Mаrilyn GREASON, et al., Plaintiffs-Appellees, v. Ralph KEMP, et al., Defendants-Appellants.
No. 88-8563.
United States Court of Appeals, Eleventh Circuit.
Jan. 9, 1990.
891 F.2d 829
AFFIRMED in part, REVERSED in part, and REMANDED.
Robert B. Remar, Susan M. Garrett, Remar & Graettinger, Atlanta, Ga., for plaintiffs-appellees.
Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and ATKINS*, Senior District Judge.
TJOFLAT, Chief Judge:
This is an action for money damages. It was brought under
I.
The district court refused to grant the defendants summary judgment because the court was not prepared to hold, on the record before it, that the defendants were entitled to qualified immunity as a matter of law. In deciding whether the court erred, we take the record as it was presented to the district court and view it in the light most favorable to the plaintiffs. See Waldrop v. Evans, 871 F.2d 1030, 1034-35 (11th Cir.1989). Viewed in this light, the record reveals the following.
In early June 1985, Charles Greason, the plaintiffs’ decedent, pled guilty but mentally ill to assault charges and was sentenced to prison for a term of five years.5 After he was sentenced, Greason was taken to the Georgia Diagnostic and Classification Center (GDCC) for a mental health evaluation and any treatment that might be necessary.
Greasоn had a history of mental illness. He had recently been treated at the Gwinnett County Mental Health Center for depression and given anti-depression medication because he had contemplated suicide. Susanna Stoltzfus was Greason‘s
Greason was kept at the GDCC for four months.6 During that time, he was seen twice by the Center‘s psychiatrist, Frank Fodor, M.D., who was responsible for the evaluation and treatment of the mentally ill prisoners at the GDCC. Dr. Fodor came to the GDCC one day a week for six and one-half hours; during these visits, he saw as many as twenty-five to thirty inmates, spending, on the average, less than fifteen minutes per inmate.
The first time Dr. Fodor saw Greason was on August 22, 1985, two and one-half months after Greason‘s arrival at the GDCC. Dr. Fodor spent a few minutes with Greason and promptly concluded that Greason‘s condition had stabilized and that his anti-depression medication should be discontinued; he therefore discontinued Greason‘s medication without reviewing Greason‘s clinical file or assessing his mental status to determine his current potential for suicide.
Calvin Brown, the mental health team leader at the GDCC, was the staff person responsible for Greason‘s case. Brown worked under Dr. Fodor‘s supervision; Fodor instructed him on the type of care Greason should receive, e.g., medication, counselling, or monitoring. Brown, in turn, kept Fodor apprised of Greason‘s progress, reporting to Fodor when Fodor made his weekly visits or more often if necessary.7
Following his August 22 visit with Greason, Dr. Fodor instructed Brown to discontinue Greason‘s anti-depression medication, but he did not tell Brown to monitor Greason for the adverse effects the discontinuance might produce. Dr. Fodor informed Dr. Oliver of his instruction to Brown; the information was contained in some cursory notes Fodor gave Oliver about his visit with Greason. Oliver put the notes in Greason‘s clinical file but took no other action. In particular, he did not direct Brown to monitor Greason.
Dr. Fodor‘s second, and final, visit with Greason occurred twenty-eight days later, on September 19. This session, like the first, lasted but a few minutes and was perfunctory. Dr. Fodor made no assessment of Greason‘s mental status and left no instructions with Calvin Brown. As before, Dr. Fodor made some cursory notes of his visit with Greason and left them with Dr. Oliver, who placed them in Greason‘s clinical file.
A few days later, Greason‘s parents visited him at the GDCC. Greason told them that since the discontinuance of his anti-depression medication, he had been unable to sleep, had been experiencing feelings of despair and thoughts of suicide, and on one occasion had attempted to kill himself by tying something around his throat.8 They
Brown told Greason‘s parents not to worry about their son, that he would “take care of it.” Brown, however, did nothing. He neglected to contact Dr. Fodor; consequently, Fodor had no knowledge of Greason‘s suicide attempt. Brown could have placed Greason on “a suicide watch,” a procedure in which suicidal inmates are placed in stripped cells and subjected to around-the-clock observation, but he chose not to take this step. In sum, he made no effort to have Greason monitored.
On October 13, 1985, twenty-four days later, Greason was found dead in his cell; he had hung himself from the cell bars with his sweat shirt. The Greasons thereafter brought this action, seeking money damages against Calvin Brown and Dr. Fodor, those immediately responsible for providing Greason mental health care. The Greasons also sought damages from their superiors: Ralph Kemp and Dr. Oliver, respectively the warden and the clinical director of the GDCC, and Dr. Duncan, the mental health director of the Georgia Department of Corrections.
II.
The doctrine of qualified immunity insulates government officials from personal liability for money damages for actions taken pursuant to their discretionary authority. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court established the test for courts to use in determining whether, in a given case, such immunity is available. The Court said that “government officials . . . generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. The appellants, here, claim that, as a matter of law, they met this test; accordingly, the district court should have granted them summary judgment. They advance two independent arguments in support of their position. First, the defendants argue that, at the time of Greason‘s suicide, prison inmates had no clearly established constitutional right to psychiatric care. Second, they argue that, even if such a right existed, reasonable persons, standing in appellants’ respective shoes, would not have known that the conduct appellees challenge violated that right. We turn, now, to these arguments.
A.
To decide whether, at the time of Greason‘s suicide, prisoners had a clearly established constitutional right to psychiatric care, we look to the law established by the Supreme Court, the courts of appeals, and the district courts. See Harlow, 457 U.S. at 819 n. 32, 102 S.Ct. at 2738 n. 32. We begin with Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), which was decided by the Supreme Court nearly a decade before the events in this case took place. In Estelle, the Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 291 (citation omitted). Because Estelle involved the provision of medical care rather than psychiatric care, however, the appellants in the present case argue that reasonable persons occupying their roles in a state prison system would not have known that Estelle condemned the type of conduct appellees complain of here.
The district court, in rejecting appellants’ argument, stated:
From a strictly pragmatic perspective, the line separating traditional medical care from psychiatric treatment is blurred indeed, particularly in cases, such as the instant one, when psychotropic drugs are prescribed. Both a medical doctor practicing medicine and a medical doctor practicing psychiatry, such as Dr. Fodor, can prescribe these drugs, and the mere fact that a drug is prescribed by one as opposed to the other should not alone characterize the nature
of the treatment for Eighth Amendment purposes. Certainly any reasonably competent prison counselor or administrator, would realize that denying a prisoner needed psychotropic drugs might trigger liability under Estelle—just as any physician who declined to treat a gangrenous infection with antibiotics might reasonably expect a constitutional challenge. Even if this case involved failure to provide psychotherapy or psychological counselling alone, the court would still conclude that the psychiatric care was sufficiently similar to medical treatment to bring it within the embrace of Estelle.
This rationale has been used by other courts in disposing of cases involving the delivery of mental health care to prison inmates. In fact, every reported decision handed down after Estelle and before the events in this case occurred—i.e., the decisions that would have informed persons in appellants’ positions as to the state of the relevant law—recognized that deliberate indifference to an inmate‘s need for mental health care is actionable on eighth amendment grounds. See, e.g., Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.1979); Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir.1977).9 We accordingly hold that, at the time of Greason‘s suicide, reasonable persons in appellants’ positions would have known that providing an inmate with inadequate psychiatric care could violate the inmate‘s eighth amendment right not to be subjected to cruel and unusual punishment.10
B.
We now turn to appellants’ argument that, even if legal precedent clearly established that the eighth amendment protects prison inmates from deliberate indifference to their psychiatric needs, reasonable persons occupying appellants’ positions would not have known that the conduct complained of in this case constituted such indifference. To decide whether a reasonable person would have known—at the time of the challenged conduct—that what a particular appellant did amounted to deliberate indifference to Greason‘s needs, we must focus on what was apparent to that appellant when he acted. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); see also Clark v. Evans, 840 F.2d 876, 881 (11th Cir.1988). There are two discrete groups of appellants in this case; thus, in conduct-
1.
Turning to the first group, we begin by considering the case against Dr. Fodor. Dr. Fodor argues that a trier of fact might find that he had handled Greason‘s case negligently; it could not, however, find that he had been deliberately indifferent. His argument does not persuade us.
We have said that a trier of fact can conclude that one who provides grossly inadequate psychiatric care to a prison inmate is deliberately indifferent to the inmate‘s needs. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989). In this case, we believe that a trier of fact could find that Dr. Fodor provided such care and, moreover, that he realized that he was doing so at the time. As noted, after his first visit with Greason, which lasted but a few minutes, Dr. Fodor abruptly discontinued Greason‘s anti-depression medication. He did so without reviewing Greason‘s clinical file or conducting a mental status examination. Had he reviewed the file, Dr. Fodor would have discovered that Greason was a schizophrenic with an extensive history of mental illness and numerous hospital admissions for psychiatric treatment.11 Moreover, he would have seen the reports from Stoltzfus and Brooks, which stated that without anti-depression medication, Greason would pose a substantial suicide risk. In short, Dr. Fodor would have realized that Greason would have to be monitored very closely if his medication were withdrawn.
There is expert opinion testimony in the record to the effect that Greason received grossly inadequate psychiatric care and that, from a professional point of view, Dr. Fodor handled his case in a grossly incom-
petent manner. To be sure, there is expert opinion testimony to the contrary that Dr. Fodor met the professional standards expected of a psychiatrist under the circumstances—or, at worst, was merely negligent—and that Greason received adequate care. The presence of such testimony, however, does not end the matter. In a nearly identical case, Waldrop v. Evans, 871 F.2d at 1035, we were faced with the same problem: conflicting expert opinion concerning the extent to which a psychiatrist may have departed from professional standards in abruptly discontinuing an inmate‘s psychotropic medication. We affirmed the district court‘s denial of the psychiatrist‘s motion for summary judgment, concluding that the conflict among the experts concerning the propriety of the psychiatrist‘s professional judgment calls had to be resolved by the jury. Id. at 1035; see also Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986) (“Whether an instance of medical misdiagnosis resulted from deliberate indifference or negligence is a factual question requiring exploration by expert witnesses.“). In sum, because a jury could find (1) that Dr. Fodor provided grossly inadequate care and (2) that a reasonable person in Dr. Fodor‘s position would have known that the care delivered constituted deliberate indifference to Greason‘s eighth amendment rights, the district court acted correctly when it denied Dr. Fodor summary judgment.
We next examine the conduct of Calvin Brown, the mental health team leader at the GDCC. The question here is a narrow one: whether Brown‘s failure to monitor Greason after having been warned by Greason‘s parents and two inmates12 that Greason had tried to commit suicide constituted deliberate indifference.
Where prison personnel directly responsible for inmate care have knowledge that an inmate has attempted, or even threatened, suicide, their failure to take
2.
Appellants Oliver, Kemp, and Duncan, the second group of appellants, contend that they cannot be held vicariously liable under
Using a negligence standard to determine a supervisory official‘s liability would result in de facto respondeat superior liability for the official, cf. City of Canton, 489 U.S. at 1206, 109 S.Ct. at 1206; therefore, the official is immune under Harlow unless a reasonable person in his position would know that his own conduct infringed a constitutional right of the plaintiff,13 see Creighton, 483 U.S. at 641, 107 S.Ct. at 3040. Consequently, a supervisor can be held liable under section 1983 when a reasonable person in the supervisor‘s position would have known that his conduct infringed the constitutional rights of the plaintiff, see Fowler v. Cross, 635 F.2d 476, 484 (5th Cir. Jan.1981),14 and his conduct was causally related to the constitutional violation committed by his subordinate, see Wilson v. Attaway, 757 F.2d 1227, 1241 (11th Cir.1985); Hewett, 786 F.2d at 1086-87 (citing Barksdale v. King, 699 F.2d 744, 746 (5th Cir.1983)). Thus, under Estelle and its progeny, courts must apply a three-prong test to determine a supervisor‘s liability: (1) whether, in failing adequately to train and supervise subordinates, he was deliberately indifferent to an inmate‘s men-
The determination of whether a supervisor was deliberately indifferent and whether that indifference was causally related to the constitutional violation18 is a fact-sensitive inquiry. See Waldrop, 871 F.2d at 1034. Therefore, we consider Oliver‘s, Kemp‘s, and Duncan‘s conduct separately.
a.
As clinical director of the GDCC, Dr. Oliver was responsible for coordinating the provision of medical and psychiatric care at the GDCC. Additionally, Dr. Oliver was Dr. Fodor‘s immediate supervisor and reviewed all of Fodor‘s treatment notes.
The evidence suggests that Oliver, in his capacity as clinical director, knew about the severe lack of staff members capablе of providing psychiatric care to the inmates. In deposition, Fodor stated that he complained to Oliver many times of inadequate staff and of his inability to spend sufficient time with the inmates. Apparently, Oliver did nothing in response to these complaints. Expert testimony in the record reveals that the number of staff members capable of providing psychiatric care was clearly inadequate, and a jury could find that a reasonable person in Dr. Oliver‘s position would be aware of the inadequacy. Fodor also complained to Oliver about the lack of an institutionalized mental health unit for inmates with severe emotional problems at the GDCC. Again, Dr. Oliver failed to take any action in response to these complaints. A jury could easily construe this failure to act as deliberate indifference to the eighth amendment rights of GDCC inmates.19
After having read Susanna Stoltzfus’ letter, which warned of Greason‘s suicidal tendencies and recommended the continuation of his medication, Oliver was aware of Greason‘s precarious mental condition. Having read Fodor‘s notes, Oliver was also aware that Fodor had discontinued Greason‘s medication but had given Calvin Brown no specific instructions to monitor Greason. In fact, Oliver admitted that he did nothing in response to the Stoltzfus letter, apparently not even relaying its contents to Fodor or Brown.
We think that a jury could conclude that Oliver‘s conduct satisfied the three-prong test for determining a supervisor‘s liability, see supra at p. 836. Given Oliver‘s awareness of the Waldrop incident and its probable causes,20 of the warnings from Susanna Stoltzfus, and of Fodor‘s method of treating Greason, a jury could conclude that Oliver acted with deliberate indifference toward Greason‘s eighth amendment rights in failing to ensure that competent officials took steps to protect
Greason. As we have held, “failure to notify competent officials of an inmate‘s dangerous psychiatric state can constitute dеliberate indifference.” Waldrop, 871 F.2d at 1036. Furthermore, Oliver‘s failure to institute corrective procedures after the Waldrop incident could also be viewed as deliberate indifference. Cf. City of Canton, 489 U.S. at 388 n. 10, 109 S.Ct. at 1205 n. 10 (failure to take remedial action after plainly unconstitutional conduct by police officers could constitute deliberate indifference); Kerr, 875 F.2d at 1556 (jury could find that failure to take corrective action after plainly unconstitutional use of police dogs constituted deliberate indifference).
Under the second prong of the test, a jury could find that a reasonable person in Oliver‘s position would have known that his conduct reflected deliberate indifference to Greason‘s psychiatric needs. Cf. Creighton, 483 U.S. at 641, 107 S.Ct. at 3040. A jury also could find, under the test‘s third prong, that Oliver‘s conduct was causally related to the grossly inadequate psychiatric care that violated Greason‘s eighth amendment rights. We have held that when understaffing appears to have contributed to a violation of an inmate‘s eighth amendment rights, a causal link exists between that violation and the city‘s policy if officials are aware of the staffing problem but fail to take corrective action. See, e.g., Anderson v. City of Atlanta, 778 F.2d 678, 685-86 & n. 11 (11th Cir.1985); see also Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir.1988), vacated, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989) (remanded for consideration in light of City of Canton). We think a reasonable jury could find such a causal link in this case. Furthermore, a jury could find that Oliver‘s failure to warn competent officials in light of Stoltzfus’ letter and the
Thus, because a jury could find that Oliver acted with deliberate indifference to Greason‘s eighth amendment rights, that a reasonable person would have known that Oliver‘s conduct constituted deliberate indifference, and that Oliver‘s conduct was causally related to the violation of Greason‘s eighth amendment rights, the district court acted correctly in denying the supervisory officials’ motion for summary judgment with respect to Oliver.
b.
Dr. Duncan, at the time of Greason‘s suicide, held the position of director of mental health for the Georgia Department of Corrections. As mental health director, Duncan was responsible for ensuring that all mental health programs were properly implemented at all institutions, including the GDCC.
The record reveals that Duncan was aware of many conditions at the GDCC that could lead to grossly inadequate mental health care. Duncan knew, for example, that many of the inmates did not receive enough recreation time, and he admitted that lack of recreation could be damaging to an inmate‘s mental health. In fact, the record reveals that Greason was allowed out of his cell for recreation only eight times during his entire stay at the GDCC.
Duncan was also aware that mental health treatment plans—systematic and organized treatment of an inmate—were used at оther Georgia facilities, but not at the GDCC. Fodor stated that such a plan would have been very beneficial to Greason, and expert testimony suggested that such a plan was necessary for adequate care. Furthermore, Duncan knew that the GDCC had no policies or procedures designed to help the staff and guards recognize suicidal tendencies and prevent suicide attempts. Finally, Duncan was aware of the excessive burden on Fodor and admitted that Fodor could not adequately treat all of the inmates requiring mental health care. Fodor often complained to Duncan, as he did to Oliver, about the severe lack of staff members and the need for a mental health care unit at the GDCC.
With regard to Greason in particular, Duncan received and reviewed the Brooks report, which recommended that Greason‘s medication be continued. Duncan was also very much aware of the Waldrop incident, having authorized and conducted a review of it, and therefore was aware of what could result from the abrupt discontinuation of medication. Nevertheless, he failed to take any action to ensure that Brooks’ advice for Greason would be implemented or that no reckless discontinuation of medication would occur.
In light of all the major problems at the GDCC of which Duncan was aware but which he apparently did not attempt to remedy, we have no difficulty in holding that a reasonable jury could find that Duncan satisfied the three-prong test for supervisory liability. A jury could reasonably find (1) that Duncan acted in deliberate indifference to Greason‘s eighth amendment rights, see Waldrop, 871 F.2d at 1036; Anderson, 778 F.2d at 685-86 & n. 11; cf. Kerr, 875 F.2d at 1556; (2) that a reasonable person in Duncan‘s position would have known that his conduct constituted deliberate indifference; and (3) that this conduct was causally related to the grossly inadequate cаre provided to Greason. Thus, we find no error in the district court‘s refusal to grant summary judgment in favor of Duncan.
c.
Ralph Kemp occupied the position of warden of the GDCC at the time of Greason‘s suicide. As warden, Kemp was responsible for ensuring that all services at the GDCC were properly provided.
Kemp, in deposition, denied knowing the precise number of inmates that Fodor saw on a typical visit. He was, however, aware that approximately seventy to seventy-five inmates required mental care at the time and that Fodor visited the facility only once a week. Even if Kemp was unaware of the excessive burden on Fodor, Kemp was the person charged with ensuring the provision
Furthermore, Kemp was familiar with the Waldrop incident and knew that Waldrop‘s medication had been discontinued prior to the acts of self-mutilation. Kemp, however, did nothing to investigate Waldrop‘s treatment or to change the method of treatment after the incident. Nor did Kemp ever question Fodor; as he stated in deposition, Waldrop “was under the care of Dr. Fodor, and that was good enough for me.”
We find that Kemp was aware of the same essential facts that were also apparent to Oliver and Duncan.21 Therefore, we hold that a reasonable jury could conclude from the evidence in the record before us (1) that, because Kemp failed to take adequate measures to cure the serious problems of which he was aware, he was deliberately indifferent to Greason‘s eighth amendment right to psychiatric care, see Anderson, 778 F.2d at 685-86; cf. Kerr, 875 F.2d at 1556-57; (2) that a reasonablе person in Kemp‘s position would know that his conduct constituted deliberate indifference; and (3) that, because Kemp was in a position to rectify (or attempt to rectify) most of these serious problems, his failure to do so was causally related to the violation of Greason‘s eighth amendment rights. The district court therefore acted properly in denying Kemp‘s motion for summary judgment.
d.
In sum, we hold that a jury could reasonably find that the conduct of the three supervisory officials satisfied the three-part test for supervisory liability articulated above. In light of the supervisory officials’ conduct as detailed above, we hold
that (1) the evidence could support a finding that the conduct reflected a deliberate indifference to Greason‘s eighth amendment right to adequate mental health care; (2) the officials should have known their conduct constituted deliberate indifference to a cleаrly established constitutional right, cf. Creighton, 483 U.S. at 641, 107 S.Ct. at 3040; and (3) the conduct was causally connected to the violation of Greason‘s eighth amendment rights. Whether the conduct actually constituted deliberate indifference and was causally related to the violation of Greason‘s eighth amendment rights is a factual question that will likely require exploration by expert witnesses at trial. See Waldrop, 871 F.2d at 1035. A contested factual issue having been established, the district correctly denied the supervisory officials’ motion for summary judgment.
III.
We affirm the district court‘s order denying appellants’ motion for summary judgment on the issue of qualified immunity.
AFFIRMED.
EDMONDSON, Circuit Judge, dissenting:
Even in cases involving the practice of medicine, qualified immunity does not hinge on legal generalities. Both this court and the Supreme Court have stressed repeatedly that the law defining a constitutional tort must be clearly enough established to make it “apparent” to a potential defendant that “what he is doing” is unconstitutional. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (“[T]he right the official is alleged to have violated must have been ‘clearly established’ in a particularized, and hence more relevant, sense.“); see Malley v. Briggs, 475 U.S. 335, 341-44, 106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986); Edwards v. Gilbert, 867 F.2d 1271, 1273 (11th Cir.1989); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322-23 (11th Cir.
At the time of Charles Greason‘s suicide in 1985, the law was clear that deliberate indifference to an inmate‘s serious psychiatric needs could lead to a violation of that inmate‘s eighth amendment rights. I disagree, however, that in 1985 it had already been clearly established that to do as defendants did—mainly, diagnose that Greason no longer needed psychotropic drugs—would amount to deliberate indifference, violating the Constitution. In 1985, no precedent existed that discontinuing psychotropic drugs under circumstances materially similar to these amounted to deliberate indifference.1 The existence of an inmate‘s constitutional right not to be subjected to the cruel and unusual punishment that results from deliberately indifferent psychiatric care is not meaningless just because qualified immunity protects defendants in particular circumstances from the
inmate‘s claim for damages. Qualified immunity does not bar all judicial remedies, e.g., injunctive or declaratory relief and damages against defendants other than individuals who violate the Constitution.
Moreover, today‘s court denies immunity to the supervisors in this case by using a three-part test never before applied by this or any other court for an eighth amendment violation based on inadequate health care alleged against prison officials who were not directly responsible for a prisoner‘s psychiatric care. Although the test seems appropriate, it is a fiction to say that the law applied to the supervisors to deprive them of immunity was clearly established in the eighth amendment healthcare context in 1985. The law on point is being established today.
I also disagree with the court‘s suggestion that defendants in this case are unentitled to immunity because a jury could find a constitutional violation from the facts presented. Under this analysis, qualified immunity would be available in only those cases in which a jury could not find a constitutional tort. In such cases, however, the Constitution has not been violated and no liability exists. Immunity contemplates exemption from liability that would otherwise exist on the merits; today‘s court seems to suggest that immunity is available in only those cases in which the doctrine is superfluous.
The merits of plaintiff‘s case and the question of qualified immunity are sepa-
Nowadays, most section 1983 litigation involves expert testimony stаting an opinion about whether the state officer was “reasonable” or used “excessive force” or was “deliberately indifferent.” Qualified immunity is intended to protect public officials not just from adverse judgments, but also from the burden of being entangled in litigation and defending themselves. See Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). To allow qualified immunity to be defeated (so that a trial must be had) by the simple expedient of producing an expert‘s affidavit stating an opinion on the ultimate merits adverse to the public officer, is to destroy much of what the doctrine of qualified immunity is intended to do. Even if medical decisions are involved in a case, I think this cannot be the law.
To avoid trivializing the eighth amendment, we must guard against confusing or allowing others to confuse malpractice with a violation of the Constitution. Whether a healthcare worker‘s conduct amounts to deliberate indifference so that the eighth amendment is violated is a factually sensitive issue depending on a case-by-case analysis: medicine is a delicate blend of art and science not easily measured by hard and fast rules. Therefore, rarely will a basis exist for an a priori judgment that a healthcare worker was deliberately indifferent and thus violated clearly established rights. Cf. Dartland, 866 F.2d at 1323. Put differently, qualified immunity will likely shield most healthcare workers from damages in their individual capacities even if a jury could find that the level of care given amounted to deliberate indifference.
Where, as here, no case law existed in 1985 which in a particularized way made it apparent that defendants’ acts would amount to deliberate indifference and where competent medical evidence exists that in 1985 defendants’ actions were not deliberately indifferent, defendants are immune from damages. I would reverse the denial of summary judgment.
Alexander CURRY, Plaintiff-Appellee, v. CONTRACT FABRICATORS INCORPORATED PROFIT SHARING PLAN; Victor M. Haber, individually and in his formal capaсity as President of Contract Fabricators, Inc.; et al., Defendants-Appellants. Alexander CURRY, Plaintiff-Appellant, Cross-Appellee, v. CONTRACT FABRICATORS INCORPORATED PROFIT SHARING PLAN; Victor M. Haber, individually and in his formal capacity as President of Contract Fabricators, Inc., et al., Defendants-Appellees, Cross-Appellants.
Nos. 88-7235, 88-7448.
United States Court of Appeals, Eleventh Circuit.
Jan. 9, 1990.