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USLAW
SPRING 2025 USLAW MAGAZINE
Contracting for Care The 42 U.S.C. § 1983 Liability Landscape of Correctional Facilities
Jessica L. Dark and W. Riley Nester
Pursuant to the Eighth Amendment’s cruel and unusual punishment clause, jail and prison officials must ensure that inmates receive adequate medical care. Local governments commonly contract with private entities to provide medical care/services in jails and detention centers. Yet, this outsourcing does not eliminate a municipality’s constitutional obligation to ensure detainees receive adequate medical treatment. The U.S. Supreme Court in West v. Atkins, 487 U.S. 42 (1988), held that contracting out prison medical care does not relieve the state of its constitutional duty to provide adequate medical treatment to those in its custody. Plaintiffs’ attorneys generally rely on West in bringing actions against the municipality under 42 U.S.C. § 1983 alleging deliberate indifference to inmates’ serious medical needs even when a private contractor is responsible for medical services. This article provides an overview of the core legal principles, examines how
Pierce Couch
circuit courts are approaching the issue, and offers pre-emptive considerations for municipalities. THE BASICS Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipality cannot be held liable for any constitutional violations of its agents or employees under a theory of respondeat superior. Instead, a municipality may be held liable under 42 U.S.C. § 1983 only for (1) actions taken by municipality employees acting pursuant to an official policy or custom or (2) actions of a final policymaker for the municipality, such that the conduct may be viewed as the “official policy” of the municipality. In other words, plaintiffs must tie the violation of their constitutional rights to a policy, practice, or final policymaker’s decision of the municipality. When inmates allege a failure to provide adequate medical care, courts apply the “deliberate indifference” test, estab-
lished in Estelle v. Gamble, 429 U.S. 97 (1976), and expanded upon in Farmer v. Brennan, 511 U.S. 825 (1994). This analysis has two prongs—an objective prong requiring that the deprivation be “sufficiently serious” and a subjective prong requiring that the municipality, through its policymakers, knew of and disregarded an excessive risk to inmate health or safety. In the independent medical contractor context, plaintiffs often argue that the municipality “knew or should have known” about the contractor’s deficiencies yet chose to proceed (or to ignore red flags) with the contract and, thus, acted with deliberate indifference. CIRCUIT APPROACHES The circuit courts have applied different approaches—if not in their outcomes, then certainly in the factors they emphasize when evaluating municipal liability in the context of private contractors providing medical care.