No Qualified Immunity for Private Doctor Working in Prison

On August 12, 2012, the United States Court of Appeals for the Sixth Circuit held that a private doctor under contract at a prison is not entitled to assert a defense of qualified immunity when sued for deliberate indifference to the serious medical needs of a prisoner.

Timothy Hughes was incarcerated at the Butler County Prison in Southern Ohio, arriving there in March of 2007.

During his intake interview, Hughes answered "no" when asked if he was suicidal, but also told the officer that he had attempted suicide in the past year. As a result, a suicide alert was noted in Hughes' electronic file.

Ten days later it was discovered that Hughes had not been taking his prescribed medication, Seroquel, but was not referred to a doctor. Hughes, however, then sent written requests to the prison psychiatrist, Dr. Kenneth Tepe, to get back on his medication. His request was screened by a social worker that worked with Tepe, and she denied Hughes' request to see the doctor.

Days later, Hughes was taken to segregation after getting into an altercation with his cellmate. While there, Hughes told a sergeant he was thinking about killing himself, and was moved to an isolation cell for observation.

Hughes was never allowed to see Dr. Tepe. The next day Hughes was found dead in his cell; he had hung himself.

Hughes' mother, Sheila McCullum, then filed suit against Tepe, as well as Community Behavioral Health (CBH), the employer of Tepe and the social worker. As part of his employment with CBH, Tepe worked two hours per week at the prison and was on call 24-hours-aday.

In her suit, McCullum alleged that CBH and Tepe were "deliberately indifferent to the serious medical needs” of Hughes by denying his requests to see the doctor, even though they knew Hughes was suicidal. Tepe moved for summary judgment arguing he was entitled to qualified immunity because he was employed by the prison and thus "acting under color of state law." The district court held that Tepe was not entitled to qualified immunity and he appealed.

Upholding the district court's ruling, the Sixth Circuit Court of Appeals examined the history of qualified immunity and determined that extending that defense to private actors would be inconsistent with the purpose of the defense.

"There was no common-law tradition of immunity for a private doctor working for a public institution at the time Congress passed" 42 U.S.C. § 1983, the court wrote. "This suggests that we should not allow Tepe to assert qualified immunity.”

The case was returned to the District Court for the Southern District of Ohio and remains pending. See: McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012).

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