Case: 20-50282 Document: 00515836518 Page: 1 Date Filed: 04/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 26, 2021
No. 20-50282 Lyle W. Cayce
Clerk
Kathy R. Sanchez, individually and as dependent administrator of, and
on behalf of, The Estate Of Eli Gauna, JR. and Eli Gauna,
JR.’s heirs-at-law,
Plaintiff—Appellant,
versus
Natalee G. Oliver,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CV-221
Before Jones, Clement, and Graves, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Eli Gauna, Jr., took his own life while being held in the Bell County jail
as a pretrial detainee. His mother, Kathy Sanchez, sued—among others—
licensed clinical social worker Natalee Oliver, the mental health professional
who evaluated Gauna and took him off suicide watch. The district court
granted summary judgment for Oliver, holding that she was entitled to
qualified immunity and had not acted with deliberate indifference to Gauna’s
serious medical needs. Because Oliver, as an employee of a private
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organization systematically organized to perform a major administrative task,
is not entitled to qualified immunity, and Sanchez has provided sufficient
evidence regarding what Oliver knew about Gauna’s suicide risk to raise a
genuine dispute of material fact over whether Oliver was deliberately
indifferent to Gauna’s medical needs, we REVERSE and REMAND.
I. Facts and Proceedings
Gauna was arrested on December 30, 2017, and taken to the Bell
County jail. At intake, he was assessed as a suicide risk based on answers to a
screening questionnaire, was placed on 15-minute checks, and was scheduled
to be evaluated by a mental health professional. Later that day, Gauna met
with Oliver for evaluation. Oliver was an employee of Correctional
Healthcare Companies, LLC (“CHC”), which contracted with Bell County
to provide healthcare services, including mental healthcare, to inmates,
juveniles, and pretrial detainees in the County’s custody.
Gauna asked to be placed in the infirmary, but Oliver instead took him
off suicide watch and placed him among the general population. She advised
him to continue taking his medication, to stay active, and to inform staff if his
mood declined. She also recommended mandatory follow up meetings with
mental health staff. Two days later, Gauna committed suicide by hanging.
Sanchez sued, both individually and on behalf of Gauna’s estate,
alleging causes of action against Oliver, CHC, and Bell County under 42
U.S.C. § 1983 for violating Gauna’s well-established constitutional right to
be protected from a known risk of suicide. See, e.g., Converse v. City of Kemah,
961 F.3d 771, 775 (5th Cir. 2020) (“We have repeatedly held that pretrial
detainees have a Fourteenth Amendment right to be protected from a known
risk of suicide.”).
Oliver moved for summary judgment, claiming qualified immunity,
and arguing that there was insufficient evidence that she had acted with
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deliberate indifference towards Gauna. Sanchez argued that Oliver, as an
employee of a private, for-profit service provider, was not entitled to assert
the defense of qualified immunity. The magistrate judge recommended
finding that Oliver was entitled to qualified immunity, had not been
deliberately indifferent, had not acted unreasonably (relative to the deliberate
indifference standard), and was entitled to summary judgment. The district
court adopted the magistrate’s report and recommendation, and granted
summary judgment for Oliver. Sanchez successfully moved to designate the
order a final judgment under Rule 54(b) and timely appealed.
II. Standard of Review
This court reviews a grant of summary judgment de novo, applying
the same standard as the district court. See Hyatt v. Thomas, 843 F.3d 172,
176 (5th Cir. 2016). A court shall grant summary judgment where “there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is
material if it “might affect the outcome of the suit under the governing law.”
Hyatt, 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). In evaluating a motion for summary judgment, a court must
“construe ‘all facts and inferences in the light most favorable to the
nonmoving party.’” Romero v. City of Grapevine, 888 F.3d 170, 175 (5th Cir.
2018) (quoting Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)).
III. Discussion
“To state a claim under § 1983, a plaintiff must allege a violation of a
right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). It has been clearly
established in this Circuit since at least 1989 that “pretrial detainees have a
Fourteenth Amendment right to be protected from a known risk of suicide,”
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and “it is well-settled law that jail officials violate this right if ‘they [have]
actual knowledge of the substantial risk of suicide and respond[ ] with
deliberate indifference.’” Converse, 961 F.3d at 775 (quoting Hare v. City of
Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (Hare II)).
Here, there is no question that Oliver, as a medical professional
treating a pretrial detainee on behalf of a governmental entity, was acting
under color of state law for purposes of § 1983. See West, 487 U.S. at 54. As
a private actor, Oliver may be liable for acting under color of state law under
§ 1983, but “it does not necessarily follow that [she] may assert qualified
immunity.” Perniciaro v. Lea, 901 F.3d 241, 251 (5th Cir. 2018); see also
Brewer v. Hayne, 860 F.3d 819, 823 (5th Cir. 2017) (“A defendant may act
under color of state law for the purposes of § 1983 without receiving the
related protections of qualified immunity.”).
A.
Whether private actors may assert qualified immunity depends on
“(1) principles of tort immunities and defenses applicable at common law
around the time of § 1983’s enactment in 1871 and (2) the purposes served
by granting immunity.” Perniciaro, 901 F.3d at 251 (citing Filarsky v. Delia,
566 U.S. 377, 383–84 (2012)). The purposes of qualified immunity identified
by the Supreme Court are “(1) preventing unwarranted timidity in the
exercise of official duties; (2) ensuring that highly skilled and qualified
candidates are not deterred from public service by the threat of liability; and
(3) protecting public employees—and their work—from all of the distraction
that litigation entails.” Id. at 253 (citing Richardson v. McKnight, 521 U.S. 399,
407–12 (1997), and Filarsky, 566 U.S. at 389–90). Of these, preventing
unwarranted timidity is most important. Richardson, 521 U.S. at 409.
In holding that Oliver was entitled to assert the defense of qualified
immunity, the district court relied heavily on this court’s ruling in Perniciaro
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that two private mental health providers employed by the state through
Tulane University were entitled to qualified immunity. However, the
Perniciaro court took pains to emphasize that Tulane University “is not
‘systematically organized’ to perform the ‘major administrative task’ of
providing mental-health care at state facilities.” 901 F.3d at 254 (quoting
Richardson, 521 U.S. at 409).
By contrast, Oliver’s employer, CHC, is—according to its marketing
materials—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. Tanner v. McMurray, 989 F.3d
860, 871 (10th Cir. 2021). In other words, Oliver’s employer is
“systematically organized to perform the major administrative task of
providing mental-health care at state facilities.” Perniciaro, 801 F.3d at 254
(cleaned up). Our sister circuits unanimously agree that employees of such
entities—including, specifically, CHC in two cases—are not entitled to
assert qualified immunity. See Tanner, 989 F.3d at 874 (Correct Care
Solutions, LLC (“CCS”), a for-profit successor entity to CHC) 1; Estate of
Clark v. Walker, 865 F.3d 544, 550–51 (7th Cir. 2017) (CHC); McCullum v.
Tepe, 693 F.3d 696, 704 (6th Cir. 2012) (Community Behavioral Health, a
large non-profit entity); Jensen v. Lane Cnty., 222 F.3d 570, 578–79 (9th Cir.
2000) (Psychiatric Associates, “a privately organized group of
psychiatrists”); Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999)
(Wexford Health Sources, a for-profit company). After considering the
historical tradition of immunity at common law around the time § 1983 was
1
CHC, formerly CCS, is now known as “Wellpath.” A Wellpath executive
explained: “Wellpath was formerly known as Correct Care Solutions, LLC, which was
formerly known as Correctional Healthcare Companies, LLC.” Accordingly, we treat
references to Wellpath, CCS, and CHC as referring to the same entity.
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enacted and the policy considerations underlying qualified immunity, we
agree with our sister circuits that Oliver—as an employee of a large firm
systematically organized to perform the major administrative task of
providing mental healthcare at state facilities—is categorically ineligible for
qualified immunity.
(1)
The district court held that the common law tradition of immunity
prong supported qualified immunity, but offered no further analysis beyond
noting that a public counterpart to Oliver would be entitled to assert qualified
immunity. This may be understandable, as this court also declined, in
Perniciaro, to engage in the in-depth historical analysis that the Supreme
Court applied in Filarsky and Richardson. However, the Perniciaro court made
clear that the facts of that case were closely analogous to Filarsky, which
facilitated a less verbose analysis of the historical basis for immunity at
common law. See 901 F.3d at 251–52. To clarify: the question is not 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. Filarsky, 566 U.S. at 384.
In Filarsky, the Court conducted an in-depth historical survey of the
common law in the late nineteenth century, and found 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.” Id. at 388–89. However, the Filarsky Court expressly
distinguished the case of an individual retained, as an individual, to perform
discrete government tasks from the “private firm, systematically organized
to assume a major lengthy administrative task . . . with limited direct
supervision by the government, undertak[ing] that task for profit and
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potentially in competition with other firms” that was at issue in Richardson.
Id. at 593 (quoting Richardson, 521 U.S. at 413).
In that light, the Perniciaro court’s invocation of Filarsky should not
lead this court to conclude that we may shirk our responsibility to conduct a
robust historical inquiry. Rather, Perniciaro is better understood as having
recognized that the psychiatrists in that case were more closely comparable
to the independent attorney retained by the government in Filarsky than the
employees of a large firm at issue in Richardson, and, therefore, that they were
entitled to qualified immunity protections similar to those afforded their
public-sector counterparts. See Perniciaro, 901 F.3d at 251–52 (“Here, as in
Filarsky, Drs. Thompson and Nicholl are private individuals who work in a
public institution and alongside government employees, but who do so as
something other than full-time public employees.” (internal citation
omitted)).
We must therefore conduct an independent inquiry into whether
history reveals a “‘firmly rooted’ tradition of immunity applicable to
privately employed” medical professionals. See Richardson, 521 U.S. at 404.
We begin by noting that all of our sister circuits to have considered the issue
have found no compelling history of immunity for private medical providers
in a correctional setting. See Tanner, 989 F.3d at 867–68 (“No circuit that has
considered this issue has uncovered a common law tradition of immunity for
full-time private medical staff working under the color of state law.”); Estate
of Clark, 865 F.3d at 550–51; McCullum, 693 F.3d at 703 (“[T]he precedents
that do exist point in one direction: there was no special immunity for a
doctor working for the state.”); Jensen, 222 F.3d at 577 (“We have been
unable to uncover even a suggestion that Oregon has a ‘firmly rooted
tradition’ of immunity . . . .”); Hinson, 192 F.3d at 1345 (“Under common
law, no ‘firmly rooted’ tradition of immunity applicable to privately
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employed prison physicians exists under circumstances such as these.”).
Oliver also points us to no such history or tradition.
On the other hand, the Supreme Court has hinted in dicta that such a
history might exist. See Richardson, 521 U.S. at 407 (“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.”). The
historical treatise the Richardson Court cited indicates that both private and
public physicians enjoyed at least some level of immunity for negligence,
although they could be sued or even criminally prosecuted for acts amounting
to recklessness. See Joel P. Bishop, Commentaries on Non-
Contract Law § 708 (1889) (indicating that, under English and
American common law, a physician was probably “not liable for the
consequences of simple negligence or want of skill”).
We agree with our sister circuits that the key to untangling whether
there is a tradition of immunity applicable to private citizens in Oliver’s
position is the nature of the claims against her. As discussed below, regardless
of the availability of qualified immunity, to state a § 1983 claim for a violation
of Fourteenth Amendment rights, a plaintiff must show that a medical
provider acted with deliberate indifference to a serious medical need, which
the Supreme Court has compared to a recklessness standard. See Farmer v.
Brennan, 511 U.S. 825, 839–40 (1994). Our sister circuits have noted that
there appears to have been no tradition of immunity for a doctor who acted
recklessly. See, e.g., Hinson, 192 F.3d at 1345–46 (“For acts amounting to
recklessness or intentional wrongdoing, . . . immunity did not exist . . . .”).
Since a constitutional claim under § 1983 effectively requires reckless
conduct, this history counsels against finding a common law tradition of
immunity. We find that there is no sufficient historical tradition of immunity
at common law to support making the qualified immunity defense available
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to a mental healthcare provider employed by a large, for-profit company
contracted by a government entity to provide care in a correctional setting.
(2)
We turn next to the three purposes served by qualified immunity to
determine whether immunity is necessary to “protect[ ] ‘government’s
ability to perform its traditional functions.’” Richardson, 521 U.S. at 408
(quoting Wyatt v. Cole, 504 U.S. 158, 167 (1992)). We again concur with the
unanimous opinion of our sister circuits that policy considerations do not
favor extending qualified immunity to employees of a large entity
systematically organized to perform a major administrative task like Oliver.
(i)
The first, and most important, purpose of qualified immunity is
avoiding unwarranted timidity by those carrying out the government’s work.
Where a private employee works for a firm that is “systematically organized
to perform a major administrative task for profit,” market forces are likely to
“provide the private firm with strong incentives to avoid overly timid,
insufficiently vigorous, unduly fearful, or ‘nonarduous’ employee job
performance.” Richardson, 521 U.S. at 409–10. In Richardson, the Court
noted that the private firm in that case had a three-year contract (with
renewal periods), so “its performance [was] disciplined . . . by pressure from
potentially competing firms who can try to take its place.” Id. at 410. The
Court also noted that the firm was required to buy insurance to compensate
victims of civil rights torts and operated with “relatively less ongoing direct
state supervision.” Id. at 409–10.
Similarly, the contract between CHC and Bell County provided for a
three-year term, with two, one-year renewal periods. CHC operates
nationally within a competitive marketplace, subject to the perpetual threat
of replacement by a more efficient firm if they are unable or unwilling to
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perform their contracted-for tasks. Like the firm in Richardson, CHC was
required to maintain substantial insurance coverage: Medical Malpractice /
Professional Liability Insurance coverage “not less than $1,000,000 per
occurrence and $3,000,000 in the aggregate,” plus the same amount of
“Comprehensive General Liability” coverage. In its contract proposal, CHC
also touted its full-time risk management and legal defense team—including
“an in-house legal team of attorneys and paralegals” ready to “aggressively
address each claim or lawsuit”—which should mitigate the type of liability
risk that might provoke timidity. As in Richardson, “ordinary marketplace
pressures are present here” to effectively diffuse the risk of timidity. Id. at
409.
We also note, echoing our colleagues on the Tenth Circuit, that
[c]oncerns of ‘unwarranted timidity’ are [ ]
significantly less pressing for medical
professionals—who face potential liability both
for choosing a course of treatment that is too
aggressive and for choosing a course not
aggressive enough—than for police officers and
prison guards, who rarely face liability for, as an
example, not using enough force.
Tanner, 989 F.3d at 869. This court recognized that mental health
professionals may nonetheless be improperly influenced by the risk of
litigation when their employer’s “primary function is not providing health-
care services, whether by contract or directly,” and the marketplace
pressures applicable to them (as university professors) were not “fine-tuned
to preventing overly timid care.” Perniciaro, 901 F.3d at 254. Here, however,
the market pressures are precisely the opposite—CHC’s primary function is
providing healthcare services. Unlike the Tulane professors in Perniciaro,
Oliver does not point us to extensive conflicting duties that could dilute
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CHC’s ability to evaluate her performance based on the mental healthcare
services she provides.
Finally, the district court relied on contract language indicating that
“Bell County retained authority to set the ‘policies and procedures related
to healthcare [or] mental healthcare.’” There is, however, no evidence that
this contractual language in any meaningful way distinguishes this case from
Richardson—or is anything other than a standard requirement that a service
provider perform in accordance with the client’s wishes. What the record
does reveal is substantial evidence that Oliver was overseen by CHC, and
CHC took the lead in developing policy. CHC developed and maintained the
County’s “healthcare Policies and Procedures Manual,” the County could
not fire or discipline CHC employees—they had to submit a written notice
of dissatisfaction for adjudication by CHC, and Oliver testified that the
decision to take Gauna off suicide watch was solely at her own discretion—in
fact, County employees lacked the authority to do so.
The most important purpose of qualified immunity—preventing
overly timid performance—strongly indicates that it should not be extended
to an employee in Oliver’s situation.
(ii)
The second purpose of qualified immunity is to “ensur[e] that
talented candidates are not deterred from public service.” Filarsky, 566 U.S.
at 389–90. The district court noted only that the record did not indicate the
extent to which Oliver’s pay was responsive to the risk of liability and that
she was closely supervised by Bell County. As discussed above, the district
court substantially overstates the level of control Bell County exerted over
CHC employees. The district court also misapprehends the applicability of
Perniciaro. Unlike the Tulane professors in Perniciaro, there is no evidence
that Oliver’s job included a broad range of duties other than the provision of
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mental healthcare. Oliver was hired as a “Mental Health Professional,”
implying that she was evaluated on the basis of her performance in providing
mental healthcare. Her primary job purpose is described as “provid[ing]
clinical services . . . to inmates [and] mental health consultation and training
to facility staff.”
More to the point, the district court opinion appears to misapprehend
the nature of this aspect of the qualified immunity test. As the Eleventh
Circuit noted, the issue is not so much whether Oliver’s pay actually was
higher than a comparable government employee’s pay would have been, but,
rather, that tools are available to a private company to recruit talented
candidates. See Hinson, 192 F.3d at 1347 (“Employee indemnification,
increased benefits and higher pay are all tools at the disposal of a private
company like Wexford; and they can be used to attract suitable employees.”).
CHC had substantial latitude to ensure that Oliver (and other
employees like her) were adequately motivated. Her hiring letter indicates
that Oliver was strictly an “at will” employee, meaning that she could be
discharged without cause. Her wages, conditions of employment, and
availability of benefits were determined by CHC, and the record provides no
indication that CHC couldn’t increase her compensation or other incentives,
such as by offering to upgrade Oliver from part-time to full-time employment
with benefits. To the contrary, the record reveals Oliver enjoyed precisely
such a part-time to full-time upgrade.
As noted above, CHC was contractually required to procure
insurance, and was free to offer insurance and/or indemnity to employees.
This “increases the likelihood of employee indemnification and to that extent
reduces the employment-discouraging fear of unwarranted liability.”
Richardson, 521 U.S. at 411.
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Finally, the record directly contradicts the notion that subjecting
CHC to liability would impede its capacity to attract qualified talent. As of its
December 2013 proposal to Bell County, CHC was a massive organization
that “serve[d] more than 240 correctional facilities throughout the United
States” and “support[ed] the provision of medical services to more than
70,000 inmates daily.” Its successor, Wellpath, boasts of serving 394
facilities and 130,000 inmates and juveniles. To support this enormous
undertaking, CHC “employ[s] more than 2,750 employees and
contractors.” In other words, CHC specifically markets its ability to attract
qualified people to public service as an aspect of its sales pitch to government
clients. Further, CHC and its employees have known for some time now that
they could be subject to liability without the benefit of qualified immunity.
Five circuit courts have said as much, see, e.g., McCullum, 693 F.3d at 704
(6th Cir.); Jensen, 222 F.3d at 578–79 (9th Cir.); Hinson, 192 F.3d at 1347
(11th Cir.). In fact, two of these courts specified CHC itself. See Tanner, 989
F.3d at 874 (10th Cir.) 2; Estate of Clark v. Walker, 865 F.3d at 550–51 (7th
Cir.). Yet CHC still attracts qualified employees. Denying Oliver recourse to
qualified immunity will not deter qualified individuals from public service.
(iii)
The final purpose of qualified immunity is to “protect[ ] public
employees from frequent lawsuits that might distract them from their official
duties.” Perniciaro, 901 F.3d at 254. This is likely the least weighty purpose
of qualified immunity; the Supreme Court has noted that “the risk of
2
Given its recency, one might consider that possible effects for CHC in the Tenth
Circuit following Tanner may not yet have fully materialized, but over five years ago a
district court within that Circuit also specifically found that CHC employees were
categorically ineligible for qualified immunity. See Atchison v. Corr. Healthcare Cos., Inc.,
No. CV 15-00039 WJ/SCY, 2016 WL 10587985, at *6 (D.N.M. Mar. 8, 2016). CHC and
its employees have been on notice that qualified immunity may not be available.
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‘distraction’ alone cannot be sufficient grounds for an immunity.”
Richardson, 521 U.S. at 411. In Perniciaro, this court recognized that “the
distraction of a lawsuit against a private individual will ‘often also affect
public employees with whom they work by embroiling those employees in
litigation.’” 901 F.3d at 254 (quoting Filarsky, 566 U.S. at 391). Here, Oliver
testified that she had close relationships with jail employees, at least some of
whom will likely be required to testify or otherwise become involved in this
litigation.
However, as noted above, CHC maintains full-time risk management
and legal teams to mitigate the impact of litigation. Its contract with the
County also provides for CHC to supply personnel on a man-hour (rather
than individual employee) basis. This permits flexibility for CHC to replace
employees distracted by litigation with comparable professionals during
those hours when the sued employees are distracted. In other words, CHC
employees are only distracted by litigation in their private capacity; the
contract with Bell County permits CHC to ensure that public needs are met
(even if it requires CHC to provide a substitute employee).
As in Richardson, it appears Bell County contemplated at least some
level of distraction by litigation when it contracted with CHC. See 521 U.S.
at 411–12. The contract provides that CHC will indemnify the County for
liability caused by CHC or “its agents, employees or independent
contractors.” In return, the County promised to notify CHC of lawsuits and
to “fully cooperate in the defense of such claim[s].”
Thus, although permitting lawsuits against CHC personnel is likely to
have the secondary effect of distracting public employees with whom they
work, the harmful impact is mitigated by CHC’s legal team, the structure of
its contract with the County, and the fact that the County “can be understood
to have anticipated a certain amount of distraction.” Id. at 412. This purpose
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favors Oliver’s eligibility for qualified immunity, but only mildly. It is also the
least important of the three purposes and is not “enough virtually by itself to
justify providing an immunity.” Id.
Because we can find no tradition of immunity at common law to
support Oliver’s claim to qualified immunity, and the purposes of qualified
immunity, on balance, weigh against extending immunity, we hold that
Oliver, as an employee of a large firm “systematically organized to perform a
major administrative task for profit,” is categorically ineligible to assert the
defense of qualified immunity. Id. at 409.
B.
This court “may affirm the district court’s judgment on any grounds
supported by the record.” Stewart v. Capital Safety USA, 867 F.3d 517, 520
(5th Cir. 2017) (cleaned up). So, we find it prudent to consider the district
court’s finding that Oliver was not deliberately indifferent and, therefore, not
liable under § 1983 for violating Gauna’s Fourteenth Amendment rights,
since that finding could independently dispose of Sanchez’s Fourteenth
Amendment claims. We hold that the district court erred.
There is a confusing relationship between the “objective
reasonableness” standard applicable to qualified immunity and the
“subjective deliberate indifference” standard applicable to a Fourteenth
Amendment claim. See Converse, 961 F.3d at 775. Sanchez asserted a § 1983
claim, and “a state jail official’s constitutional liability to pretrial detainees
for episodic acts or omissions should be measured by a standard of subjective
deliberate indifference . . . .” Hare II, 74 F.3d at 643. “[T]o satisfy this high
standard, a prison official ‘must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.’” Converse, 961 F.3d at 775 (quoting Farmer,
511 U.S. at 837). What a prison official subjectively knew “is a question of
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fact subject to demonstration in the usual ways.” Farmer, 511 U.S. at 842. On
the other hand, “[w]hether an official’s conduct was objectively reasonable
is a question of law for the court, not a matter of fact for the jury,” Brown v.
Bolin, 500 F. App’x 309, 312 (5th Cir. 2012) (unpublished).
“Deliberate indifference is an extremely high standard to meet.”
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quoting Domino v. Tex.
Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001)). “Unsuccessful
medical treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference. . . .” Id. However, if an official has
subjective knowledge that a pretrial detainee is a substantial suicide risk, the
“official shows a deliberate indifference to that risk ‘by failing to take
reasonable measures to abate it.’” Converse, 961 F.3d at 776 (quoting Hare II,
74 F.3d at 648).
Here, the key factual dispute is whether Oliver subjectively knew that
Gauna was at a substantial risk of attempting suicide. We have held in the
past that giving obvious ligatures to a detainee who is known to be at risk of
suicide constitutes deliberate indifference. See, e.g., Converse, 961 F.3d at
778–79 (finding deliberate indifference where some steps were taken to
prevent suicide, including removing the detainee’s shoelaces and placing him
in a cell with video monitoring, but the detainee was nonetheless given a
blanket and left in a cell with obvious tie-off points).
On the other hand, we do not demand perfection. For example, in
Hyatt, the defendant officer removed the blanket (the most obvious potential
ligature) from the detainee’s cell and “placed him under continuous, if
ultimately imperfect, video surveillance.” 843 F.3d at 179. The officer’s
failure to thoroughly inspect the decedent’s cell for “any other potential
ligatures,” including the plastic garbage bag he eventually used to hang
himself, “was perhaps negligent,” but not deliberate indifference. Id.
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Here, however, Gauna was placed in general population, with ready
access to blankets, other potential ligatures, and tie-off points, along with
whatever other means of self-harm might be present in what appears to be
the complete absence of suicide watch or other meaningful suicide
precautions. If Oliver knew that Gauna was a suicide risk, then the evidence
Sanchez has presented supports the inference that Oliver’s decision to take
Gauna off suicide watch and place him in general population was, if anything,
even more reckless than the officers’ conduct in Converse. Thus, the question
is whether Sanchez has presented evidence from which a reasonable jury
could infer that Oliver knew Gauna was at risk of suicide and ignored the risk.
The district court, in finding that Oliver had merely misdiagnosed
Gauna, indulged numerous inferences in Oliver’s favor, concluding that her
ultimate diagnosis—that Gauna was not a substantial suicide risk because he
professed to have no suicidal intent “at the moment”—reliably indicates a
genuine failure to perceive the obvious risk that Gauna was suicidal. To the
contrary, Sanchez presented extensive evidence from which one could
reasonably infer that Oliver was aware of the risk and chose to ignore it.
Oliver was aware that at least one other Bell County staff member had
determined that Gauna was a serious suicide risk, as her evaluation was to
determine whether to keep Gauna on suicide watch. Gauna filled out a
screening form that asked whether he was “thinking of killing or injuring
[him]self today;” he responded, “Yes Maybe not sure.” He indicated that
he felt depressed “all the time” and had attempted suicide by hanging “a
couple months ago.” Oliver’s evaluation notes indicate that Gauna shared
with her his history of seven prior suicide attempts. He told her he had active
suicidal ideation “all the time,” that it “always crosses [his] mind,” and
“there is always a plan” to carry it out. Oliver acknowledged later that she
had discussed Gauna’s history of auditory hallucinations, including an
incident five days prior to their interview (Christmas Day) when Gauna had
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suffered auditory hallucinations so severe that he had physically harmed
himself.
The district court credited Oliver with having performed a reliable
diagnostic test, the Columbia-Suicide Severity Rating Scale (“C-SSRS”), to
reach the diagnosis that he was not a suicide risk, even though she allegedly
did so orally rather than in writing. 3 However, during her deposition, Oliver
was asked to describe the C-SSRS test that she had administered. She was
unable to properly recite a single question, nor could she even remember that
there were six questions, testifying, when asked how many questions there
were (whether there were four), that there “might be five.” The district
court did not see this as evidence that Oliver did not have the C-SSRS
questions competently memorized two years prior to her deposition, but—
indulging inferences in favor of the nonmovant—this is at least evidence that
Oliver was not able to administer the C-SSRS from memory.
Sanchez’s expert also produced a publicly available copy of the C-
SSRS developed specifically for the correctional setting. It clearly states that
any report of prior suicide attempts within the prior three months should lead
to officials taking “immediate suicide precautions.” Every copy of the test
produced by either party similarly indicates that the information Gauna is
known to have provided Oliver should have raised red flags.
Gauna was already on suicide watch, Oliver had sole authority to take
him off, and he was asking to be placed in the infirmary for further
observation. Given that, had Oliver simply declined to perform the test in any
meaningful way, then she likely deliberately ignored Gauna’s obvious needs.
3
Sanchez’s expert witness, Dr. Arthur Joyce, indicated that use of a standard C-
SSRS form, rather than recitation of questions from memory, is necessary to accurately
conduct the evaluation and that Oliver therefore could not be considered to have done so.
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If, on the other hand, she administered the test and the results told her that
Gauna needed to remain on suicide watch, and she put him in general
population anyway, that also likely constitutes deliberate indifference.
Whether Oliver’s inability to remember the C-SSRS and failure to complete
a written version indicates that she effectively failed to administer a test, or
whether the extensive evidence that a proper administration should have
provided obvious indications that Gauna was suicidal, there is adequate
evidence of deliberate indifference to submit the question to a jury. See
Farmer, 511 U.S. at 842 (“[A] factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”).
This case is readily distinguished from this court’s Domino opinion.
239 F.3d 752. In Domino, the allegation was that the risk of suicide was
sufficiently obvious that the doctor should have perceived it, not that he
actually had perceived it. Id. at 754 (“Ms. Domino claims Reddy should have
recognized that Domino was suicidal . . . .” (emphasis added)); see also Brief
of Plaintiff-Appellee at 22–25, Domino v. Tex. Dep’t of Crim. Just., 239 F.3d
752 (5th Cir. 2001) (No. 99-41486), 2000 WL 33992278 (arguing that the
defendant’s poor diagnostic procedure “rose to deliberate indifference”
without arguing that defendant actually knew Domino was suicidal).
More importantly, in Domino, there was a long-standing doctor–
patient relationship lasting for over a year. 239 F.3d at 753–54. The doctor
had a clear reason for not believing that Domino was suicidal: Domino had
asked for sleeping pills and, when denied them, told the doctor “I can be
suicidal.” Id. at 753. The doctor concluded that “Domino’s statement was
an attempt to achieve ‘secondary gain,’ such as sedatives or a single cell,”
and that he was not actually a suicide risk. Id. The doctor “presented
evidence that Domino had been a difficult, often uncooperative patient.” Id.
at 756. The Domino court concluded that the doctor “did not believe the
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threat was genuine. [His] diagnosis was wrong. But . . . an incorrect diagnosis
does not amount to deliberate indifference.” Id.
Here, plaintiffs have alleged that Oliver actually knew Gauna was
suicidal, but declined to keep him on suicidal watch regardless. There was no
pre-existing provider–patient relationship. Oliver had no reason to believe
that Gauna’s expressed desire for protection in the infirmary from his own
suicidal tendencies was for secondary gain or in any other way insincere. To
the contrary, her notes described Gauna as “cooperative,” albeit “very, very
depressed.” Gauna told Oliver that he had active suicidal ideation, and
experienced it “all the time,” that “it always crosses my mind,” and that
“there is always a plan” for how he would commit suicide. Oliver had access
to ample evidence that Gauna was genuinely suicidal, and has offered no
evidence other than a five-word diagnostic note (“no intent ‘at the
moment’”) to indicate that she did not actually perceive this risk.
Nonetheless, she made the decision—that was solely within her purview to
make—that Gauna be taken off suicide watch and placed into the general
population, where he would have access to tie-off points and ligatures,
including the bedsheets with which he eventually hanged himself. Sanchez
has presented enough evidence from which a reasonable jury could conclude
that Oliver was aware of facts from which she could draw the inference that
Gauna was suicidal, and that she actually did draw that inference but
responded with deliberate indifference, to avoid summary judgment on her §
1983 claim under the Fourteenth Amendment.
IV. Conclusion
As an employee of a private firm systematically organized to perform
the major administrative task of delivering healthcare services to inmates,
detainees, and juveniles, Oliver is categorically ineligible to claim qualified
immunity. Further, Sanchez has put forth enough evidence for a reasonable
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trier of fact to infer that Oliver knew Gauna was at serious risk of suicide, and
chose to ignore the risk. We REVERSE and REMAND.
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