. Id.

at *5–10. On history, the court—like “[a]ll other

circuits” to have considered the question—found no

“firmly rooted tradition of immunity” for those actors.

Id. at *5; see also id. at *6 (recognizing that Filarsky

“did not abandon the need for particularized historical

analysis”). And on policy, the court reasoned, among

other things, that “[p]rivate medical personnel … may

be uniquely equipped to handle … litigation

distractions” because they already “‘face a constant

threat of claims leading to litigation.’” Id. at *7–9

(quoting Tanner v. McMurray, 989 F.3d 860, 870 (10th

Cir. 2021)).

4

C. Respondent’s attempts to minimize

entrenched split, see Opp. 5–21, are unavailing.

this

1. Respondent primarily argues that there is no

real split because the Courts of Appeals all apply a

two-part history-and-policy test derived from

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

Filarsky.

See, e.g., Opp. 10 (“Consistent with

Richardson and Filarsky, the Fifth, Sixth, Seventh,

Eighth, Ninth, Tenth, and Eleventh Circuit[s] … have

each engaged in a two-part analysis in deciding

whether a private medical provider could assert a

qualified immunity defense.”). That is true, insofar as

it goes. Indeed, the Courts of Appeals actually agree

on how the historical part of that test shakes out:

“[A]ll … circuits to have considered the issue have

found no compelling history of immunity for private

medical providers in a correctional setting.” Sanchez

v. Oliver, 995 F.3d 461, 468 (5th Cir. 2021); Pet. 18;

Opp. 11–18, 24–25.

Where the circuits have split is with respect to

whether policy alone can support an extension of

immunity—and, as a result, whether private medical

personnel are entitled to claim it. See Pet. 13–17, 25–

26, 29. On the one hand, five circuits have held,

relying primarily on Richardson, that qualified

immunity is unavailable to private medical personnel

because neither history nor policy supports its

application in that context. See id. at 13–15; Davis,

2021 WL 3729050, at *5–10. On the other, two circuits

have held, relying primarily on Filarsky, that some

such personnel may claim immunity based on policy

arguments alone. Pet. 15–17.

5

2. Respondent only confuses matters further by

suggesting that the dispositive question should be

whether the defendant works for a “private firm[]

systematically organized to assume a major lengthy

administrative task … for profit” and “with limited

direct supervision by the government.” Opp. 10, 14,

21–22.

For starters, that standard—apparently

drawn from the Eighth Circuit’s recent ruling in Davis

and selective quotes from Richardson—bears no clear

relationship to the “two-part analysis” that

Respondent elsewhere correctly identifies as the

governing standard. See, e.g., id. at 10–16, 18, 21–24.

In any event, Respondent’s proposed standard

does not reflect the majority rule. The Sixth, Seventh,

Ninth, and Eleventh Circuits have all rejected

qualified immunity for private medical personnel in

categorical terms.

See Pet. 13–15 (discussing

McCullum, Clark, Lane County, and Hinson). District

courts in those circuits understand the rule against

qualified immunity for prison medical personnel to be

categorical. See, e.g., Knight v. Grossman, No. 16-CV1644, 2019 WL 1298569, at *6 (E.D. Wis. Mar. 21,

2019) (“The Seventh Circuit has held … that private

medical personnel in prisons are not afforded qualified

immunity.”), aff’d, 942 F.3d 336 (7th Cir. 2019). And

Respondent cites no case from those circuits

suggesting that some different rule applies to sole

proprietors or smaller practices.

To the contrary, many decisions from those

circuits involve defendants who were not employed by

“large firms that are systematically organized to

perform a major administrative task for profit.” Opp.

10 (quoting Davis, 2021 WL 3729050, at *9). In

McCullum, for example, the defendant worked for “an

6

independent non-profit organization.” 693 F.3d at 699

(emphasis added). And in Lane County, the defendant

was described as “a contract psychiatrist” who was

“affiliated with a private group.” 222 F.3d at 573; see

also, e.g., Lee v. Willey, 543 F. App’x 503, 503, 505–06

(6th Cir. 2013) (denying qualified immunity to a

psychiatrist hired by the state through a recruiting

agency to work “as a private contractor”).

To be sure, the Fifth, Eighth, and Tenth Circuits

have sometimes suggested that the size or structure of

the medical professional’s employer may be relevant to

the qualified immunity analysis. See Sanchez, 995

F.3d at 467; Davis, 2021 WL 3729050, at *9; Tanner,

989 F.3d at 874. But even assuming those three courts

could be understood to have adopted a rule that hinges

on that fact, it makes no difference here. The circuits

are still split, given that at least four have endorsed a

bright-line rule that applies regardless the size or

structure of the defendant’s employer. See supra at 5–

6. And that split is still outcome determinative with

respect to Petitioner’s claim against Dr. Tubbs, a solo

practitioner who would not be entitled to invoke

qualified immunity in the majority of circuits.

II. THE QUESTION PRESENTED IS IMPORTANT.

There can be little doubt that the availability of

qualified immunity for private medical personnel is

enormously consequential for jails and detainees

alike.

Pet. 19–26.

Respondent concedes that

correctional facilities increasingly rely on private

doctors and psychiatrists to care for detainees and

prisoners. See Opp. 26; Pet. 19–20. Respondent

recognizes that the prison population is “aging,”

“vulnerable,” and “health-compromised.” Opp. 23, 26.

7

And Respondent does not dispute that qualified

immunity, if available, will very often bar otherwise

meritorious constitutional claims. See Pet. 21.

Respondent’s argument about rural and poor

counties, Opp. 22–23, only highlights the importance

of this issue. “[S]mall rural counties,” Respondent

contends, often lack the resources to “hire, train, and

supervise doctors and nurses in the particular

demands that their facilities require.”

Id.

Accordingly, he claims that denying qualified

immunity to private medical providers would hinder

rural jails “from obtaining health care services for

[their] inmates.” Id. at 22. The fairly shocking

implication that a lack of training and supervision

should excuse constitutional violations gets the law

exactly backwards. Cf. City of Canton v. Harris, 489

U.S. 378, 388 (1989) (“[A] city can be liable under

§ 1983 for inadequate training of its employees.”). But

what matters for present purposes is that Respondent

appears to agree that the answer to the Question

Presented really matters.

III. THE TENTH CIRCUIT’S MINORITY RULE IS

WRONG.

A. Every circuit to have considered the question

has concluded 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.” Est. of Clark, 865 F.3d at 550–51; see also Pet.

13–17; Davis, 2021 WL 3729050, at *5 (“The first

factor—the historical availability of immunity—does

not support these medical defendants asserting

qualified immunity.”); see id. (noting that “[a]ll other

circuits” agree).

Respondent makes no serious

8

argument to the contrary and, indeed, cites no

historical authority whatsoever. Instead, Respondent

conclusorily asserts that the Tenth Circuit’s reasoning

that Dr. Tubbs could have asserted immunity if he

worked “for the County on a full-time basis” somehow

“fulfill[s] the historical common law analysis

addressed in Filarsky.” Opp. 3.

Needless to say, the fact that state employees

would be entitled to invoke immunity today does not

establish a historical tradition of immunity for private

doctors like Tubbs. And the absence of historical

support for immunity in this context should be

dispositive. Consistent with Wyatt, Richardson, and

Filarsky, private actors can invoke qualified immunity

notwithstanding § 1983’s unqualified language only “if

the ‘tradition of immunity was … firmly rooted in the

common law and was supported by … strong policy

reasons.’” Wyatt, 504 U.S. at 163–64 (quoting Owen v.

City of Indep., 445 U.S. 622, 637 (1980)) (emphasis

added); see also Richardson, 521 U.S. at 404 (Wyatt

“tell[s] us … to look both to history and to the purposes

that underlie government employee immunity”

(emphasis added)); 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)). The test, in other words, is

“conjunctive.” McCullum, 693 F.3d at 700 n.7; see Pet.

28–30. And this Court has never held that qualified

immunity is availability to private actors in the

absence of a historical tradition.

B. Although Respondent at times purports to

embrace history, see Opp. 5–6, 10–12, 14, 25, he

ultimately endorses the Tenth Circuit’s “disjunctive

9

test,” id. at 17 (quoting Tanner, 989 F.3d at 867). In

Respondent’s and the Tenth Circuit’s view, “[p]rivate

individuals are entitled to assert qualified immunity if

their claim is supported by historical practice or based

on public policy considerations.” Id. (quoting Tanner,

989 F.3d at 867) (citation omitted) (emphasis added).

So “public policy analysis” alone can be “sufficient to

extend the qualified immunity defense to a private

actor.” Id. at 26 (discussing Est. of Lockett ex rel.

Lockett v. Fallin, 841 F.3d 1098 (10th Cir. 2016)).2

The notion that courts can create new immunities

unheard of at common law has no basis in § 1983’s

text. See Pet. 4–5, 27–28. It is inconsistent with this

Court’s precedents. See id. at 5–6, 29–30; supra at 8.

And it confuses judges (who interpret and apply the

law) with lawmakers (who “make policy and bring to

bear the collective wisdom of the whole people when

they do”). See Democratic Nat’l Comm. v. Wis. State

Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J.,

concurring). Congress is certainly free to determine

that private medical personnel working in correctional

or mental-health facilities ought enjoy qualified

immunity from suits under § 1983. Absent such

legislation, courts should not extend qualified

immunity to new classes of private actors.

C. In any event, policy considerations cut against

extending immunity to private medical personnel

2 Respondent makes much of the fact that this Court denied

certiorari in Lockett. Opp. 25, 26. But the Lockett petition was

about the application of the Eighth Amendment to claims based

on execution by lethal injection. See Pet., Lockett v. Fallin, 137

S. Ct. 2298 (2017) (No. 16-1255), 2017 WL 1422434. It did not

present the question whether private medical personnel are

entitled to qualified immunity.

10

working in public correctional facilities. See Pet. 33–

34; Richardson, 521 U.S. at 407–12 (considering the

risks of creating “unwarranted timidity,” deterring

“talented candidates,” and “distracting” workers from

their duties). “Unwarranted timidity” is unlikely,

including because medical professionals have an

independent ethical obligation to promote their

patients’ well-being. Cf. West v. Atkins, 487 U.S. 42,

51 (1988) (doctor had “professional and ethical

obligation to make independent medical judgments”).

Indeed, nearly every case at issue here arose from an

alleged failure to provide necessary medical services.

See, e.g., Pet.App.18a (claim based on “failure to secure

medical treatment”); Davis, 2021 WL 3729050, at *1

(detainee allegedly “denied necessary medication”).

Moreover, medical professionals are unlikely to be

“deterred” or “distracted” by the threat of § 1983

liability because they are already subject to

malpractice suits for mere negligence. Cf., e.g.,

Benjamin v. Galeno, 415 F. Supp. 2d 254, 256

(S.D.N.Y. 2005) (“Malpractice claims cannot be

brought under Section 1983, because they sound in

negligence, and mere negligence does not rise to the

level of a constitutional tort.”).

Respondent offers no sound policy argument to the

contrary. He identifies no problems that have arisen

in the majority of jurisdictions that do not extend

qualified immunity to private medical personnel. He

offers no reason to fear unwarranted timidity in the

absence of such immunity. And he fails to explain why

exposure to liability for Eighth Amendment violations

is any more problematic than exposure to malpractice

claims in private practice. After all, “[t]he ‘deliberate

indifference’ required by the Eighth Amendment is a

11

standard higher than simple negligence.” Freeman v.

Fairman, 916 F. Supp. 786, 791 (N.D. Ill. 1996).

Moreover, any limitations on insurance coverage for

intentional acts, Opp. 26, presumably apply in private

settings, too.

In the end, Respondent’s position appears to rest

primarily on the propositions that medical personnel

may not wish to be sued by “an inmate or inmate’s

family,” id., and that some correctional facilities

struggle to provide inmates with adequate medical

care, see id. at 22–23. Both are likely true. But neither

trumps the Eighth Amendment’s guarantee against

“deliberate indifference to serious medical needs of

prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).

CONCLUSION

The petition should be granted.

September 17, 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