Qualified immunity for private doctors in state correctional and mental health facilities


By: Jacob E. Daly

Although the U.S. Supreme Court hears and decides cases between October and late June/early July every year, litigants file petitions for a writ of certiorari year-round.  Thousands of cert petitions are filed every year, and so the odds of any particular petition being granted are slim.  One recently filed petition, however, bears monitoring.  See Estate of Madison Jody Jensen v. Tubbs, No. 21-152 (filed July 30, 2021). 

Jensen raises the issue of whether private doctors who practice medicine in state correctional and mental health facilities are entitled to assert qualified immunity as a defense to a claim under 42 U.S.C. § 1983.  According to the petition, Madison Jensen was taken to the Duchesne County (Utah) Jail following her arrest for drug possession.  The petition alleges that she exhibited symptoms of opioid withdrawal, including continuous vomiting and severe diarrhea, and that her requests for medical attention were ignored.  She died from dehydration four days after arriving at the jail. 

Dr. Kennon Tubbs, a private doctor, had contracted to provide medical services to inmates at the jail.  His responsibilities included providing training, instruction, support, and supervision for the jail’s nursing staff on how to handle triage, sick calls, medical protocols, and health care complaints.  The lone nurse who worked at the jail was required to administer medications, check vital signs, and report to Dr. Tubbs.  The nurse said that she had never been trained on medical policies and procedures for the jail.  She believed Jensen had a stomach flu, so she did not contact Dr. Tubbs, did not monitor Jensen’s vital signs, and did not provide any medical treatment other than giving Jensen Gatorade. 

Jensen’s estate sued Dr. Tubbs under § 1983 for failing to implement policies, procedures, and training for treating inmates who have symptoms of opioid withdrawal or severe dehydration.  (Jensen’s estate also sued the nurse.)  The district court denied Dr. Tubbs’ motion for summary judgment based on qualified immunity, although it sidestepped the issue of whether a contract doctor is permitted to assert qualified immunity as a defense, and the Tenth Circuit reversed.  Because a doctor employed by a local government entity would be entitled to assert qualified immunity as a defense, the Tenth Circuit held that a contract doctor should also be entitled to assert this defense.  The Tenth Circuit further held that Dr. Tubbs was entitled to qualified immunity under the facts of this case but that the nurse was not. 

The Tenth Circuit’s decision in Jensen reinforced a split among the federal circuits on the issue of whether qualified immunity applies to a private doctor working at a state correctional or mental health facility.  The Sixth, Seventh, Ninth, and Eleventh Circuits have held that qualified immunity does not apply to such doctors, while the Fifth Circuit and now the Tenth Circuit have held that it does.  Normally, the odds of a cert petition being granted are slim, but the existence of a 4-2 circuit split increases the odds of the petition in Jensen being granted.  Stay tuned for the Court’s decision. 

For additional questions, please contact Jacob E. Daly at