Earlier this month, in Shadrick v. Hopkins Cnty., a divided panel of the Sixth Circuit reversed the district court’s grant of summary judgment in favor of a private for-profit corporation hired to provide services to Kentucky inmates, holding that the mother of an inmate who died from an untreated MRSA infection after three days of incarceration had presented viable claims against the contractor under both state and federal law. The prisoner disclosed his MRSA infection at the time of admission and the contractor had a written “MRSA policy” that provided a detailed protocol for nurses to follow, but the written policy was not followed by the nurses.
The district court had rejected plaintiff’s § 1983 claim, based on the Eighth Amendment’s prohibition against “unnecessarily and wantonly inflicting pain on” inmates “through deliberate indifference to [their] medical needs,” despite evidence that defendant’s nurses had not only violated key policies, but had never reviewed them. The district court reasoned that there was no evidence that the nurses’ violations were “due to inadequate training,” and no evidence that any lack of training was due to the contractor’s deliberate indifference.
The Sixth Circuit disagreed with both conclusions, emphasizing the following as evidence that training was inadequate (1-3) and the inadequacy was due to deliberate indifference (4-5):
- No “ongoing training program” for nurses.
- Nurses’ inability to identify or discuss the contractor’s written policies.
- Nurses’ “undocumented policy and custom” of providing medical care only upon inmate request, in violation of written policies.
- No employee or officer considered him/herself responsible for the nurses’ training.
- After the inmate’s death, there was no investigation, discipline, or additional training.
Dissenting, Judge Griffin acknowledged that the “training of these particular personnel may have been inadequate,” but found insufficient evidence of deliberate indifference by the contractor because the contractor had promulgated policies and conducted some training. He explained, “if the underlying harm was caused by employees’ deviation from [the contractor’s] policies, then . . . the harm is the fault of the individual employees and is not attributable to the governmental entity.” To find deliberate indifference under such circumstances, Judge Griffin would have required evidence that the contractor had “actual or constructive notice that its nurses were deficiently trained in violation of the Constitution.” However, the majority held this requirement was inapplicable when the risk of constitutional violations due to inadequate training was sufficiently “obvious.”
Private prison contractors often find themselves in a gray area legally: treated like a government entity for some purposes (for example, liable for constitutional violations under § 1983), but not always for others (such as immunity). This case provides an opportunity for such contractors to take stock of their own internal procedures, as well as their employees’ actual practices. In terms of preventative measures, the Sixth Circuit’s recent decision demonstrates that merely having written policies in place is only a first step. Ideally, there should be ongoing training to reinforce the policies, periodic verification of employees’ familiarity and compliance with the policies, and a focal point higher up in the hierarchy with explicit responsibility for the foregoing measures. If an incident does occur, it should be immediately investigated and any policy violations should be met by appropriate discipline and/or additional training. As the Sixth Circuit noted, the conduct of employees “both before and after” an incident is relevant. With privatization of prisons and prison services on the rise, it will be interesting to see how case law in the Sixth Circuit evolves.