Nahmod Law

We all know that a local government can be held liable for damages under section 1983 when its official policy or custom brings about a constitutional deprivation. Monell v. Dept. of Social Services,  436 U.S. 658 (1978). See generally on local government liability, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West, Westlaw).

Now consider the Seventh Circuit’s decision in Glisson v. Indiana Dept. of Corrections, 849 F.3d 372 (7^th Cir. 2017)(en banc).

In Glisson, the representative of a prisoner’s estate sued a private medical services provider under contract with the state department of corrections for the prisoner’s death in violation of the Eighth Amendment. The Seventh Circuit said the following in reversing the district court’s grant of summary judgment to the corporate defendant:

It is somewhat unusual to see an Eighth Amendment case relating to medical care in a prison in which the plaintiff does not argue that the individual medical provider was deliberately indifferent to a serious medical need. But unusual does not mean impossible, and this case well illustrates why an organization might be liable even if its individual agents are not. Without the full picture, each person might think that her decisions were an appropriate response to a problem; her failure to situate the care within a broader context could be at worst negligent, or even grossly negligent, but not deliberately indifferent. But if institutional policies are themselves deliberately indifferent to the quality of care provided, institutional liability is possible.

In this case, the Seventh Circuit reasoned, there was sufficient evidence of a conscious policy choice by the defendant not to coordinate medical care either within an institution or across institutions for prisoners who were transferred, and there was also sufficient evidence that it was this policy choice not to require any kind of formal coordination that led to the prisoner’s death. In the course of its opinion, the Seventh Circuit observed that it was breaking no new ground in ruling that the conscious failure to make policy can itself be an actionable policy.

The Seventh Circuit explained:

The central question is always whether an official policy, however expressed (and we have no reason to think that the list in Monell is exclusive), caused the constitutional deprivation. It does not matter if the policy was duly enacted or written down, nor does it matter if the policy counsels aggressive intervention into a particular matter or a hands-off approach. One could easily imagine either kind of strategy for a police department: one department might follow a policy of zero-tolerance for low-level drug activity in a particular area, arresting every small-time seller; while another department might follow a policy of by-passing the lower-level actors in favor of a focus on the kingpins. The hands-off policy is just as much a “policy” as the 100% enforcement policy is.

Judge Sykes dissented, joined by Judges Bauer, Flaum and Kanne. They argued that the majority endorsed Monell liability “without evidence of corporate fault or causation. … The court rests its decision on the conceptual idea that a gap in official policy can sometimes be treated as an actual policy for purposes of municipal liability….” They maintained that in a case like this, a plaintiff must show a pattern of constitutional injuries traceable to the challenged policy or custom. Without such evidence, the defendant was not on notice that protocols were needed.

Comment

The majority has the better of the argument. It has long been clear that a local government (or in this case, a private medical services provider acting under color of law) can be held liable for a failure to act which in turn can constitute an official policy or custom so long as the requisite state of mind (ordinarily deliberate indifference) is proved. It is the entity’s deliberate indifference that determines its section 1983 liability, not necessarily the state of mind of individual employees or officials, although the latter may sometimes be relevant, especially in a policymaker situation. But in this case, the corporate defendant could be held liable for its official policy or custom even if its individual employees or officials might not have committed constitutional violations.