Shields v. Illinois Department of Corrections (Wexford, etal) (7th Cir, March 12, 2014)-(Hamilton, Posner, Tinder)

The Seventh Circuit's recent Shields decision openly invited plaintiffs to challenge the long-standing Monell decision which requires a Section 1983 plaintiff suing a local government to prove that the violation of his constitutional rights was caused by a government policy, practice or custom, rather than just bad behavior by one or more employees. Monell v. Department of Social Services, 436 U.S. 658 (1978) Circuit Judge Hamilton suggested that where private corporations (such as Wexford in the case at issue) are fulfilling the State function of providing healthcare to prisoners the policy underlying the Monell decision may be less persuasive. Judge Hamilton reasoned that Monell probably was designed to protect local governments from automatic liability for wrongs committed by their employees, and suggested that such protections are not needed for private corporations. Judge Hamilton also asserted that,"The specter of massive aggregate liability might spur a private employer to take precautions." The Court implied that Wexford intentionally "diffused responsibility for Shields' medical care so widely", that plaintiff could not identify any particular person responsible for assuring timely and appropriate care.

However, the Seventh Circuit's opinion in Shields overlooks several key points that provide a logical foundation for the continuation of the Monell rule requiring an actual policy, practice or custom of a corporation to establish Section 1983 liability for deliberate indifference to a prisoner's serious medical needs. Those key points include the following:

1. Section 1983 liability, which includes attorney fees and punitive damages, rests upon a Constitutional violation akin to cruel and unusual punishment, not mere negligence. The conduct must be deliberately indifferent to a prisoner's serious medical needs and known risk of harm. For liability to be imposed, the actor must have acted, or failed to act, in a way that is close to intentional. Therefore, it is quite logical to require that corporate liability can only arise from a policy, practice or custom actually endorsed by the corporation. Rogue acts by individual employees certainly do not suggest an, "intent" by the corporation to harm the plaintiff.

2. Private corporations already are motivated by respondeat superior negligence liability for the acts of its employees. The risk of corporate liability for medical negligence contradicts Judge Hamilton's cynical assertion that "It is generally cheaper to provide sub-standard care than it is to provide adequate care...(or that)...employees have financial incentives to save money at the expense of inmates' well-being and constitutional rights." (In Shields, the prisoner simply failed to assert a claim for negligence)

Defense counsel in Section 1983 cases need to emphasize the policies supporting the Monell decision if that rule is challenged in future cases.