NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0896n.06
No. 12-2393
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LARRY D. LEE, JR., )
FILED
Oct 17, 2013
)
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. )
)
DEAN WILLEY; T. ZISCHKE; BAGLEY; ) ON APPEAL FROM THE UNITED
OWEN, Correctional Officers; D. THOMAS, ) STATES DISTRICT COURT FOR
MDOC, Sergeant; NICK LUDWICK, Warden; ) THE EASTERN DISTRICT OF
HAYDEN, Correctional Officer; WADE ) MICHIGAN
DIXON, Psychiatrist; PAUL SCHNEEMAN, )
Psychologist; WILLS DIXON; R. WILLIAMS; )
JOHN DOE; JANE DOE, ) OPINION
)
Defendants, )
)
and )
)
KAMESHWARI MEHRA, )
)
Defendant-Appellant. )
)
Before: BOGGS and DONALD, Circuit Judges; STAMP, District Judge.*
BERNICE BOUIE DONALD, Circuit Judge. When an individual working for a state
government is sued in a personal capacity pursuant to 42 U.S.C. § 1983, we typically engage in a
two-part analysis to determine whether that person is entitled to qualified immunity. The
inquiry—one that is quite familiar to us—asks whether a plaintiff’s factual allegations demonstrate
*
The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District of
West Virginia, sitting by designation.
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a constitutional violation and whether the constitutional right at issue was “clearly established” at
the time of the incident. If the answer to either question is no, then the employee is entitled to
immunity and the suit is dismissed at the summary judgment stage.
When the party raising qualified immunity as a defense works for the state as a private
contractor, as is the case here, we must first engage in an antecedent inquiry concerning whether the
defendant may properly invoke the defense qualified immunity.
In this case, the district court gave us no answer to this question. We conclude that it was
improper for the district court to gloss over the threshold question of assertability, and we answer
that question in the plaintiff’s favor. For this reason, we AFFIRM the district court’s decision,
finding that the defendant was not entitled to the defense of qualified immunity as a basis for his
motion to dismiss.
Kameshwari Mehra worked as a psychiatrist at the Michigan Department of Corrections’
(MDOC) where he was assigned to the Reception and Guidance Center (RGC) in Jackson,
Michigan. He was formerly a state employee, but he began working on a contract basis in 2003.
Mehra was employed through what he called a “long-term company”—the Jackson and Coker
Recruiting Agency. During his time at the RGC, he also served as an in-house consultant at the
local veterans hospital.
In March 2007, prison officials brought Larry D. Lee, Jr. to the Jackson facility for inmate
intake and processing. At the outset, prison officials subjected Lee to abusive verbal harassment on
the basis of his sexual orientation.
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As part of the intake process, MDOC medical personnel evaluated Lee’s health, concluding
that he needed treatment for depression and hypertension. Paul Schneeman, a social worker at the
RGC, saw Lee for a mental health evaluation. After meeting with Schneeman, Lee saw Wills Dixon,
a prison psychologist. Dixon completed a mental health assessment and referred Lee to Mehra.
Lee and Mehra met for the first time on April 6, 2007. During this encounter, Lee expressed
“fears and phobias about being harassed by other prisoner[s]” and staff inside the prison. Mehra
observed that Lee “appear[ed] to be over[ly] concern[ed] about his safety in the prison system,
because of his sexual orientation.” Concerned about the potential for sexual assault, Lee asked
Mehra to place him in protective custody. The psychiatrist took no action. Mehra had the authority
to order Lee to be placed in secured housing, but Mehra believed he did not have the custodial
authority to do what Lee asked.
Three days later, two unidentified inmates raped Lee at knifepoint. Lee attempted to file a
formal grievance, but prison officials denied him access to a grievance form. On April 13,
2007—four days after the assault—Lee filed grievances against several prison officials for their
homophobic remarks. The grievances did not mention the forced sexual encounter.
That same day, Lee met with Mehra and told him:, “I can’t take it anymore. I am stressed
out. Everyone is talking about my sexual orientation and making all kinds of bad remarks. I can’t
take it anymore. I need help.” Mehra noted that “[Lee] feels the prisoners are advancing towards
him for sex. He continues to fear about these things all the time to the level of sometimes [sic] to
paranoia.” Concluding that Lee suffered from post-traumatic stress disorder, Mehra prescribed 200
milligrams of Atrax and two milligrams of Risperdal. The two saw each other on at least one other
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occasion, but there is no record or testimony as to what happened during this encounter, save for an
adjustment of medication. MDOC transferred Lee to a permanent corrections facility on May 9,
2007.
Proceeding pro se (but later retaining counsel), Lee filed a complaint in the United States
District Court for the Eastern District of Michigan, claiming that the defendants—Mehra and other
prison employees and officials—were liable under: (1) 42 U.S.C. § 1983 for violations of the Eighth
and Fourteenth Amendments; (2) the Elliot-Larsen Civil Rights Act; and (3) state common law for
intentional infliction of emotional distress. Mehra moved for summary judgment, arguing that Lee
failed to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act.
The magistrate judge recommended denial of the motion, and the district court agreed.
Mehra tried again, this time moving for summary judgment, contesting the merits of Lee’s
claims. The magistrate judge recommended that summary judgment be granted in favor of Mehra
on all of Lee’s claims, except for the deliberate-indifference claim arising from the psychiatrist’s
alleged failure to protect his patient-prisoner. With respect to that issue, the magistrate judge
concluded that there was a clearly established right for prisoners to be free from prisoner-on-prisoner
violence, and that there was a genuine issue of material fact as to whether Lee’s Eighth Amendment
rights had been violated. The report reasoned that Mehra’s failure to either place Lee in protective
custody or ask custodial officials to grant Lee’s request for such custody could serve as the factual
basis for a jury to find a constitutional violation. Hence, the report concluded, Mehra was not
entitled to qualified immunity on Lee’s Eighth Amendment claim. The district court agreed.
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Mehra then filed this interlocutory appeal, challenging the district court’s denial of his
qualified immunity defense with respect to Lee’s Eighth Amendment claim.
We review de novo a district court’s decision to deny summary judgment on qualified-
immunity grounds. Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011). Summary judgment is
only appropriate if there are no genuine issues of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). The evidence must be construed in the light most
favorable to the nonmoving party, with all inferences drawn in the non-movant’s favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Both parties have raised a number of jurisdictional issues. We decline to address their
arguments at length, except to say that this Court has jurisdiction to decide whether Mehra was
eligible to invoke the defense of qualified immunity. See Quigley v. Thai, 707 F.3d 675, 680 (6th
Cir. 2013); see also McCullum v. Tepe, 693 F.3d 696, 699-700 (6th Cir. 2012); Harrison v. Ash, 539
F.3d 510, 521 (6th Cir. 2008).
When a private employee working at a state prison is sued under § 1983, we must first
determine whether that employee “can invoke qualified immunity in a lawsuit arising out of his
activities at the prison.” McCullum, 693 F.3d at 700. To do so, we ask two questions: (1) whether
“there was a firmly rooted history of immunity for similarly situated parties at common law”; and
(2) “whether granting immunity would be consistent with the history and purpose of § 1983.” Id.
In this instance, however, we need not strain ourselves to discern the answer, for it was
already decided in McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) that a psychiatrist “employed
by an independent non-profit organization, but working part-time for the County as a prison
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psychiatrist” was not entitled to the defense of qualified immunity. Id. at 699-700, 704. We found
no nineteenth-century common law contemporary to § 1983's passage that granted immunity for
private doctors working at public institutions. See id. at 704. We also concluded that the policy
considerations undergirding § 1983 immunity militated against granting immunity, where, as here,
the defendant’s primary employer, a private firm, is capable of “offset[ing] . . . [the] increased . . .
liability risk” resulting from its employees’ lack of § 1983 immunity. Id. at 704.
There is little doubt that McCullum applies here. As Mehra’s counsel conceded at oral
argument, there is no meaningful distinction between him and the psychiatrist in McCullum.
Acknowledging this reality, Mehra instead opts to attack the wisdom of our prior decision,
contending that McCullum was wrongly decided. He cites four reasons in support of his argument:
(1) the decision disregarded the Supreme Court’s recognition of common-law immunity for private
doctors in Richardson v. McKnight, 521 U.S. 399 (1997); (2) the McCullum court erroneously
assumed that the silence of nineteenth-century caselaw on common-law immunity for private doctors
meant that no such immunity existed; (3) the role of private physicians is not distinguishable from
other protected functions identified by the Supreme Court in Filarsky v. Delia, 132 S. Ct. 1657
(2012); and (4) the policy analysis used by the McCullum court applied only to private prisons and
employees thereof.
From the outset, we note that a three-judge panel of this court is not the proper audience for
such contentions. McCullum is a published decision of this circuit, and whatever the wisdom of
Mehra’s arguments may be, we must treat it as binding authority. See United States v. Humphrey,
287 F.3d 422, 452 (6th Cir. 2002) (“It is axiomatic that a court of appeals must follow the precedent
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of prior panels within its own circuit.”); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)
(“[O]nly the court sitting en banc may overrule a prior decision of a panel.”).
But stare decisis is not the only reason we reject Mehra’s arguments—they are, in a word,
wrong. We address each of them in turn.
First, the McCullum court did address Richardson, noting its “cryptic comment” about the
possibility of private doctors being entitled to qualified immunity. It observed that the Richardson
Court’s dicta had no support in the law. McCullum, 693 F.3d at 702-04. Neither the common law
contemporary to § 1983s passage nor the common law of the twentieth century supported the idea
that there was a firmly rooted common-law practice of extending immunity to private psychiatrists.
Id. at 701-04.
Even if we were to ascribe some meaning to Richardson’s “cryptic comment,” however, it
would—at most—immunize doctors from liability for negligent acts. See Harrison, 539 F.3d at 522.
As an Eighth Amendment claim of deliberate indifference necessarily requires something more than
“mere mistreatment or negligence,” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 568 (6th Cir.
2013) (internal quotation marks omitted), Richardson’s “cryptic comment” does nothing for Mehra
here.
Second, Mehra seems to suggest that this court improperly constrained itself by analyzing
only nineteenth-century caselaw in concluding that there was no common-law immunity for private
doctors serving the government. But nothing in twentieth-century caselaw helps his case, either.
See McCullum, 693 F.3d at 701 (citing Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000);
Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999)); see also Jensen v. Leonard, 186 P.2d 206
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(Cal. Dist. Ct. App. 1947) (considering an appeal arising from a suit against a privately employed
psychiatrist working for the state as a medical examiner and refraining from any discussion of
immunity). Moreover, we limited ourselves to nineteenth-century cases because the Filarsky Court
suggested that we do so. McCullum, 693 F.3d at 702 (citing Filarsky, 132 S. Ct. at 1662).
Third, we need not distinguish private physicians from “other protected functions identified
by the Supreme Court,” as the Court has itself eschewed such a functional comparison. In Filarsky,
the Court acknowledged that “examples of individuals receiving immunity for actions taken while
engaged in public service on a temporary or occasional basis are as varied as the reach of
government itself.” 132 S. Ct. at 1665. Instead of comparing occupations side-by-side, the Court
limited its analysis to the question of whether caselaw establishing immunity for a particular
occupation existed at the time § 1983 was enacted. Id.
Finally, Mehra’s contention that “the Supreme Court’s analysis of the policy rationales in
Richardson apply only to denying qualified immunity to a private prison and its personnel” is
incorrect. Indeed, the Filarsky decision belies this observation; the case had nothing to do with
prisons, yet the Court still looked to Richardson’s policy rationales to conclude that an investigator
hired by a municipality was eligible to invoke the defense of qualified immunity. Id. at 1665-66.
With no good reason to disturb our holding in McCullum, we conclude that there is no
meaningful distinction between the psychiatrist in that case and Mehra; thus, we conclude that,
under McCullum, Mehra is not eligible to invoke the defense of qualified immunity. Without such
a defense, it would have been improper for the district court to grant summary judgment in Mehra’s
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favor. Hence, as the district court’s denial of summary judgment was proper, we AFFIRM the
district court’s decision.
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