989 F.3d 848
10th Cir.2021Background
- Madison Jensen (21) was arrested and jailed after admission and testing showed recent heroin use; she experienced persistent vomiting, diarrhea, and inability to keep down fluids while in custody.
- Jana Clyde was the jail's only LPN (limited scope: no diagnoses or prescribing); Dr. Kennon Tubbs was a part‑time contracted medical director with 24/7 on‑call responsibility and a subcontracted PA who made weekly visits.
- Over several days Clyde provided fluids (Gatorade), took limited vitals, placed Jensen in medical observation, but did not contact PA Clark or Dr. Tubbs about her worsening condition; when PA Clark was on site he was not told until after rounds.
- Jensen was found seizing and died; cause: cardiac arrhythmia from dehydration due to opiate withdrawal (and evidence of extreme dehydration).
- The district court granted summary judgment to the county and some staff, denied qualified immunity to Clyde and Tubbs; on appeal the Tenth Circuit affirmed denial of immunity for Clyde (deliberate indifference) and reversed as to Dr. Tubbs (qualified immunity and no supervisory liability).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private contracted physician (Dr. Tubbs) may assert qualified immunity | Tubbs was acting under color of state law but private status should not bar immunity; alternatively, supervisory failures caused death | Tubbs may assert qualified immunity as a part‑time government actor providing medical services under county control | Tubbs may assert qualified immunity under Filarsky/Richardson framework; qualified immunity granted on supervisory claims |
| Whether supervisory liability attaches to Dr. Tubbs for failure to train/establish protocol | Tubbs failed to establish protocols/training and thus knowingly created risk causing Jensen’s death | Tubbs had limited control, provided on‑call/oversight, and staff (Clyde) knew to call him; no personal involvement/causation/knowledge sufficient for supervisory liability | No supervisory liability; Estate failed to show personal involvement, causation, or clearly established right; qualified immunity applies |
| Whether LPN Clyde is liable for deliberate indifference to serious medical needs | Clyde knew Jensen had opiates in system, severe vomiting for days, could not keep water down, looked emaciated — yet failed to escalate to PA/Dr. — showing subjective deliberate indifference | Clyde took some measures (Gatorade, observation cell) and lacked full medical authority; she did not appreciate severity and thus lacks subjective knowledge | Denied qualified immunity. Viewed favorably to Estate, Clyde’s failure to act as gatekeeper could permit a jury to find deliberate indifference; right was clearly established |
Key Cases Cited
- Filarsky v. Delia, 566 U.S. 377 (2012) (private contractor performing temporary public‑service functions may claim qualified immunity)
- Richardson v. McKnight, 521 U.S. 399 (1997) (policy/history test for immunity of private actors performing government functions)
- Estate of Lockett v. Fallin, 841 F.3d 1098 (10th Cir. 2016) (10th Cir. allowed private physician to assert qualified immunity in context of executions)
- Perniciaro v. Lea, 901 F.3d 241 (5th Cir. 2018) (post‑Filarsky decision allowing private psychiatrists to assert qualified immunity)
- McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) (denying qualified immunity to private psychiatrist; contrasting approach)
- Quintana v. Santa Fe Bd. of Comm’rs, 973 F.3d 1022 (10th Cir. 2020) (clearly established that ignoring obvious, serious medical needs violates detainee rights)
- Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005) (obvious‑risk standard for medical deliberate indifference)
- Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) (medical gatekeeper liability where provider delays/refuses to summon further care)
- Behrens v. Pelletier, 516 U.S. 299 (1996) (standard for appealability of denial of qualified immunity)
- Johnson v. Jones, 515 U.S. 304 (1995) (appellate review uses facts as assumed by district court when denying qualified immunity)
- Farmer v. Brennan, 511 U.S. 825 (1994) (subjective knowledge requirement for Eighth Amendment deliberate indifference)
- White v. Pauly, 137 S. Ct. 548 (2017) (clearly established law must be particularized to the facts)