Howell v. Evans

• Decision Date: 28 January 1991
• Docket Number: No. 89-8455,89-8455
• Citation: 922 F.2d 712
• Parties: Willa Dean HOWELL, Individually and as Administratrix of the estate of Van Howell; Lisa Howell, through her natural guardian and next friend Willa Dean Howell and Lori Miller, Plaintiffs-Appellees, v. David C. EVANS, Commissioner, Department of Corrections, et al., Defendants, Edward M. Mendoza, M.D., Correctional Medical Systems, Inc., Charles Burden, individually and as Superintendent of Augusta Correctional and Medical Institution, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 712

922 F.2d 712

Willa Dean HOWELL, Individually and as Administratrix of the estate of Van Howell; Lisa Howell, through her natural guardian and next friend Willa Dean Howell and Lori Miller Plaintiffs-Appellees, v. David C. EVANS, Commissioner, Department of Corrections, et al., Defendants Edward M. Mendoza, M.D., Correctional Medical Systems, Inc. Charles Burden, individually and as Superintendent of Augusta Correctional and Medical Institution, Defendants-Appellants.

No. 89-8455.

United States Court of Appeals Eleventh Circuit.

Jan. 28, 1991.

William P. Tinkler, Jr., Decatur, Ga., for Mendoza.

Cathy A. Cox, John C. Jones, Sr. Asst. Atty. Gen., Atlanta, Ga., for Burden.

J. Vincent Cook, Cook, Noell, Tolley & Aldridge, Athens, Ga., Patrick T. Beall, Watkinsville, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and ANDERSON, Circuit Judges, and GODBOLD, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

In this section 1983 action, Willa Dean Howell seeks damages against various medical and prison officials for the death of her husband, a prison inmate, on the ground that the defendants were deliberately indifferent to her husband's health in violation of the eighth amendment. The defendants appeal the district court's denial of their summary judgment motions, asserting qualified immunity from the actions. This appeal raises issues concerning appellate jurisdiction over a denial of qualified immunity, the availability of immunity for the defendants, and the general liability of the provider of medical services under section 1983.

I. BACKGROUND

A. Facts

Correctional Medical Services, Inc. ("CMS") provides medical and administrative services, including physicians and other health-care professionals, at the Augusta Correctional and Medical Institution ("ACMI") under a contract with the Georgia Department of Corrections. The obligations under this contract are not assignable. CMS, however, did contract with several doctors for their services at ACMI, including Dr. Youmans and Dr. Mendoza, who had immediate treating responsibility for inmate Van Howell, and Dr. Robinson, who supervised the physicians. ¹ Charles Burden was the superintendent of ACMI.

Van Howell died on January 14, 1985 while an inmate at ACMI. He had suffered severe asthma prior to entering prison, and died as a result of status asthmaticus, a serious asthma attack. There is conflicting evidence about whether Mr. Howell's condition was recognized by prison officials as terminal at the time of admission to ACMI or at any time thereafter. His condition was recognized as serious, however, because in June of 1984 Dr. Youmans, Dr. Robinson, and Burden supported Mr. Howell's application to the parole board for a medical release. Apparently this application asserted that ACMI was unable to care for Howell properly but did not assert that he was terminally ill, which also would have been a legitimate basis for release.

At the time of the release application, Dr. Youmans pointed out in a memorandum that ACMI did not have the capacity to handle many of Howell's medical needs. The facility could not provide a special diet, respiratory therapy, immunotherapy, or blood-gas testing. Over six months elapsed from the time Dr. Youmans first filed a written report of the ACMI's deficiencies regarding Howell to the date of Howell's death. In that time apparently little was done to remedy these problems, because Dr. Youmans restated the fact of the deficiencies at the time of Howell's death.

On the day of Howell's death, Dr. Mendoza was Howell's attending physician as Dr. Youmans was temporarily absent. Mendoza, however, was aware of Howell's serious condition. According to the medical records, at 9:15 a.m. Howell complained of breathing difficulty, and Dr. Mendoza ordered the administration of oxygen. It is disputed whether Mendoza saw the patient at this time. Mendoza apparently did not see the patient between that time and 12:55 p.m., although he contacted the nurses by telephone and ordered the continuation of the oxygen. Upon learning that Howell's condition persisted, Mendoza attempted to reach a doctor at the Medical College of Georgia, but was unable to do so. At 3:00 p.m. Mendoza ordered the administration of Solu-Medrol to counter the acute episode of asthma. Howell died at approximately 5:00 p.m. as a result of cardiopulmonary arrest. The record on these facts is clouded by the fact that Dr. Mendoza made several late entries onto the medical log, making it unclear precisely when he saw Howell and what he actually did.

B. Procedural History

Howell's surviving spouse, Willa, filed an action under 42 U.S.C. Sec. 1983 alleging, inter alia, that the defendants acted with deliberate indifference toward her husband's medical needs. The defendants moved for summary judgment on the ground of qualified immunity. In support of this motion the defendants presented the affidavits of Drs. Hopkins and Mendoza. Mrs. Howell presented a response affidavit of Dr. Phillips.

The district court denied the motions for summary judgment. It held that a jury could conclude that Mendoza and Burden acted with deliberate indifference. It also concluded that the actions of Mendoza were imputed to CMS because CMS had a non-delegable contract with the prison and employed Mendoza, and therefore CMS also acted with deliberate indifference. The court, however, discussed only the standards for summary judgment as applied to the case; it did not address the issues of qualified immunity. Absent from the order was any discussion of what the clearly established law was at the time of Howell's death, an inquiry essential to a determination of immunity. Nevertheless, because the application of qualified immunity is a matter of law which we review de novo, once we determine that we have jurisdiction ² we need not remand to obtain the district court's decision on qualified immunity.

II. JURISDICTION

Decisions of this circuit on the issue of jurisdiction to review a denial of summary judgment based on qualified immunity are confusing. The general law, however, is well established. A court of appeals usually does not have jurisdiction over interlocutory appeals that have not been certified by the district court. See 28 U.S.C. Secs. 1291, 1292; see also Flinn v. Gordon, 775 F.2d 1551, 1552 (11th Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct.1972, 90 L.Ed.2d 656 (1986). The Supreme Court has provided an exception to this rule for decisions that, although not terminating the action, do "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

The Supreme Court has held that a defense of qualified immunity constitutes such a "collateral order." It reasoned that because qualified immunity embodies an entitlement to "immunity from suit rather than a mere defense to liability; and ... is effectively lost if a case is erroneously permitted to go to trial," a denial of immunity is necessarily final in effect and is an appealable collateral order. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis original). In this way Mitchell facilitated the goal of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), which established the current standards for qualified immunity, and sought to resolve "many insubstantial claims on summary judgment" and avoid burdening government officials with unnecessary trials or discovery motions in cases where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 817-18, 102 S.Ct. at 2737-38.

Despite the Supreme Court's holding in Mitchell that a denial of qualified immunity is appealable, the language it employed created a potential limitation on appealability. The Court stated that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291...." 105 S.Ct. at 2817 (emphasis added). This left open the question of appealability when an immunity claim depends not solely on legal issues but also on factual matters.

This circuit's attempts to apply Mitchell's pregnant statement have bred some confusion. Initially, in Riley v. Wainwright, 810 F.2d 1006 (11th Cir.1986), the court held that when the district court has denied summary judgment because there was insufficient "factual development" to decide whether there was a basis for immunity, the denial was not appealable. Id. at 1007. The court concluded that the denial did not turn on an issue of law, and therefore did not fit into the Mitchell analysis. Some subsequent panels have relied on Riley and Mitchell to deny jurisdiction when there exists a genuine factual dispute regarding the conduct underlying the immunity defense. See Peppers v. Coates, 887 F.2d 1493, 1496-97 & n. 7 (11th Cir.1989); Goddard v. Urrea, 847 F.2d 765, 769 (11th Cir.1988). These panels reasoned that a genuine factual dispute, like an insufficiently developed factual record, makes it impossible to determine what actions actually took place, and therefore precludes any legal conclusion on whether certain actions constituted violations of clearly established law. See Goddard at 769.

Other panels have reached the opposite conclusions regarding appealability and factual disputes. ³ In McDaniel v. Woodard, 886 F.2d 311 (11th Cir.1989), the court held that a denial of summary judgment based on a factual dispute did not preclude appellate review, because "in reviewing a qualified...