Institutional Deliberate Indifference

Writing for the Seventh Circuit, Judge Diane Wood observed that while “[i]t 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 … unusual does not mean impossible, and this case well illustrates why an organization might be liable even if its individual agents are not.” Here, many people provided care to Glisson, yet none of them appeared to have had enough control over the full compliment of care to “own” it. “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,” stated the court. “But if institutional policies are themselves deliberately indifferent to the quality of care provided, institutional liability is possible.”

The first U.S. Supreme Court case to find institutional liability under section 1983 was Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). The Seventh Circuit noted here that courts of several circuits have expanded on the teachings of Monell (which involved municipal action), to find private corporations liable under section 1983 for harm they caused when working under contract with the government to provide essential government services. See, e.g., Shields v. Illinois Dep't of Corr., 746 F.3d 782, 789-90 (7th Cir. 2014); Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982); Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408-09 (2d Cir. 1990); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992) (citing cases); Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996). “The critical question under Monell, reaffirmed in L.A. County v. Humphries, 562 U.S. 29, 131 S. Ct. 447, 178 L. Ed. 2d 460 (2010), is whether a municipal (or corporate) policy or custom gave rise to the harm (that is, caused it), or if instead the harm resulted from the acts of the entity's agents,” stated the Glisson court.

In order to keep her federal claim alive against Corizon, Alma Glisson would have to present adequate evidence that Corizon's corporate policy or custom gave rise to the the alleged harm to her son, and that the harm was not merely the result of the acts of the caregivers Corizon employed. The court offered several ways in which she might prove what it called this “essential element”:

First, she might show that “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Humphries, 562 U.S. at 35 (quoting Monell, 436 U.S. at 690). Second, she might prove that the “constitutional deprivation[] [was] visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels.” Monell, 436 U.S. at 690-91. Third, the plaintiff might be able to show that a government's policy or custom is “made … by those whose edicts or acts may fairly be said to represent official policy.” Id. at 694. As we put the point in one case, “[a] person who wants to impose liability on a municipality for a constitutional tort must show that the tort was committed (that is, authorized or directed) at the policymaking level of government … .” Vodak v. City of Chicago, 639 F.3d 738, 747 (7th Cir. 2011).

Thus, the content of an official policy, a decision by a final decision-maker, or evidence of custom would suffice to create a question for the trier of fact as to whether the harm Glisson suffered was Corizon's fault rather than the fault of its individual employees.

That being said, the Seventh Circuit observed that some dangers of harm may be so obvious — and the need for a better system to address those risks similarly obvious — that the failure to act can serve as proof of deliberate indifference likely to result in violation of constitutional rights. The Seventh Circuit and other courts have found instances of this type of proof in prior cases. See, e.g., Long v. Cnty. of Los Angeles, 442 F.3d 1178 (9th Cir. 2006) (a triable issue exists on whether failure to implement several policies amounted to deliberate indifference); Sims v. Mulcahy, 902 F.2d 524 (7th Cir. 1990) (in situations that call for procedures, rules or regulations, the failure to make policy itself may be actionable).

The court also discussed Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575 (3d Cir. 2003), a case in which a diabetic inmate brought a Monell suit against New Jersey's Prison Health Service after he suffered a stroke. He blamed it on the health service's failure to provide him with insulin. In that case, the U.S. Court of Appeals for the Third Circuit noted that “the Natales must provide evidence that there was a relevant [Prison Health Service] policy or custom, and that the policy caused the constitutional violation they allege.” The Natale court then consulted U.S. Supreme Court teachings from City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2D 412 (1989), in which the Court stated, “[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.” The Third Circuit then applied the City of Canton principle to the facts of Natale and determined that “[a] reasonable jury could conclude that the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates' medical needs.”

Taking into account these and other cases' holdings, Judge Wood wrote in Glisson, “The key is whether there is a conscious decision not to take action. That can be proven in a number of ways, including but not limited to repeated actions. A single memo or decision showing that the choice not to act is deliberate could also be enough. The critical question under Monell remains this: Is the action about which the plaintiff is complaining one of the institution itself, or is it merely one undertaken by a subordinate actor?”

The Indiana Department of Corrections has what it terms “Chronic Disease Intervention Guidelines.” These guidelines explain the policies that health care providers must follow, including Healthcare Directive HCSD-2.06, which instructs each facility to promulgate instructions for the proper management of chronic diseases. Among the things that must be addressed in those instructions are treatment plans for chronic cases, “planned care in a continuous fashion,” and care that is “organized and … consistent across facility lines.” The Department of Corrections' Chronic Disease Intervention Guidelines had been in place for seven years before Nicholas Glisson was put in prison, yet, in Judge Wood's words, “Corizon consciously chose not to adopt the recommended policies — not for Glisson, not for anyone.” In fact, Corizon admitted in this matter that Glisson's care regimen was not based on INDOC's written policies or guidelines, but on general standards of nursing and medical care.

“In some cases, it may be difficult to tell the difference between inadvertence and a policy to omit something, but on the facts presented by Mrs. Glisson, this is not one of them,” said Judge Wood. Here, Alma Glisson had asserted that Corizon had a deliberate policy not to require any kind of formal coordination of medical care either within an institution (such as the Diagnostic Center or Plainfield) or across institutions for prisoners who were transferred. She did not allege that Corizon simply didn't know what it was doing and inadvertently neglected to institute a system for coordinating care for chronically ill patients; she alleged that Corizon knew that failure to coordinate care would harm prisoners, yet still chose not to bother doing it.

Constitutional Rights Violation?

The court next pointed out that a finding that Corizon deliberately chose not to implement policies to deal with chronic disease did not necessarily mean that it had violated Glisson's Eighth Amendment rights; after all, the Constitution does not demand that a medical care contractor follow INDOC's policies. “The point is a more subtle one,” wrote Judge Wood. “[T]he existence of the INDOC Guidelines, with which Corizon was admittedly familiar, is evidence that could persuade a trier of fact that Corizon consciously chose the approach that it took. That approach itself may or may not have led to a constitutional violation.”

For example, if an INDOC guideline called for nurses to wash their hands after an hour's work rather than after working with each chronically ill patient, a contracted medical care provider's decision not to follow that guideline, but to instead require hand washing before working with each new patient, would be a deliberate policy choice. However, logically, it could not constitute a violation of any prisoner's constitutional rights. Thus, the court pointed out, at trial Corizon would be entitled to introduce into evidence records that show its methods of handling the care of chronically ill patients like Nicholas Glisson are efficacious in keeping them healthy, despite failure to follow INDOC guidelines. (The court seemed incredulous that any such defense would work, however, since the opinion pointed out it would be obvious even to laymen that failure to coordinate care for those with chronic and complex illnesses is a hazardous plan to undertake.)

In closing, the Seventh Circuit reiterated: “[W]e are not holding that the Constitution or any other source of federal law required Corizon to adopt the [INDOC] Directives or any other particular document. But the Constitution does require it to ensure that a well-recognized risk for a defined class of prisoners not be deliberately left to happenstance. Corizon had notice of the problems posed by a total lack of coordination. Yet despite that knowledge, it did nothing for more than seven years to address that risk. There is no magic number of injuries that must occur before its failure to act can be considered deliberately indifferent.”

Conclusion

The Seventh Circuit reversed and remanded, so Alma Glisson now has the opportunity to present evidence that Corizon and the Indiana Department of Correction violated her son's constitutional rights by having in place a policy that was likely to deprive him of his guarantee against cruel and unusual punishment. As evidenced by the final sentences in the Glisson decision, there is little doubt concerning where the Seventh Circuit stands on this question: “Nicholas Glisson may not have been destined to live a long life,” stated the court, “but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon. Thirty-seven days after he entered custody and came under Corizon's care, he was dead. On this record, a jury could find that Corizon's decision not to enact centralized treatment protocols for chronically ill inmates led directly to his death.”

*****
Janice G. Inman is Editor-in-Chief of this newsletter.

We began to look last month at the case of Glisson v. Indiana Dept. of Correction, 2017 U.S. App. LEXIS 3101 (7th Cir., 2/21/17), in which Alma Glisson, whose son Nicholas died while in prison, sued the correctional facility for employing the services of medical contractor Correctional Medical Services, Inc. (Corizon). Glisson alleged that Corizon violated her son's constitutional right under the Eighth Amendment to be free from cruel and unusual punishment, claiming that they deliberately had a policy in place not to coordinate care for chronically ill prisoners.

Although, on summary judgment, the district court dismissed all the federal claims, including those brought under 42 U.S.C. § 1983 against the Indiana Department of Corrections (the Department) and its medical care provider contractor Corizon, and a panel of the U.S. Court of Appeals for the Seventh Circuit affirmed, Alma Glisson was granted an en-banc rehearing. Here, we continue our discussion of the full court's decision on rehearing.

Who (or What) Is the Actor?

Writing for the Seventh Circuit, Judge Diane Wood observed that while “[i]t 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 … unusual does not mean impossible, and this case well illustrates why an organization might be liable even if its individual agents are not.” Here, many people provided care to Glisson, yet none of them appeared to have had enough control over the full compliment of care to “own” it. “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,” stated the court. “But if institutional policies are themselves deliberately indifferent to the quality of care provided, institutional liability is possible.”

The first U.S. Supreme Court case to find institutional liability under section 1983 was Monell v. New York City Dep ' t of Soc. Servs. , 436 U.S. 658 (1978). The Seventh Circuit noted here that courts of several circuits have expanded on the teachings of Monell (which involved municipal action), to find private corporations liable under section 1983 for harm they caused when working under contract with the government to provide essential government services. See, e.g., Shields v. Illinois Dep ' t of Corr. , 746 F.3d 782, 789-90 (7th Cir. 2014); Iskander v. Vill. of Forest Park , 690 F.2d 126, 128 (7th Cir. 1982); Rojas v. Alexander's Dep't Store, Inc. , 924 F.2d 406, 408-09 (2d Cir. 1990); Harvey v. Harvey , 949 F.2d 1127, 1129-30 (11th Cir. 1992) (citing cases); Street v. Corr. Corp. of Am. , 102 F.3d 810, 818 (6th Cir. 1996). “The critical question under Monell , reaffirmed in L.A. County v. Humphries , 562 U.S. 29, 131 S. Ct. 447, 178 L. Ed. 2d 460 (2010), is whether a municipal (or corporate) policy or custom gave rise to the harm (that is, caused it), or if instead the harm resulted from the acts of the entity's agents,” stated the Glisson court.

In order to keep her federal claim alive against Corizon, Alma Glisson would have to present adequate evidence that Corizon's corporate policy or custom gave rise to the the alleged harm to her son, and that the harm was not merely the result of the acts of the caregivers Corizon employed. The court offered several ways in which she might prove what it called this “essential element”:

First, she might show that “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Humphries, 562 U.S. at 35 (quoting Monell, 436 U.S. at 690). Second, she might prove that the “constitutional deprivation[] [was] visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels.” Monell, 436 U.S. at 690-91. Third, the plaintiff might be able to show that a government's policy or custom is “made … by those whose edicts or acts may fairly be said to represent official policy.” Id. at 694. As we put the point in one case, “[a] person who wants to impose liability on a municipality for a constitutional tort must show that the tort was committed (that is, authorized or directed) at the policymaking level of government … .” Vodak v. City of Chicago , 639 F.3d 738, 747 (7th Cir. 2011).

Thus, the content of an official policy, a decision by a final decision-maker, or evidence of custom would suffice to create a question for the trier of fact as to whether the harm Glisson suffered was Corizon's fault rather than the fault of its individual employees.

That being said, the Seventh Circuit observed that some dangers of harm may be so obvious — and the need for a better system to address those risks similarly obvious — that the failure to act can serve as proof of deliberate indifference likely to result in violation of constitutional rights. The Seventh Circuit and other courts have found instances of this type of proof in prior cases. See, e.g., Long v. Cnty. of Los Angeles , 442 F.3d 1178 (9th Cir. 2006) (a triable issue exists on whether failure to implement several policies amounted to deliberate indifference); Sims v. Mulcahy , 902 F.2d 524 (7th Cir. 1990) (in situations that call for procedures, rules or regulations, the failure to make policy itself may be actionable).

The court also discussed Natale v. Camden Cnty. Corr. Facility , 318 F.3d 575 (3d Cir. 2003), a case in which a diabetic inmate brought a Monell suit against New Jersey's Prison Health Service after he suffered a stroke. He blamed it on the health service's failure to provide him with insulin. In that case, the U.S. Court of Appeals for the Third Circuit noted that “the Natales must provide evidence that there was a relevant [Prison Health Service] policy or custom, and that the policy caused the constitutional violation they allege.” The Natale court then consulted U.S. Supreme Court teachings from City of Canton, Ohio v. Harris , 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2D 412 (1989), in which the Court stated, “[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.” The Third Circuit then applied the City of Canton principle to the facts of Natale and determined that “[a] reasonable jury could conclude that the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates' medical needs.”

Taking into account these and other cases' holdings, Judge Wood wrote in Glisson, “The key is whether there is a conscious decision not to take action. That can be proven in a number of ways, including but not limited to repeated actions. A single memo or decision showing that the choice not to act is deliberate could also be enough. The critical question under Monell remains this: Is the action about which the plaintiff is complaining one of the institution itself, or is it merely one undertaken by a subordinate actor?”

The Indiana Department of Corrections has what it terms “Chronic Disease Intervention Guidelines.” These guidelines explain the policies that health care providers must follow, including Healthcare Directive HCSD-2.06, which instructs each facility to promulgate instructions for the proper management of chronic diseases. Among the things that must be addressed in those instructions are treatment plans for chronic cases, “planned care in a continuous fashion,” and care that is “organized and … consistent across facility lines.” The Department of Corrections' Chronic Disease Intervention Guidelines had been in place for seven years before Nicholas Glisson was put in prison, yet, in Judge Wood's words, “Corizon consciously chose not to adopt the recommended policies — not for Glisson, not for anyone.” In fact, Corizon admitted in this matter that Glisson's care regimen was not based on INDOC's written policies or guidelines, but on general standards of nursing and medical care.

“In some cases, it may be difficult to tell the difference between inadvertence and a policy to omit something, but on the facts presented by Mrs. Glisson, this is not one of them,” said Judge Wood. Here, Alma Glisson had asserted that Corizon had a deliberate policy not to require any kind of formal coordination of medical care either within an institution (such as the Diagnostic Center or Plainfield) or across institutions for prisoners who were transferred. She did not allege that Corizon simply didn't know what it was doing and inadvertently neglected to institute a system for coordinating care for chronically ill patients; she alleged that Corizon knew that failure to coordinate care would harm prisoners, yet still chose not to bother doing it.

Constitutional Rights Violation?

The court next pointed out that a finding that Corizon deliberately chose not to implement policies to deal with chronic disease did not necessarily mean that it had violated Glisson's Eighth Amendment rights; after all, the Constitution does not demand that a medical care contractor follow INDOC's policies. “The point is a more subtle one,” wrote Judge Wood. “[T]he existence of the INDOC Guidelines, with which Corizon was admittedly familiar, is evidence that could persuade a trier of fact that Corizon consciously chose the approach that it took. That approach itself may or may not have led to a constitutional violation.”

For example, if an INDOC guideline called for nurses to wash their hands after an hour's work rather than after working with each chronically ill patient, a contracted medical care provider's decision not to follow that guideline, but to instead require hand washing before working with each new patient, would be a deliberate policy choice. However, logically, it could not constitute a violation of any prisoner's constitutional rights. Thus, the court pointed out, at trial Corizon would be entitled to introduce into evidence records that show its methods of handling the care of chronically ill patients like Nicholas Glisson are efficacious in keeping them healthy, despite failure to follow INDOC guidelines. (The court seemed incredulous that any such defense would work, however, since the opinion pointed out it would be obvious even to laymen that failure to coordinate care for those with chronic and complex illnesses is a hazardous plan to undertake.)

In closing, the Seventh Circuit reiterated: “[W]e are not holding that the Constitution or any other source of federal law required Corizon to adopt the [INDOC] Directives or any other particular document. But the Constitution does require it to ensure that a well-recognized risk for a defined class of prisoners not be deliberately left to happenstance. Corizon had notice of the problems posed by a total lack of coordination. Yet despite that knowledge, it did nothing for more than seven years to address that risk. There is no magic number of injuries that must occur before its failure to act can be considered deliberately indifferent.”

Conclusion

The Seventh Circuit reversed and remanded, so Alma Glisson now has the opportunity to present evidence that Corizon and the Indiana Department of Correction violated her son's constitutional rights by having in place a policy that was likely to deprive him of his guarantee against cruel and unusual punishment. As evidenced by the final sentences in the Glisson decision, there is little doubt concerning where the Seventh Circuit stands on this question: “Nicholas Glisson may not have been destined to live a long life,” stated the court, “but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon. Thirty-seven days after he entered custody and came under Corizon's care, he was dead. On this record, a jury could find that Corizon's decision not to enact centralized treatment protocols for chronically ill inmates led directly to his death.”

*****
Janice G. Inman is Editor-in-Chief of this newsletter.