Under a federal statute, Section 1983 of the Civil Rights Act of 1871, individuals may sue state officials for violations of constitutional rights. As one example, pretrial detainees may assert jail officials acted with deliberate indifference to a serious risk of harm to their safety and well-being. Unlike under the common law, municipal employers cannot be held liable vicariously.  Instead, local governments are responsible for constitutional violations only when actions pursuant to municipal policy caused the deprivation of rights. Monell v. Department of Social Services, 436 U.S. 658, 691-92 (1978). A municipality may be held liable for constitutional torts resulting from the decisions of its legislative body or those supervisory officials whose acts are said to be those of the municipality. Liability can rest on an express policy or an established custom. Monell liability can also arise from inaction where the defendant was on notice that conduct was needed to avert a constitutional violation such that the failure to act is the equivalent of a decision to violate the constitution. A Monell plaintiff must also establish causation—the plaintiff must show the municipality's policy or custom was the moving force behind the injury.

In two recent cases, one decided en banc, the U.S. Court of Appeals for the Seventh Circuit explored the contours of Monell liability. J.K.J. v. Polk County, __  F.3d ___, 2020 WL 2563256 (7th Cir. May 15, 2020) (en banc), involved proven claims that a prison guard sexually assaulted two jail inmates repeatedly. A jury awarded substantial damages against both the individual defendant and the county. On appeal, the Seventh Circuit affirmed the verdict against the individual; it set aside the verdict against the county based on Monell.  Judge Scudder dissented on the Monell claim. On en banc review, the court reinstated the verdict against the county. Recognizing the respect afforded to jury verdicts, the court, in an opinion written by Judge Scudder, found sufficient evidence to sustain the jury's entire verdict. The court relied upon expert testimony addressing material gaps in the county's policies and the county's deficient training and prevention program, which amounted to deliberate indifference to the risk of harm. The court found ample evidence to support liability from the county's inaction in light of known risks of sexual assaults in jail.

No members of the court disagreed with the decision to affirm the judgment against the guard. Four members of the court, however, dissented from the decision to hold the county liable.  Judge Easterbrook responded to the claim the county had failed to train guards. He concluded the constitution does not require compliance training; counties must instead avoid unconstitutional polices. Here, training would not have caused the jailor to comprehend the rule.  The guard knew his action was illegal. To Judge Easterbrook, an employee's failure to comply with a policy is not grounds for Monell liability.  Judge Brennan, who wrote the original panel opinion, also dissented, joined by two of his colleagues.  He concluded the court's decision amounted to vicarious liability prohibited by Monell.

Four days later, a panel of the court issued its opinion in Hildreth v. Butler __ F.3d __, 2020 WL 2536620 (7th Cir. May 19, 2020). Plaintiff Hildreth is an Illinois prison inmate who has Parkinson's disease, for which he has been prescribed medicine. On three occasions, defendants failed to refill his prescription on time, causing him to experience withdrawal symptoms. He sued the prison's healthcare provider alleging a Section 1983 violation. The district court granted summary judgment, which the Seventh Circuit affirmed. (The suit was brought against a private healthcare provider the state of Illinois employs to provide prison health care. As a private entity performing governmental functions, the corporate healthcare provider is subject to Section 1983 liability. The Seventh Circuit has held that such private entities are entitled to Monell's limitation on respondeat superior.)

The court, in an opinion written by Judge Brennan and joined by another of the J.K.J. dissenters, found the evidence of policy insufficient to support liability. The practice of delaying filling prescriptions was not so pervasive as to amount to a policy. A policy requires "more than a showing of one or two missteps." The defendant's errors were insufficiently widespread, as they only involved the plaintiff, and they were insufficiently numerous, as he could only identify three occasions where his medicine had been delayed.

Judge Hamilton dissented. First, he observed that the implication of the court's ruling is to require broader and more intrusive discovery into prison practices in order to demonstrate the widespread and recurring nature of the allegations.  Second, he concluded the plaintiff had presented sufficient evidence demonstrating the defendant's policies reflect deliberate indifference to serious medical need.  The defendant failed to monitor prescription refills adequately to assure that mistakes did not result in harm to Plaintiff.  As applied, its policies predictably resulted in harm, as shown by three failures over a period of 19 months, and the failure to establish adequate systems was sufficiently pervasive to amount to an actionable policy. To Judge Hamilton, Monell does not establish a bright line rule based on number of occurrences, such as "more than three." In this case, he found the evidence sufficient.

These cases demonstrate the difficulty in distinguishing a municipal policy from an individual act. Particularly where liability is alleged to result from inaction in the face of risk, the Monell standard presents substantial uncertainty that the Seventh Circuit continues to address. Judges in the Seventh Circuit appear divided on the application of this standard, notwithstanding the recent en banc decision intended to promote uniformity in the Court's decisions.

Michael T. Brody is a partner at Jenner & Block. Brody serves as co-chair of the firm's appellate and Supreme Court practice and co-chair of its class action practice.