                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0896n.06

                                           No. 12-2393

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


LARRY D. LEE, JR.,                                   )
                                                                                  FILED
                                                                             Oct 17, 2013
                                                     )
                                                                        DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )
                                                     )
DEAN WILLEY; T. ZISCHKE; BAGLEY;                     )       ON APPEAL FROM THE UNITED
OWEN, Correctional Officers; D. THOMAS,              )       STATES DISTRICT COURT FOR
MDOC, Sergeant; NICK LUDWICK, Warden;                )       THE EASTERN DISTRICT OF
HAYDEN, Correctional Officer; WADE                   )       MICHIGAN
DIXON, Psychiatrist; PAUL SCHNEEMAN,                 )
Psychologist; WILLS DIXON; R. WILLIAMS;              )
JOHN DOE; JANE DOE,                                  )       OPINION
                                                     )
       Defendants,                                   )
                                                     )
and                                                  )
                                                     )
KAMESHWARI MEHRA,                                    )
                                                     )
       Defendant-Appellant.                          )
                                                     )

Before: BOGGS and DONALD, Circuit Judges; STAMP, District Judge.*

       BERNICE BOUIE DONALD, Circuit Judge. When an individual working for a state

government is sued in a personal capacity pursuant to 42 U.S.C. § 1983, we typically engage in a

two-part analysis to determine whether that person is entitled to qualified immunity. The

inquiry—one that is quite familiar to us—asks whether a plaintiff’s factual allegations demonstrate



*
 The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District of
West Virginia, sitting by designation.
No. 12-2393
Lee v. Willey, et al.

a constitutional violation and whether the constitutional right at issue was “clearly established” at

the time of the incident. If the answer to either question is no, then the employee is entitled to

immunity and the suit is dismissed at the summary judgment stage.

        When the party raising qualified immunity as a defense works for the state as a private

contractor, as is the case here, we must first engage in an antecedent inquiry concerning whether the

defendant may properly invoke the defense qualified immunity.

        In this case, the district court gave us no answer to this question. We conclude that it was

improper for the district court to gloss over the threshold question of assertability, and we answer

that question in the plaintiff’s favor. For this reason, we AFFIRM the district court’s decision,

finding that the defendant was not entitled to the defense of qualified immunity as a basis for his

motion to dismiss.

        Kameshwari Mehra worked as a psychiatrist at the Michigan Department of Corrections’

(MDOC) where he was assigned to the Reception and Guidance Center (RGC) in Jackson,

Michigan. He was formerly a state employee, but he began working on a contract basis in 2003.

Mehra was employed through what he called a “long-term company”—the Jackson and Coker

Recruiting Agency. During his time at the RGC, he also served as an in-house consultant at the

local veterans hospital.

        In March 2007, prison officials brought Larry D. Lee, Jr. to the Jackson facility for inmate

intake and processing. At the outset, prison officials subjected Lee to abusive verbal harassment on

the basis of his sexual orientation.




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        As part of the intake process, MDOC medical personnel evaluated Lee’s health, concluding

that he needed treatment for depression and hypertension. Paul Schneeman, a social worker at the

RGC, saw Lee for a mental health evaluation. After meeting with Schneeman, Lee saw Wills Dixon,

a prison psychologist. Dixon completed a mental health assessment and referred Lee to Mehra.

        Lee and Mehra met for the first time on April 6, 2007. During this encounter, Lee expressed

“fears and phobias about being harassed by other prisoner[s]” and staff inside the prison. Mehra

observed that Lee “appear[ed] to be over[ly] concern[ed] about his safety in the prison system,

because of his sexual orientation.” Concerned about the potential for sexual assault, Lee asked

Mehra to place him in protective custody. The psychiatrist took no action. Mehra had the authority

to order Lee to be placed in secured housing, but Mehra believed he did not have the custodial

authority to do what Lee asked.

        Three days later, two unidentified inmates raped Lee at knifepoint. Lee attempted to file a

formal grievance, but prison officials denied him access to a grievance form. On April 13,

2007—four days after the assault—Lee filed grievances against several prison officials for their

homophobic remarks. The grievances did not mention the forced sexual encounter.

        That same day, Lee met with Mehra and told him:, “I can’t take it anymore. I am stressed

out. Everyone is talking about my sexual orientation and making all kinds of bad remarks. I can’t

take it anymore. I need help.” Mehra noted that “[Lee] feels the prisoners are advancing towards

him for sex. He continues to fear about these things all the time to the level of sometimes [sic] to

paranoia.” Concluding that Lee suffered from post-traumatic stress disorder, Mehra prescribed 200

milligrams of Atrax and two milligrams of Risperdal. The two saw each other on at least one other

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occasion, but there is no record or testimony as to what happened during this encounter, save for an

adjustment of medication. MDOC transferred Lee to a permanent corrections facility on May 9,

2007.

        Proceeding pro se (but later retaining counsel), Lee filed a complaint in the United States

District Court for the Eastern District of Michigan, claiming that the defendants—Mehra and other

prison employees and officials—were liable under: (1) 42 U.S.C. § 1983 for violations of the Eighth

and Fourteenth Amendments; (2) the Elliot-Larsen Civil Rights Act; and (3) state common law for

intentional infliction of emotional distress. Mehra moved for summary judgment, arguing that Lee

failed to exhaust his administrative remedies in accordance with the Prison Litigation Reform Act.

The magistrate judge recommended denial of the motion, and the district court agreed.

        Mehra tried again, this time moving for summary judgment, contesting the merits of Lee’s

claims. The magistrate judge recommended that summary judgment be granted in favor of Mehra

on all of Lee’s claims, except for the deliberate-indifference claim arising from the psychiatrist’s

alleged failure to protect his patient-prisoner. With respect to that issue, the magistrate judge

concluded that there was a clearly established right for prisoners to be free from prisoner-on-prisoner

violence, and that there was a genuine issue of material fact as to whether Lee’s Eighth Amendment

rights had been violated. The report reasoned that Mehra’s failure to either place Lee in protective

custody or ask custodial officials to grant Lee’s request for such custody could serve as the factual

basis for a jury to find a constitutional violation. Hence, the report concluded, Mehra was not

entitled to qualified immunity on Lee’s Eighth Amendment claim. The district court agreed.




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        Mehra then filed this interlocutory appeal, challenging the district court’s denial of his

qualified immunity defense with respect to Lee’s Eighth Amendment claim.

        We review de novo a district court’s decision to deny summary judgment on qualified-

immunity grounds. Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011). Summary judgment is

only appropriate if there are no genuine issues of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). The evidence must be construed in the light most

favorable to the nonmoving party, with all inferences drawn in the non-movant’s favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

        Both parties have raised a number of jurisdictional issues. We decline to address their

arguments at length, except to say that this Court has jurisdiction to decide whether Mehra was

eligible to invoke the defense of qualified immunity. See Quigley v. Thai, 707 F.3d 675, 680 (6th

Cir. 2013); see also McCullum v. Tepe, 693 F.3d 696, 699-700 (6th Cir. 2012); Harrison v. Ash, 539

F.3d 510, 521 (6th Cir. 2008).

        When a private employee working at a state prison is sued under § 1983, we must first

determine whether that employee “can invoke qualified immunity in a lawsuit arising out of his

activities at the prison.” McCullum, 693 F.3d at 700. To do so, we ask two questions: (1) whether

“there was a firmly rooted history of immunity for similarly situated parties at common law”; and

(2) “whether granting immunity would be consistent with the history and purpose of § 1983.” Id.

        In this instance, however, we need not strain ourselves to discern the answer, for it was

already decided in McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) that a psychiatrist “employed

by an independent non-profit organization, but working part-time for the County as a prison

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psychiatrist” was not entitled to the defense of qualified immunity. Id. at 699-700, 704. We found

no nineteenth-century common law contemporary to § 1983's passage that granted immunity for

private doctors working at public institutions. See id. at 704. We also concluded that the policy

considerations undergirding § 1983 immunity militated against granting immunity, where, as here,

the defendant’s primary employer, a private firm, is capable of “offset[ing] . . . [the] increased . . .

liability risk” resulting from its employees’ lack of § 1983 immunity. Id. at 704.

        There is little doubt that McCullum applies here. As Mehra’s counsel conceded at oral

argument, there is no meaningful distinction between him and the psychiatrist in McCullum.

Acknowledging this reality, Mehra instead opts to attack the wisdom of our prior decision,

contending that McCullum was wrongly decided. He cites four reasons in support of his argument:

(1) the decision disregarded the Supreme Court’s recognition of common-law immunity for private

doctors in Richardson v. McKnight, 521 U.S. 399 (1997); (2) the McCullum court erroneously

assumed that the silence of nineteenth-century caselaw on common-law immunity for private doctors

meant that no such immunity existed; (3) the role of private physicians is not distinguishable from

other protected functions identified by the Supreme Court in Filarsky v. Delia, 132 S. Ct. 1657

(2012); and (4) the policy analysis used by the McCullum court applied only to private prisons and

employees thereof.

        From the outset, we note that a three-judge panel of this court is not the proper audience for

such contentions. McCullum is a published decision of this circuit, and whatever the wisdom of

Mehra’s arguments may be, we must treat it as binding authority. See United States v. Humphrey,

287 F.3d 422, 452 (6th Cir. 2002) (“It is axiomatic that a court of appeals must follow the precedent

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of prior panels within its own circuit.”); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)

(“[O]nly the court sitting en banc may overrule a prior decision of a panel.”).

        But stare decisis is not the only reason we reject Mehra’s arguments—they are, in a word,

wrong. We address each of them in turn.

        First, the McCullum court did address Richardson, noting its “cryptic comment” about the

possibility of private doctors being entitled to qualified immunity. It observed that the Richardson

Court’s dicta had no support in the law. McCullum, 693 F.3d at 702-04. Neither the common law

contemporary to § 1983s passage nor the common law of the twentieth century supported the idea

that there was a firmly rooted common-law practice of extending immunity to private psychiatrists.

Id. at 701-04.

        Even if we were to ascribe some meaning to Richardson’s “cryptic comment,” however, it

would—at most—immunize doctors from liability for negligent acts. See Harrison, 539 F.3d at 522.

As an Eighth Amendment claim of deliberate indifference necessarily requires something more than

“mere mistreatment or negligence,” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 568 (6th Cir.

2013) (internal quotation marks omitted), Richardson’s “cryptic comment” does nothing for Mehra

here.

        Second, Mehra seems to suggest that this court improperly constrained itself by analyzing

only nineteenth-century caselaw in concluding that there was no common-law immunity for private

doctors serving the government. But nothing in twentieth-century caselaw helps his case, either.

See McCullum, 693 F.3d at 701 (citing Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000);

Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999)); see also Jensen v. Leonard, 186 P.2d 206

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(Cal. Dist. Ct. App. 1947) (considering an appeal arising from a suit against a privately employed

psychiatrist working for the state as a medical examiner and refraining from any discussion of

immunity). Moreover, we limited ourselves to nineteenth-century cases because the Filarsky Court

suggested that we do so. McCullum, 693 F.3d at 702 (citing Filarsky, 132 S. Ct. at 1662).

        Third, we need not distinguish private physicians from “other protected functions identified

by the Supreme Court,” as the Court has itself eschewed such a functional comparison. In Filarsky,

the Court acknowledged that “examples of individuals receiving immunity for actions taken while

engaged in public service on a temporary or occasional basis are as varied as the reach of

government itself.” 132 S. Ct. at 1665. Instead of comparing occupations side-by-side, the Court

limited its analysis to the question of whether caselaw establishing immunity for a particular

occupation existed at the time § 1983 was enacted. Id.

        Finally, Mehra’s contention that “the Supreme Court’s analysis of the policy rationales in

Richardson apply only to denying qualified immunity to a private prison and its personnel” is

incorrect. Indeed, the Filarsky decision belies this observation; the case had nothing to do with

prisons, yet the Court still looked to Richardson’s policy rationales to conclude that an investigator

hired by a municipality was eligible to invoke the defense of qualified immunity. Id. at 1665-66.



        With no good reason to disturb our holding in McCullum, we conclude that there is no

meaningful distinction between the psychiatrist in that case and Mehra; thus, we conclude that,

under McCullum, Mehra is not eligible to invoke the defense of qualified immunity. Without such

a defense, it would have been improper for the district court to grant summary judgment in Mehra’s

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favor. Hence, as the district court’s denial of summary judgment was proper, we AFFIRM the

district court’s decision.




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