Pueblo Neighborhood Health Centers, Inc. v. Losavio

• Decision Date: 24 May 1988
• Docket Number: Nos. 86-1171,86-1172,s. 86-1171
• Citation: 847 F.2d 642
• Parties: Medicare&Medicaid Gu 37,414 PUEBLO NEIGHBORHOOD HEALTH CENTERS, INC., et al., and Oliver P. Pacheco, et al., Plaintiffs-Appellees, v. Joseph E. LOSAVIO, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 642

847 F.2d 642

Medicare&Medicaid Gu 37,414

PUEBLO NEIGHBORHOOD HEALTH CENTERS, INC., et al., and Oliver

P. Pacheco, et al., Plaintiffs-Appellees, v. Joseph E. LOSAVIO, Jr., et al., Defendants-Appellants.

Nos. 86-1171, 86-1172.

United States Court of Appeals, Tenth Circuit.

May 24, 1988.

Nancy E. Rice (Robert N. Miller, U.S. Atty., with her on the briefs), Asst. U.S. Atty., for defendants-appellants.

Russell Olin (Montie L. Barringer, Pueblo, Colo., and Judith Firestone, of Pueblo County Legal Services, Inc., Pueblo, Colo., with him on the briefs), Beulah, Colo., for plaintiff-appellee, Oliver P. Pacheco.

Kenneth A. Padilla, Denver, Colo., for plaintiff-appellee, Pueblo Neighborhood Health Centers, Inc.

Before MOORE, BARRETT and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This is an appeal from the district court's denial of the defendants' motions for summary judgment. The defendants sought summary judgment on qualified immunity grounds. Because the district court improperly applied the standards for determining the availability of qualified immunity, we reverse.

I.

The two lawsuits before the court arise from the seizure, inspection, copying, and retention of medical records from two facilities operated by Pueblo Neighborhood Health Centers, Inc. (PNHC) in Pueblo, Colorado. The plaintiffs in the first of these cases, Pueblo Neighborhood Health Centers v. Losavio, No. 86-1171 (Pueblo ), are the PNHC, its executive director (Dr. Richard Rivera), and several patients whose medical records were kept at the PNHC facilities. The plaintiffs in the second suit, Pacheco v. Losavio, No. 86-1172 (Pacheco ), are another group of such patients. ¹ Only the federal defendants--Steven Munsinger who was Assistant United States Attorney for the District of Colorado, and some employees of the Office of Program Integrity of the United States Department of Health and Human Services (HHS) (formerly the Department of Health, Education, and Welfare)--remain in the suit.

In April 1978, Joseph Losavio, then a state district attorney, contacted Robert Griffin, Director of Investigation in the HHS Office of the Inspector General, and requested technical assistance from some of Griffin's employees in the HHS's Program Integrity Section. Losavio indicated he had probable cause to believe that the PNHC was involved in Medicaid fraud and he would obtain a warrant to search the PNHC facilities. He said that he needed the HHS employees to supply and operate microfilm equipment during the search.

Griffin conveyed this request to Assistant United States Attorney Stephen Munsinger who advised him to deny Losavio's request because Munsinger believed the assistance Losavio needed was available from state sources. After Losavio subsequently informed Munsinger that no such assistance was available from the state and no search would be initiated without a warrant, Munsinger called Griffin and advised him that he should treat Losavio's request as he would any request for assistance from a state law enforcement agency.

On April 15 and 16, 1978, Losavio, other state officials, and the HHS employees named as defendants here, entered two PNHC facilities and conducted searches and seizures pursuant to warrants issued by a Pueblo County judge on affidavits Losavio obtained. Medical records concerning the patient-plaintiffs and others were inspected and microfilmed. The HHS employees, who according to the district court provided only technical assistance in the search, took the microfilm to Denver and had it developed pursuant to a contract between HHS and a private film processing company. The HHS employees later delivered the processed film to Losavio. At the time of the PNHC search, Losavio was the subject of a well-publicized recall campaign; one of his most vocal critics was Dr. Rivera.

In Pacheco, the plaintiffs seek relief under the Bivens ² doctrine and 42 U.S.C. Sec. 1983, alleging that the defendants violated their constitutionally guaranteed right to privacy. In Pueblo, plaintiffs allege that the defendants acted under color of state law to abridge their first, fourth, fifth, and fourteenth amendment rights in violation of 42 U.S.C. Sec. 1983. They also allege violations of 42 U.S.C. Secs. 1981, 1985(3), and 1986, and they seek relief for the alleged constitutional violations under the Bivens doctrine. The defendants sought summary judgment in each case on qualified immunity grounds. The trial court denied the motions and defendants appeal.

II.

We first address whether the district court's denial of the defendants' motions for summary judgment on qualified immunity grounds constitutes an appealable decision within the meaning of 28 U.S.C. Sec. 1291. We hold that it does. The entitlement to qualified immunity "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." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (emphasis original). Because they claim a right not to stand trial, the defendants may immediately appeal the failure of the district court to grant summary judgment or dismissal. Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.1987).

An assertion of qualified immunity is properly evaluated under the standard enunciated by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Before Harlow, qualified immunity contained both an objective and a subjective component. Id. at 815, 102 S.Ct. at 2736. Because of its subjective component, qualified immunity was often ineffective in resolving insubstantial suits against government officials before trial. Id. at 815-16, 102 S.Ct. at 2736-37. In an attempt to balance the need to preserve an avenue for vindication of constitutional rights with the desire to shield public officials from undue interference in the performance of their duties as a result of baseless claims, the Court adopted an objective test to determine whether the doctrine of qualified immunity applies. When government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738; accord Wolfenbarger v. Williams, 826 F.2d 930, 932 (10th Cir.1987). In deciding whether the law that the defendant allegedly violated was clearly established, the court will examine the law as it was at the time of the defendant's actions. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Wolfenbarger, 826 F.2d at 932-33.

The plaintiff carries the burden of convincing the court that the law was clearly established. Lutz v. Weld County School Dist., 784 F.2d 340, 342-43 (10th Cir.1986). In meeting its burden under Lutz, a plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it. See Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3039 n. 2, 97 L.Ed.2d 523 (1987). The "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. 107 S.Ct. at 3039; see also Garrett v. Rader, 831 F.2d 202, 204 (10th Cir.1987) (whether law is clearly established "should be determined in a particularized sense").

The question before this court, then, is whether reasonable HHS officials could have believed that the technical assistance they provided in the search of PNHC conducted pursuant to a warrant was lawful in light of clearly established law. If so, then the defendants are entitled to qualified immunity. See Anderson, 107 S.Ct. at 3040.

The district court recognized that it was to apply the Harlow standard and found that the plaintiffs in these cases "are unable to cite controlling precedent" demonstrating that a reasonable person in the position of these defendants would know that their participation in the Losavio search would violate the rights asserted here. The court went on to state, however, that "the defendants are, likewise, unable to show that such conduct is not a deprivation of the protections of the constitution and federal law." (Emphasis added.) The court concluded therefore that summary judgment was inappropriate. The district court applied the wrong standard in resolving the qualified immunity issue. Because the law in this area has evolved significantly in recent years, we find it useful to set out the proper approach.

While qualified immunity is an affirmative defense, Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), it cannot be analogized to other affirmative defenses because of the interests implicated in suits against governmental officials. Unlike other affirmative defenses, qualified immunity not only shields a defendant from liability, but is also intended to protect the defendant from the burdens associated with trial. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Furthermore, this court has recognized that qualified immunity is a defense of a different character by allowing appeals from interlocutory orders denying qualified immunity based summary judgment motions. See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714 (10th Cir.1988).

Because the defendant's status as a governmental official or "agent" is an essential element of a section 1983 or Bivens claim, the potential applicability of the qualified immunity defense will usually appear in the complaint. See Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987). The complaint should include "all of the factual allegations necessary to sustain a conclusion that defendant violated clearly established law." Id. at 676. Thus, a defendant could, prior to filing an affirmative defense, challenge the complaint under Fed.R.Civ.P. 12(b)(6) on the ground that he or she is entitled to qualified immunity...