Ella Bartell v. Loretta Lohiser

16 Bartell v. Lohiser, et al. No. 98-1877
assessment of her intellectual disabilities, and appears to
contend that Defendants did not reasonably accommodate her
disability insofar as she was “deliberately denied [both] the
services of a full and fair psychological evaluation” and the
benefit of in-home services to assist her in raising William.
Bartell’s Br. at 33-34.
Bartell, however, has not alleged a genuine issue of
material fact that she was denied custody of William because
of her disability, or denied any accommodations because of
her disability. See, e.g., Rodriguez v. City of New York, 197
F.3d 611, 618 (2d Cir. 1999) (holding that no ADA violation
was shown because the disabled were not denied benefits that
were otherwise available). Both Defendants and the Probate
Court relied on wide-ranging evidence pertaining to Bartell’s
conduct, behavior, and history of abuse in terminating her
parental rights. Moreover, Bartell essentially concedes that,
prior to the termination decision, Defendants attempted to
equip her with the skills necessary to care for William by
providing parental aides, parental classes, and psychological
therapy. Indeed, on appeal, Bartell does not even suggest that
any services provided non-disabled persons were not provided
to her. We therefore conclude that the district court did not
err in granting Defendants qualified immunity on Bartell’s
ADA and Rehabilitation Act claims.
IV.
For the foregoing reasons, we AFFIRM the district court’s
grant of Defendants’ summary judgment motions. Because
we conclude that Defendants are entitled to qualified
immunity on Bartell’s claims, we need not address Dr. Van
Goethem’s and Woodbridge’s absolute immunity claims.
Accordingly, we AFFIRM the judgment of the district court
in all respects.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0194P (6th Cir.)
File Name: 00a0194p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ELLA BARTELL,
Plaintiff-Appellant,
v.
LORETTA LOHISER; GERALD
R EIN ; M ICHAEL R OXBERRY ;
LLOYD FETT ; S TATE OF
M ICHIGAN ; M ICHIGAN
FAMILY INDEPENDENCE
AGENCY , in the County of
Jackson; P ATRICIA KEMPTER;
P ATRICK OKORONKWO ;
LUTHERAN S OCIAL S ERVICES,
of Michigan; FRANK VAN
GOETHEM; W OODBRIDGE
BEHAVIORAL M ANAGEMENT
C ONSULTANTS; GERALD
M ILLER,
Defendants-Appellees,
S USAN DEHNKE ; C OUNTY OF
J ACKSON ; W OODBRIDGE
P SYCHOLOGICAL C ENTER,
Defendants.
;>

1
No. 98-1877

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2 Bartell v. Lohiser, et al. No. 98-1877
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 96-60416—Barbara K. Hackett, District Judge.
Argued: August 6, 1999
Decided and Filed: June 7, 2000
Before: JONES, SILER, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: David R. Parker, CHARFOOS &
CHRISTENSEN, Detroit, Michigan, for Appellant. Margaret
A. Nelson, OFFICE OF THE ATTORNEY GENERAL,
TORT DEFENSE DIVISION, Lansing, Michigan, Patrick D.
Filbin, RUTLEDGE, MANION, RABAUT, TERRY &
THOMAS, Detroit, Michigan, Patrick McLain, KERR,
RUSSELL & WEBER, Detroit, Michigan, Jeffrey C. Gerish,
PLUNKETT & COONEY, Detroit, Michigan, for Appellees.
ON BRIEF: David R. Parker, CHARFOOS &
CHRISTENSEN, Detroit, Michigan, for Appellant. Margaret
A. Nelson, OFFICE OF THE ATTORNEY GENERAL,
TORT DEFENSE DIVISION, Lansing, Michigan, Patrick D.
Filbin, Mary L. Dresbach, RUTLEDGE, MANION,
RABAUT, TERRY & THOMAS, Detroit, Michigan, Patrick
McLain, Joseph K. Grekin, KERR, RUSSELL & WEBER,
Detroit, Michigan, Jeffrey C. Gerish, PLUNKETT &
COONEY, Detroit, Michigan, for Appellees.
_________________
OPINION
_________________
NATHANIEL R. JONES, Circuit Judge. Plaintiff-
Appellant Ella Bartell brought the instant action against
No. 98-1877 Bartell v. Lohiser, et al. 15
America v. Scott, 463 U.S. 825, 829 (1983). In Browder v.
Tipton, 630 F.2d 1149 (6th Cir. 1980), we held that § 1985(3)
only covers conspiracies against: 1) classes who receive
heightened protection under the Equal Protection Clause; and
2) “those individuals who join together as a class for the
purpose of asserting certain fundamental rights.” Id. at 1150;
see also Haverstick Enterprises, Inc. v. Financial Federal
Credit, Inc., 32 F.3d 989, 994 (6th Cir. 1994).
Bartell’s claim that Defendants discriminated against her on
account of her mental disabilities therefore is not actionable.
As noted earlier, the Supreme Court has not conferred suspect
or quasi-suspect status on statutory classifications covering
the disabled, see Cleburne, 473 U.S. at 442; see also
Haverstick, 32 F.3d at 994 (holding that “[n]o existing legal
precedent supports the plaintiffs’ argument” that § 1985(3)
covers discriminatory conspiracies against the handicapped).
Further, Bartell has not alleged that Defendants harbored any
class-based animus toward those attempting to assert the
fundamental right to parent, or any other fundamental right.
Accordingly, Bartell has failed to state a claim under
§ 1985(3). Moreover, because her § 1986 claim is derivative
and conditioned on establishing a § 1985 violation, Bartell’s
§ 1986 claim must also be dismissed. See Browder, 630 F.2d
at 1155 (providing that there can be no violation of § 1986
without a predicate violation of § 1985); Haverstick, 32 F.3d
at 994 (same).
C.
Without specifying the particular nature of her claims,
Bartell additionally asserts that Defendants illegally
discriminated against her in violation of the ADA and the
Rehabilitation Act. Because similar standards govern
Bartell’s ADA and Rehabilitation Act claims, we will discuss
these contentions collectively. See Andrews v. State of Ohio,
104 F.3d 803, 807 (6th Cir. 1997); Ventura v. City of
Independence, No. 95-3582, 1997 WL 94688, at *1 n.2 (6th
Cir. 1997) (unpublished opinion). Bartell alleges that
Defendants terminated her parental rights on the basis of their

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14 Bartell v. Lohiser, et al. No. 98-1877
B.
In addition to her substantive due process claim, Bartell
asserts a number of other federal claims. Although not pled
very well, she appears to assert a claim that the State’s
consideration of her intellectual disability violated the Equal
Protection Clause of the Fourteenth Amendment. Because
disability-based classifications do not involve either a suspect
or semi-suspect class, see City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 442-43 (1985), the State’s consideration
of Bartell’s disability is constitutional to the extent it is
rationally related to the State’s legitimate interest in the health
and welfare of William. See id. at 440; Cutshall v. Sundquist,
193 F.3d 466, 482 (6th Cir. 1999). Because LSS and FIA
considered Bartell’s intellectual incapacities along with a
variety of other factors pertaining to her parental fitness, we
conclude that this measured consideration of the relationship
between Bartell’s disability and William’s welfare falls within
the broad bounds of rational basis review. See Borman’s Inc.
v. Michigan Property & Casualty Guaranty Assoc., 925 F.2d
160, 162 (6th Cir. 1991) (noting the substantial deference
afforded to state action under rational-basis review).
We also reject Bartell’s claim that the district court erred in
granting Defendants qualified immunity on Bartell’s statutory
claims. Bartell has no actionable claim under § 1985(3)
because it does not cover claims based on disability-based
discrimination or animus. To assert an actionable claim under
§ 1985(3), a claimant must show that: 1) the defendants
conspired “for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws; and 2) the defendants committed acts that
deprived the claimant “of having and exercising any right or
privilege of a citizen of the United States.” 42 U.S.C.
§ 1985(3); see Griffin v. Breckenridge, 403 U.S. 88, 102-03
(1971). The Supreme Court has emphasized that § 1985(3)
requires inter alia that a claimant establish “some racial, or
perhaps otherwise class-based, invidiously discriminatory
animus.” United Brotherhood of Carpenters and Joiners of
No. 98-1877 Bartell v. Lohiser, et al. 3
Defendants-Appellees Michigan Family Independence
Agency (“FIA”), Lutheran Social Services of Michigan
(“LSS”), and others, asserting that they violated various
federal and state laws in terminating her parental rights to
raise her son. The district court ultimately granted
Defendants’ motions for summary judgment, holding that
they were shielded from liability by the doctrine of qualified
immunity. Bartell now appeals these rulings, and for the
reasons that follow, we AFFIRM the district court’s
judgment.
I.
Bartell is the biological mother of William John Stanley,
who was born on August 20, 1987, and suffers from a number
of physical and psychological challenges. Sometime in 1988
or 1989, Bartell contacted Michigan’s Family Independence
Agency (“FIA”) for assistance in dealing with William’s
aggressive and hyperactive behavior, and FIA responded by
providing Bartell with parental aides. In the early 1990s,
local authorities began investigating Bartell after receiving
complaints that she and her husband were engaging in violent
fights, and that Bartell was abusing her children. While
acknowledging marital problems, Bartell denied that she
physically or verbally abused her children. See Bartell v.
Lohiser, 12 F.Supp.2d 640, 642 (E.D. Mich. 1998).
In 1992 and 1993, Bartell suffered through bouts of
depression and was hospitalized after a suicide attempt. After
being released from the hospital, Bartell continued to receive
treatment for her physical and mental ailments.
Simultaneously, William’s behavior became increasingly
uncontrollable, and in August 1993, Bartell voluntarily placed
him in the Chelsea Home for Boys. William stayed at the
Chelsea Home for approximately one year, when his behavior
proved more than the Home could handle. Toward the end of
his stay at Chelsea, William was hospitalized at the
University of Michigan’s Children’s Psychiatric Unit to
receive more specialized care. Thereafter, the Chelsea Home

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4 Bartell v. Lohiser, et al. No. 98-1877
discharged William because of his hospitalization and its
inability to contain his behavior. See id.
After William’s discharge from the Chelsea Home, Bartell
agreed to FIA’s suggestion that she voluntarily place him in
foster care. Bartell believed that William’s placement in
foster care would be temporary, and that she would re-assume
his care when she was better able to do so. See id. Given
William’s unique behavioral and psychological challenges,
FIA placed William in the care of LSS, which contracted with
FIA for the provision of foster care services. During this
period, Defendants Patricia Kempter and Patrick Okoronkwo,
both LSS caseworkers, worked closely on William’s case.
During William’s voluntary placement in foster care, FIA
asserts that Bartell visited William erratically and that his
behavior became agitated and uncontrollable during her visits.
Claiming that she had sufficiently resolved her psychological
maladies to re-assume her son’s care, Bartell asked to resume
custody of her son in December 1994. See id. at 642-43.
Shortly thereafter, Lohiser and FIA initiated custody
proceedings in Jackson County Probate Court, asserting that
William’s behavioral and emotional disorders, coupled with
Bartell’s mental and emotional problems, prevented her from
providing the care William needed. The Probate Court denied
FIA’s request, and Bartell was re-united with William on
March 1, 1995. The next day, however, FIA filed a second
petition to place William in temporary custody. On March 9,
1995, the Probate Court granted the petition and thereby
continued William’s temporary out-of-home placement. In
granting the petition, the court concluded that the out-of-home
placement was necessary to protect William from a
substantial risk that he would be mentally or physically
harmed while in Bartell’s care.
The Probate Court conducted four hearings between
September 1995 and April 1996 to review William’s case and
to assess whether William should be re-united with his
mother. While Bartell claims that she complied with LSS’
requirements that she attend parenting classes, receive
No. 98-1877 Bartell v. Lohiser, et al. 13
skills are undoubtedly relevant, at some level, to the ability of
a parent to raise her child, the State must make a specific and
tangible showing, not a presumptive one, on the precise
nature of the links between these capacities and a particular
child’s needs. See, e.g., Dunn v. Blumstein, 405 U.S. 330,
343 (1972) (holding that narrow-tailoring requires a state to
act with “precision” and to use the least restrictive means of
achieving its compelling interest).
In this case, Dr. Van Goethem’s report is filled with vague
and subjective appraisals of Bartell’s faculties that are not
empirically linked to her ability to attend adequately to
William’s needs. While Bartell’s eloquence may not rival
Winston Churchill, and the breadth of her vocabulary may not
challenge Oliver Wendell Holmes, her constitutional right to
parent her child may not be abrogated on these tenuous
grounds. To the extent that a parent’s intelligence level may
legitimately inform a State’s assessment of whether parental
rights may be terminated, the Constitution at least requires the
State to establish empirically that the kinds of intelligence
most necessary to caring for a particular child are deficient in
that parent. See id. Bartell’s low verbal IQ test score, which
drives many of Dr. Van Goethem’s findings, fails this test.
Neither Dr. Van Goethem nor Defendants have made a
specific and empirical showing that the verbal IQ test
measures the kinds of intelligence that are indispensable to
the ability of Bartell to care for her child. Without such a
showing, the State cannot demonstrate that terminating
Bartell’s parental rights on the basis of her mental disabilities
was necessary to protect William’s well-being.
Accordingly, we underscore that our holding does not rest
on the State’s characterizations of Bartell’s intellectual
disabilities, but on its specific findings pertaining to Bartell’s
history of both receiving and delivering abuse, depression,
suicide attempts, pathological conduct, and her ultimate
inability to control a child who presents unique behavioral
and psychological challenges. Based on these findings, we
hold that Bartell has not demonstrated that her parental rights
were terminated in contravention of the Due Process Clause.

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12 Bartell v. Lohiser, et al. No. 98-1877
the health and safety of William and whether the particular
means employed were narrowly tailored to achieve that end.
See Glucksberg, 521 U.S. at 721.
Bartell asserts, and the record provides, that LSS’ decision
to pursue termination proceedings was partially motivated by
its concern that William needed a caretaker with “special
skills to meet his special needs.” J.A. at 942. In particular,
LSS, FIA and the Probate Court relied heavily on Dr. Van
Goethem’s evaluation of Bartell, in which he found that she
was “intellectually limited” because she “was not very
articulate,” had “a limited vocabulary,” and scored 74 on the
verbal IQ test. J.A. at 113-115. Based on these findings, Dr.
Van Goethem “seriously question[ed] if Ms. Bartell ha[d] the
intellectual and necessary emotional resources to provide
optimal parenting for the children.” J.A. at 119. Bartell
contended that her emotional problems and abusive
relationships were in her past, and that she was prepared to
care for William at the time her parental rights were
terminated.
Given the entire record concerning Bartell’s capacity to
provide for her son, we hold that the State did not violate her
fundamental right to raise William in terminating her parental
rights, and therefore the district court properly granted
Defendants qualified immunity on this claim. We reach this
holding based upon the district court’s findings pertaining to
Bartell’s suicide attempts, emotional instability, depression,
inability to control William’s behavior, involvement in
abusive relationships, pathological behavior, and allegations
of child abuse. In concluding that FIA’s and LSS’ actions
were constitutionally justified on balance, we emphasize that
their appraisal of Bartell’s mental disabilities was an
insufficient predicate for abrogating her parental rights.
Specifically, both the district court and Defendants place
significant credence on Dr. Van Goethem’s evaluation of
Bartell’s “limited” intelligence level, see Bartell, 12
F.Supp.2d at 648, which is purportedly manifested by her low
verbal IQ test score. While critical thinking and reasoning
No. 98-1877 Bartell v. Lohiser, et al. 5
therapy, and visit with her son, LSS reported that Bartell had
difficulty controlling her son on her visits and was unable to
attend to him without the assistance of relatives. See id. Due
to these findings, Bartell’s visitation privileges were reduced
from unsupervised to supervised.
In early 1996, LSS petitioned to have Bartell’s parental
rights terminated, and on May 15, 1996, the Probate Court
held a hearing on this issue. Among other evidence, LSS
proffered an examination of Bartell performed by Dr. Frank
Van Goethem. Dr. Van Goethem’s report provided that
Bartell was “intellectually limited” because she “was not very
articulate,” had “a limited vocabulary,” and scored 74 on the
verbal IQ test. J.A. at 113-115. Van Goethem also found that
Bartell suffered from dependent personality disorder, serious
depression, low self-esteem, and self-abusive, pathological
behavior. See Bartell, 12 F.Supp.2d at 643-44. Based on
these findings, Van Goethem concluded that it was “unwise
to reunite Ms. Bartell with her children” and that he
“seriously question[ed] if Ms. Bartell ha[d] the intellectual
and necessary emotional resources to provide optimal
parenting for the children.” J.A. at 119. A second evaluator,
psychologist Gary Rutledge, also opined that Bartell was
unable to care properly for William.
Bartell countered Van Goethem’s and Rutledge’s reports
with affidavits from clinical psychologists Carolyn Moore-
Newberger and Paul Jacobs. Both criticized Van Goethem’s
evaluation, stating that “his entire evaluation reflects his
discrimination and bias” against Bartell, and that it “was
grossly inadequate, completely inaccurate and was not based
on any data which was gathered, verified and analyzed by Mr.
Van Goethem.” J.A. at 307, 312.
Notwithstanding the reports of Moore-Newberger and
Jacobs, the Probate Court granted LSS’ petition, concluding
that Bartell “fail[ed] to provide proper care and custody for
William and there is no reasonable likelihood that she will be
able to provide proper care and custody within a reasonable
time.” J.A. at 216. The court further concluded that there

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6 Bartell v. Lohiser, et al. No. 98-1877
was a “reasonable likelihood” that William would be harmed
by the mental and emotional incapacities of his mother, and
that irrespective of Bartell’s benign intentions, this
potentiality legally required that her parental rights be
terminated. See J.A. at 216.
While Bartell did not appeal the Probate Court’s ruling, she
did file the instant seven-count federal Complaint against
FIA, LSS, Jackson County, Van Goethem, and various LSS
and FIA personnel. Bartell alleged federal claims under 42
U.S.C. §§ 1983, 1985 and 1986 (Counts I-III); the Americans
with Disabilities Act, 42 U.S.C. § 12132 (“ADA”), and the
Rehabilitation Act, 29 U.S.C. § 794 (Count IV). She
additionally asserted state claims for negligence and
intentional infliction of emotional distress (Count V, VII), and
breach of the Michigan Handicappers’ Civil Rights Act,
M.C.L.A. § 37.1101 (Count VI). Bartell thereafter stipulated
to the dismissal of Defendants Susan Dehnke, Jackson
County, and Woodbridge Psychological Center. The
remaining Defendants subsequently filed motions for
summary judgment.
The district court granted these motions, concluding that
the doctrine of qualified immunity shielded the remaining
Defendants from suit for their actions. The district court ruled
that although Bartell undoubtedly has a constitutional interest
in caring for her child, that right is not absolute given the
State’s concurrent interest in the health and welfare of
children in its jurisdiction. See Bartell, 12 F.Supp.2d at 647.
Apparently responding to a procedural Due Process Claim,
the district court noted that Bartell had not alleged a
deficiency either in the administrative process or the
processes before the Probate Court. Without specifically
resolving the clash of the substantive liberty interests at stake,
the district court granted Defendants qualified immunity on
Bartell’s due process claim. The district court also rejected
Bartell’s equal protection claim, holding that the Probate
Court did not violate constitutional norms by incorporating
Bartell’s intelligence level into its custody determination. See
id. at 648. After concluding that the State did not err in
No. 98-1877 Bartell v. Lohiser, et al. 11
objectively unreasonably in light of the clearly established
right. See Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).
A.
It is clearly established that the Constitution recognizes
both a protectible procedural due process interest in parenting
a child and a substantive fundamental right to raise one’s
child. See Michael H. v. Gerald D., 491 U.S. 110, 119-123
(1989); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Vinson v.
Campbell County Fiscal Court, 820 F.2d 194, 200 (6th Cir.
1987). Although the parties fail to fully appreciate this
distinction, the differences between the procedural interest in
raising one’s child and the substantive right, and the
corresponding scope of the duties imposed on government,
are significant. While procedural due process principles
protect persons from deficient procedures that lead to the
deprivation of cognizable liberty interests, see Mathews v.
Eldridge, 424 U.S. 319, 333-34 (1976), substantive due
process provides that, irrespective of the constitutional
sufficiency of the processes afforded, government may not
deprive individuals of fundamental rights unless the action is
necessary and animated by a compelling purpose. See
Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Here,
Bartell has not alleged that the process she was afforded failed
to comply with constitutional standards, and we will therefore
confine our analysis to her substantive due process claim.
This is a path we do not lightly tread. Although Bartell has
a fundamental right to raise her son, the State has a
concomitant interest in the welfare and health of children in
its jurisdiction, and in certain narrowly-defined
circumstances, the State’s interest in a child’s well-being may
supersede that of a parent. See Santosky v. Kramer, 455 U.S.
745, 766-67 (1982); see also Stanley v. Illinois, 405 U.S. 645,
652 (1972) (recognizing that because the State has cognizable
interests in the safety of children in its jurisdiction,
“neglectful parents may be separated from their children”). In
determining the constitutional legitimacy of FIA’s and LSS’
actions, we must assess whether they were acting to ensure

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10 Bartell v. Lohiser, et al. No. 98-1877
Here, the LSS defendants direct a non-profit operation that
is closely supervised by FIA. Bartell does not dispute the
district court’s findings on the extent of involvement by FIA
in the activity of LSS. The court found that FIA only
purchases private foster care services when it cannot meet the
needs of a particular child. See Bartell, 12 F.Supp.2d at 646.
Additionally, FIA appoints a caseworker to monitor the
appropriateness and sufficiency of LSS’ foster care plans, and
in this case, a FIA caseworker specifically approved of LSS’
plans for William. Id. Moreover, the purposes of qualified
immunity apply with particular force to the foster care
services provided by LSS. Decisions pertaining to the welfare
of a child, which may, as in this case, result in the termination
of the natural bond between parent and child, require the
deliberate and careful exercise of official discretion in ways
that few public positions can match. The necessity that this
delicate process not be over-burdened with encumbering
litigation comports entirely with the Harlow Court’s
formulation of the purposes of qualified immunity protection.
Accordingly, because of the closely monitored, non-profit
interrelationship between FIA and LSS, we hold that the LSS
defendants may assert qualified immunity.
III.
Bartell further contends that even to the extent the LSS
defendants may assert qualified immunity, the district court
erred in granting summary judgment because both the LSS
and FIA defendants violated her clearly established
constitutional and statutory rights. Bartell alleges that
Defendants terminated her custody of William on the basis of
her mental disabilities, and to that extent, violated her clearly
established constitutional rights to due process and equal
protection, in addition to her statutory rights under the ADA,
the Rehabilitation Act, and §§ 1983, 1985, and 1986.
We apply a two-step analysis to determine whether
qualified immunity is proper: first, we determine whether a
“clearly established” constitutional or statutory right has been
violated; and second, we ascertain whether the official acted
No. 98-1877 Bartell v. Lohiser, et al. 7
1Bartell also contends that under the ADA and the Rehabilitation
Act, Congress specifically abrogated qualified immunity protections for
states and state agencies. However, this Circuit, as well as a number of
our sister Circuits, have granted state employees qualified immunity
against ADA and Rehabilitation Act claims. See Stigall v. Lewis, No. 97-
5301, 1999 WL 183392, at *2 (6th Cir. Mar. 16, 1999) (unpublished
considering Bartell’s limited intellectual capacity in assessing
Bartell’s parental fitness, the district court additionally denied
Bartell’s ADA and Rehabilitation Act claims. With these
rulings, the district court granted Defendants qualified
immunity on all of Bartell’s federal claims, and after
declining to exercise pendent jurisdiction, dismissed Bartell’s
state law claims. Bartell now appeals the district court’s grant
of Defendants’ summary judgment motions.
II.
We review the district court’s grant of Defendants’
summary judgment motions de novo. See Terry Barr Sales
Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 178 (6th Cir.
1996); see also Spurlock v. Satterfield, 167 F.3d 995, 1000
(6th Cir. 1999). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); see also Terry Barr, 96 F.3d at 178. No
genuine issue for trial exists when “the record taken as a
whole could not lead a rational trier of fact to find for the non-
moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Moreover, we must review
the record, and any inferences derived therefrom, in the light
most favorable to the party opposing the motion. See id.
A.
Bartell first asserts that qualified immunity is unavailable
to LSS and the LSS individual defendants [hereinafter “LSS
defendants”] because they are “non-governmental actors.”1

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8 Bartell v. Lohiser, et al. No. 98-1877
opinion); Allison v. Department of Corrections, 94 F.3d 494, 497-98 (8th
Cir. 1996); Torcasio v. Murray, 57 F.3d 1340, 1343 (4th Cir. 1995);
McGregor v. Louisiana State Univ. Bd. of Spvrs., 3 F.3d 850, 862 (5th
Cir. 1993); P.C. v. McLaughlin, 913 F.2d 1033, 1038-41 (2d Cir. 1990).
Accordingly, Bartell’s claim that qualified immunity is not available for
ADA and Rehabilitation Act claims is without merit.
Bartell’s Br. at 24. Specifically, relying on the Supreme
Court’s holding in Richardson v. McKnight, 521 U.S. 399
(1997), Bartell contends that the purposes of affording state-
affiliated actors qualified immunity are inconsistent with
granting the LSS defendants qualified immunity, and that the
district court therefore erred in dismissing her claims.
It is well settled that private parties that perform
fundamentally public functions, or who jointly participate
with a state to engage in concerted activity, are regarded as
acting “under the color of state law” for the purposes of
§ 1983. See Wyatt v. Cole, 504 U.S. 158, 162 (1992); Lugar
v. Edmonson Oil Co., 457 U.S. 922, 929, 938-39 (1982);
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157 (1978). In
assessing whether the qualified immunity afforded state
officials extends to private actors who are considered state
actors under § 1983, we must consider both the purposes of
qualified immunity protection and the nature of the
relationship between the state and the putative private party.
See Richardson, 521 U.S. at 404.
Qualified immunity protects government officials
performing discretionary functions from liability for civil
damages “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Within the context of allowing
private parties to vindicate their right to be free from § 1983
infractions, the animating purpose of the Supreme Court’s
articulation of qualified immunity standards in Harlow is to
allow public officials to perform important government
functions free from the debilitating effects of excessive
litigation. See id.; Wyatt, 504 U.S. at 166. In limiting a
No. 98-1877 Bartell v. Lohiser, et al. 9
public official’s personal liability to objectively unreasonable
violations of clearly established law, the Harlow Court was
expressly concerned that numerous lawsuits would distract
government officials from performing their functions, would
inhibit discretionary action, and would deter desirable
candidates from performing public service. See Harlow, 457
U.S. at 816.
In Wyatt and Richardson, the Supreme Court refined
Harlow, holding that a private party may not assert qualified
immunity when the incentives for a particular government
function are fundamentally inconsistent with the foregoing
purposes of qualified immunity protection. See Wyatt, 504
U.S. at 167 (providing that “the special policy concerns” that
underlie qualified immunity protections are critical to
determining whether its protections are available);
Richardson, 521 U.S. at 404 (same). Specifically, in
Richardson, the Court ruled that employees of a privately run,
for-profit prison that had contracted with the State for the
provision of penological services could not assert qualified
immunity. The Richardson Court concluded that the
prevailing economic incentives in the market for privately
provided penological services were sufficiently strong to
essentially render qualified immunity protection superfluous.
See Richardson, 521 U.S. at 409-410.
In this context, the Court found that “marketplace pressures
provide the private firm with strong incentives to avoid overly
timid, insufficiently vigorous, unduly fearful, or ‘nonarduous’
employee job performance,” and that to this extent, the prison
employees were more akin to private workers than public
officials. Richardson, 521 U.S. at 410. However, in denying
the prison employees’ attempt to assert immunity, the Court
emphasized that the prison was operated for-profit and with
“limited direct supervision by the government.” Id. at 413.
In this regard, the Court distinguished the situation it faced
from a private individual “serving as an adjunct to
government in an essential governmental activity, or acting
under close official supervision.” Id.

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