McCullum v. Tepe

• Decision Date: 28 August 2012
• Docket Number: No. 11–3424.,11–3424.
• Citation: 693 F.3d 696
• Parties: Sheila McCULLUM, Individually and as Administratrix of the Estate of Timothy Hughes, Plaintiff–Appellee, v. Kenneth TEPE, Defendant–Appellant, Butler County, Ohio; Butler County Board of Commissioners; Richard K. Jones; Leah Johnson; Theresa Dietz, Sergeant; Jane or John Doe # 1; William Rogers; Resolutions Community Solutions, Inc.; Community Behavioral Health, Inc., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

693 F.3d 696

Sheila McCULLUM, Individually and as Administratrix of the Estate of Timothy Hughes, Plaintiff–Appellee,

v. Kenneth TEPE, Defendant–Appellant,Butler County, Ohio; Butler County Board of Commissioners; Richard K. Jones; Leah Johnson; Theresa Dietz, Sergeant; Jane or John Doe # 1; William Rogers; Resolutions Community Solutions, Inc.; Community Behavioral Health, Inc., Defendants.

No. 11–3424.

United States Court of Appeals, Sixth Circuit.

Argued: July 24, 2012.

Decided and Filed: Aug. 28, 2012.

ARGUED:David C. Calderhead, Calderhead, Lockemeyer & Peschke Law Office, Milford, Ohio, for Appellant. Jennifer L. Branch, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, for Appellee. ON BRIEF:David C. Calderhead, Joshua F. DeBra, Joel L. Peschke, Calderhead, Lockemeyer & Peschke Law Office, Milford, Ohio, for Appellant. Jennifer L. Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, for Appellee.

Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Timothy Hughes died after hanging himself from his bed in the Butler County Prison. Hughes showed no outward signs that he was suicidal, but he did have a history of depression and asked to see Dr. Kenneth Tepe, the prison psychiatrist, about anti-depression medication. Hughes and Dr. Tepe never met. Hughes's mother filed this § 1983 suit, alleging that Tepe was deliberately indifferent to her son's serious medical need. Tepe sought summary judgment, arguing that he was entitled to qualified immunity. The district court held that Tepe could not assert a qualified-immunity defense. We agree. There does not seem to be a history of immunity from suit at common law for a privately paid physician working for the public, and the policy rationales that support qualified immunity are not so strong as to justify our ignoring this history, or lack of history. We therefore affirm the district court's decision denying Tepe's request for qualified immunity.

I

Hughes, incarcerated in the Butler County Prison on charges of robbery, contributing to the delinquency of a minor, and abuse of the drugs cocaine and Concerta (a drug similar to Ritalin), hanged himself with a bed sheet. He died the next day from his injuries. Sheila McCullum, Hughes's mother, sued, seeking damages against Tepe, inter alia.¹

Tepe had provided psychiatric services to inmates of the Butler County Prison for approximately ten years. Until 2005, the County paid Tepe directly. At the time of Hughes's suicide, however, Tepe worked for Community Behavioral Health, a non-profit entity that provides crisis counseling, mental-health screening and mental-health assessments for Butler County Prison inmates. The Prison's psychiatric-services program, which Tepe designed, had two steps. First, a social worker would conduct “triage,” deciding which inmates Tepe should see. Then, if the social worker so recommended, the inmate would meet with Tepe in person. Tepe spent approximately two hours each Tuesday morning at the Prison, and was on call twenty-four hours a day.

Hughes arrived at the Prison on March 14, 2007. He told the officer booking him that he had attempted suicide within the last year and that, in the past, he had been hospitalized for suicidal ideation. Hughes, however, also told the officer that he was not currently contemplating suicide. In response, a prison social worker put a suicide alert for Hughes in the Prison's computer system. Ten days later, on March 24, a paramedic conducting a routine medical screening noted that Hughes had a history of depression and that he had not taken Seroquel, his prescribed medication, in over a year. She therefore declined to approve Hughes for a food-service job. Nevertheless, the paramedic wrote that Hughes had “no medical complaints at this time” and decided not to refer him to a doctor.

On the same day, Hughes filled out an “inmate service request,” asking to “talk to Dr. Tepe about geting [sic] back on my Depression and bipolar meds.” Hughes elaborated: “I didn't relize [sic] that when I took my selfe [sic] of [sic] I didn't need them. But now I know I think I need them again.” Social worker Leah Johnson ² reviewed Hughes's request on March 27 and spoke to Hughes in person. During their conversation, Hughes was “comfortable [and] jovial” and “joked with [Johnson].” According to Johnson's contemporaneous report,³ Hughes explained that he had not taken his medication for more than a year, opting instead to medicate himself with marijuana, alcohol, and cocaine.⁴ Johnson's report also noted that Hughes did not display any psychosis and denied having any suicidal ideation. Johnson declined Hughes's request to see Tepe.

A number of family members visited Hughes in the days that followed. None believed that he was suicidal. On April 6, Hughes had an altercation with his cell-mate. He filed charges against the cell-mate, and charges were filed against him. In the aftermath of this incident, Hughes met with a sergeant. During that meeting, Hughes denied that he was thinking about committing, or planning to commit, suicide.

The sergeant put Hughes in an isolation cell where, late in the evening, he wrote letters to family members. Hughes's first letter, addressed to his father, expressed anger at being “put in the hole” because his cell-mate hit him. “Wats [sic] fucked up the most,” Hughes wrote, “is I dident [sic] even set to hit [him] back and they still put me in the hole this is bull shit.” Hughes concluded by writing: “I love and miss you so much ... P.S. write back and send pictures please.” The second letter that Hughes wrote was to his mother. He asked that she “get that lawyer now” because of the fight, and again expressed anger that his cell-mate “hit me and I go to the hole.” In a third letter, also to his mother, Hughes wrote: “Thank you and grandma for every thang [sic] you all have done and will do for me when I get out. I will need everyones [sic] help to stay off the drugs. And stay away from all my old friends that I got them from ... I cant [sic] wait to come home.” Hughes's last letter was to his grandmother. He apologized for making her worry and “promis[ed] to stairtin [sic] my life up when I get out and get a good job. And quit doing drugs and stealing.” He concluded: “I love you so much and I wish I would have listened to you along [sic] time ago but I could'ent [sic] cause of the drugs. And I'm sorry for that ... P.S. Please write me back. I Love You So much and miss you.”

The next day, Hughes hanged himself from the side of his bunk with a bedsheet. He died the following day, April 8, in the hospital. Hughes did not leave a suicide note. Nor did he ever see Tepe.

McCullum, Hughes's mother, filed this § 1983 suit against Community Behavioral Health, an organization related to Community Behavioral Health called Resolutions, and Tepe just under two years later on March 27, 2009. ⁵ She alleged that the defendants were liable under § 1983 for deliberate indifference to Hughes's serious medical need, to wit: a suicidal tendency. McCullum also made a wrongful-death claim under Ohio law. On December 1, 2010, Tepe moved for summary judgment on qualified-immunity grounds and other grounds not relevant here. The district court held that Tepe was not entitled to qualified immunity. It first noted that Tepe was not a government official automatically entitled to invoke the doctrine. The district court then found that Tepe could not claim qualified immunity as a private actor performing a government function because he could show neither: (1) a firmly rooted tradition of immunity applicable to private defendants like him at common law; nor (2) that the purposes underlying the doctrine of qualified immunity supported immunity in his case. Tepe appeals.

II

Title 42 U.S.C. § 1983 creates a private right of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Liability, though, is not automatic, even when an official act violates the Constitution. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). When a district court denies qualified immunity, we review its legal conclusions de novo. Grawey v. Drury, 567 F.3d 302, 310 (6th Cir.2009).⁶

The issue in this appeal is whether Tepe, a physician employed by an independent non-profit organization, but workingpart-time for the County as a prison psychiatrist, can invoke qualified immunity in a lawsuit arising out of his activities at the prison. A physician who contracts to provide medical services to prison inmates, the Supreme Court has held, acts under color of state law for purposes of § 1983. West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). But a party is not entitled to assert qualified immunity simply because he is amenable to suit under § 1983. Harrison v. Ash, 539 F.3d 510, 521 (6th Cir.2008).

Section 1983 “creates a species of tort liability that on its face admits on no immunities.” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The Supreme Court, however, has “accorded certain government officials either absolute or qualified immunity from suit if the tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine.” Wyatt v. Cole, 504 U.S. 158, 163–64, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (internal...