PRISON LITIGATION NOTES 
ISSUE 
 

RULE/AUTHORITY 

In response to being so dramatically over budget, CCA negotiated a
contract with Dr. Coble to be the exclusive provider of medical services at
SCCC. Dr. Coble was, among other things, to “determine the existence of
medical emergencies,” and therefore determine when it was necessary to send
a patient to the hospital or for a medical referral. This contract was executed
on October 6, 1994, and effectively created a managed health-care system at
SCCC. The contract automatically renewed itself on an annual basis and could
be terminated by either party upon 60 days notice.

COMMENT 
 

Unlike CCA's previous agreements with other physicians, this contract
provided a “capitation plan,” which provided Dr. Coble with a financial
incentive to reduce the PIPD costs for CCA. Dr. Coble received a minimum
salary under the contract, but was able to earn up to an additional $100,000
annually by reducing CCA's costs.

Bowman v. Corrections Corp. of America 350 F.3d 537, 542 (C.A.6
(Tenn.),2003)
350 F.3d 537
350 F.3d 537,2003 WL 22742802,62 Fed. R. Evid. Serv. 1485,2003 Fed.App.
0413P
 
 

The evidence suggests that this remarkable reduction in costs resulted
primarily from less specialty referrals and less money spent on prescription
drugs. For example, the physician at SCCC before Dr. Coble referred SCCC
inmates to medical specialists 1,886 times the year prior to October 1994,
while Dr. Coble referred SCCC inmates to medical specialists only 506 times
the following year. Similarly, the cost of prescription drugs provided to SCCC
inmates was reduced by approximately thirty-nine percent from 1994 to 1997.

 

Bowman v. Corrections Corp. of America 350 F.3d 537, 543 (C.A.6
(Tenn.),2003)
350 F.3d 537
350 F.3d 537,2003 WL 22742802,62 Fed. R. Evid. Serv. 1485,2003 Fed.App.
0413P
 
Municipal 
liability. 
Where no 
underlying 
constitutional 
violation. 

The outcome of the inquiry depends on the nature of the constitutional
violation alleged, the theory of municipal liability asserted by the plaintiff, and
the defenses set forth by the individual actors. We do not suggest that
municipal liability may be sustained where there has been no violation of the
plaintiff's constitutional rights as a result of action by the municipality's
officials or employees.... However, situations may arise where the combined
actions of multiple officials or employees may give rise to a constitutional
violation, supporting municipal liability, but where no one individual's actions
are sufficient to establish personal liability.
Bowman v. Corrections Corp. of America 350 F.3d 537, 546 (C.A.6
(Tenn.),2003)
350 F.3d 537

Distinguishes 
from City of Los 
Angeles v. 
Heller, 475 U.S. 
796 (1986). 
Bowman court 
says no 
violation “by 
anyone” in this 
case. Case is 
distinguished in 
Ford v. Grand 
Traverse 

350 F.3d 537,2003 WL 22742802,62 Fed. R. Evid. Serv. 1485,2003 Fed.App.
0413P
Citing Speer v. City of Wynne, 276 F.3d 980 (8th Cir. 2002) 
 

This court recognizes the “public function test” “for determining whether
private conduct is fairly attributable to the state.” Ellison v. Garbarino, 48 F.3d
192, 195 (6th Cir.1995). “The public function test ‘requires that the private
entity exercise powers which are traditionally exclusively reserved to the
state.’ ” Id. (quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992)).
The defendants were “acting under color of state law” in that they were
performing the “traditional state function” of operating a prison. See Hicks v.
Frey, 992 F.2d 1450, 1458 (6th Cir.1993) ( “It is clear that a private entity
which contracts with the state to perform a traditional state function such as
providing medical services to prison inmates may be sued under § 1983 as one
acting ‘under color of state law.’ ”).

County. 2006 
WL 3613292 
(W.D. Mich 
2006) 
 

Street v. Corrections Corporation of America 102 F.3d 810, 814 (C.A.6
(Tenn.),1996)
102 F.3d 810
102 F.3d 810,1996 WL 720718,1996 Fed.App. 0387P
 
 

The Supreme Court held that “an Eighth Amendment claimant need not
show that a prison official acted or failed to act believing that harm actually
would befall an inmate; it is enough that the official acted or failed to act
despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S.
at ----, 114 S.Ct. at 1981; see Price, 65 F.3d at 347 (“ Farmer established that
a risk of danger particular to the individual was not required....”). To the extent
that Marsh required a showing of “specific risk,” it is inconsistent with
Farmer.FN12 To the extent that Marsh allowed a plaintiff to prove an Eighth
Amendment violation by means of showing a “pervasive risk of harm,” it is
consistent with Farmer ' s requirement of a showing of a “substantial risk of
serious harm”:

 

Street v. Corrections Corporation of America 102 F.3d 810, 815 (C.A.6
(Tenn.),1996)
102 F.3d 810
102 F.3d 810,1996 WL 720718,1996 Fed.App. 0387P
 
 

A “subjective approach” must be used to determine whether the defendants
had “the state of mind ... of ‘deliberate indifference’ to inmate health or
safety.” Id. at ----, 114 S.Ct. at 1977.
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health and safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.
Id. at ----, 114 S.Ct. at 1979. This is a question of fact “and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that
the risk was *816 obvious.” Id. A prison official can be liable if he “disregards

 

that risk by failing to take reasonable measures to abate it.” Id. at ----, 114
S.Ct. at 1984.
Street v. Corrections Corporation of America 102 F.3d 810, 815 -816 (C.A.6
(Tenn.),1996)
102 F.3d 810
102 F.3d 810,1996 WL 720718,1996 Fed.App. 0387P
 
 

 
Since the Supreme Court's decision in Farmer, the Eleventh Circuit has held
that there were genuine issues of material fact as to the Eighth Amendment
liability of a sheriff responsible for a jail where “inmate-on-inmate violence
occurred regularly when the jail was overcrowded, as it was [when the incident
in question occurred.]” Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th
Cir.1995).

Street v. Corrections Corporation of America 102 F.3d 810, 817 (C.A.6
(Tenn.),1996)
102 F.3d 810
102 F.3d 810,1996 WL 720718,1996 Fed.App. 0387P
 
 

A defendant cannot be held liable under section 1983 on a respondeat superior
or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S.
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 ... (1978). Monell involved a municipal
corporation, but every circuit to consider the issue has extended the holding to
private corporations as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th
Cir.1989) (private mental health center); Iskander v. Village of Forest Park,
690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel
Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also
Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc),
vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 ...
(1989) (private defendants in 42 U.S.C. § 1983 actions should have at
minimum same defenses available to public defendants).

 

Street v. Corrections Corporation of America 102 F.3d 810, 818 (C.A.6
(Tenn.),1996)
102 F.3d 810
102 F.3d 810,1996 WL 720718,1996 Fed.App. 0387P
 
 

 
Finally, we conclude that the district court improperly dismissed Johnson's
state law claim. The district court described Johnson's medical malpractice
claim as a supplemental state law claim and declined to exercise jurisdiction
over it. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S.
715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, there is a rebuttable
presumption that a prisoner retains his former domicile after incarceration.
Stifel v. Hopkins, 477 F.2d 1116, 1124 (6th Cir.1973); see also Denlinger v.
Brennan, 87 F.3d 214, 216 (7th Cir.1996); Sullivan v. Freeman, 944 F.2d 334,
337 (7th Cir.1991). In this case, Johnson alleged that he was a prisoner of the
District of Columbia in the custody of the CCA, invoked diversity jurisdiction
under 28 U.S.C. § 1332(a)(1), and requested damages over the jurisdictional
amount. Although Johnson insufficiently alleged domicile, he may be able to
establish diversity jurisdiction under Stifel. Accordingly, we direct the district
court to permit Johnson to amend his complaint to allege the citizenship of the

parties.
Johnson v. Corrections Corp. of America 26 Fed.Appx. 386, 388, 2001 WL
1298982, 2 (C.A.6 (Ohio (C.A.6 (Ohio),2001)
26 Fed.Appx. 386
26 Fed.Appx. 386,2001 WL 1298982
 
 

This court has held that, in order to satisfy the PLRA's exhaustion
requirement, “a prisoner must plead his claims with specificity and show that
they have been exhausted by attaching a copy of the applicable administrative
dispositions to the complaint or, in the absence of written documentation,
describ[ing] with specificity the administrative proceeding and its outcome.”
Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000). The court in
Knuckles El explained that the policy behind the heightened pleading standard
is that

Appears to be a 
key case on 
exhaustion of 
remedies.  

[d]istrict courts should not have to hold time-consuming evidentiary hearings
in order simply to determine whether it should reach the merits or decline
under the mandatory language of § 1997e (“No action shall be brought....”). In
the absence of particularized averments concerning exhaustion showing the
nature of the administrative proceeding and its outcome, the action must be
dismissed under § 1997e.
Id. A dismissal under § 1997e should be without prejudice. Id. (holding that
“the district court properly dismissed the entire complaint without prejudice”);
Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998) ( “Because in the
present case there is no indication that the requirements of the statute have
been complied with, the case should be dismissed without prejudice, and the
activity that the new statute contemplates should now occur-state adjudication
of the claims.”).
Boyd v. Corrections Corp. of America 380 F.3d 989, 994 (C.A.6
(Tenn.),2004)
380 F.3d 989
380 F.3d 989,2004 WL 1982517,2004 Fed.App. 0299P
 
Supervisory 
liability.  

Plaintiff further alleges that Stalder is personally liable as a supervisory
official of Captain Roberts. With respect to supervisor's liability under §
1983,”the misconduct of the subordinate must be affirmatively linked to the
action or inaction of the supervisor.” Southard v. Texas Board of Criminal
Justice, 114 F.3d 539, 550 (5th Cir.1997). In other words, a supervisory
official may be held liable, if his “action or inaction, demonstrates a deliberate
indifference to a plaintiff's constitutionally protected rights.” Doe v. Taylor
Indep. School Dist., 15 F.3d 443, 453 (5th Cir.1994). Deliberate indifference is
a stringent standard of fault, requiring proof that the official disregarded a
known or obvious consequence of his action. See Board of the County
Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382,
1391 (1997).
Mitchell v. CCA of Tennessee, Inc. 2007 WL 837293, 4
(W.D.La.) (W.D.La.,2007)
2007 WL 837293

This is a sexual 
misconduct 
case.  
 
A case, perhaps 
Iqbal, says 
“supervisory 
liability is a 
misnomer.” 

Not Reported in F.Supp.2d,2007 WL 837293
 
 

 
Municipalities and other local government units may be held liable under §
1983. These governmental entities, however, like supervisory officials, “are
not liable on a respondeat superior basis; that is, a municipality cannot be held
liable simply by virtue of the fact that one of its employees violated a person's
federal rights.” Monell, 436 U.S. at 691, 98 S.Ct at 2036. For liability to attach,
“the municipality itself must cause the violation through its policies.” Milam v.
City of San Antonio, 113 Fed.Appx. 622, 625 (5th Cir.2004); see also Monell,
436 U.S. at 694, 98 S.Ct at 2037 (“[I]t is when execution of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983”).

Mitchell v. CCA of Tennessee, Inc. 2007 WL 837293, 5
(W.D.La.) (W.D.La.,2007)
2007 WL 837293
Not Reported in F.Supp.2d,2007 WL 837293
 
 

Likewise, a municipal corporation may not be held liable under § 1983
based on a respondeat superior theory. See Monell, 436 U.S. at 694, 98 S.Ct at
2037 n. 58. That is, while isolated unconstitutional actions by corporate
employees will almost never trigger corporate liability, a municipal
corporation may be held liable under § 1983 only if there is a showing of
official sanction or imprimatur on the conduct or practice at issue. Auster Oil
& Gas, Inc. v. Stream, 835 F.2d 597, 602 n. 3 (5th Cir.1988). Such a showing
requires proof of three attribution elements. Specifically, a municipal
corporation performing a governmental function is liable under § 1983 if (1)
there is a policymaker who could be held responsible, through actual or
constructive knowledge, for enforcing a policy or custom that caused the
claimed injury; (2) the corporation has an official custom or policy which
could subject it to § 1983 liability; and (3) the claimant can demonstrate that
the corporate action was taken with the requisite degree of culpability, and
show a direct causal link between the action and the deprivation of federal
rights. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001);
Victoria v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)(citing Monell, 436
U.S. at 694, 98 S.Ct. at 2037).

 

Mitchell v. CCA of Tennessee, Inc. 2007 WL 837293, 5
(W.D.La.) (W.D.La.,2007)
2007 WL 837293
Not Reported in F.Supp.2d,2007 WL 837293
 
 

Recently, in Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th
Cir.2003), the Fifth Circuit extended municipal corporate liability under §
1983 to include private prison-management corporations and their employees.
The court said: “We agree with the Sixth Circuit and with those district courts
that have found that private prison-management corporations and their
employees may be sued under § 1983 by a prisoner who has suffered a
constitutional injury.” Id. In reaching its holding, the court concluded that,
“[c]learly, confinement of wrongdoers-though sometimes delegated to private

 

entities-is a fundamentally governmental function.” Id. Like a municipal
corporation, liability for a private prison-management corporation under §
1983 requires proof of the abovementioned attribution elements. See Phillips v.
Corrections Corp. of America, No. 02-766, 2006 WL 1308142 at *3 (W.D.La.
May 10, 2006); see also Monell, 436 U.S. at 694, 98 S.Ct at 2037.
Mitchell v. CCA of Tennessee, Inc. 2007 WL 837293, 5
(W.D.La.) (W.D.La.,2007)
2007 WL 837293
Not Reported in F.Supp.2d,2007 WL 837293
 
 

Beginning with the second attribution element, Plaintiff must show that CCA
has an official custom or policy which could subject it to liability under §
1983. See Monell, 436 U.S. at 694, 98 S .Ct at 2037. While official policy is
contained typically in duly promulgated policy statements, ordinances or
regulations, a policy may be evidenced by a custom, that is “a persistent,
widespread practice of [corporate] officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and
well-settled as to constitute a custom that fairly represents [corporate] policy.”
See Webster v. City of Houston, 735 F.3d 838, 841 (5th Cir.1984). Actions of
officers or employees of a corporation do not render the corporation liable
under § 1983 unless they execute official policy as above defined. See Id.

 

Mitchell v. CCA of Tennessee, Inc. 2007 WL 837293, 6
(W.D.La.) (W.D.La.,2007)
2007 WL 837293
Not Reported in F.Supp.2d,2007 WL 837293
 
 

With regard to the third attribution element, Mitchell must demonstrate that
the corporate action was taken with the requisite degree of culpability, and
must show a direct causal link between the action and the deprivation of
federal rights. See Monell, 436 U.S. at 694, 98 S.Ct at 2037. Stated differently,
Plaintiff must show both corporate culpability and causation. See Piotrowski,
237 F.3d at 578 n. 17 (citing Snyder v. Trepangnier, 142 F.3d 791, 796 (5th
Cir.1998)). “Culpability may be shown either through an unconstitutional
official policy or through a facially innocuous policy that was implemented
with deliberate indifference to a known or obvious consequence that a
constitutional violation would result.” Olivas v. Corrections Corp. of Am., 408
F.Supp.2d 251, 255 (N.D.Tex.2006); citing Piotrowski, 237 F.3d at 579. To
satisfy causation, a plaintiff must show that the policy in question is the
“moving force” behind the violation. See Id.

 

Mitchell v. CCA of Tennessee, Inc. 2007 WL 837293, 6
(W.D.La.) (W.D.La.,2007)
2007 WL 837293
Not Reported in F.Supp.2d,2007 WL 837293
 
 

Pri-Har next argues that a disposition at the initial stage of the grievance
procedure by the Warden or his associates both rendered CCA's grievance
procedures futile and exhausted his available administrative remedies. We do
not review the effectiveness of available administrative remedies. Miller v.

Frequently a 
particular 
remedy, e.g., 
compensation, 

Tanner, 196 F.3d 1190, 1193 (11th Cir.1999). Furthermore, an assertion that
available administrative procedures are futile does not excuse the requirement
of exhaustion. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir.2000).
Pri-Har's arguments take issue with the manner in which CCA's administrative
procedures are structured, challenging their adequacy and effectiveness.
Although CCA's grievance procedures were available within the meaning of §
1997e(a), and Pri-Har was required to exhaust them before filing suit, there is
no evidence that Pri-Har completed all the remaining steps of CCA's grievance
procedure. Therefore, Pri-Har failed to exhaust his available administrative
remedies.

is not available. 

Pri-Har v. Corrections Corp. of America, Inc. 154 Fed.Appx. 886, 888, 2005
WL 3087891, 2 (C.A.11 (Ga. (C.A.11 (Ga.),2005)
154 Fed.Appx. 886
154 Fed.Appx. 886,2005 WL 3087891
 
 

Fed.R.Civ.P. 15(a) provides that a party may amend the party's pleading once
as a matter of course at any time before a responsive pleading is served.
Otherwise, a party may amend only by leave of court or written consent of the
adverse party, and leave shall be freely given when justice so requires.
Although Rule 15(a) requires that leave to amend “be freely given when
justice so requires,” whether leave should be granted is within the trial court's
discretion. See Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th
Cir.1991). In this regard, the Court considers undue delay, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously allowed, and
undue prejudice to the opposing party or futility of amendment. Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993).

 

Hines v. Corrections Corp. of America 2005 WL 1398659, 1
(D.Kan.) (D.Kan.,2005)
2005 WL 1398659
Not Reported in F.Supp.2d,2005 WL 1398659
 
 

 
Arguing that plaintiff has not properly pled a § 1983 claim for cruel and
unusual punishment in Count III, CCA has moved to dismiss. “To state a claim
for relief under § 1983, a plaintiff must allege both a violation of a right
secured by the Constitution or by federal law, and that the alleged deprivation
was committed by a person acting under color of state law.” Rojas v.
Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir.1990). A municipality
is a person acting under color of state law for purposes of § 1983. See Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978) (holding that “Congress did intend municipalities and other local
government units to be included among those persons to whom § 1983
applies”) (emphasis in original). A private corporation that provides services
normally provided by municipalities, as CCA did, is as well. See Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 527, 151 L.Ed.2d 456 (2001)
(Stevens, J., dissenting) (noting that “[u]nder 42 U.S.C. § 1983, a state
prisoner may sue a private prison for deprivation of constitutional rights”)
(citing *138 Lugar v. Edmondson Oil Co., 457 U.S. 922, 936- 937, 102 S.Ct.
2744, 73 L.Ed.2d 482 (1982)). CCA, then, is a proper defendant.

Gabriel v. Corrections Corp. of America 211 F.Supp.2d 132, 137 -

138 (D.D.C.,2002)
211 F.Supp.2d 132
211 F.Supp.2d 132,2002 WL 1733028
 
 

The Eighth Amendment protects convicted prisoners from the use of excessive
force while in prison. See Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct.
1078, 89 L.Ed.2d 251 (1986). The core inquiry for Eighth Amendment
excessive force claims is “whether force was applied in a good-faith effort to
maintain and restore discipline, or maliciously and sadistically” for the very
purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992). Force is malicious and sadistic when no disciplinary
rationale or penal purpose justifies it. See Giron v. Corrections Corp. of
America, 191 F.3d 1281, 1290 (10th Cir.1999). A wanton and unnecessary
infliction of harm for no legitimate purpose always violates the Eighth
Amendment. See Whitley, 475 U.S. at 321-22, 106 S.Ct. 1078. However, a de
minimis use of physical force does not qualify as “wanton and unnecessary”
unless it is the sort “repugnant to the conscience of mankind.” Hudson, 503
U.S. at 8, 112 S.Ct. 995.

 

Laury v. Greenfield 87 F.Supp.2d 1210, 1215 (D.Kan.,2000)
87 F.Supp.2d 1210
87 F.Supp.2d 1210,2000 WL 276503