Cook v. Martin

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0626n.06
Filed: July 27, 2005

No. 03-2446 / 03-2461

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CRAIG ALLEN COOK II,

Plaintiff-Appellee,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
BILL MARTIN, GENE BORGERT,
JEREMY STEPHENSON, CHAD
JOHNSON, DAN WALLING, JEFF JONES,
ROBYN FINCH, SHIJING HU, JOHN DOE
I-XX, JOHN ROE I-V,

Defendants,

JERRY HOWELL, STEVEN R. BIGCRAFT,
SAMANTHA GILBERT, and LARRY
MASON,

Defendants-Appellants.
/

BEFORE: KEITH, CLAY, and FARRIS,* Circuit Judges.

KEITH, Circuit Judge. The Plaintiff-Appellee, Craig Allen Cook II, filed suit after he

sustained severe injuries during his custody by the Michigan Department of Corrections (MDOC).

The Defendants-Appellants, Captain Steven R. Bigcraft, Samantha Gilbert, R.N., Deputy Warden

Jerry Howell, and Larry Mason, P.A., each appeal the decision of the district court denying their

respective requests for summary judgment, all of which were based upon their assertions of qualified

*
The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
 No. 03-2446 / 03-2461

immunity. Captain Bigcraft, Nurse Gilbert, and Deputy Warden Howell all assert that the doctrine

of qualified immunity shields them from Cook’s claims because, they say, he has failed to allege

facts demonstrating that any of them acted deliberately indifferent to his serious medical needs

during his time in custody. Mason, however, is a privately employed physicians’ assistant, not a

governmental official, and the district court determined that his private employment status did not

afford him the protections of qualified immunity. Thus, on appeal, Mason asks this court to

determine whether private prison medical providers enjoy the benefits of qualified immunity. For

the reasons set forth below, this court AFFIRMS the decision of the district court.

I. FACTUAL BACKGROUND

In this cause of action, Cook complains that he suffered severe injury as a result of the acts

and omissions of the various Defendants. Although he has alleged multiple state and federal

violations, the present appeal concerns only one asserted federal claim, namely that, in violation 42

U.S.C. § 1983, the Defendants-Appellants acted with deliberate indifference to Cook’s serious

medical needs in contravention of the Eighth Amendment prohibition against cruel and unusual

punishment.

On June 14, 1999, state authorities arrested Cook for violating his parole and confined him

to the Manistee County Jail in the State of Michigan. During his confinement in Manistee County

Jail, Cook became ill; he experienced nausea, vomiting, diarrhea, profuse sweating, tingling in his

arms and legs, and an accelerated heart rate. Cook never received any medical attention in response

to these symptoms despite requests from him and his mother.

2
 No. 03-2446 / 03-2461

Sometime during his incarceration in the county jail, corrections authorities offered Cook

an opportunity to participate in the MDOC ninety-day Special Alternative Incarceration program,

known colloquially as “boot camp.” Cook accepted, and on July 19, 1999, approximately one month

after his initial confinement, the MDOC transferred him from the Manistee County Jail to Cassidy

Lake boot camp.

Prior to his transfer, Cook had received lunch in Manistee County. After arriving at Cassidy

Lake, however, Cook did not receive any other food or drink for the remainder of that day. And,

although the following day, Cook was permitted to eat breakfast and lunch, the only drinks he

received were two eight-once cartons of milk, one with each meal. After lunch, Cook was required

to participate in calisthenics and a three-mile outdoor “motivational run,” a strenuous physical

activity consisting of push-ups, sit-ups, other exercises, and running in cadence, military style with

other inmates. The temperature was approximately ninety-five degrees. Prior to commencing this

exercise regimen, and in contravention to MDOC written procedures requiring a medical history

assessment and physical examination at the time of arrival, Cook had not undergone any physical

or mental health screening or examination by any official at Cassidy Lake.

Despite continuing to feel somewhat ill, Cook attempted to take part in the “motivational

run” without advising anyone at the boot camp that he felt too ill to participate. During the run, he

became increasingly physically distressed, experiencing loss of feeling in his legs, dry mouth,

difficulty breathing, blurred vision, and chest pains. He had difficulty keeping up with the other

runners, felt faint, and eventually passed out prior to completing the run. Cook regained

consciousness with two MDOC officers hovering over him and berating him to get up and keep

3
 No. 03-2446 / 03-2461

running if he wanted to finish boot camp. In his initial attempt to get up, Cook was unsuccessful.

He testified that he wanted to get up and finish the run, but his body would not let him. The MDOC

officers apparently assisted him to his feet, placed him in handcuffs, and followed him to Cassidy

Lake’s control center, where he was forced to stand and face a wall.

Once he arrived at the control center, Cook was confronted by four officers, including the

MDOC shift supervisor, Captain Steven R. Bigcraft. As Cook stood facing the wall, the officers

gathered behind and yelled at him, threatening that if he failed to complete the boot camp program

he would be transferred to a traditional prison. Cook responded that he wanted to finish, but also

tried to explain to the officers that he could not breathe. Cook then recalls someone directing

another person to bring a camera.

After that, Cook next remembers waking up at Dwayne Waters Hospital (DWH), the MDOC

prison hospital in Jackson, Michigan. Although Cook does not recall the successive intervening

events with specificity, Captain Bigcraft had directed another officer to begin videotaping the

incident shortly after Cook had returned to the control center because Bigcraft believed that Cook’s

behavior was “peculiar.” Joint Appendix (“J.A.”) at 114. More specifically, Bigcraft recorded in

his report that Cook responded affirmatively to orders to stand and face the wall, but then he failed

to comply with subsequent demands from the officers. Id. Bigcraft also reported that Cook acted

“weak and dizzy,” id. at 418, and that Cook followed rational responses with statements such as,

“you’re going to kill me,” id.1 Bigcraft claims that he stood close to Cook so that Cook would not

1
A different officer, Corporal Jeremy Stephenson, noted in his report that Cook seemed
“emotionally distraught.” Id. at 430.

4
 No. 03-2446 / 03-2461

fall down. After ordering the videotaping, Bigcraft removed other “trainees” from the area and

summoned the on-duty nurse, Samantha Gilbert, R.N., to assess Cook’s health.

Inasmuch as Cook does not recall in detail what occurred after Bigcraft ordered the

videotaping, he relies upon the district court’s summary of its observation of the video. None of the

Defendants-Appellants have challenged the district court’s recitation of the events as recorded in

the video. Therefore, viewing the evidence in the light most favorable to Cook, as we must do, we

adopt the following observations as set forth by the district court2 in its order denying the

Defendants-Appellants’ motions for summary judgment:

The tape begins with Cook standing near a wall, with his hands cuffed behind him.
In response to a directive (by someone off camera) that he face the wall, Cook
proclaims that he did not do anything and runs a few feet out of a nearby open door.
Cook is quickly restrained by Captian Bigcraft, Corporal Chad Johnson and Corporal
Stephenson and taken forcefully to the ground. [FN7] Defendants characterize
Cook’s effort as an attempt to escape. Cook, however, claims to have no memory
of this particular series of events and suggest[s] that he was actually disoriented and
not making conscious choices.

[FN7] While Cook was on the ground and still handcuffed, one
officer (Corporal Stephenson according to his report) can be seen
applying pressure to Cook’s wrists and repeatedly advising him not
to move. In response, Cook is wiggling, yelling and proclaiming that
he “quits” or “gives up.” Corporal Stephenson avers in his affidavit
that Cook was resisting and, at one point, grabbed his wrist.

Immediately thereafter, at approximately 4:40 p.m., Cook was placed in a restraint
chair designed for disruptive and/or abusive boot camp trainees. While being
strapped into the chair by four officers, Cook appears to start spitting. Although
Defendants contend that he was attempting to spit on staff members, the officers
were standing primarily to the rear of the chair, and Cook only appears to be
directing his actions forward and off to the side. It is not clear that Cook was

2
For purposes of consistency in this opinion, the district court’s use of “Plaintiff” has been
replaced with the named party, “Cook.”

5
 No. 03-2446 / 03-2461

attempting to, or did, spit on anyone. Nevertheless, Captain Bigcraft ordered that a
hockey-style mask be placed over Cook’s face to prevent further spitting. The mask
covered Cook’s entire face with holes for his eyes and smaller holes to allow him to
breath.

Cook was then moved inside the control center, into a hallway near the open door
that he exited, and the restraint chair was secured onto a stationary base. The video
camera was then trained on Cook for almost three hours. Contrary to Defendants’
assertions that Cook was “conversant with staff” and only appeared to be fatigued
during this time, very shortly after being locked into place and for most of the time
that he remained in the hallway, Cook appeared to be either asleep or unconscious.
He made very few movements and did not even stir: when his pulse was repeatedly
taken; when nurse Gilbert and an officer were manipulating his hands and arms; or,
in response to activity going on around him.

Defendants claim they did not immediately suspect that Cook was in need of medical
attention. However, one person on the tape can be heard saying that Cook was
behaving strangely and it appears that at least one officer was concerned with Cook’s
lethargic state. For instance, very shortly after moving him into the hallway, one
officer started to walk by, seemed to notice that Cook was not moving, and stood to
observe him briefly. He left and returned minutes later with nurse Gilbert. They
each appeared to be manipulating Cook’s hands and arms. [FN8] Cook remained
motionless. The officer then motioned for Gilbert to step outside, out of the view or
audible range of the camera. After they returned, Ms. Gilbert made a brief inspection
of the ankle restraints and she and the officer left.

[FN8] Gilbert states that she was checking Cook’s fingers for
capillary refill, which indicates the presence of any restriction or
damage to the blood vessels in the extremities. She found Cook’s
capillary refill to be normal, meaning that the restraint chair straps
were not too tight.

Later in the video, an officer took Cook’s pulse. The officer then left and returned
with nurse Gilbert, who took Cook’s pulse again. Ms. Gilbert continued to check
Cook’s pulse periodically.

Nurse Gilbert claims to have checked on Cook at 15-minute internals. [FN9] There
is no indication that she made a record of Cook’s pulse rate or other vitals. She
states in her affidavit that she noted Cook’s heart rate to be slightly elevated but
within normal limits. She attributed the elevation to his agitation and “vigorous
attempts at fighting the restraints.” Ms. Gilbert does not specify, but presumably she
is asserting that this was her observation each time she check Cook’s heart rate.

6
 No. 03-2446 / 03-2461

[FN9] Although Ms. Gilbert can be seen checking Cook’s pulse five
different times, Cook attaches nurse Gilbert’s time card to show that
she punched out at 5:46 p.m. on that date (one hour after Cook was
placed in the chair) and, therefore, did not examine Cook after that
time. Cook also points out that Gilbert did not check Cook’s waist
or shoulder restraints; remove his mask; or, attempt to assess Cook’s
level of consciousness. In her affidavit, Gilbert asserts that, pursuant
to MDOC Policy Directive 04.05.112, only the shift commander has
the authority to determine the need for restraints and whether
restraints are to be removed.

After Cook had been in the chair for a while and appeared to be stirring, an officer
appeared and repeatedly attempted to engage Cook in general conversation. Cook
moved about in the chair but did not respond. Shortly after the officer left, Cook
appeared to begin breathing very heavily for a period of time and then again became
motionless for another extended period. According to Captain Bigcraft and nurse
Gilbert, it was when Cook failed to respond to this questioning that they regarded
Cook’s behavior as suspicious. Captain Bigcraft indicates in his report that at
approximately 5:30 p.m. he spoke with Deputy Warden Jerry Howell and advised
him of the incident with Cook. He contacted Howell again about Cook at 6:50 p.m.

At approximately 7:10 p.m., because Captain Bigcraft observed that Cook was still
unresponsive and acting disoriented, he contacted Duane Waters Hospital (DWH)
and received authorization to transport Cook there for evaluation. It appears on the
video that Cook awoke or came to around the same time and began screaming. An
officer appeared and asked him what was the problem. Cook made an inaudible
response and screamed again. At that time, Corporals Johnson and Stephenson
appeared, unlocked the restraint chair from the base and moved Cook, while in the
chair and with the mask still on, to a van for transport to DWH. The video cuts off
with the officers securing Cook’s restraint chair in the transport van. He is
screaming and speaking incoherently. [FN10] The tape then cuts to Cook being
removed from the van at DWH.

[FN10] Cook can be heard to say: “You guys are going to get in
trouble.”; “Help.”; “Call the cops.”; and “They’re going to kill me.”
He also repeatedly called for his Mother and Grandfather.

Id. at 530-33. Although the officers did not videotape all of the events that occurred while Cook was

treated at DWH, in his appellate brief Cook again relies upon the findings of the District Court:

7
 No. 03-2446 / 03-2461

At DWH, without ever removing Cook from the chair, Defendant Larry Mason, a
physicians’ assistant (P.A.), and nurse Robyn Finch, R.N., examined Cook. [FN11].
Mason indicates that he obtained a history of Cook’s behavior from the transporting
officers. [FN12]. Mason further states that he observed that Cook had a wound on
his forehead, which the transporting officers advised was the result of his fall while
being cuffed. He then performed a basic physical examination, cleaned and dressed
Cook’s forehead wound, and prescribed Narcan to counter the effects of any illicit
drugs Cook may have taken. [FN13]. After a while, Mason states that he removed
Cook’s mask.

[FN11] Mason and Finch assert that they did not have the authority
to remove Cook’s restraints.

[FN12] Per Mason, Cook presented with three problems: 1) head
injury; 2) possible drug use; and, 3) erratic behavior.

[FN13] Mason attaches his notes. However, they are largely
illegible.

Nurse Finch states in her affidavit that she performed a medical assessment and
asked Cook wether he had any specific complaints. She indicates that he denied
having any pain or other medical problems and that he was conversant with staff.
She indicates that Cook did, however, occasionally ignore staff or fail to answer
questions. When she asked him what was wrong, he replied, “I do not know what
is going on in my head.” Finch reported her findings to Mason, [FN14], who in turn
referred Cook to the on-duty psychologist, Shijing Hu, M.S.

[FN14] Finch states that she referred Cook to the P.A. in charge. It
seems that Mason was the P.A. in charge that evening.

Defendant Hu performed a psychological evaluation and determined that Cook did
not exhibit any signs of a mood disorder, depression or suicidal ideation. [FN15].
In her affidavit, Hu states that it was her impression that Cook was “selectively
performing for some staff members while ignoring others.” She found him to be
coherent and conversant, and states that he did not make any specific complaints or
advise of any pain. Hu ultimately diagnosed him as a “disciplinary issue” who did
not require treatment. Thereafter, Mason authorized Cook’s release to boot camp.
[FN16] Mason, Finch and Hu each assert that Cook did not appear to be in need of
additional medical attention.

[FN 15] Cook points out that Hu evaluated Cook after he had been
given Narcan. Also, without offering any documentary or other

8
 No. 03-2446 / 03-2461

evidence, Cook asserts “on information and belief” that MDOC
regulations and State of Michigan licensing regulations prohibit Hu,
who has a Master’s degree in psychology, from seeing and assessing
patients clinically.

[FN16] Hu states that the P.A. in charge discharged Cook.
Presumably, she is also referring to Mason.

The videotape picks up again with Cook being returned to Cassidy Lake that
evening. Captain Bigcraft’s report indicates that Cook was returned at
approximately 10:26 p.m. Over three hours had lapsed from the time Cook was
transported to DWH. Cook was removed from the van without the mask, but was
still strapped into the restraint chair. Cook was taken into a room inside the facility
and the restraints were undone. Cook had been restrained in the chair for over six
hours and had not eaten [or drank] since lunch.

Although Cook appeared somewhat responsive and coherent, when told to stand up,
he was unable to do so. Cook appeared weak and unable to control his arms or legs.
When asked whether he was taken out of the chair while at DWH, Cook said, “no.”
The tape ends with Cook still sitting in the chair.

Id. at 533-35.

After he was finally removed from the restraining chair, Cook was unable to remove his

clothing to use the bathroom. The officers did not assist him. Rather, they directed him to either

hurry up or return to his bunk. Cook returned to bed, but later advised an officer that he had diarrhea

and needed to use the restroom. Again, the officer ordered him back to bed. Cook complied, but

soon defecated on himself. One of the officers then summoned other officers, all of whom ordered

Cook to remove his shorts. Cook could not comply with this command, so one of the officers

removed them for him. One or more of the officers then directed Cook to either go back to bed or

get back in the restraining chair. Cook went to bed. He was not served dinner or any other food that

evening.

9
 No. 03-2446 / 03-2461

The next morning, at approximately 6:30 a.m., Cook was found in his bunk, naked, and

laying in his own feces. Officers took Cook for a shower, and a staff nurse, Jeff James, R.N.,

responded. The officers and staff nurse observed Cook struggling to bathe himself for some time

before the nurse finally assisted. Nurse James indicated that Cook appeared disoriented. Before the

district court, the Defendants asserted that this was the first time that Cook appeared visibly ill.

At approximately 8:00 a.m., Cook was escorted to DWH, and from there, he was rushed by

ambulance to the emergency room of Foote Hospital, where he was found to be suffering from actue

renal failure. According to the examining physician, Cook’s renal failure likely resulted from

rhabdomyolysis, the disintegration of striated muscle, which was possibly related to his stay in the

restraints. Cook was also diagnosed as suffering from hepatitis, possible dehydration, and other

medical conditions. He was admitted to the Intensive Care Unit, and placed on dialysis on July 23,

1999. Cook was released from Foote Hospital and transferred to DWH on August 18, 1999, where

he was treated until September 14, 1999. He was then transferred to Cotton Correctional Facility

from which he was released on parole in April 2000.

II. PROCEDURAL HISTORY

Cook filed his initial complaint in the Washtenaw County Circuit Court, in which he alleged

state law claims against the MDOC, MDOC Director Bill Martin, Cassidy Lake Warden Gene

Borgert, Cassidy Lake Deputy Warden Jerry Howell, Captain Steven R. Bigcraft, Corporal Jeremy

Stephenson, Corporal Chad Johnson, Lieutenant Dann Walling, Samantha Gilbert, R.N., Jeff James,

R.N., Duane L. Waters Hospital, Robyn Finch, R.N., Shijing Hu, Larry Mason, P.A., and other

unidentified officers, guards, personnel, and medical providers.

10
 No. 03-2446 / 03-2461

Cook later filed an amended complaint in which he charged the Defendants with violations

of multiple Michigan state laws and his federal statutory and constitutional rights pursuant to 42

U.S.C. § 1983. The specific claim at issue in this appeal is Cook’s charge that the Defendants

violated his Eighth Amendment right against cruel and unusual punishment because they were

deliberately indifferent to his serious medical needs. The Defendants removed this action to the

United States District Court for the Eastern District of Michigan, Southern Division, and filed

motions for summary judgment on June 11, 2002.

In an Order entered on October 10, 2003, the district court granted, in part, and denied, in

part, the Defendants’ motions. More specifically, the district court held that officers Stephenson,

Johnson and Walling were entitled to qualified immunity, and that Cook had failed to establish a

claim of deliberate indifference against Hu or James. The district court, however, determined that

qualified immunity did not shield Captain Bigcraft, Nurse Gilbert, or Deputy Warden Howell from

Cook’s deliberate indifference claim. Finally, the district court concluded that Mason had no

entitlement to qualified immunity because he was a privately employed physicians’ assistant.

Captain Bigcraft, Nurse Gilbert, Deputy Warden Howell, and Mason subsequently filed this

appeal.

III. DELIBERATE INDIFFERENCE CLAIMS AGAINST

CAPTAIN BIGCRAFT, NURSE GILBERT, AND DEPUTY WARDEN HOWELL

A. Standard of Review

Qualified immunity is not merely a defense to be raised in response to a plaintiff’s claims.

Rather, where it applies, qualified immunity shields government officials from enduring a lawsuit

11
 No. 03-2446 / 03-2461

in the first instance. Thus, when the district court rejects an official’s assertion of qualified

immunity, it makes a purely legal determination, which we review de novo. See Solomon v. Auburn

Hills Police Dept., 389 F.3d 167, 172 (6th Cir. 2004); Scott v. Churchill, 377 F.3d 565, 569 (6th Cir.

2004); Tucker v. City of Richmond, Ky., 388 F.3d 216, 219 (6th Cir. 2004); Virgili v. Gilbert, 272

F.3d 391, 392 (6th Cir. 2001).

B. Analysis

Qualified immunity “is conceptually distinct from the merits of the plaintiff’s claim.”

Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). It is “an entitlement not to be forced to litigate the

consequences of official conduct.” Id. “The entitlement is an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Id. at 526.

In defining this entitlement, the Supreme Court has held that “government officials

performing discretionary functions generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In 2001,

the Court established a two-part test for determining whether qualified immunity applies. Saucier

v. Katz, 533 U.S. 194, 201 (2001). In the initial inquiry, we must consider whether, “[t]aken in the

light most favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct

violated a constitutional right.” Id. If the facts as alleged by the claimant fail to establish a

constitutional violation, then immunity applies. On the other hand, if the alleged facts sufficiently

12
 No. 03-2446 / 03-2461

demonstrate a constitutional violation, we must then determine “whether the right was clearly

established.” Id.

Captain Bigcraft, Nurse Gilbert, and Deputy Warden Howell all concede that it is “clearly

established” that deliberate indifference to an inmate’s serious medical needs violates the Eighth

Amendment’s protection against cruel and unusual punishment. Further, these Defendants do not

contest the district court’s determination that Cook had a serious medical need. Thus, on appeal this

court need only decide whether pursuant to the alleged facts these Defendants’ conduct demonstrates

deliberate indifference.

The Supreme Court has clearly held that “deliberate indifference to serious medical needs

of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotations and citation omitted).

Deliberate indifference takes many forms. A plaintiff can show such indifference when prison

guards intentionally deny or delay access to medical care or when prison doctors fail to respond

appropriately to the prisoner’s needs. Id. The Supreme Court discussed deliberate indifference in

prison-conditions cases in Farmer v. Brennan, 511 U.S. 825 (1994), stating that deliberate

indifference “describes a state of mind more blameworthy than negligence,” id. at 835, but also that

it constitutes “something less than acts or omissions for the very purpose of causing harm or with

knowledge that harm will result,” id. Thus, the Court set forth the following subjective recklessness

test for deliberate indifference:

a prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts

13
 No. 03-2446 / 03-2461

from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.

Id. at 837. Finally,

[w]hether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence . . . and a factfinder may conclude that a prison official knew
of a substantial risk from the very fact that the risk was obvious.

Id. at 842.

1. Captain Bigcraft

Construing the facts in the light most favorable to Cook, the district court held that Cook had

established that Captain Bigcraft “recognized [Cook’s] need [for medical attention], but failed to act

in a timely or appropriate fashion.” J.A. at 559. Captain Bigcraft contests the holding of the district

court on the theory that he acted reasonably by summoning Nurse Gilbert, relying on her medical

training and expertise, and having Cook transferred to the prison hospital.

Although Captain Bigcraft alleges that he took these actions “in a timely fashion,” the facts

alleged by Cook contradict Bigcraft’s representation of timeliness. When MDOC officers first

escorted Cook to Captain Bigcraft, Captain Bigcraft quickly noted that Cook’s behavior was

peculiar, and that Cook appeared dizzy, weak, and disoriented. In fact, during this first encounter,

Captain Bigcraft so appreciated Cook’s obviously unhealthy condition that he saw a need to stand

behind Cook to keep Cook from falling. Captain Bigcraft further recorded in his report that in

response to his commands Cook gave affirmative answers to commands, followed immediately by

irrational responses. Although Captain Bigcraft summoned Nurse Gilbert on the basis of Cook’s

actions, he simultaneous ordered other officers to shackle Cook, to strap him into a restraining chair,

14
 No. 03-2446 / 03-2461

and to mask him. While Captain Bigcraft contends that the restraining chair and mask resulted from

Cook’s attempt to “escape” and his spitting at the officers, the district court, after viewing the

videotape, came to a different conclusion. Upon observing the tape, the district court opined that

a reasonable jury could conclude that Cook’s need for serious medical treatment was obvious and

that his attempt to run out of the door was related to his clearly disoriented state. Further, the district

court observed from the videotape that Cook was not attempting to spit on the officers because Cook

spat primarily in a forward motion, yet the officers were mainly positioned behind him.

Captain Bigcraft also acknowledges that Cook became immediately unresponsive once he

was placed in the restraining chair. Despite Cook’s obvious unresponsive state, Captain Bigcraft

delayed for several hours before taking any steps to have Cook transported to DWH. The district

court concluded that “reasonable jurors could find that Bigcraft’s claim that he did not believe that

[Cook] was in need of medial attention until he had been strapped in the chair for several hours is

contrary to his admitted observations of [Cook].” J.A. at 561. We agree. Viewing all of the above

evidence in the light most favorable to Cook, we conclude that a reasonable jury could find that

Cook has demonstrated that Captain Bigcraft was deliberately indifferent to his serious medical

needs and that Captain Bigcraft’s responses were objectively unreasonable under these

circumstances.

2. Nurse Gilbert

The district court also determined that Cook could establish deliberate indifference by Nurse

Gilbert. On appeal, Nurse Gilbert contends that the district court erred in denying her qualified

immunity because “there are no facts to support that she drew the inference that her conduct posed

15
 No. 03-2446 / 03-2461

a substantial risk of serious harm to Cook,” Defs.-Appellant’s Br. at 22, and she merely “exercised

her professional judgment in treating Cook,” id. at 25. In sum, Nurse Gilbert’s claim is that she

cannot be liable for deliberate indifference where the facts alleged prove, at most, that she acted

negligently in failing to diagnose Cook’s condition. Negligence, Gilbert says, is an insufficient basis

upon which to ground an Eighth Amendment violation of cruel and unusual punishment.

We agree with Nurse Gilbert that Cook must show something more than mere negligence

in his attempt to hold her liable in the instant case. A plaintiff may establish deliberate indifference,

however, by a showing of grossly inadequate medical care. Terrance v. Northville Regional

Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002) (“‘deliberate indifference may be established

by a showing of grossly inadequate care as well as a decision to take an easier but less efficacious

course of treatment’”); see also Tate v. Coffee County, Tennessee, 48 Fed. Appx. 176, 180 (6th Cir.

2002) (“a medical professional’s failure to perform any of the tests that would be routinely

conducted under similar circumstances rises above the level of simple negligence and can support

a finding of deliberate indifference”); Comstock v. McCrary, 273 F.3d 693, 711 (6th Cir. 2001)

(finding that doctor’s evaluation of inmate was “grossly inadequate” where doctor failed to review

suicidal inmate’ psychological records and failed to comply with department of corrections policies

on suicide prevention). In the present case, Cook has asserted facts from which a fact finder could

reasonably conclude that his urgent need for medical care was obvious, and Nurse Gilbert failed to

respond in an objectively reasonable manner. Cook has pled facts from which a reasonable jury

could find that Gilbert acted with deliberate indifference by providing grossly inadequate medical

care.

16
 No. 03-2446 / 03-2461

More specifically, Cook has produced evidence demonstrating that Gilbert had a

responsibility, as the on-duty nurse at the time of his arrival at boot camp, to complete a health

history form on him, prepare an intake history and screening form, and take his vital signs. Gilbert

concedes that she did not take these actions upon Cook’s arrival at the Cassidy Lake boot camp.

Had Gilbert fulfilled her duties in this regard, she likely would have discovered that Cook first

became ill in the Manistee County Jail.

After Captain Bigcraft summoned Gilbert to examine Cook, she was made aware that he had

been unable to complete the three-mile run. A jury could also reasonably conclude that Gilbert was

aware of the high temperature outside on the day in question. (Cook has alleged that the temperature

was approximately ninety-five degrees.) Gilbert observed him in the restraint chair for more than

an hour. In fact, she made cursory checks on him, often at the request of other officers, during

which she limited her “examinations” to taking his pulse, checking his fingers for capillary refill,

and perfunctory inspections of his restraints. Gilbert also noted that Cook’s heart rate was elevated,

and remained elevated despite his lethargic and possibly unconscious state in the restraining chair.

Perhaps more important are the obvious actions Gilbert failed to take in her various

“examinations” of Cook. While the officers later reported to DWH personnel that Cook received

a wound on his forehead when he tried to “escape,” Gilbert never examined or treated that wound.

Although Cook’s entire face was covered by a mask, a jury could conclude that Gilbert failed to

respond reasonably because she never removed Cook’s mask during all of her “examinations” of

him. Despite his elevated heart rate and lethargic or unconscious state, Gilbert apparently never

examined Cook’s eyes. Considering all of the above facts together, we believe that a jury could

17
 No. 03-2446 / 03-2461

reasonably conclude that Nurse Gilbert was deliberately indifferent to Cook’s obvious serious

medical needs.

3. Deputy Warden Howell

The district court similarly determined that Deputy Warden Howell was not entitled to the

protections of qualified immunity. Howell contends on appeal primarily that he cannot be held

liable for the actions of his subordinates and that he had no personal involvement in Cook’s

treatment on the day in question. Although Howell correctly states that a supervisor may not be

made liable for the acts of his subordinate, this circuit has held that supervisors may be liable where

they “implicitly authorized, approved, encouraged, condoned or knowingly acquiesced in” the

actions of their subordinates. Taylor v. Mich. Dept. of Corrections, 69 F.3d 76, 81 (6th Cir. 1995).

In the present case, Cook has presented evidence that Howell had a responsibility to

authorize or deny the use of the restraint chair. The evidence further demonstrates that Captain

Bigcraft ordered Cook into the restraining chair without waiting for proper authorization from

Howell, and that Bigcraft informed Howell of his use of the restraint chair on at least two occasions

on the evening in question. Despite being advised that Bigcraft had used the restraint chair without

proper authorization, there is no evidence that Howell took any steps to personally assess Bigcraft’s

actions or the efficacy of continuing to use the restraint chair. On this record, Cook has alleged facts

and produced evidence sufficient to establish that Howell was made aware of his placement in the

restraint chair, but that Howell acquiesced in Captain Bigcraft’s use of the chair. Howell’s failure

18
 No. 03-2446 / 03-2461

to properly supervise his subordinates, especially where he has a clear obligation to do so, subjects

him to potential liability in the present case.

IV. ASSERTION OF QUALIFIED IMMUNITY BY MASON,

AN EMPLOYEE OF A PRIVATE MEDICAL PROVIDER

A. Standard of Review

When the district court rejects an official’s assertion of qualified immunity, it makes a purely

legal determination, which we review de novo. See Solomon, 389 F.3d at 172; Scott, 377 F.3d at

569; Tucker, 388 F.3d at 219; Virgili, 272 F.3d at 392.

B. Analysis

At all relevant times, Larry Mason was a physicians’ assistant, privately employed by

Emergency Medicine Consultants, P.C., (EMC), and assigned to work at Dwayne Waters Hospital.

Mason, however, concedes that he was a private employee acting “under color of state law” and that,

absent some form of immunity, he would be subject to liability pursuant to 42 U.S.C. § 1983.

Although Mason sought the protections of qualified immunity, the district court held, as a matter

of law, that a private practitioner in Mason’s position was not entitled to qualified immunity. On

appeal, Mason argues the district court erred because, he says, a proper consideration of all of the

relevant factors reveals that a private practitioner in his position should benefit from qualified

immunity. Therefore, in this appeal, we must determine whether a privately employed physicians’

assistant, assigned to a state prison hospital, may seek the protections of qualified immunity against

a prisoner alleging a constitutional violation pursuant to 42 U.S.C. § 1983.

19
 No. 03-2446 / 03-2461

The Supreme Court provided guidance on examining this issue in Richardson v. McKnight,

521 U.S. 399 (1997). In that case, the Court determined that prison guards who were employed by

a private prison management firm were not entitled to qualified immunity against a prisoner

charging a § 1983 violation. The Court instructed in Richardson that we must consider two factors

in determining whether private defendants enjoy qualified immunity: (1) whether “history . . .

reveal[s] a ‘firmly rooted’ tradition of immunity” that is applicable to the private defendants, id. at

404, and (2) whether the “purposes” underlying the doctrine of qualified immunity warrant

immunity for the defendants at issue, id. at 407-08. The Richardson Court concluded that its

“examination of history and purpose . . . reveal[ed] nothing special enough about the job or about

its organizational structure that would warrant providing . . . private prison guards with a

governmental immunity.” Id. at 412.

Applying these factors in the present case, this court must first decide whether the common

law reveals a history of according qualified immunity to privately employed prison medical

providers. In support of his claim that private prison doctors enjoyed immunity at common law,

Mason cites as his sole authority a single passage from Richardson, in which the Supreme Court

acknowledged the following:

Apparently the law did provide a kind of immunity for certain private defendants,
such as doctors or lawyers who performed services at the behest of the sovereign.

Id. at 407. Mason’s reliance on this passage is unavailing. In Hinson v. Edmond, 192 F.3d 1342

(11th Cir. 1999), the Eleventh Circuit addressed this specific argument. In addition to noting that

the Supreme Court had mentioned a “kind of immunity” for doctors who performed services at the

20
 No. 03-2446 / 03-2461

behest of the sovereign only “in passing,” id. at 1345, the Eleventh Circuit also determined the

following:

The sources cited by the [Richardson] Court suggest that, under certain
circumstances, English doctors and lawyers were immune from liability for acts
amounting to negligence. For acts amounting to recklessness or intentional
wrongdoing, as are alleged here, immunity did not exist, however.

Id. at 1345-46. Deliberate indifference claims, of course, must be premised upon something more

than mere negligence. Johnson v. Karnes, 398 F.3d 868, 875 (6th Cir. 2005) (noting that “a plaintiff

alleging deliberate indifference must show more than negligence”).3

In Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000), the Ninth Circuit held that a

privately employed psychiatrist was not entitled assert qualified immunity in a suit brought by a

plaintiff who had been involuntarily committed to the county psychiatric hospital. Additionally, a

number of district courts have held that privately employed prison medical personnel are not entitled

to assert qualified immunity. See Bafford v. Simmons, Nos. 99-3158-JWL, 00-3023-JWL, 2002 WL

1462072 (D. Kan. Jun. 26, 2002) (denying qualified immunity to privately employed prison doctor);

Parreant v. Schotzko, No. 00-2014 JRT/JGL, 2001 WL 1640137 (D. Minn. Sept. 30, 2001) (same);

Wolfe v. Horn, 130 F. Supp. 2d 648 (E.D. Pa. 2001) (same); Nelson v. Prison Health Servs., Inc.,

3
In addition, in support of his claim against Mason, Cook relies upon Warner v. Grand
County, 57 F.3d 962, 967 (10th Cir. 1995), in which the Tenth Circuit opined that the phrase
“performed services at the behest of the sovereign” more accurately is limited to a situation where
a private practitioner acts upon a specific and limited request from the state. The Tenth Circuit
reasoned that under such circumstance a private practitioner who performs a governmental function
pursuant to a specific request by a governmental official is entitled to qualified immunity because
the state official would have benefitted from qualified immunity had he performed the function
himself. Id. We agree.

21
 No. 03-2446 / 03-2461

991 F. Supp. 1452 (M.D. Fla. 1997) (denying qualified immunity to privately employed prison

nurses); McDuffe v. Hopper, 982 F. Supp. 817 (M.D. Ala. 1997) (denying immunity to privately

employed prison psychiatrists and psychologist).

We therefore conclude that there is no firmly rooted history at common law of according

qualified immunity to privately employed prison medical providers. Hence, Mason has failed to

satisfy the first factor in determining whether a private individual is entitled to the protections of

qualified immunity.

Mason has also failed to satisfy the second factor because the purposes underlying the

doctrine of qualified immunity do not warrant granting immunity for privately employed prison

medical providers. In Richardson, the Supreme Court noted three purposes upon which it has based

qualified immunity for government officials charged with liability under § 1983. Qualified

immunity (1) protects the government’s ability to perform its traditional functions without

“unwarranted timidity,” 521 U.S. at 407-08, (2) “ensures that talented candidates are not deterred

by the threat of damages suits from entering public service,” id. at 411, and (3) guards against the

propensity of lawsuits to distract government employees from their duties. id. Nonetheless, with

regard to this third purpose concerning distraction, the Court noted in Richardson that “the risk of

distraction alone cannot be sufficient grounds for an immunity.” Id.

As for the first two purposes cited by the Court, we can discern no sufficiently meaningful

distinction between the private prison management firms at issue in Richardson and the private

prison medical providers at issue in the case at bar. Most notably, with regard to the first purpose

of protecting traditional government functions from “unwarranted timidity,” which the Supreme

22
 No. 03-2446 / 03-2461

Court stated is “the most important special government immunity-producing concern,” id. at 409,

the Court held that such timidity “is less likely present, or at least is not special, when a private

company subject to competitive market pressures operates a prison,” id. The Supreme Court found

that the private prison management firm’s performance was “disciplined, not only by state review,

but also by pressure from potentially competing firms who can try to take its place.” Id. at 410.

Moreover, the Court stated, “[M]arketplace pressures provide the private firm with strong incentives

to avoid overly timid, insufficiently vigorous, unduly fearful, or ‘nonarduous’ employee job

performance.” Id. All of these principles apply to the private medical provider firm at issue in the

present case.

Mason argues that his situation is distinguishable because he was assigned to a state prison

hospital and was required to abide by the same guidelines and regulations as state-employed

personnel, therefore his actions were controlled by state supervision, pursuant to which he is entitled

to qualified immunity. Mason’s private employer, EMS, however, was subcontracted to MDOC

through Correctional Medical Services (CMS), a separate private enterprise. Thus, Mason is

effectively two steps removed from direct state supervision and can hardly be said to be controlled

by the state. Inasmuch as Mason’s employer, EMS, is accountable to another private entity, CMS,

rather than to the State of Michigan, surely the marketplace pressures that attend Mason’s functions

carry even more weight.

We turn lastly to the second purpose for qualified immunity as set forth in Richardson - that

it “ensures that talented candidates are not deterred by the threat of damages suits from entering

23
 No. 03-2446 / 03-2461

public service.” For the reasons discussed above, we conclude that this factor does not apply to

Mason as he is privately employed by a company clearly subject to marketplace pressures.

Our examination of the history and purposes of qualified immunity does not reveal anything

sufficiently special about the work of private prison medical providers that would warrant providing

such providers with governmental immunity. Accordingly we agree with the district court that

Mason is not protected by the doctrine of qualified immunity.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

24