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A qualified immunity defense may be presented in a motion to dismiss for failure to state a claim in certain limited circumstances under the Federal Rules of Civil Procedure, the 2nd U.S. Circuit Court of Appeals has ruled. Outlining an exception to the general rule that affirmative defenses must be presented in the answer to a complaint and not in a motion to dismiss under Rule 12(b)(6), the circuit upheld the rejection of a qualified immunity claim made by prison officials and doctors in McKenna v. Wright, 04-0492. Prisoner Edward McKenna’s lawsuit against officials and doctors at the Woodbourne Correctional Facility alleged violations of the Eighth and Fourteenth amendments for a delay in treating him for HCV, a treatable virus that affects the functioning of the liver. The delay, he said, allowed the disease to advance so far that he became too weak to receive treatment. Southern District Judge Harold Baer Jr. dismissed McKenna’s Fourteenth Amendment claim but upheld the Eighth Amendment claim for deliberate indifference to medical needs — and the judge rejected the qualified immunity defense for all but one of the defendants. The officials and the doctors appealed to the 2nd Circuit, where Judge Jon O. Newman noted that usually the defense of qualified immunity cannot support a motion to dismiss under 12(b)(6), which governs motions to dismiss on the grounds that a plaintiff has failed to state a claim upon which relief can be granted. But Newman said the circuit has allowed the qualified immunity defense to be asserted in a 12(b)(6) motion on at least two occasions. In Green v. Maraio, 722 F.2d 1013 (1983), a court reporter alleged to have altered the transcript of a criminal trial was allowed to assert the defense because the reporter had acted on a judge’s instruction — a fact that was included in the complaint. The court ruled that the defense could be asserted because “the complaint itself establishe[d] the circumstances required as a predicate to a finding of qualified immunity” and since “judges are immune from suit it would be manifestly unfair to hold liable the ministerial officers who carry out the judicial will.” In a second case, the circuit allowed a fiscal intermediary charged with making false statements to the Department of Health and Human Services on a doctor’s claim for Medicare reimbursement to assert a qualified immunity defense in a 12(b)(6) motion. The circuit said it was doing so in Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67 (1998) because “fiscal intermediaries … are acting as adjuncts to the government and are carrying out a traditional government function” and, once again, the facts supporting the defense appeared on the face of the complaint. In the case of McKenna, Newman said, the qualified immunity defense being asserted is the “traditional one asserted by executive branch personnel making discretionary decisions,” as opposed to a court reporter following a judge’s instructions or an intermediary shielded because he is performing an official function. “Nevertheless, we see no reason why even a traditional qualified immunity defense may not be asserted on a Rule 12(b)(6) motion as long as the defense is based on facts appearing on the face of the complaint,” he said. MORE STRINGENT STANDARD But the judge also cautioned that a defendant who presents an immunity defense in a 12(b)(6) motion instead of a motion for summary judgment “must accept the more stringent standard applicable to this particular route,” in that the motion can only be granted where the plaintiff “can prove no set of facts” that would entitle him to relief. “Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense,” he said. “On the other hand, with a motion for summary judgment adequately supported by affidavits, the party opposing the motion cannot rely on allegations in the complaint, but must counter the movant affidavits with specific facts showing the existence of genuine issues warranting a trial.” Here, the doctors and prison officials asserted that they were following a policy whereby treatment is not begun on a prisoner who is eligible to be released in 12 months because the consequences of interrupting treatment by the prisoner’s release include a risk of “the development and spread of untreatable HCV.” Newman said, “Whether or not that theory can be supported on summary judgment by affidavits of sufficient plausibility to demonstrate the defendant’s objectively reasonable reliance on the policy, McKenna’s allegation that he was denied urgently needed treatment for a serious disease because he might be released within 12 months of starting the treatment sufficiently alleges deliberate indifference to withstand a Rule 12(b)(6) motion.” Assistant Solicitor General Melanie L. Oxhorn represented the state. Kristina Jones, Sung-Hee Suh and Stacy P. Aronowitz of Schulte Roth & Zabel represented McKenna.

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