SEAN F. COX, District Judge.
Plaintiff John Sampson is a physician who had contracts with Blue Cross Blue Shield of Michigan ("BCBS") under which he provided medical services for patients, in exchange for reimbursement. Dr. Sampson, his wife, and business entities that they have interests in, filed this § 1983 suit against multiple Defendants, including BCBS and several of its employees, after those employees aided law enforcement officers in executing search warrants at Dr. Sampson's home and office.
This case, which has a long and complex history, is currently before the Court on the BCBS Defendants' Motion for Judgment on the Pleadings. In this motion, the BCBS Defendants assert that: 1) although they are private citizens, they should be allowed to invoke the defense of qualified immunity in this action; and 2) they are entitled to qualified immunity as to the claims asserted against them. The motion has been fully briefed and the Court heard oral argument on February 13, 2014. The threshold inquiry, whether the BCBS Defendants can assert the defense of qualified immunity, is an interesting and unusual issue. For the reasons set forth below, the Court shall DENY this motion because the Court concludes that the BCBS Defendants may not invoke the defense of qualified immunity in this action.
Plaintiffs John Gilmore Sampson, M.D. and Cecelia Sampson, Argyle Plastic and Reconstructive Surgery, P.C. ("Argyle"), Fourth Street Properties, LLC ("Fourth Street Properties"), and John Sampson, M.D., Trustee/Fiduciary of the Argyle Plastic and Reconstructive Surgery, P.C. 401(k) Profit Sharing Plan and Trust ("the Trust") filed this action in federal court on January 11, 2013, based on federal-question jurisdiction.
Plaintiffs' original Complaint named numerous Defendants and asserted the following claims: "42 U.S.C. § 1983 Deprivation of Rights Under Fourth, Fifth And Fourteenth Amendments Due To Seizure Of Monies Without Probable Cause" (Count I); "Deprivation Of Rights Under Fourth, Fifth And Fourteenth Amendment Due To Seizure Of LLC Funds" (Count II); "42 U.S.C. § 1983 Conspiracy To Deprive Of Rights Guaranteed By Fourth,
On January 22, 2013, this Court issued an "Order Declining To Exercise Supplemental Jurisdiction Over State-Law Claims" (Docket Entry No. 3) and dismissed the following counts without prejudice: Counts VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, and XVII. That left Counts I through VII remaining.
This Court issued the Scheduling Order on July 25, 2013. (Docket Entry No. 18). That order provides, among other things, that discovery is to close on March 31, 2014, and the deadline for filing motions is May 2, 2014.
On September 20, 2013, Plaintiff filed an Amended Complaint (Docket Entry No. 19). Plaintiffs' Amended Complaint names the following Defendants: 1) BCBS; 2) Detective Sergeant Lisa Gee-Cram ("Cram"); 3) Detective Robert Schrock ("Schrock"); 4) Detective Timothy Schlundt; 5) Detective Lee Rose ("Rose"); 6) Detective Sergeant Brian Russell ("Russell"); 7) Trooper Gina Gettel ("Gettel"); 8) Blackman Township Public Safety Department; 9) Jackson County Sheriff Department; 10) the Jackson County Prosecutor's Office; 11) David Castelein ("Castelein"); 12) John Southworth ("Southworth"); 13) Nina Burnette ("Burnette"); 14) Patricia Hammerle ("Hammerle"); 15) Thomas Clickner ("Clickner"); 16) Susan Post ("Post"); 17) Roger Ramirez ("Ramirez"), and 18) Larry Harrison ("Harrison"). The Amended Complaint asserts the following claims:
(Am. Compl.)
On December 26, 2013, the BCBS Defendants filed the instant Motion for Judgment on the Pleadings. (Docket Entry No. 28).
BCBS's Motion for Judgment on the Pleadings was brought pursuant to Fed.R.Civ.P. 12(c). The standard that applies to this motion is the same standard that applies to a motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6). For purposes of a Rule 12(c) motion, all well-pleaded material allegations "must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir.2008). A Rule 12(c) motion is appropriately granted "when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law." Id.
For purposes of this motion, the Court may consider: 1) documents referenced in, or attached to, the complaint and central to the plaintiff's claims; 2) matters of which a court may properly take notice; and 3) public documents and records. Costell v. Bank of New York Mellon, 2013 WL 317746 (E.D.Mich.2013); Meyer v. Citimortgage, Inc., 2012 WL 511995 (E.D.Mich.2012); Devlin v. Kalm, 531 Fed.Appx. 697 (6th Cir.2013). Thus, this Court can consider opinions and orders issued in related state-court civil and criminal actions.
The pending motion filed by the BCBS Defendants does not provide a full account of all that has transpired in the state courts that is related to this action. As shown below, Plaintiffs' statement that this "matter has an exceptionally complicated factual and procedural history, involving multiple civil and criminal" actions, is accurate.
Plaintiff Dr. John Sampson is a physician, licensed to practice medicine in Michigan. (Am. Compl. at ¶ 5). Dr. Sampson and his wife, Plaintiff Cecilia Sampson, own or have an interest in two business entities, Argyle and Fourth Street Properties. Mrs. Sampson is employed by Argyle (the medical practice).
Dr. Sampson entered into contracts with BCBS, under which he agreed to provide medical services to BCBS members in exchange for payment. In 1995, he entered into a Traditional Agreement with BCBS and in 2004 he entered into a Participating Physician Agreement. (Am. Compl. at ¶ 28). Those contracts contain provisions for audit, dispute and appeal processes, and recovery of overpayments. (Am. Compl. at ¶ 29).
Plaintiffs allege that neither Castelein nor any other representative of BCBS made a complaint to "the Attorney General for investigation under the Health Care False Claims Act, MCL 752.1008," and instead, Castelein "initiated criminal proceedings to collect the amounts allegedly owed" to BCBS. (Am. Compl. at ¶ 35).
Plaintiffs allege that on "January 12, 2010, Castelein met with one or more Jackson County assistant prosecutors and Det[ective] Cram," who is employed by the Michigan State Police. (Am. Compl. at ¶ 11 & 36). "Castelein provided Det. Cram, and possibly others, with a three-inch binder of information pertaining to BCBSM's investigation of Dr. Sampson." (Am. Compl. at ¶ 37). "On January 15, 2010, relying entirely upon the information provided by Castelein without further investigation, and alleging criminal activity under the Health Care False Claims Act, search warrants were issued for search of Argyle and Trillium
On January 19, 2010, Detective Cram and her team executed those search warrants at Argyle and Trillium. (Am. Compl. at ¶¶ 39-41). At the request of Detective Cram, the following five members of the Jackson County Major Crimes Task Force "assisted in the execution of the warrants:" Detective Schrock, Detective Schlundt, Detective Rose, Detective Russell, and Trooper Gettel. (Am. Compl. at ¶ 41).
Plaintiffs allege that Detective Cram "invited Castelein to put together a team from BCBSM to participate in the execution of the search warrants. Castelein, using his own discretion as to the number of BCBSM employees and their expertise, chose to bring the eight BCBSM employees who are named as Defendants,
On January 19, 2010, Detective Cram also obtained a search warrant for the Sampson's home, to search for records and documents. (Am. Compl. at ¶ 47). Plaintiffs allege that search, which was done with "members of the Jackson County Major Crimes Tax [sic] Force and BCBSM employees" was illegal. (Am. Compl. at ¶ 48).
On January 19, 2010, Det. Cram with Det. Rose executed warrants for Citizens Bank, National City Bank, and Pension Consultants, Inc. to "seize all assets in all business and personal accounts owned by Dr. Sampson, Mrs. Sampson, Argyle, and Pension Consultants, Inc." (Am. Compl. at ¶ 49). Those warrants also froze all future deposits into those accounts. (Am. Compl.
At this point, no criminal charges had been filed against any of the Plaintiffs.
Plaintiffs' Amended Complaint reflects that there was an action initiated in district court in Jackson County to challenge the search warrant and seizure of funds, district court case number 10-0002-GZO. That case had a case caption of "IN RE: Search of Citizens Bank Accounts, Pension Consultants, Inc. Account, and National City Bank PNC Account." It was an action brought by the Sampsons and their business entities to challenge the search warrant and seek return of monies that had been seized. (Am. Compl. at ¶ 53). There were orders issued in that case by the district court but they are not part of the record before this Court. But other filings reflect that the district court judge upheld the warrants/seizures. The record before this Court also does not include copies of the search warrants or their supporting affidavits.
The Sampsons and their business entities appealed to the Jackson County Circuit Court. The case was assigned to the Honorable Chad Schmucker.
In an Opinion & Order issued on April 1, 2010, Judge Schmucker ruled that the seizure of funds "was unlawful in this case" and he reversed the district court's rulings and ordered the seized funds released and returned. (See 4/1/10 Opinion & Order, Docket Entry No. 32-1, at 7). That Opinion & Order explained that Plaintiffs were "challenging a search warrant authorized by the 12th District Court and executed in mid-January 2010." (Id. at 1). It stated that Plaintiffs (the petitioners there) were not challenging the seizure of records and documents, but rather, challenged "the seizure of the financial assets including the accounts at National City Bank, Citizens Bank, and Pension Consultants, Inc., and the seizure of any money and checks at the home and office of the doctor." (Id.). It noted that "Dr. Sampson, his wife, and his business have not been charged with any crime," and that no forfeiture action had been commenced against them either. (Id.). It noted that the challenged warrant authorized the taking of all funds in the bank accounts of the Plaintiffs, the entire pension fund, and any money or checks at the business or home of Dr. Sampson and that the "search warrant does not limit the amount of money which can be taken." (Id. at 2). Judge Schmucker stated, in pertinent part:
(Id. at 2-4). The Opinion & Order further rejected the prosecution's argument that the property was subject to forfeiture under RICO, explaining that the process under the relied upon forfeiture provision "is conviction, order of forfeiture and then seizure. Nothing in [the relied upon statute] suggests a seizure can occur before conviction, much less before someone has been charged." (Id. at 5).
Judge Schmucker's Opinion & Order concluded by stating, in pertinent part, that:
(Id. at 7).
Plaintiffs' Complaint states that "[o]n April 7, 2010, Dr. Sampson and Mrs. Sampson were criminally charged with 20 counts of making false claims and one count of conspiracy under the Health Care False Claims Act." (Am. Compl. at ¶ 58). "On May 18, 2010, Argyle was charged with one count of conspiracy under the Health Care False Claims Act and five counts of intent to defraud with false pretenses." (Id. at ¶ 68).
"All but five of the counts against Dr. Sampson and Mrs. Sampson were dropped on May 21, 2010." (Id. at ¶ 59). "On September 17, 2010, all charges against Argyle were dropped." (Id. at ¶ 70). "Thereafter, the charges against Dr. Sampson and Mrs. Sampson were reduced to taking money under false pretenses and health care conspiracy." (Id. at ¶ 71).
But "[o]n October 22, 2010, Felony Complaints were reissued against Dr. Sampson and Mrs. Sampson, this time for Health Care Fraud/False Claims (15 counts)." (Id. at ¶ 72).
"Then, on February 3, 2011, felony information was again issued, and currently Dr. Sampson is charged with fifteen counts of Health Care Fraud/False Claims, and Mrs. Sampson is charged with ten counts." (Id. at ¶ 73).
Meanwhile, in April of 2010, BCBS initiated a civil action against John Sampson and Argyle in Jackson County Circuit
Plaintiffs allege that on April 20, 2010, BCBS filed a motion for preliminary injunction "to prevent the return of the monies that had been illegally seized as required by the April 1, 2010 Order" and that the "motion relied upon the information which Castelein wrongfully obtained during the execution of the warrant (i.e., that Dr. Sampson was Jamaican and therefore might abscond with the monies." (Am. Compl. at ¶ 61). "At hearing held on April 27, 2010, BCBSM argued that the illegally seized monies were restitution for sums owed to BSBSM and should not be released to Dr. Sampson because he was Jamaican." (Am. Compl. at ¶ 64; see also Castelein Affidavit, Docket Entry No. 26-6 at ¶ 3, wherein he states that he attended the execution of the search warrants on January 19, 2010, and during that time, observed Dr. Sampson's most recent tax return identified him as a citizen of Jamaica, a passport identifying him as a Jamaican citizen, documents that show he owns real property in Jamaica, and documents showing he owns various financial accounts in Antigua and Jamaica.).
"Judge Schmucker denied the Motion for Preliminary Injunction, and the monies were finally released with a check dated on or around May 7, 2010." (Am. Compl. at ¶ 65). "Thereafter, BSBSM amended its Complaint to include Mrs. Sampson as a Defendant in the civil action." (Am. Compl. at ¶ 66).
Plaintiffs allege that "[f]ollowing Defendants' Motion for Summary Disposition which was granted in part and denied in part, the parties agreed to stay the civil action until the conclusion of the criminal matter." (Am. Compl. at ¶ 67).
In connection with the criminal cases against them, the Sampsons filed a Motion to Suppress Evidence, with the circuit court judge presiding over the criminal cases, the Honorable Thomas D. Wilson. (Docket Entry No. 28-2, Copy of 4/10/13 Opinion And Order). That Opinion & Order states that, with respect to the Motion to Suppress, the court "held an evidentiary hearing on February 22, 2012, through February 23, 2012." (Id. at 2) (emphasis added).
While the criminal actions were still pending in Jackson County Circuit Court, Plaintiffs initiated this action on January 11, 2013, by filing their original complaint. At that time, Judge Wilson had not yet issued a ruling as to the Motion to Suppress.
Judge Wilson did not issue a ruling on the Motion to Suppress until April 10, 2013, when he issued a written Opinion & Order denying the motion.
On April 10, 2013, Judge Wilson issued an "Opinion And Order Following Defendants' Motion To Suppress Evidence" that states, in pertinent part:
(Id.).
In their motion, the BCBS Defendants argue that: 1) although they are private citizens, they are entitled to seek the protection of qualified immunity from suit under § 1983 in this case; and 2) they are entitled to qualified immunity as to all claims asserted against them.
In evaluating this motion, this Court must "first engage in an antecedent inquiry concerning whether [the BCBS Defendants] may properly invoke the defense of qualified immunity." Lee v. Willey, 543 Fed.Appx. 503, 503 (6th Cir.2013). This Court should only proceed to determine the second issue if it first determines that the BCBS Defendants may properly invoke a qualified immunity defense.
The BCBS Defendants broadly assert that qualified immunity "is also available to a private citizen" and rely heavily on Filarsky v. Delia, ___ U.S. ___, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012). Citing McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), they note that when a private person seeks qualified immunity in a § 1983 case, the court must determine: 1) whether there was a firmly rooted history of immunity for similarly situated parties at common law; and 2) and whether granting immunity would be consistent with the history and purpose of § 1983. But their focuses on policy arguments.
In response, Plaintiffs assert that the defense of qualified immunity is not available to the BCBS Defendants. They contend that Filarsky does not establish that the BCBS Defendants are entitled to qualified immunity and they also direct the Court to another Supreme Court decision, that predates Filarsky, that they believe is more on-point, Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992).
As explained below, this Court concludes that the BCBS Defendants are not entitled to seek the protection of qualified immunity from Plaintiffs' § 1983 claims under the circumstances presented in this case.
In Duncan, decided in 1988, the Sixth Circuit addressed the question of whether private parties acting under color of state law are entitled to immunity from suit when they act in good faith. Duncan v. Peck, 844 F.2d 1261, 1264 (1988). The court answered that question in the negative, holding that "private parties are not eligible for immunity from suit." Id. The Duncan court noted that "[c]ourts rarely have had opportunities to examine the propriety of immunity for private parties because the overwhelming number of suits under section 1983 are directed at government officials." Id. at 1265. The court then applied a two-part test to determine whether immunity was warranted: 1) has the party claiming immunity shown that immunity was recognized at common law; and 2) do strong public policy reasons support immunity. Id. Neither part of the
Id. at 1264. The court concluded that:
Id.
In Wyatt, issued in 1992, the Supreme Court granted certiorari "to resolve a conflict among the Courts of Appeals over whether private defendants threatened with 42 U.S.C. § 1983 liability are, like certain government officials, entitled to qualified immunity from suit." Wyatt, 504 U.S. at 161, 112 S.Ct. 1827.
The facts underlying Wyatt involved a soured cattle partnership. The respondent (Cole) sought to dissolve his partnership with petitioner (Wyatt) but when an agreement could not be reached, he filed a state court complaint in replevin against Wyatt. At that time, there was a state law that provided that an individual could obtain a court order for seizure of property possessed by another by posting a bond and swearing to a state court that the applicant was entitled to the property and that the adversary wrongfully took or detained the property. Id. at 160, 112 S.Ct. 1827. The statute gave the state court no discretion to deny a writ of replevin. Cole followed the statute and succeeded in having cattle and equipment seized from Wyatt. Wyatt later challenged the constitutionality of the statute and sued Cole, and Cole's attorney, under § 1983. The trial court, and the appellate court, held that Cole and his attorney were entitled to qualified immunity from suit for conduct arising prior to the statute's invalidation. The Supreme Court reversed.
The Court began by explaining that "Section 1983 `creates a species of tort liability that on its face admits of no immunities.'" Wyatt, 504 U.S. at 163, 112 S.Ct. 1827 (citation omitted). "Nonetheless, we have accorded certain government officials either absolute or qualified immunity from suit if the `tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine.'" Wyatt, 504 U.S. at 163-64, 112 S.Ct. 1827 (citations omitted). "If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871 — § 1 of which codified at 42 U.S.C. § 1983 — we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law." Id. "Additionally, irrespective of the common law support, we will not recognize an immunity available at common law if § 1983's history or purpose counsel against applying it in § 1983 actions." Id.
Wyatt, 504 U.S. at 164-65, 112 S.Ct. 1827 (emphasis added).
As to the public policy prong of the analysis, the Court concluded "that the rationales mandating qualified immunity for public officials are not applicable to private parties." Id. at 167, 112 S.Ct. 1827. In doing so, the Court explained that "[q]ualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions." Id. "Accordingly, we have recognized qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service." Id. "In short, the qualified immunity recognized in Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)], acts to safeguard government, and thereby to protect the public at large, not to benefit its agents." Id. at 168, 112 S.Ct. 1827. But it found that those "rationales are not transferable to private parties." Id. It noted that:
Wyatt, 504 U.S. at 168, 112 S.Ct. 1827.
Thus, following Wyatt, the Sixth Circuit has observed that "[q]ualified immunity is generally not available to private parties." Stack v. Killian, 96 F.3d 159, 163 (6th Cir.1996) (citing Wyatt v. Cole).
More recently, in Filarsky, the Supreme Court addressed the narrow issue of "whether an individual hired by the government to do its work is prohibited from seeking [qualified] immunity, solely because he works for the government on something other than a permanent or full-time basis." Filarsky v. Delia, ___ U.S. ___, 132 S.Ct. 1657, 1660, 182 L.Ed.2d 662 (2012). In that case, a city hired an experienced employment lawyer (Filarsky) to
The Supreme Court began its analysis with looking to the common law as it existed in 1871, when Congress enacted § 1983. The Court noted that, at that time, a public servant was often someone who did not devote all of his time to public duties, and was permitted to carry on private business too. It gave several examples, such as a general store owner stepping "behind a window to don his postman's hat." Filarsky, 132 S.Ct. at 1662-63. "Even such a core government activity as criminal prosecution was often carried out by a mixture of public employees and private individuals temporarily serving the public. At the time § 1983 was enacted, private lawyers were regularly engaged to conduct criminal prosecutions on behalf of the state." Id. Thus, "the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities." Id. at 1663. "The protections provided by the common law did not turn on whether someone we today would call a police officer worked for the government full-time or instead for both public and private employers." The Court also stated that "Sheriffs executing a warrant were empowered by the common law to enlist the aid of the able-bodied men of the community in doing so" and that "[w]hile serving as part of this `posse comitatus,' a private individual had the same authority as the sheriff, and was protected to the same extent." Id. at 1664. Thus, based on looking to the common law that existed in 1871, the Court found that "immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis." Id.
The Court then looked at public policy considerations and found that those considerations also militated in favor of qualified immunity being available to Filarsky. The Court referred to the interest of "avoiding `unwarranted timidity' on the part of those engaged in the public's business," as the "most important special government immunity-producing concern." It then stated that "[e]nsuring that those who serve the government do so `with the decisiveness and the judgment required by the public good,'" is "of vital important regardless of whether the individual sued as a state actor works full-time or on some other basis." Filarsky, 132 S.Ct. at 1665.
The Court also found that "government's need to attract talented individuals is not limited to full-time public employees," and that restrict qualified immunity to full-time public employees would make "it more likely that the most talented candidates will decline public engagements." The Court also stated that "[s]ometimes, as in this case, private individuals will work in close coordination with public employees, and face threatened legal action for the same conduct." Id. at 1666. "Because government employees will often be protected from suit by some form of immunity, those working alongside them could be left holding the bag — facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same action. Under such circumstances, any private individual with a choice might think twice before accepting a government assignment." Id.
The Court also stated that "[d]istinguishing among those who carry out the public's business based on the nature of their particular relationship with the government
The Court stated that its prior decisions, particularly the Wyatt decision "are not to the contrary." Id. at 1666. The Court stated that in Wyatt, it "explained that the reasons underlying recognition of qualified immunity did not support its extension to individuals who had no connection to government and pursued purely private ends. Because such individuals `hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good,' we concluded that extending immunity to them would `have no bearing on whether public officials are able to act forcefully and decisively in their jobs or on whether qualified applicants enter public service.'" Id. (emphasis added). It further explained that "Wyatt is plainly not implicated by the circumstances of this case. Unlike the defendants in Wyatt, who were using the mechanisms of government to achieve their own ends, individuals working for the government in pursuit of government objectives are `principally concerned with enhancing the public good.'" Id. (emphasis added).
In McCullum, issued after both Wyatt and Filarsky, the Sixth Circuit set forth the analysis to be used when a private party claims be able to invoke qualified immunity. The Court must determine whether: 1) there was a firmly rooted history of immunity for similarly situated parties at common law (the history prong of the test); and 2) whether granting immunity would be consistent with the history and purpose of § 1983 (the policy prong of the test). McCullum, 693 F.3d at 700 (citing Filarsky). The Sixth Circuit stated, however, that Supreme Court has not specified whether policy and history form a conjunctive or disjunction test, although "Wyatt's plain language points to a conjunctive test." McCullum, 693 F.3d. at 700 n. 7. The Sixth Circuit stated that it chose to treat the test as disjunctive "out of an abundance of caution" but noted that "it may be questionable whether the Supreme Court's jurisprudence in this area would allow a court to extend qualified immunity where there was no history of immunity at common law, even if sound policy justified the extension." Id. Accordingly, while this Court will analyze both prongs of the test, the first prong is the most important in the analysis.
Again, the first prong of the test looks at whether there was a firmly rooted history of immunity for similarly situated parties at common law in 1871, when § 1983 was enacted.
Although the BCBS Defendants acknowledge the first prong of the test, their brief glosses over prong one and focus on policy arguments, citing favorable portions from Filarsky.
At oral argument, Counsel for the BCBS Defendants asserted that the BCBS Defendants were simply private citizens aiding the police in executing search warrants.
While it is true that in 1871 Sheriffs executing a warrant were empowered to "enlist the aid of able-bodied men of the community in doing so" and that "[w]hile serving as part of this `posse comitatus,' a private individual had the same authority as the sheriff, and was protected to the same extent," (Filarsky, supra, at 1664), that is not the situation that is alleged here. The BCBS Defendants were not uninterested townspeople who, out of necessity, were asked to aid law enforcement officers with a warrant. Rather, Plaintiffs allege that the BCBS Defendants were the
As the Supreme Court instructed in Wyatt, "in determining whether there was an immunity at common law that Congress intended to incorporate in the Civil Rights Act," this Court should "look to the most closely analogous torts." Wyatt, 504 U.S. at 164, 112 S.Ct. 1827. As in Wyatt, the most closely analogous torts here are malicious prosecution and abuse of process. Indeed, Plaintiffs have separately-titled § 1983 counts for malicious prosecution and abuse of process.
And Wyatt tells us that "[a]t common law, these torts provided causes of action against private defendants for unjustified harm arising out of the misuse of governmental processes." There was no immunity at common law extended for complaining witnesses. Accordingly, the Court finds prong one has not been met.
The policy prong of the analysis "hinges on three of § 1983's goals: (1) `protecting the public from unwarranted timidity on the part of public officials;' (2) `ensur[ing] that talented candidates were not deterred by the threat of damages suits from entering public service;' Richardson [v. McKnight], 521 U.S. [399] at 408, 117 S.Ct. 2100[, 138 L.Ed.2d 540 (1997)], and (3) guarding against the distraction from job duties that lawsuit inevitably create." McCullum, 693 F.3d at 704.
As to the first goal listed above, the Supreme Court has "called the government interest in avoiding `unwarranted timidity' on the part of those engaged in the public's business `the most important special government immunity-producing concern.'" Filarsky, 132 S.Ct. at 1665.
As explained in Wyatt, however, private parties such as the BCBS Defendants "hold no office requiring them to exercise discretion" and therefore extending immunity to them "would have no bearing on whether public officials are able to act forcefully and decisively in their jobs." Wyatt, 504 U.S. at 168, 112 S.Ct. 1827.
Moreover, Plaintiffs allege that: 1) the BCBS Defendants initiated criminal proceedings to further their own private interests in collecting or freezing funds allegedly owed to BCBS; 2) a BCBS Defendant approached the prosecutors and the police; and 3) the BCBS Defendants gave them a three-inch binder of information pertaining to BCBS's investigation of Dr. Sampson. (Am. Compl. at ¶¶ 35-38). The BCBS Defendants were not uninterested parties that the police, for some reason such as their professional expertise,
The Court finds that this consideration weighs against extending the protection of qualified immunity to the BCBS Defendants for the same reason it did in Wyatt. Because the BCBS Defendants hold no public office, extending them qualified immunity would have no bearing on whether qualified applicants enter public service. Wyatt, 504 U.S. at 168, 112 S.Ct. 1827.
It may discourage private individuals from assisting the government with the execution of search warrants if they are asked to do so (see Filarsky, 132 S.Ct. at 1666, noting "any private individual with a choice might think twice before accepting a government assignment") but it does not discourage anyone from entering public service.
"The public interest in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits" is another factor to consider. This policy consideration does, arguably, weigh in favor of extending qualified immunity to the BCBS Defendants, based on language in Filarsky. If the case against the BCBS Defendants moves forward, then even if they are dismissed from the suit, the individually-named law enforcement officers will all likely be deposed and/or called to testify at trial. Filarsky, 132 S.Ct. at 1666. Thus, their performance of their ongoing police duties could be disrupted.
But this Court concludes that is simply not enough to afford BCBS the protection of qualified immunity under the circumstances alleged here, especially when there is no history of such immunity at common law.
The Court concludes that the BCBS Defendants may not invoke the defense of qualified immunity in this action.
Give the Court's ruling on this antecedent inquiry (i.e., whether the BCBS Defendants may properly invoke the defense of qualified immunity), the Court shall deny the motion and there is no need to consider whether the BCBS Defendants are entitled to qualified immunity as to each of the multiple claims asserted against them in this action.
For the reasons set forth above, IT IS ORDERED that the BCBS Defendants' Motion for Judgment on the Pleadings (Docket Entry No. 28) is DENIED.
IT IS SO ORDERED.
