Lead Opinion
STRANCH, J., dеlivered the opinion of the court in which STEEH, D.J., joined.
GRIFFIN, J. (pp. 751-60), delivered a separate dissenting opinion.
OPINION
Hopkins County contracted with Southern Health Partners, Inc. (SHP), a private, for-profit corporation, to provide medical services to inmates housed at the Hopkins
Butler’s mother, Cindy (Jimenez) Sha-drick, filed suit under 42 U.S.C. § 1988, alleging that SHP’s failure to train and supervise its LPN nurses employed at HCDC violated Butler’s constitutional right to adequate medical care. She also alleged that SHP was negligent under state law. The district court granted summary judgment for SHP on both claims. Jimenez v. Hopkins Cnty., No. 4:11-CV-00033,
I. FACTS
Butler arrived at HCDC close to five o’clock on the afternoon of Thursday, April 8, 2010. He was late for his scheduled intake appointment, having walked from his residence. While Butler stood outside the door, Sherri McDowell, control tower operator, saw Butler put something in his mouth and swallow it. McDowell relayed her observation to Deputy Angela Peterson who, along with Deputy Rodney Knox, started Butler’s booking procedures.
As Deputy Knox helped Butler change into a prison uniform, Butler vomited twice. Deputy Peterson noticed that Butler appeared to be under the influence and was sweating profusely. As she asked him questions to complete intake paperwork, his demeanor deteriorated and he had difficulty standing up.
Butler told Deputy Peterson that he had an MRSA infection and he was under a doctor’s care for high blood pressure, rheumatoid arthritis, gout, and osteoporosis. He listed several prescribed medications he was taking, including Prednisone, Seroquel, Allopurinol, and Colchicine.
Deputies Peterson and Knox did not want to admit Butler to HCDC due to his condition. Deputy Peterson asked Sgt. Carl Coy if she could refuse admission to an inmate who reported to HCDC pursuant to a court order. Sgt. Coy replied, in alignment with HCDC’s written policy, that only the medical staff possessed authority to refuse admission of an inmate for health reasons.
Deputy Peterson asked Candace Moss, SHP’s licensed practical nurse (LPN) and the only medical staff member oh duty at the jail, to come to the booking area. It was 5:25 p.m., shortly before shift change at 6:00 p.m. Moss knew she had to decide whether to admit Butler to HCDC. He told hér that he had frequent staph infections, that he was suffering from a staph infection in his groin area that his doctor had not examined, and that he had been vomiting, which he attributed to the staph infection. He also reported having a different rash that his doctor had not diagnosed.
Moss instructed the deputies to admit Butler to the jail. As an LPN, she knew she lacked the credentials to diagnose any illness, but she was aware that MRSA infection could lead to sepsis and death if not treated. She asked the chief deputy to accompany her as she physically examined Butler, but he declined and told her not to worry about it. Moss returned to the medical office where she wrote a short incident report at 5:40 p.m., placing Butler on 72-hour detoxification for suspected drug use and on medical watch due to his reported staph infection.
SHP’s “Intoxication and Withdrawal Policy” provided that “[djetoxification will be carried out only under medical supervision and initiated by the medical staff with physician overview on an individual care basis.” R. 101-5 Page1D 2037 (emphasis added); R. 84 PagelD 1407-08, 1418. The policy further required consistent monitoring, documentation of all findings in the inmate’s medical chart, and documentation of vital signs twice daily on an Alcohol and Drug Detox Flow Sheet. Anticipating the end of her shift, Moss expected that Andy Johnson, LPN, the nurse coming on duty, would take Butler’s vital signs, start the Alcohol and Drug Detox Flow Sheet, and monitor Butler’s condition. Moss told Johnson that she had not examined Butler. When Johnson started his shift, he did not examine Butler or record his vital signs on an Alcohol and Drug Detox Flow Sheet. He did not call Dr. Davis for orders to manage Butler’s medical conditions or to insure continuity of prescription medications.
HCDC staff assigned Butler to cell 203, located across from the booking area. His bed consisted of a mat placed on a concrete slab three to four inches off the floor. Although HCDC staff placed Butler on suicide watch, there is no evidence that Butler was evaluated for suicidal ideation.
During Butler’s short stay at HCDC, his blood pressure was taken once each day on April 9, 10, and 11 at unknown times, as shown on a “Blood Pressure Record Form” bearing the nurse initials “AJ.” Nurse Andy Johnson did not recall ever touching Butler. Each reading showed a decrease in blood pressure, but there is no evidence that Butler received blood pressure medication during his confinement or that the nurses took steps to assess why his blood pressure was falling in the absence of medication. A “Medication Administration Record” indicates Butler received Allopurinol twice on April 9, Prednisone twice on April 9, and Queti-apine (Seroquel) once on April 9; however, SHP stated under oath in response to a discovery interrogatory that “Butler’s medical record does not reflect that he was given any medications during his incarceration beginning on April 8, 2010.” R. 101-12 PagelD 2051-52. Even if But
None of the nurses who worked shifts during Butler’s confinement at HCDC followed SHP’s written policy guidelines for the treatment of staph and MRSA infections. Because these infections can progress rapidly, the policy instructs medical staff to: examine inmate skin infections carefully; monitor the patient and document all medical findings; report the infection to the HCDC Medical Director and obtain orders for proper antibiotic treatment; seek emergency hospital care if the inmate’s condition worsens; notify jail staff to institute universal precautions to prevent spread of the infection; and report the infection to SHP’s corporate headquarters. These steps were not taken after Butler reported his staph infection.
As medications were passed out to inmates late on Friday afternoon, April 9, Deputy Knox heard Butler tell Candace Moss through the food flap of his cell that he had a staph infection. Although Butler was still on detoxification and suicide watch, Moss did not medically assess Butler’s condition. Moss later admitted that her failure to monitor Butler and chart his vital signs in the medical record violated written SHP policies.
At mid-afternoon on Saturday, April 10, Butler told Deputy Knox that he was too sick to be in jail. He asked for a sick-call slip, which Deputy Knox provided. Knox and Deputy Chambers discussed Butler’s bloated appearance and gray pallor, and Knox tried to persuade the SHP nurse on duty to see Butler. The record contains no evidence that a nurse examined Butler at that time.
Later on Saturday afternoon, Sgt. Coy accompanied an unknown nurse as she handed out medications to inmates. When Butler stated that he was unable to get up from the floor and walk to the cell door to receive his medication, Sgt. Coy and the nurse entered the cell to give Butler medication. The nurse did not converse with Butler or medically assess his condition. There is no written documentation that Butler actually received medication on Saturday.
Early Sunday morning, April 11, Deputy Brandon Lampton saw Butler sitting on the flоor of his cell, leaning against the wall. His elbows were red and swollen, and he was in obvious pain. Lampton asked Butler if he was okay; Butler replied, “Pm fine.” A few minutes later, at 6:18 a.m., LPN nurse Renee Keller, SHP’s only medical staff member on duty, cleared Butler from detoxification status early without examining or medically assessing his condition. She wrote in the medical chart that Butler had to remain isolated due to staph infection.
Lampton walked to the medical office to inform nurse Keller that Butler had been taken to the shower because he soiled his clothes. Lampton asked Keller if she knew about Butler’s swollen joints. Keller said she was aware of Butler’s situation and otherwise expressed no concern. According to Lampton, deputy jailers commonly received similar responses from SHP medical staff.
Within an hour, Lampton learned that Butler had defecated again. When Butler declined to take a second shower, Lampton handed him a clean uniform. Because Butler’s condition was now “a real issue,” Lampton returned to the medical office, reported that Butler had diarrhea, and suggested that Butler should be moved to a segregation cell with a higher bunk so that he could rotate himself onto the toilet. Keller showed no inclination to check on Butler. Lampton informed his shift commander, Jeremy Witherspoon, that he was moving Butler to a segregation cell with а bunk. Lampton and Deputy Poe lifted Butler into the restraint chair and transferred him to the new cell. Lampton had never seen an inmate with such limited mobility.
Keller’s testimony differed from Lamp-ton’s. She testified that she checked on Butler while he was showering and helped put his shirt on; that it was her idea to move Butler to a segregation cell with a bunk; and that she asked Butler if he needed anything and he told her he did not. She did not check his vital signs, document her visit with him, or give him any medication. She was not sure whether SHP’s written policies required her to take any such steps. She stated that it was customary for SHP medical staff to examine an inmate only if he submitted a sick call request.
On Sunday afternoon, HCDC deputies periodically checked on Butler, but the record includes no documentation of his medical status. Deputies looked through the cell window only to confirm that he was breathing. Between 3:30 and 4:00 p.m., Butler asked Deputy Kreitler for a drink of water because he could not get up. She told him to get the water from his cell faucet. Butler again asked for a cup of water. Although Kreitler agreed to retrieve one, she never did so. When she returned to the cell at 4:19 p.m., Butler was lying awkwardly on his bunk, unresponsive. She entered the cell and shook him, but he did not respond. He did not have a pulse and was cold to the touch.
Nurse Keller was called to the cell. She found Butler cold, blue-gray in color, and without a pulse. She did not begin CPR. At 4:25 p.m., she paged Dr. Davis, who did not respond. At 4:27 p.m., she called Emergency Medical Services. The county coroner arrived shortly after 4:30 p.m. and pronounced Butler dead. An autopsy disclosed that he died of a sudden cardiac arrhythmia due to sepsis, a complication of MRSA infection. Significant coexisting conditions were obesity with hypertension,
After Butler’s death, Keller called her supervisor, Andrea Pleasant, SHP’s medical team administrator and nurse manager for HCDC. Pleasant had been out-of-town during most of Butler’s incarceration. Pleasant called her supervisor, SHP’s regional administrator Betty Dawes, RN, to ask about completing necessary paperwork. At Dawes’s instruction, Pleasant went to the jail, faxed some papers to SHP headquarters, made sure Keller had tried to call the doctor, and then left. Jailer Joe Blue contacted SHP President and Chief of Operations, Jennifer Hairsine, and asked her to come to HCDC to evaluate whether any changes should be made.
On Monday, April 12, Hairsine and SHP Vice President of Operations, Lisa Watts, visited HCDC. They met with Jailer Blue for fifteen to twenty minutes. Blue summarized the recent events and reported the coroner’s suspicion that Butler had MRSA infection. They did not discuss Dr. Davis or the county’s contract with SHP. After talking with Blue, Hairsine and Watts spoke to Angela Pleasant and a nurse, but Hairsine did not think the nurse was Keller or Johnson. If Hairsine spoke to Moss, it was by telephone. Hairsine told Blue that “everything looks fíne” and demonstrated no concern that SHP medical personnel had acted improperly. After a two-hour visit, Hairsine and Watts returned to Chattanooga, Tennessee. Hair-sine did not know that Pleasant terminated Johnson’s employment that day.
Jailer Blue admitted that he had not read SHP’s policies and procedures completely, but he and his employees relied on SHP nurses and the Medical Director to make all medical decisions concerning inmates. Blue acknowledged that, under Kentucky corrections policy, Butler was entitled to receive health care comparable to that available to free citizens in the surrounding community.
SHP is a privately-owned, for-profit Delaware corporation employing 800 workers, including more than 700 full- and part-time nurses. SHP maintains contracts with 198 jail facilities, thirty of which are located in Kentucky. Other facilities are located in Tennessee, Ohio, Mississippi, North Carolina, South Carolina, Pennsylvania, Texas, Virginia, and Wisconsin. The company currently does not provide medical services to inmates of HCDC.
SHP contracted with Dr. Davis to serve •as Medical Director at HCDC, but he denied any responsibility for training or supervising SHP nurses. He characterized himself as a consultant who is available to answer questions. He denied providing any treatment protocols to SHP, although he probably did give some advice about administering insulin. He did not know that Butler was confined at HCDC until he learned of Butler’s death.
LPN Candace Moss had never worked in a correctional facility before. She did
LPN Andy Johnson gave similar testimony. He did not attend an SHP training program before starting work, although he received limited on-the-job training during his first two days of employment, such as learning where supplies were kept. He did not recall ever seeing a copy of SHP’s written policies and procedures.
LPN Renee Keller testified that SHP did not provide her with any training on the SHP policies or how she should perform her job. She recalled that Angela Pleasant conducted meetings approximately every other month to go over policy changes or to explain something the nurses were not doing correctly. She remembered being told to read the SHP policies and she signed a document confirming that she had done so, but she did not actually read all of the policies, and she could not discuss any specifics of them during her testimony. She did not know whether SHP policies required her to take Butler’s vital signs or check on him while he was confined in segregation. No one from SHP supervised or critiqued her work or reviewed her medical progress notes to be sure that she was following SHP policies. A large part of her job involved referring to protocol books without consulting -the doctor. After Butler’s death, no one from SHP talked to her about Butler.
LPN Angela Pleasant testified that SHP did not require her to have a working knowledge HCDC. She consulted SHP’s policies only if problems arose. Although she was responsible for supervising other nurses, she could not recall the policies on MRSA infection, segregation, or alcohol and drug detoxification. The nurses at HCDC followed an undocumented custom and practice of providing medical assistance only if an inmate asked for it or if there was an emergency. If an inmate reported a staph infection and vomiting, Pleasant would advise him to put in a sick-call slip and ask for help. If he did not do so within a few days, Pleasant would place him on suicide watch. She reasoned that, if the inmate does not seek help, he must have suicidal ideations. She would follow this course of conduct even though she knows that the inmate’s MRSA infection could rapidly deteriorate into sepsis and spread to other inmates and staff in the jail. After Butler died, SHP did not reprimand her or any other nurse for failing to follow any SHP policy.
Betty Dawes, an RN and SHP’s regional administrator, visited HCDC once every two to three months for four hours or less and sometimes conducted audits. During the visits, she talked to the Jailer and the nurses and reviewed some records. She could not recall any issues that were raised during these visits. Ordinarily, Dawes does not train new nurses, but she will provide training if it is needed. She had never read HCDC’s policies, but she expected Angela Pleasant to be familiar with them. Dawes conceded that SHP nurses did not meet the standard of care in monitoring and treating Butler and that they failed to follow SHP policies on alcohol and
According to President Hairsine, SHP bids a jail contract depending on what a county is willing to pay for nurses. She believes that SHP nurses are trained by virtue of being licensed in Kentucky, and they might receive additional training from the medical team administrator, the regional administrator or the vice-president of operations, all of whom are nurses. Hairsine does not know how RNs and LPNs differ in medical training or how their scope of practice differs except that she is aware LPNs cannot diagnose medical conditions. SHP relies on the nurse to inform the company of her scope of practice and to notify the company if she is operating outside that scope. On one or two occasions, SHP regional administrators notified Hairsine that their LPN nurses had engaged in conduct outside their scope of practice. Hairsine is also aware that SHP nurses sometimes follow a practice of documenting only medical abnormalities in inmate charts instead of maintaining consistent chart documentation.
Hairsine was fully involved in drafting SHP’s policies and procedures, which are reviewed every six months. Hairsine stated that SHP nurses are required to read the policies and sign a document stating they have done so, but SHP allows the nurses to implement the written policies at their discretion.
Hairsine further testified, in contradiction to HCDC’s written policy, that SHP nurses can only recommend to HCDC staff that an inmate should be admitted to the facility; the ultimate authority to make the admission decision lies with HCDC administrators, not SHP staff. In contrast to Dr. Davis’s testimony, Hairsine stated that the Medical Director is responsible for supervising medical personnel at HCDC, including the medical team administrator, Pleasant. Hairsine spoke to Dr. Davis by telephone after Butler died. Although Dr. Davis expressed concern that he did not know Butler was housed at HCDC, Hairsine thought Dr. Davis did not possess any information suggesting that the SHP nurses should have called him about Butler.
Finally, Hairsine was unaware of any previous complaints about SHP staff who worked at HCDC. She conducts a file review after every reported inmate death, but usually she does not visit the jail facility where the death occurred.
After reviewing this and other evidence, Shadrick’s medical expert, Madeleine La-Marre, opined that SHP failed to establish an adequate health care system to meet the serious medical needs of the inmate population at HCDC. In her opinion, all of the SHP nurses who had contact with Butler violated generally accepted standards of nursing practice and all of them exceeded the legal scope of their practice as LPNs licensed in Kentucky. LaMarre further opined that SHP failed to hire sufficient numbers of qualified medical professionals to work at HCDC, and because LPNs “are not licensed to make independent nursing assessments or nursing diagnoses, ... the use of standing orders and treatment protocols by LPNs is not consistent with Kentucky nursing practice standards. Thus, LPNs should be directly supervised by a registered nurse or physician.” PagelD 2032. Because this was not the case at HCDC, LaMarre
LaMarre observed that this was not the first time Butler had been denied access to a qualified health care provider who could diagnose and treat his medical conditions. She provided several examples of nurses making medical decisions beyond the scope of their practice during Butler’s previous confinements at HCDC in 2007 and 2008. Finally, LaMarre opined that SHP did not train the staff adequately on the health care policies and procedures or maintain a functioning quality improvement program to monitor compliance with SHP policies and procedures.
On this record, the district court granted summary judgment in favor of SHP, and Shadrick now appeals. We have jurisdiction under 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment. Cass v. City of Dayton,
III. ANALYSIS
Shadrick seeks reversal on two grounds. First, she contends there are genuine issues of material fact remaining for trial on her § 1983 claim against SHP for failure to train and supervise its LPN nurses. She further argues that she produced sufficient proof to proceed against SHP on a theory of negligence and that SHP is not entitled to qualified official immunity on this claim under Kentucky state law. We begin with the federal claim.
A. Failure to train and supervise
To prevail on a cause of action under § 1983, a plaintiff must prove “(1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law.” Jones v. Muskegon Cnty.,
The constitutional right at issue arises from the Eighth Amendment’s prohibition on cruel and unusual punishment because Butler was serving a criminal sentence at the time he died at HCDC. See Shreve v. Franklin Cnty.,
elementary principles establish the government’s obligation to provide medical care to those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical*737 needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical “torture or a lingering death,” the evils of most immediate concern to the drafters of the [Eighth] Amendment.
Estelle v. Gamble,
The “deliberate indifference” standard of the Eighth Amendment govеrns SHP’s responsibility for training and supervising its LPN nurses concerning their legal duty to honor an inmate’s constitutional right to adequate medical care. SHP’s failure to train and supervise its LPN nurses adequately “about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983,” Connick v. Thompson,
Deliberate indifference “is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bryan Cnty.,
The subjective element of deliberate indifference requires proof that SHP possessed a culpable state of mind in failing to train and supervise LPN nurses working within the jail environment. Id. Shadrick cannot meet this requirement by showing mere negligence, Farmer,
Shadrick can thus establish an Eighth Amendment violation if she can prove that SHP knew of and disregarded an excessive risk to inmates’ health or safety; the proof must demonstrate that SHP was “aware of facts from which the inference could be drawn that a substantial risk of serious harm” existed and that SHP drew the inference. Farmer,
Our analysis focuses on the adequacy of SHP’s training program, see id. at 390,
it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
City of Canton,
The likelihood that a particular situation will recur and the probability that an employee to a finding that the policymaker’s decision not to train reflects deliberate indifference “to the obvious consequence of the policymakers’ choice — namely, a violation of a specific constitutional or statutory right.” Bryan Cnty.,
When we apply these principles and examine the facts in the light most favorable to Shadrick, as we must in reviewing a motion for summary judgment, Cass,
1. The training program and supervision were inadequate
The evidence reveals that SBP did not have a training program. See Campbell v. City of Springboro,
LPN nurses complete a level of medical training, they obtain a Kentucky license, and they arrive on the job with a limited set of medical skills. This § 1983 claim does not turn, as the dissent says, on whether the nurses know how to make “rudimentary medical judgments” about inmates’ symptoms or whether they know when to call the doctor. Dissent at 754. Shadrick’s expert witness established that LPN nurses lack any authority to diagnose medical conditions, yet the nurses are routinely confronted with frequent and competing demands for medical care arising from the needs of numerous inmates suffering from maladies of varying severity. It is predictable that placing an LPN nurse lacking the specific tools to handle the situations she will inevitably confront in the jail setting will lead to violation of the constitutional rights of inmates. A reasonable jury, therefore, could determine that SHP’s failure to train and supervise its LPN nurses in meeting their constitutional obligations demonstrates SHP’s own deliberate indifference to the highly predictable consequence that an LPN nurse will commit a constitutional violation. See Bryan Cnty.,
The lack of training and supervision by SHP is clearly evidenced by the blanket inability of the LPN nurses who worked at HCDC to identify and disсuss the requirements of SHP’s written policies governing their work. See Russo,
Two high-level supervisors disclaimed any responsibility for training and supervising the LPN nurses. Dr. Davis denied that it was his job to train or supervise them, and Betty Dawes, SHP’s regional administrator, conceded that she did not offer any type of training program or insure that the nurses were trained to carry out their responsibilities. Further, because she never compared the SHP policies to the jail policies to find any conflicts within them, she made no effort to clarify the proper course of conduct for nurses in instances of policy conflict.
Shadrick traced the lack of adequate training and supervision to the top of SHP’s organization. President Hairsine is not college-educated or medically trained, and she could not explain the differences in the permitted scope of medical practiсe for LPNs and RNs. Rather than provide training and supervision necessary to insure that LPN nurses acted within the scope of practice, SHP expected the nurses to define that scope for the company. Hairsine pointed to the SHP policies and treatment protocols as proof of instruction, yet she candidly admitted that SHP allowed LPN nurses to use the policies and protocols in their discretion, even though a critical document like the MRSA policy mandated immediate implementation of a specialized treatment protocol. Shadrick’s expert witness opined that SHP failed to provide adequate training and supervision to the LPN nurses. See Russo,
Taking this evidence in a light most favorable to Shadrick, see Cass,
Neither the Supreme Court’s decision in Connick nor this court’s decision in D'Ambrosio v. Marino,
This case mirrors the example given in City of Canton. The obvious need to train police officers who lack knowledge of the constitutional constraints on the use of deadly force parallels the obvious need to train LPN nurses who lack knowledge about the constitutional dimensions of providing adequate medical care to inmates in the jail setting. Unlike licensed prosecutors who completed law school, routinely attend ongoing continuing legal education classes, receive on-the-job legal mentoring, and labor under rules of professional responsibility to master their Brady obligations, Connick,
2. The inadequacy of training resulted from SHP’s deliberate indifference
Shadrick’s evidence demonstrates that SHP’s inadequate training and supervision of its LPN nurses resulted from its own deliberate indifference to the rights of inmates with whom the nurses came into contact. See id. at 1360; City of Canton,
Evidence concerning the conduct of SHP after Butler’s death further confirms the company’s deliberate indifference. When Jailer Blue called President Hair-sine to HCDC after Butler’s death, she visited for less than two hours and pronounced “everything was fine.” There is no proof that Hairsine, Watts, Dawes, Pleasant, or any other SHP manager investigated whether Butler’s death was related to the adequacy of medical care SHP nurses provided or failed to provide. Nurses Keller and Johnson both testified that no one from SHP contacted them about Butler’s death. Nurse Pleasant stated that neither she nor any other staff member was counseled or disciplined by an SHP administrator following Butler’s death. RN Dawes conceded that the LPN nurses assigned to HCDC did not follow SHP’s policies and procedures in caring for Butler, that the nurses failed to meet the medical standard of care, and that the nurses failed to follow documentation guidelines. But Dawes made no attempt to train the nurses before or after Butler died, and she offered only a belated “support visit” to the staff following Butler’s death. In the opinion of Sha-drick’s expert witness, SHP’s business model by its nature creates substantial deficiencies in the provision of adequate health care services to inmates.
The conduct of SHP staff both before and after Butler’s death is relevant to whether SHP’s failure to train and supervise its LPN nurses reflected a deliberate or conscious choice for which SHP may be held liable under § 1983. See City of Canton,
There is simply no evidence in this record that SHP took any steps to train and supervise its LPN nurses concerning the constitutional dimensions of care in a prison environment. Because a jury reasonably could find that the inadequacy in the training program resulted directly from SHP’s deliberate indifference, SHP is not entitled to summary judgment on this element of the claim.
3. The inadequacy in training actually caused, or is closely related to, Butler’s injury
Reasonable jurors could further determine that SHP’s inadequate training and supervision actually caused, or was closely related to, Butler’s injury and death. See Plinton,
The undisputed facts estаblish that Butler’s urgent need for medical treatment was apparent the moment he walked through HCDC’s door, yet SHP staff did not provide it in spite of Butler’s requests for help and the urging of jail deputies to attend to Butler. Not only were the SHP nurses aware of facts alerting them that Butler faced a substantial risk of serious harm if he did not receive timely and proper medical care, there is evidence they actually drew the inference of a substantial risk of serious harm and recklessly disregarded it. See Farmer,
Shadrick produced sufficient evidence to create genuine issues of material fact for trial on all three elements of her § 1983 claim against SHP for failure to train and supervise the LPN nurses. She met SHP’s summary judgment motion with evidence that SHP’s training program is inadequate for the tasks the LPN nurses are required to perform, that the inadequacy resulted from SHP’s deliberate indifference, and that the inadequacy actually caused, or was closely related to, Butler’s injury. Summary judgment on the § 1983 claim was unwarranted, thus requiring us to reverse and remand the case for further proceedings on this claim.
Although we do not address Shadrick’s argument that a pattern of tortious or unconstitutional conduct by inadequately trained nurses existed, see Bryan Cnty.,
B. Negligence and immunity under Kentucky law
Shadrick next challenges the district court’s ruling that SHP is protected by qualified official immunity from the negligence claim brought against it. Because qualified official immunity does not apply to SHP, a corporate entity, and because SHP is not entitled to governmental immunity as the agent or alter ego of Hopkins County, we reverse the grant of summary judgment in favor of SHP on the negligence claim.
Sovereign immunity has long protected the Commonwealth of Kentucky from suit, Comair, Inc. v. Lexington-Fayette Urban Cnty. Airport Corp.,
In providing medical services to incarcerated inmates, SHP claims to act as an arm, agent, or alter ego of Hopkins County. To determine whether SHP is entitled to share the county’s governmental immunity, we apply the test announced by the Kentucky Supreme Court in Co-mair: The immunity inquiry turns on the source of the entity and “the nature of the function it carries out.” Comair, Inc.,
When we apply both components of the Comair test, we conclude that SHP is not entitled to share the county’s governmental immunity. Although SHP performed a governmental function in providing medical care to county inmates, SHP cannot demonstrate that its origin derived from Hоpkins County. In response to SHP’s manifest inability to meet the origin requirement, the dissent blends the first part of the Comair test into second, rendering the origin reqirement superfluous. Dissent at 758 (“E at if the source and nature of the function is otherwise clear ... there is no need to retrace the entity’s genesis”) (emphasis added). But the Kentucky Supreme Court instructs us to analyze both parts of the Comair test and we do so here.
SHP clearly satisfies the second part of the Comair test because SHP, by contract, was charged with performing Hopkins County’s traditional governmental function of providing medical services to inmates held at HCDC, which is part of a larger state-wide corrections system. Hopkins County is required by state statute to “prescribe rules for the government, security, safety, and cleanliness of the jail and the comfort and treatment of prisoners,” and it must also bear the costs of “providing necessary medical, dental, and psychological care for indigent prisoners in the jail.” Ky.Rev.Stat. Ann. § 441.045(1) & (3) (West 2015). Kentucky administrative regulations, however, do not place the burden to provide direct inmate medical care on the counties themselves. Instead, “[t]he jail’s medical services shall be provided by contracting with a health care provider licensed in Kentucky.” 501 Ky. Admin. Regs. 3:090 (2015) (emphasis added). In conformity with this state regulation, Hopkins County contracted with SHP to provide necessary medical services to inmates incarcerated at HCDC. Hopkins County retained no control over the manner or means by which SHP provided the contracted medical services because the regulation explicitly states that the county’s Jailer may not restrict the health care staff in the performance of medical duties except to require the medical staff to adhere to the jail’s security requirements. Id. All medical procedures are required to be performed “according to orders issued
SHP, however, cannot meet the first part of the Comair test, which focuses on the origin immunity. Comair, Inc.,
Hopkins County did not exercise control over SHP because at all times SHP conducted itself as an independent contractor of the county. This is expressly addressed in the parties’ written agreement. In Section 9.1 of the contract, the parties created the boundaries of their business relationship: “The parties acknowledge that SHP is an independent contractor engaged to provide medical care to inmates at the Jail under the direction of SHP management. Nothing in this Agreement is intended nor shall be construed to create an agency relationship, an employer/employee relationship, or a joint venture relationship between the parties.” R. 77-26, Page ID 1309 (emphasis added). In addition, SHP agreed in section 8.3 “to indemnify and hold harmless the County, its agents, servants and employees from any and all claims, actions, lawsuits, damages, judgments or liabilities of any kind whatsoever arising out of the operation and maintenance of the aforesaid program of health care services conducted by SHP, it being the express understanding of the parties hereto that SHP shall provide the actual health care services.” Id.
SHP thus contracted to perform a governmental function, but it may not partake of the county’s sovereign immunity because it did not derive its existence and status from Hopkins County. See Comair,
A recent case decided by the Court of Appeals of Kentucky analyzing and applying the Comair test supports our analysis. Kentucky River Foothills Dev. Council, Inc. v. Phirman, No. 2013-CA-001858, — S.W.3d -,
Kentucky River Foothills Development Council was incorporated under Kentucky law as a private nonprofit corporation in 1962. Id. at *1,-. Kentucky River was designated under federal law to serve as a community action agency to combat poverty in four Kentucky counties. Id. at *1-2, -. Congress later repealed statutes governing community action agencies and established the Community Services Block Grant Program, which transferred responsibility for running the program from the federal government to the states. Id. at *3, -. The federal government issued block grants to the- states and
Applying the Comair test, the Court of Appeals agreed with Kentucky River “that providing services to the poor at the county level has historically been treated as an integral government function,” but determined that alone was insufficient to cloak Kentucky River with governmental immunity. Id. at *6-7,-. Numerous factors impact the pertinent analysis:
As recognized in Caneyville, while Kentucky places the most weight on the governmental function element, other factors should also be considered in particularly close cases. These could include: (1) whether state statutes and case law tend to characterize the entity as an arm of the state; (2) whether state resources may be required in satisfying adverse judgments agаinst the entity; (3) whether the state has a financial or otherwise relevant beneficial interest in litigation affecting the entity; (4) how the entity is funded; (5) its level of autonomy; (6) whether the entity deals with primarily local or statewide problems; (7) how state law/courts treat the entity; (8) the ability of the entity to sue and be sued in its own name; (9) whether the entity holds and uses property; (10) whether the entity can take or sell property; (11) the independent management authority of the entity; (12) whether the entity performs governmental or proprietary functions; (13) the entity’s corporate status; and (14) whether the entity’s property is subject to state taxation.
Id. at *7, -. The existence of these many factors “is why it is particularly important to consider the first prong of the Comair test, whether the entity was established by the government, in tandem with the governmental function prong.” Id. Careful examination of how the entity was created and whether it is the offspring of a parental entity immune from suit will necessarily require consideration of the Ca-neyville factors, “such as how the state statute characterizes the entity, the extent by which the state controls the entity and its property, and whether, and to what extent, the entity functions apart from the state.” Id.
The Court of Appeals concluded that Kentucky River “was not created by or at the behest of the state or any county of the state.” Id. Instead, Kentucky River is a nonprofit corporation, formed by private citizens, which maintains an existence and administers programs independently of the Commonwealth or its counties. Id. Designation of Kentucky River as a community action agency “did not vest the Commonwealth with any interest in Kentucky River’s real or personal property”; “the Commonwealth did not take control of Kentucky River’s day-to-day operations or have direct oversight in the administration of programs funded separately] from the block grants”; and “Kentucky River remained free to serve other interests outside the scope of its designation as a com
At bottom, the Court of Appeals concluded, “[t]he receipt of money from the government to further a cause important to government should not transform an otherwise private entity into a governmen-tally immune agency.” Id. at *9,-. “A line must be drawn somewhere before the concept of governmental immunity is expanded far beyond any reasonable parameter.” Id. Although in Kentucky River the Court of Appeals denied governmental immunity to a private, nonprofit corporation, its reasoning applies equally to private, for-profit corporations.
Like Kentucky River, SHP “was not established by the government for its benefit.” See id. SHP was not even subject to the same level of governmental control and oversight that Kentucky River experienced. SHP was established as a private for-profit corporation long before Hopkins County designated it as an independent contractor to provide medical services to inmates housed at HCDC. See id. State statutes do not characterize SHP as an arm of the state and neither does Kentucky case law. In a recent whistleblower suit brought against SHP by some of its employees, the Court of Appeals held that SHP was not a political subdivision of the state because there was little evidence that Campbеll County had any control over the specific, day-to-day aspects of SHP’s work providing medical services to inmates. See White v. Southern Health Partners, Inc., Nos. 2012-CA-001092, 2012-CA-001106,
Like Kentucky River, SHP is not entitled to governmental immunity. See id. at *10, -. “The independent contractor ... is no sovereign, and the protection of sovereignty should no longer be extended to him, since, in the light of our changed views as to public policy, the public should not take the advantage of getting its work done cheaply by shifting the burden of sustaining the damage caused by negligent prosecution of that work by an indepen
Other courts have likewise declined to extend immunity to private, for-profit corporations charged with providing medical services under contracts with governmental entities. For example, a federal district court in Mississippi ruled that Wexford Health Sources, Inc., a for-profit Florida corporation operating as an independent contractor to provide health care to inmates in Mississippi prisons, was not entitled to tort immunity despite the degree of control exercised over Wexford by the Mississippi Department of Corrections. Estate of Cheney ex rel. Cheney v. Collier, No. 4:02cv111,
The district court below erred by extending qualified official immunity to SHP. Qualified official immunity protects individual public officials or employees who are sued in tort for their good-faith discretionary ácts undertaken within the scope of their employment. Jones v. Cross,
The dissent desires to extend qualified official immunity to SHP by applying Jer-auld,
Finally, SHP and the dissent rely on Autry v. Western Kentucky University, but that case is rеadily distinguishable for the reasons set forth by the Court of Appeals of Kentucky in Kentucky River, — S.W.3d at -,
In this case, by contrast, Hopkins County did not create SHP, nor was SHP the alter ego of Hopkins County, nor did SHP exist solely to .serve Hopkins County. As the Kentucky Court of Appeals did in Kentucky River, we distinguish Autry on this basis.
We acknowledge a troublesome paragraph at the end of Autry which notes that “SLF was sued directly, on the assumption that it is not a governmental entity at all. This amounts to suing SLF in its individual capacity. In that capacity, SLF is entitled to qualified official immunity, depending upon whether its delegation of management ... was a discretionary or a ministerial function.” Id. The opinion then relies on Yanero, a case applying qualified official immunity to individual persons, to support a statement that SLF engaged in discretionary acts and was entitled to qualified official immunity in its individual capacity. Id.
We think this paragraph is dicta and incorrectly applies to a corporate entity the concept of qualified official immunity that is meant to protect individual persons from suit in their individual capacities, thereby blurring a distinction in immunity law that Kentucky courts ordinarily draw with precision. See e.g., Furtula,
IV. CONCLUSION
SHP has not demonstrated its entitlement to summary judgment on the § 1983 claim for failure to train or supervise its LPN nurses, and SHP is not entitled to governmental immunity, on the negligence claim. Accordingly, we REVERSE the grant of summary judgment in favor of SHP and we REMAND the case for further proceedings consistent with this opinion.
Notes
. According to Shadrick, Butler also took Lortab, a controlled substance, for arthritis pain and Benicar for hypertension.
. Apparently, the nursing shift report documented that Butler " ‘has a staph infection, no antibiotic — has not seen doctor — vomiting — rash all over body. Detox/Medical Watch x 72 hours.’ ” R. 101-3 PagelD 2024. We have not located a copy of this report in the record.
. According to Shadrick, Butler suffered from many medical conditions, including an ongoing MRSA infection that required antibiotic treatments. During Butler’s 2007 confinement at HCDC for ninety days, the staff refused to allow Butler to bring his prescription pain medication into the facility. The nursing staff asked Shadrick to refill her son's 30-day supplies of Allopurinol and Colchicine only once during the 90-day confinement period. During that same incarceration, Butler contacted his mother repeatedly to report that he was not receiving his medications and to ask for help. He told her that, without his medications, he became immobile and had vomiting and diarrhea. According to Shadrick, Butler pleaded, "Please help me. They're going to let me die.” When Shadrick called the jail to ask why Butler was not receiving his medications, the nurse told her that medications were handed out to inmates twice each day, at 5:00 a.m. and 5:00 p.m. If the inmate did not walk to the cell door to receive his medications, the nurse passed the cell without giving the inmate the medication. R. 86 & 86-1 Page ID 1579-81, 1583, 1588.
. The district court record includes only three pages of Hairsine’s deposition. R. 76-2. SHP filed the entire deposition as an appendix to its appellate brief. No. 14-
. Johnson testified that he was terminated for making a mistake in mailing an inmate drug screen sample and not for conduct relating to Butler’s death.
. Shadrick cites Taylor v. Michigan Department of Corrections,
Dissenting Opinion
dissenting.
DISSENT
I respectfully dissent. I would affirm the summary judgment granted in favor of defendant Southern Health Partners, Inc. (SHP) on both claims.
Regarding plaintiff Shadrick’s § 1983 claim, the majority opinion acknowledges that SHP maintained a policy requiring its LPNs to monitor and treat Tyler Butler’s staph infection under the guidance of its medical director, a licensed physician. Still, it concludes that the LPN training program posed so “obvious” a risk to Butler’s rights that SHP can be held liable “without proof of a pre-existing pattern of [constitutional] violations.” Connick v. Thompson,
With respect to plaintiffs state-law negligence claim, my colleagues take the opposite approach, limiting the availability of qualified official immunity in ways not recognized under Kentucky law. But precedent on this issue is clear: private entities that contract with a Kentucky county to provide medical services to county jail inmates — like SHP — are eligible for qualified official immunity irrespective of their business form or origin. See Jerauld ex rel. Robinson v. Kroger,
I.
The first issue is whether the district court properly granted summary judgment in favor of SHP on Shadrick’s § 1983 claim. The parties, my colleagues, and I agree that Shadrick’s claim against SHP is controlled by Monell v. New York City Department of Social Services,
As we have repeatedly cautioned in the context of Monell claims, courts must resist the temptation to impose vicarious liability upon entities like SHP for the egregious conduct of their employees. Under Monell, governmental actors “are responsible only for their own illegal acts. They are not vicariously liable under § 1983 for their employees’ actions.” D'Ambrosio v. Marino,
Because the focus must be on SHP’s own decisions rather than those of its employees, SHP can be found liable only if it has (1) consciously adopted a specific “policy” of perpetrating unconstitutional conduct despite (2) having actual or constructive notice that the policy will cause employees to violate constitutional rights, such that SHP can be considered “deliberately indifferent” to the fact that its employees will spread constitutional harm. Connick,
Given that Monell liability presupposes a conscious adoption of a course of action “from among various alternatives,” City of Oklahoma City v. Tuttle,
But as the Supreme Court recently reiterated, an essential characteristic of a failure-to-train claim is that it requires more than merely substandard training. A plaintiff must show that the government entity’s failure to train its employees in relevant respects is not merely a negligent omission; it must amount to a conscious “decision not to train certain employees about their legal duty to avoid violating citizens’ rights.” Connick,
In the present case, it certainly appears that one or more of SHP’s employees was negligent in following SHP’s policies and providing Butler with appropriate eаre-with catastrophic results. But the fact that SHP’s training of these particular personnel may have been inadequate does not itself establish that SHP was deliberately indifferent to inmates’ constitutional rights. Deliberate indifference, unlike negligence, requires intent. It is not enough to demonstrate only that SHP’s training regimen did not comport with best practices; Shadrick must establish that SHP was on notice that its training program was constitutionally deficient but consciously decided not to correct it.
Despite the fact that SHP trained its nurses on applicable policies that — if followed — would have prevented the harm suffered in this case, Shadrick contends that SHP should have trained them more extensively. Specifically, she asserts that SHP should have trained its LPNs that they could not “treat[ ] conditions outside their scope of practice and without notifying or consulting SHP’s contract physician.”
“Without notice that a course of training is deficient in a particular respect, deci-sionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Connick,
“[Ojrdinarily,” plaintiffs must demonstrate notice by pointing to a prior pattern of similar constitutional violations by inadequately trained employees. Id. This is because, “[ujntil the [government entity] had notice of persistent misconduct, it did not have ‘the opportunity to conform to constitutional dictates,’ nor could its inaction have caused the deprivation of [the plaintiffs] constitutional rights.” D’Ambrosio,
Alternatively, in a “narrowfer] range of circumstances,” see id. at 409,
There are two problems with this position. First, the single-incident theory of liability described in Canton applies only rarely outside of the use-of-deadly-force-training example that Canton provided. For example, the Fifth Circuit recently attempted to extend the single-incident liability theory to the failure of a prosecutor’s office to train its prosecutors about their Brady obligations.
Connick’s reasoning is squarely applicable to the LPNs in the present case. An LPN making a rudimentary decision regarding how severe an inmate’s symptoms are is not engaging in the type of рrofessional cross-over envisioned in Canton’s hypothetical. Instead, LPNs in such situations are medical personnel making rudimentary medical judgments. Although the majority presents LPNs as if they have no medical ability whatsoever, they are clearly trained in the medical field, have at least some degree of knowledge about medical symptoms presented by inmates, and are expected to make at least basic decisions about identifying circumstances under which further medical examination (such as by a doctor) is necessary. No doubt more advanced training would make them better able to do so; but the fact that, in hindsight, SHP could have done more instead of primarily relying upon its LPNs’ formal medical training does not make SHP liable under Monell. See Connick,
Shadrick also argues SHP had notice that its training program was constitutionally deficient based on a prior pattern of similar constitutional violations by SHP employees. However, the majority declines to reach this issue. In this regard, I note that Shadrick’s pattern-of-prior-incidents theory lacks its most basic requirement: a pattern.
The sequence of prior constitutional violations must be “similar” to the misconduct alleged in the case at hand for the prior violations to have put the government entity on notice that the same conduct was likely to reoccur. Connick,
Shadrick claims that SHP’s deliberate indifference to inmates’ plight is demonstrated by the fact that, before Butler died, several other inmates received substandard medical treatment in other jails staffed by SHP. She points to two incidents in particular: (1) the March 2009 death of an inmate in a Warren County, Kentucky jail, under circumstances where the nurse hired by SHP failed to contact the medical director for an inmate who exhibited symptoms of alcohol withdrawal, see Finn v. Warren Cty.,
These two incidents involved two different sets of medical symptoms at two different jails. Tragic as they were, these incidents did not give SHP knowledge that their employees at yet a different jail were likely to be unable to properly alert a medical director about an inmate with a suspected staph infection. After all, SHP is a large company: it employs more than 700 nurses at 198 jails in twelve states. The fact that two of SHP’s 700 nurses in two of its 198 jails housing thousands of inmates made two bad decisions regarding when to contact a medical director about alcohol withdrawal or heart attack symptoms does not translate into knowledge that, absent more rigorous training, employees at all of its jails likely would make bad judgment calls about when to contact a medical director about a suspected staph infection. “As a matter of probability, if violations were the ‘highly predictable consequence’ of a failure to train, then we would expect to see more than just one violation in hundreds or thousands of cases.” Thompson v. Connick,
Shadrick also relies on her expert, who concluded that SHP should have known that its business model would present unacceptable risks of harm to inmates by relying too heavily upon LPNs rather than upon more highly trained medical practitioners. But it bears emphasizing that SHP cannot be held liable under § 1983 merely for structuring or conducting its business in a negligent manner. Connick,
Finally, Shadrick asserts that SHP demonstrated deliberate indifference by ratifying its nurses’ conduct through its after-the-fact investigation. While the majority claims it does not reach this issue, it cites SHP’s investigation and failure to discipline or retrain its LPNs as proof of deliberate indifference. But Monell liability applies only where the government entity’s policy caused the deprivation of the injured party’s constitutional rights. D'Ambrosio,
It may be evident in retrospect that SHP’s employees should have handled matters much differently. However, SHP can be held liable under § 1983 only if it knew of its employees’ specific training deficits before Butler died in its care. Shadrick has not offered proof of that knowledge.. The district court properly resisted the impulse to presume foreknowledge from hindsight clarity. I would affirm summary judgment on Shadrick’s Monell claim against SHP.
II.
The majority also reverses summary judgment in favor of SHP on Shadrick’s state-law negligence claim, holding that SHP is not entitled to governmental immunity. In my view, the majority opinion overlooks Kentucky precedent affording qualified official immunity to private entities that contract with a Kentucky county
Under Kentucky law, qualified official immunity is derivative of governmental (or “official”) immunity. Autry,
When agents performing state functions are sued in their official capacities, they are absolutely immune from the claims. Id. at 718. When sued in their individual capacities, however, they may invoke only the doctrine of qualified official immunity, “which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.” Yanero v. Davis,
There is no dispute that, under Kentucky law, qualified official immunity extends to private medical providers who contract with government entities to provide medical care to inmates. See Jerauld,
In this regard, the Kentucky Court of Appeals’ decision in Jerauld is dispositive. There, the court explicitly recognized that a private psychologist was entitled to qualified official immunity, despite the fact that he was not an employee of a county jail but was simply contracted to provide medical services there. Jerauld,
Jerauld squarely forecloses plaintiffs claim that SHP is not entitled to qualified official immunity under Kentucky law. Jerauld holds that private entities that have contracted with a Kentucky county to provide medical services to inmates in the county jail are eligible for qualified official immunity. Id. SHP — a private entity that has contracted with a Kentucky county to provide medical services to inmates in the county jail — is therefore eligible for qualified official immunity under Kentucky law.
The majority attempts to distinguish Jerauld in two different ways. Neither is persuasive.
First, the majority asserts that immunity extends to private corporations only if they were created by the state government — which SHP clearly was not. Contrary to the position of the majority, Co-
In addition, it strains credulity to assert that Comair constructed a new, inflexible, two-pronged official-immunity test when much of its analysis is dedicated to rejecting the court’s previous two-pronged official-immunity test as “overly simple, failing to allow for subtlety, and too limiting.” Comair,
The recent decision from the Kentucky Court of Appeals in Kentucky River does not suggest otherwise. See Ky. River Foothills Dev. Council, Inc. v. Phirman, No.2013-CA-001858-MR, — S.W.3d -,
SHP’s circumstances are, of course, not those of an entity that simply receives a governmental grant. Grants to private organizations are typically used to encourage private actors to engage in conduct the state deems beneficial for the general citizenry; grants are not ordinarily used to outsource a government’s own core functions. Kentucky River therefore
To the extent Kentucky River characterized Comair as providing for a two-part test, we are constrained to follow precedent from the Supreme Court of Kentucky where it diverges from that of the lower courts. Compare Kentucky River, — S.W.3d at -,
The majority also attempts to distinguish Jerauld by asserting that Kentucky extends doctrine of qualified official immunity to individuals only, not to corporations. Again, Jerauld the unequivocally holds that qualified official immunity extends to a private medical provider if he contracts as an individual to provide medical services to a county jail. See Jerauld,
The flaw with this position is that Kentucky has never held that the form of a defendant’s business is a determinative factor for qualified official immunity purposes. Jerauld gives no hint that the defendant’s business form was relevant to the defense; in fact, it explicitly reiterated that formalities such as the “status” of an agent were irrelevant to the issue and that the crucial inquiry centered upon “the function performed.” Id. And Kentucky courts have repeatedly rejected the notion that a private entity performing a governmental function is not entitled to qualified official immunity merely because it is a private corporation taking on the performance of a state function by contract. See Bryant v. Pulaski Cty. Det. Ctr.,
To reach its conclusion, the majority finds it necessary to downplay portions of Supreme Court of Kentucky decisions as dicta and as “incorrect[ ]” in order to reconcile them with its preferred interpretation of decisions from the Kentucky Court of Appeals. But a far simpler way to resolve the purported conflict is to recognize there is none. The individual-corporation binary the majority posits in this context is illusory. The majority appears to conflate the concepts of “individual capacity,” “individual persons,” and “natural (as opposed to corporate) persons.” In any event, Kentucky qualified official immunity does not depend upon the distinctions of corporate form or the specifics of corporate genealogy. The “important aspect” of the official-immunity analysis, as Comair emphasized, is the- entity’s function, not its status nor its origin. Comair,
That determination resolves Shadrick’s negligence claim against SHP. There is no dispute that SHP, despite its designation as an independent contractor, is providing a paradigmatic government function— namely, providing medical care to incarcerated individuals. SHP has stepped into the county’s shoes to perform that function, and to the extent that its conduct is in good-faith, discretionary furtherance of that function, it is entitled to qualified official immunity. See Yanero,
III.
For these reasons, I respectfully dissent. I would affirm the district court’s judgment.
. See Brady v. Maryland,