Jennifer Hall v. Terry Carl ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0137n.06
No. 22-5702
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JENNIFER HALL and DANIEL POWERS, ) FILED
Administrators of the Estate of Serenity Renee ) Mar 17, 2023
Powers, ) DEBORAH S. HUNT, Clerk
)
Plaintiffs-Appellees,
)
)
v.
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
TERRY CARL,
) COURT FOR THE EASTERN
Defendant, ) DISTRICT OF KENTUCKY
)
MARK SCHAFFIELD, M.D., ) OPINION
Defendant-Appellant. )
)
)
Before: MOORE, CLAY, and STRANCH, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. This appeal arises from the denial of a
motion for summary judgment in a 42 U.S.C. § 1983 case alleging Eighth Amendment violations
and state-law negligence claims. Although defendant Mark Schaffield did not assert a qualified
immunity defense below, at issue is whether the district court was correct when it nevertheless
noted in passing that binding Sixth Circuit precedent in McCullum v. Tepe, 693 F.3d 696 (6th Cir.
2012), prevented him from asserting such a defense.
Jennifer Hall was seven and a half months pregnant when she was admitted to the Kenton
County Detention Center (“KCDC”) in April 2018. R. 77-2 (Hall Dep. at 160) (Page ID #524).
She had been treated for her opioid-use disorder with Methadone since 2016. Id. at 41–42 (Page
No. 22-5702, Hall et al. v. Carl et al.
ID #405–06). During the first month of her incarceration, she was transported daily to a
Methadone clinic to receive treatment. Id. at 60–61 (Page ID #424–25). Healthcare services at
KCDC were contracted to Southern Health Partners (“SHP”). R. 77-1 (Kenton Cnty. Mem. in
Supp. of Mot. for Summ. J. at 3) (Page ID #342). Dr. Schaffield contracted with SHP to serve as
Medical Director at KCDC. R. 77-4 (Schaffield Dep. at 160–61) (Page ID #729–30).
On May 25, 2018, when Jennifer Hall’s pregnancy was full-term, Dr. Schaffield gave an
order to the nurses at KCDC to transition the pregnant women with opioid-use disorders at KCDC
from Methadone to Buprenorphine. R. 77-5 (Thoman Dep. at 34–35; 62) (Page ID #851–52, 879);
R. 77-6 (Setters Dep. at 61) (Page ID #990). Like Methadone, Buprenorphine is a prescription
treatment for substance abuse disorders. R. 128 (Mem. Op. & Order at 2–3 (Page ID #4298–99).
Buprenorphine, however, does not require daily trips to a clinic. R. 77-4 (Schaffield Dep. at 12)
(Page ID #581). Kentucky regulations dictate professional standards for the prescription and
dispensation of Buprenorphine, including a requirement that the prescribing doctor obtain a
complete evaluation of the patient, explain treatment alternatives and risks, obtain written
informed consent, and document the presence of opioid withdrawal prior to administering the first
dose. 201 Ky. Admin. Reg. 9:270 Sec. 2(4). For pregnant patients, a doctor must also “obtain and
document consultation with another independent physician that the potential benefit of
[Buprenorphine] use outweighs the potential risk of use.” Id. Sec. 2(4)(b)(2)(a). Dr. Schaffield
took none of these precautionary measures before ordering the change in the pregnant inmates’
medication. R. 77-4 (Schaffield Dep. at 30, 38–39, 42, 78, 89, 106–07, 129–30, 132–33, 134–35,
137, 215) (Page ID #599, 607–08, 611, 647, 658, 675–76, 698–99, 701–02, 703–04, 706, 784).
SHP policy also prohibits detoxing pregnant inmates on Methadone and directs that they should
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be continued on Methadone while incarcerated. R. 111-6 (SHP Policy at 2) (Page ID #3942). Dr.
Schaffield did not recall if he consulted SHP’s policy on detoxing pregnant inmates before he
switched them to Buprenorphine from Methadone. R. 77-4 (Schaffield Dep. at 34) (Page ID #603).
The pregnant inmates were told on Monday, May 28, 2018, that they would be given
Buprenorphine instead of being taken to the Methadone clinic. R. 77-2 (Hall Dep. at 79–81) (Page
ID #443–45). One pregnant woman who refused to take the Buprenorphine before speaking to her
doctor was sent to an isolation unit until she agreed to take the medication three hours later. R.
102-4 (Incident Report at 1) (Page ID #1849); R. 77-8 (Ray Dep. at 27) (Page ID #1113). Shortly
after Hall received her first dose of Buprenorphine, she began to suffer withdrawal symptoms. R.
77-2 (Hall Dep. at 86–87) (Page ID #450–51). She testified at her deposition that she vomited
after taking the first dose. Id. The following day, she was given her second dose of Buprenorphine
and vomited again. Id. at 109 (Page ID #473). Hall grew convinced that something was wrong
with her pregnancy and reported to nurses that she was in labor so that they would transport her to
the hospital. Id. at 92 (Page ID #456). After Hall arrived at the hospital, she suffered a stillbirth.
Id. at 114–16 (Page ID #478–80).
Hall filed this suit alleging an Eighth Amendment deliberate-indifference claim and state-
law claims for negligence against Kenton County, SHP, and Dr. Schaffield, as well as other SHP
and jail staff in their individual capacities. R. 1 (Compl. at 1–2, ¶¶ 27–31) (Page ID #1, 9–10).
After discovery concluded, Dr. Schaffield moved for summary judgment. R. 105 (SHP Defs.’
Mot. for Summ. J. at 1) (Page ID #2336). Dr. Schaffield did not raise the affirmative defense of
qualified immunity in his answer or in his motion for summary judgment. R. 9 (Schaffield Ans.
at 1–8) (Page ID #68–75); R. 105 (SHP Defs.’ Mot. for Summ. J. at 1–16) (Page ID #2336–51).
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Nevertheless, the district court noted that Schaffield was not entitled to assert the defense of
qualified immunity based on the Sixth Circuit’s decision in McCullum. R. 128 (Mem. Op. & Order
at 36) (Page ID #4332). The district court then denied Dr. Schaffield’s motion for summary
judgment on the ground that a reasonable jury could find that Schaffield had been “deliberately
indifferent to the serious risk posed by the medication change he ordered” and that his “actions
were ‘so grossly incompetent, inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.’” R. 128 (Mem. Op. & Order at 48) (Page ID #4344) (quoting
Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 844 (6th Cir. 2002)). Dr. Schaffield
appealed the district court’s purported determination that he was not entitled to qualified immunity
and the district court’s denial of his motion for summary judgment.
Under the collateral-order doctrine, a district court’s order denying summary judgment on
the issue of qualified immunity is immediately appealable if “the defendant was a public official
asserting a defense of ‘qualified immunity,’” and “the issue appealed concerned . . . whether or
not certain given facts showed a violation of ‘clearly established’ law.” Harrison v. Ash, 539 F.3d
510, 521 (6th Cir. 2008) (quoting Johnson v. Jones, 515 U.S. 304, 311 (1995)). Dr. Schaffield has
appealed the district court’s purported denial of qualified immunity. But as the district court
recognized, Dr. Schaffield, as a private doctor working for the government, is “not entitled to assert
qualified immunity” under binding Sixth Circuit precedent. McCullum, 693 F.3d at 704; see also
Berkshire v. Beauvais, 928 F.3d 520, 531 (6th Cir. 2019) (noting that the Sixth Circuit is bound
by McCullum and private doctors working for the government are not entitled to qualified
immunity); Lee v. Willey, 543 F. App’x 503, 505–07 (6th Cir. 2013) (discussing McCullum and
finding “no good reason to disturb our holding” in the case of a private psychiatrist who was
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working for a state prison on a contract basis). McCullum postdates and interprets Filarsky v.
Delia, 566 U.S. 377 (2012), and it is a well-established rule of this circuit that one panel of this
court cannot overrule the decision of another panel, barring an intervening and inconsistent opinion
from the Supreme Court or an en banc decision of this court overruling the panel. See, e.g., Ladd
v. Marchbanks, 971 F.3d 574, 580 n.4 (6th Cir. 2020); United States v. Ferguson, 868 F.3d 514,
515 (6th Cir. 2017); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001). McCullum is
binding precedent and bars Dr. Schaffield from raising the defense of qualified immunity. We
thus do not have jurisdiction to hear this appeal. McCullum, 693 F.3d at 697, 700; Harrison, 539
F.3d at 525.1
Even if McCullum did not bind us, qualified immunity is an affirmative defense that must
be affirmatively pleaded, Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986), and
failure to raise qualified immunity results in forfeiture. Summe v. Kenton Cnty. Clerk’s Off., 604
F.3d 257, 269 (6th Cir. 2010); English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994). When Dr.
Schaffield failed to assert his qualified-immunity defense in his answer to the complaint or his
motion for summary judgment, he forfeited the defense at this stage of the litigation. See Summe,
604 F.3d at 269–70 (holding that a defendant who failed to raise the qualified-immunity defense
on summary judgment forfeited the defense); Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 752
(6th Cir. 2015) (approving district court finding that defendant had forfeited the qualified-
immunity defense at the motion-to-dismiss stage); Swart v. Pitcher, 9 F.3d 109, 1993 WL 406802,
1
Dr. Schaffield also raises concerns unrelated to qualified immunity. We do not have jurisdiction to review
the district court’s determination that triable issues of fact exist that preclude summary judgment because the denial
of summary judgment is not a “final judgment,” and is therefore not immediately appealable. Johnson v. Jones, 515
U.S. 304, 313 (1995); McDonald v. Flake, 814 F.3d 804, 815 (6th Cir. 2016); Harrison v. Ash, 539 F.3d 510, 521 (6th
Cir. 2008).
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at *4 (6th Cir. Oct. 8, 1993) (unpublished table decision) (defendants had forfeited their ability to
raise the qualified-immunity defense on a motion to dismiss).
Finally, we decline to award damages and costs for an allegedly frivolous appeal under
Federal Rule of Appellate Procedure 38 at this time. Rule 38 provides that the courts of appeals
may “award just damages and single or double costs” only “after a separately filed motion or notice
from the court and reasonable opportunity to respond.” Fed. R. App. P. 38. The advisory
committee notes make clear that “[a] statement inserted in a party’s brief that the party moves for
sanctions is not sufficient notice. . . . Only a motion, the purpose of which is to request sanctions,
is sufficient.” Fed. R. App. P. 38 advisory committee’s note to 1994 amendment. If Hall wishes,
she may file a motion in this court requesting damages and costs pursuant to Rule 38.
Because Dr. Schaffield is not entitled to assert the defense of qualified immunity, and
because even if he were, he would have forfeited the defense for the purposes of summary
judgment, we AFFIRM.
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