Opinion
Case Nos. 99-3158-JWL, 00-3023-JWL
June 27, 2002
MEMORANDUM AND ORDER
Plaintiff Johnathan Bafford asserts that his constitutional rights were violated by his transfer from the Lansing Correctional Facility ("Lansing") to the Larned Correctional Mental Health Facility ("Larned") without a hearing and by the staff at Larned injecting him with Benadryl against his will. The court has granted defendants summary judgment with respect to (1) plaintiff's claims against state employees in their official capacity to the extent that plaintiff seeks money damages and (2) plaintiff's due process claim against state employees based on plaintiff's alleged forced medication. Bafford v. Simmons, 2001 WL 1677574 (D.Kan. November 7, 2001). The court has denied summary judgment to defendants with respect to plaintiff's due process claim based on his transfer to Larned. See March 28, 2002 Order (Doc. 52). The court must now decide whether private health care providers under contract with the State of Kansas to provide medical services at Larned are entitled to qualified immunity. The court holds that they are not and, thus, summary judgment on that basis is denied. Nonetheless, the court holds that the alleged forced medication of plaintiff under the circumstances established by the uncontroverted facts in the summary judgment record would not violate plaintiff's due process rights and grants summary judgment to defendants on this basis.
In its November 7, 2001, order, the court postponed ruling on whether qualified immunity protects defendants from plaintiff's claim for a violation of his equal protection rights and for cruel and unusual punishment based on plaintiff's transfer to Larned and his alleged forced medication. The court now holds that plaintiff's transfer to Larned and his alleged forced medication did not violate clearly established law relevant to equal protection or cruel and unusual punishment. Thus, defendants who are state employees are granted summary judgment. The court also grants summary judgment to private health care provider defendants because the court concludes that the allegations in the complaint do not state a claim for relief under section 1983 based on a violation of plaintiff's equal protection rights or cruel and unusual punishment.
In their papers, the parties raised the issue of whether plaintiff's request for injunctive relief is moot. The court holds that because there is no likelihood of a real or immediate threat that plaintiff will be transferred to Larned or medicated against his will in the future, plaintiff does not have an actual case or controversy and that the court, therefore, lacks jurisdiction over the claim. In sum, the plaintiff may proceed only on his claim that his due process rights were violated by his transfer to Larned because there was a substantial change in the conditions of his confinement as set out in Vitek v. Jones, 445 U.S. 480 (1980).
• Qualified immunity for private health care providers
Defendants Pamela Baird, Marlene Byers and B. Bruckner argue that, as private health care providers under a contract with the State of Kansas to provide health care services at Larned, they are entitled to qualified immunity. Because the court has held that injecting plaintiff with Benadryl is not a violation of clearly established law, these defendants argue that they are entitled to summary judgment.
In support of their argument, defendants point to the Tenth Circuit decision in Warner v. Grand County, 57 F.3d 962 (10th Cir. 1995). In Warner, a private citizen conducted a strip search of a female at the request of male police officers. The private citizen was sued and asserted qualified immunity. The Tenth Circuit held that "a private individual who performs a government function pursuant to a state order or request is entitled to qualified immunity if a state official would have been entitled to qualified immunity had he performed the function himself." Id. at 967. In support, the court pointed to a decision by the First Circuit granting qualified immunity to a physician who conducted a vaginal cavity search pursuant to a search warrant. Rodriques v. Furtad, 950 F.2d 805 (1st Cir. 1991). The Tenth Circuit pointed out that in both Rodriques and Warner, "the state `requested' that a private citizen serve as its agent to carry out a task it was underqualified to perform" and that failing to extend qualified immunity to the private citizen would discourage citizens from performing such tasks. Warner, 57 F.3d at 965-67.
Defendants also point to Sawyer v. County of Creek, 908 F.2d 663 (10th Cir. 1990), but plaintiff is correct that the physician defendant was a state employee and, thus, the case is not relevant to the question of whether a private physician working under a contract would also be entitled to qualified immunity.
Two years after the Tenth Circuit decided Warner, the Supreme Court issued its decision in Richardson v. McKnight, 521 U.S. 399 (1997). In Richardson, the Court held that private prison guards, under a contract with the government, were not entitled to qualified immunity. The Court explained that immunity from a section 1983 claim is accorded where a "`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.'" Id. at 403 (quoting Wyatt v. Cole, 504 U.S. 158 (1992)). The Court, thus, looked to "history and the purposes that underlie government employee immunity" to determine whether the guards were entitled to qualified immunity. Id. at 404. According to the Court, both the government and private contractors historically managed prisons and the Court "found no conclusive evidence of a historical tradition of immunity for private parties carrying out these functions." In addition, the Court concluded that the "immunity-producing concern — unwarranted timidity — is less likely present, or at least is not special, when a private company subject to private market pressures operates a prison." Id. at 409. According to the Court, the "market pressures" ensure that "a firm whose guards are too aggressive will face damages that raise costs" and "a firm whose guards are too timid will face threats of replacement by other firms with records that demonstrate their ability to do both a safer and more effective job." Id. Thus, the Court concluded that neither history nor policy reasons support granting private prison guards qualified immunity.
The facts of this case are remarkably similar to those in Richardson. The Richardson court limited its holding to the context in which "a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited supervision by the government, undertakes that task for profit and potentially in competition with other firms." In this case, Prison Health Services, Inc. ("PHS") contracted with the State of Kansas to provide health care services to inmates at Larned. PHS, like the company administering the prison in Richardson, assumed the administrative role of providing health care to inmates for profit and with limited government supervision. Hinson v. Edmond, 192 F.3d 1342, 1346 (11th Cir. 1999) ("Also, as was the case in Richardson, Wexford Health Sources was systematically organized to perform a major administrative task for profit. Wexford was contractually obligated to provide for the delivery of all inmate health care services . . . Wexford performed its task with limited direct supervision and control by the government. Wexford had sole responsibility in all matters of medical judgment."); Nelson v. Prison Health Services, Inc., 991 F. Supp. 1452, 1462 (M.D. Fl. 1997) ("The provision of medical treatment to an entire institution like the Pinellas County Jail, with little or no supervision by the Sheriff, is clearly the sort of `major lengthy administrative task' contemplated by the Court in Richardson."); Vista McDuffie v. Hopper, 982 F. Supp. 817, 824 (M.D. Al. 1997) ("CMS took on the management of the medical services for all of the prisoners in the Alabama system. . . . the Defendant have not shown that CMS was strictly supervised by the State, or that MS did not bid on this contract in order to achieve a profit. . . . CMS and its employees fall precisely within the parameters of Richardson.").
Defendants Pamela Baird, Marlene Byers and B. Bruckner are employees of PHS.
Also like Richardson, medical care to inmates has historically been provided by both private citizens and government and there is no firmly rooted tradition of providing immunity to private citizens performing such functions. Nelson, 991 F. Supp. at 1452 ("Like the private operation or management of the entire prison, private provision of medical care or treatment to inmates appears to have been historically commonplace and bare of the immunity traditionally afforded public functions.") (citing Samuel Jan Brakel, Considering Behavioral and Biomedical Research on Detainees in the Mental Health Unit of an Urban Mega-Jail, 22 New Eng. J. on Crim Civ. Confinement 1, 3 (1996)); Hinson, 192 F.3d at 1345 ("The parties have not been able to point to, and independent research — including a look at the sources cited by the Supreme Court in Richardson — does not reveal, cases which show a common law tradition of immunity from liability for privately employed prison physicians for acts amounting to recklessness or intentional wrongdoing."). In addition, the market forces described in Richardson apply equally to an analysis of the policy considerations of granting qualified immunity to private health care providers. Jensen v. Lane County, 222 F.3d 570, 578 (9th Cir. 2000) ("PA is a privately organized group of psychiatrists providing services to the government pursuant to contract. The privatization and market forces arguments are equally applicable here as well. PA psychiatrists must provide psychiatric services for the County with the market threat of replacement for failure to complete their duties adequately. As in Richardson, the potential for insurance, indemnification agreements, and higher pay all may operate to encourage qualified candidates to engage in this endeavor and to discharge their duties vigorously."); Nelson, 991 F. Supp. at 1462 ("Similarly, the same marketplace pressures that guard against a private prison guard's becoming overly timid in his or her duties also guard against a private medical provider's becoming overly timid in his or her treatment of inmates.").
Defendants point the court to Warner, 57 F.3d 962, and similar cases and argue that "the above line of cases reference a history of case law supporting the premise that private health care providers, acting in concert with state officials, should be entitled to qualified immunity." First, pointing to precedent such as Warner, created in the 1990's falls far short of establishing that a tradition of immunity is "so firmly rooted in the common law" that Congress would have specifically abolished it when enacting section 1983 had it intended that the immunity not apply. Moreover, as the court explains below, Warner and similar cases are inapplicable to the facts of this case.
The facts of Warner are easily distinguished from this case. In Warner, a private citizen was asked by a state official to perform a specific task and did so under supervision of the official. In such a situation, the analysis under Richardson changes. Market forces are no longer at play because the private citizen is not in a long-term business relationship with the state. In addition, there is support for finding that a firmly-rooted tradition of immunity exists. 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."); but see Hinson, 192 F.3d at 1345-46 ("The sources cited by the Court suggest that, under certain circumstances, English doctors and lawyers were immune from liability for acts amounting to negligence. For acts amounting to recklessness or intentional wrongdoing, as are alleged here, immunity did not exist, however."). The court concludes that the facts of this case do not fit within the bounds of the precedent created by Warner. Instead, the facts of this case are remarkably similar to those in Richardson and, following the analysis set out in Richardson, the court concludes that private health care provider defendants are not entitled to qualified immunity. Summary judgment on this basis, therefore, is denied.
• Due process claim based on forced medication
While the private health care provider defendants may not have qualified immunity, the court, nonetheless, holds that they are entitled to summary judgment. As this court explained in its November 7 order, the Supreme Court in Washington v. Harper, 494 U.S. 210 (1990), held that an inmate with a serious mental illness who is dangerous to himself or others may be treated with antipsychotic drugs against the inmate's will if the treatment is in his or her best interest. Id. at 227. The court granted summary judgment to state officials asserting qualified immunity because this precedent clearly established their right to force medicate the plaintiff and because it was uncontroverted that plaintiff suffered serious mental illness and both had harmed himself and threatened to do so again. The court concluded that a reasonable prison official would not believe that he was violating clearly established law in force medicating plaintiff.
The court now goes one step further and concludes that as a matter of law, defendants did not violate plaintiff's due process rights by allegedly injecting him with Benadryl against his will. Again, it is uncontroverted that the defendant suffered mental illness, that he had recently cut himself and threatened to harm himself again. The summary judgment record indicates that plaintiff was seen by Dr. Bruckner and that plaintiff told Dr. Bruckner that he intended to injure himself. Dr. Bruckner ordered that plaintiff be given 50mg of Benadryl and plaintiff was placed on "suicide watch." Under these circumstances, the administration of medication, even antipsychotic medication, against plaintiff's will may be accomplished without infringing on plaintiff's due process rights. Harper, 494 U.S. at 227. Thus, the court grant's summary judgment to defendants with respect to plaintiff's claim that his due process rights were violated by being force medicated with Benadryl.
Defendants raised this in their memorandum in support of their motion for summary judgment (Doc. 31) but the court was unwilling to rule on it in its November 7 order because plaintiff did not yet have appointed counsel to assist him in responding.
• Cruel and unusual punishment and equal protection claims
In its November 7, 2001, order, the court pointed out that defendants had asserted a claim of qualified immunity and that the pro-se plaintiff, understandably, had not attempted to show how the alleged conduct violated clearly established law with respect to plaintiff's equal protection and cruel and unusual punishment claims. The court invited appointed counsel to address the subject, explaining that it was "not aware of any precedent clearly establishing that the alleged conduct violates either of these rights," but that it would "not decide whether the alleged conduct violated clearly established law until it receives the parties' supplemental briefs." In response, counsel for plaintiff simply asserted that plaintiff is entitled to proceed to trial on the claims because defendants "have not addressed these issues in their summary judgment papers." The court reads defendant's summary judgment motion as asserting qualified immunity against all of plaintiff's claims.
"When a section 1983 defendant raises the defense of qualified immunity on summary judgment, the plaintiff must show the law was clearly established when the alleged violation occurred and must come forward with sufficient facts to show the official violated that clearly established law. . . . For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must be as plaintiff maintains." Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002). The court believes that plaintiff has not met this burden and that it is appropriate to grant defendants summary judgment on this basis alone. In addition, plaintiff's counsel having not availed himself of the opportunity to argue that the alleged conduct violates clearly established law, the court conducted its own review of the law and concludes that the alleged conduct does not violate clearly established law. Plaintiff does not make allegations that even approach stating an equal protection claim. Plaintiff's claim that his transfer to Larned amounts to cruel and unusual punishment is equally meritless. The court is also unable to find any case law supporting the proposition that the allegations in the complaint, that a nurse gave him an injection of an antihistamine against his will but without the use of force, especially in light of the circumstances of the injection established by the summary judgment record, could amount to cruel and unusual punishment. Thus, the court grants defendants who are state employees summary judgment with respect to plaintiff's cruel and unusual punishment and equal protection claims.
The court also grants summary judgment to private health care providers who do not have qualified immunity because the court concludes that plaintiff has failed to state a claim under section 1983 for a violation of his equal protection rights or cruel and unusual punishment. Plaintiff does not make allegations that even come close to stating an equal protection claim based on his alleged forced medication. With respect to the claim for cruel and unusual punishment, plaintiff only alleges that he was given an injection of Benadryl against his will. There are no allegations that force was used. In fact, in the attachment to plaintiff's verified complaint, a Kansas Department of Corrections Inmate Grievance Form, plaintiff admits that no force was used but maintains that he was medicated against his will because he was ordered to "cuff up" and "there were five or six correctional officers standing behind" plaintiff when he received the injection.
In their summary judgment motion, defendants argue that plaintiff's constitutional rights were not violated.
Eighth Amendment claims have two elements: "an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind." Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996). The objective component requires an "extreme deprivation" denying a "minimal civilized measure of life's necessities." Hudson v. McMillian, 503 U.S. 1, 9 (1992). As to the subjective component, in order to be held liable, the defendant official must act with deliberate indifference to the prisoner's health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff's allegations simply do not amount to an Eighth Amendment violation. There are no allegations of serious pain or deprivation or allegations that would support the inference that defendants acted with deliberate indifference to plaintiff's health or safety. If the court considers the allegations made in plaintiff's grievance form, attached to the complaint, it is clear that plaintiff does not have an Eighth Amendment claim. The court grants summary judgment to defendants with respect to plaintiff's section 1983 claim based on cruel and unusual punishment because he has failed to make allegations in the complaint that support a claim and because the attachment to the complaint shows that he does not, in fact, have a claim.
• Injunctive relief
Counsel for plaintiff appropriately raises the issue of mootness regarding plaintiff's claim for injunctive relief. Counsel argues that plaintiff's request for an injunction prohibiting a future transfer to Larned without a hearing is not moot because the issue is one that is likely to be repeated yet capable of evading review. "To meet the `capable of repetition yet evading review' exception to mootness, two conditions must be satisfied: (1) the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the action again." Fischbach v. N.M. Activities Ass'n, 38 F.3d 1159, 1161 (10th Cir. 1994). Plaintiff has not shown that the time between a transfer to Larned and an inmate's return to Lansing is always so short as to evade review, compare United States v. Deters, 143 F.3d 577, 579 n. 1 (10th Cir. 1998), nor has plaintiff demonstrated a reasonable likelihood that he will once again be transferred to Larned. The court, therefore, reject's plaintiff's argument.
Injunctive relief "is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a "likelihood of substantial and immediate irreparable injury.'" City of Los Angels v. Lyons, 461 U.S. 95, 111 (1983). Here plaintiff has not attempted to, and likely cannot, demonstrate that he faces a real or immediate threat of being transferred to Larned or force medicated in the future. Thus, the court holds that plaintiff lacks an actual case or controversy and that this court does not have jurisdiction over plaintiff's claim for injunctive relief.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 30) is granted with respect to plaintiff's section 1983 claim against private health care providers based on due process, plaintiff's section 1983 claim against state employees based on cruel and unusual punishment and equal protection, plaintiff's section 1983 claim against private health care providers based on equal protection and cruel and unusual punishment, and plaintiff's request for injunctive relief.
IT IS SO ORDERED