Abstract
There is an ongoing debate between the several circuits as to whether private individuals acting under “color of state law” may assert the defense of qualified immunity in an action under 42 U.S.C. §1983. One of the most prominent aspects of this debate can be found in the context of prison litigation: while state-employed correctional officers are undeniably entitled to assert the defense of qualified immunity, it is greatly uncertain whether their counterparts, privately employed medical personnel that provides on-site medical services at state prisons, are equally entitled to the defense.
This Note proposes a sliding-scale framework that reconciles the Supreme Court’s disparate precedent on the broader issue of private individuals’ entitlement to qualified immunity: the closer the nexus between private and government employees, the more the qualified immunity policy considerations will be implicated, and the lesser the common law history and tradition inquiry will matter. Conversely, when such a close nexus is missing, courts will have to search deeper into the common law history and tradition and shall not extend qualified immunity to private individuals unless there is a strong history of immunity as to the closest analogous private actor. Finally, this Note suggests that there is a strong presumption of a close nexus between the private health care providers who perform on-site services in state correctional facilities and the state-employed correctional officers in these same facilities. Accordingly, courts should allow the assertion of qualifies immunity by on-site private correctional health providers unless the plaintiff rebuts this presumption.
Recommended Citation
Athina Pentsou,
Assertion of Qualified Immunity by Private State Actors After Filarsky: An Application to the Employees of Prison Health Care Contractors,
43
S. Ill. U. L.J.
361
(2019).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol43/iss2/4