Earnest D. Shields v. Illinois Department of Correct

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-2746 and 13-1143
EARNEST SHIELDS,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants-Appellees.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10-cv-3746 — Ronald A. Guzman, Judge.
SUBMITTED SEPTEMBER 24, 2013 — DECIDED MARCH 12, 2014
Before POSNER, TINDER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Earnest Shields was an Illinois
prisoner in 2008 when he was lifting weights and ruptured the
pectoralis tendon in his left shoulder. Although he received
some medical attention for the injury, he did not receive the
prompt surgery needed for effective treatment. Instead,
through a series of oversights and delays by various people
responsible for his medical care, too much time passed for
surgery to do any good. Shields now suffers from a serious and
2 Nos. 12-2746 and 13-1143
permanent impairment that could have been avoided. So we
must assume, in any event, as we review the grant of summary
judgment against Shields on his claims arising from the official
response to his injury.
After his release from prison, Shields filed suit against
numerous defendants under 42 U.S.C. § 1983. He alleges that
all defendants were deliberately indifferent to his serious
medical needs and thus violated his rights under the Eighth
Amendment to the Constitution. On appeal, Shields is
pursuing claims against two groups of defendants.
The first group consists of Wexford Health Sources, Inc., a
private company that provides medical care to Illinois
prisoners under contract with the Illinois Department of
Corrections, and four doctors who worked for Wexford and
were directly involved in treating or failing to treat Shields.
The second group consists of two doctors employed by the
Southern Illinois University School of Medicine who examined
Shields and recommended physical therapy rather than
surgery. Shields contends these SIU defendants violated the
Eighth Amendment and committed medical malpractice under
state law.
The district court granted summary judgment for
defendants on all of Shields’ constitutional claims and then
declined to exercise supplemental jurisdiction over the medical
malpractice claims against the SIU doctors. After judgment
was entered, Shields filed a motion for relief under Federal
Rule of Civil Procedure 60 asking to amend his complaint to
include state-law medical malpractice claims against Wexford
and the doctors it employed. The district court denied the
Nos. 12-2746 and 13-1143 3
motion. Shields appeals both the grant of summary judgment
on his constitutional claims and the denial of his post-
judgment motion to amend.1
This case illustrates the often arbitrary gaps in the legal
remedies under § 1983 for violations of federal constitutional
rights. Viewing the evidence through the lens of summary
judgment, we can and must assume that Shields is the victim
of serious institutional neglect of, and perhaps deliberate
indifference to, his serious medical needs. The problem he
faces is that the remedial system that has been built upon
§ 1983 by case law focuses primarily on individual
responsibility. Under controlling law, as a practical matter,
Shields must come forward with evidence that one or more
specific human beings acted with deliberate indifference
toward his medical needs.
Shields has not been able to do so. The Illinois Department
of Corrections and its medical services contractor, Wexford,
diffused responsibility for Shields’ medical care so widely that
Shields has been unable to identify a particular person who
was responsible for seeing that he was treated in a timely and
appropriate way. Several of the individual defendants
employed by Wexford were aware of portions of Shields’
1
Shields also sued the Illinois Department of Corrections and two wardens
of prisons where he was housed. The state agency itself is not subject to a
suit for damages under § 1983, see Will v. Michigan Dep’t of State Police, 491
U.S. 58 (1989), and the wardens did not have direct responsibility for
Shields’ medical care. The district court dismissed the claims against these
non-medical defendants, and Shields does not challenge those dismissals
on appeal.
4 Nos. 12-2746 and 13-1143
course of treatment, but no one person was responsible for
ensuring that Shields received the medical attention he needed.
No one doctor knew enough that a jury could find that he both
appreciated and consciously disregarded Shields’ need for
prompt surgery.
The problem Shields faces also raises a serious question
about how we should evaluate the responsibility of a private
corporation like Wexford for violations of constitutional rights.
The question is whether a private corporation should be able
to take advantage of the holding of Monell v. Department of
Social Services, 436 U.S. 658 (1978), which requires a plaintiff
suing a local government under § 1983 to show that the
violation of his constitutional rights was caused by a
government policy, practice, or custom. Our prior cases hold,
but without persuasive explanations, that the Monell standard
extends from local governments to private corporations. As we
explain below, however, that conclusion is not self-evident. We
may need to reconsider it if and when we are asked to do so.
As state and local governments expand the privatization of
government functions, the importance of the question is
growing.
Given the state of the controlling law, though, we must
ultimately affirm the summary judgment for all defendants on
the constitutional claims. Shields is also barred from appealing
the denial of his post-judgment motion to amend his complaint
because his appeal from that denial was untimely.
Nos. 12-2746 and 13-1143 5
I. Facts for Purposes of Summary Judgment
We review de novo the grant of summary judgment,
construing all facts in the light most favorable to the non-
moving party. Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005).
Summary judgment is appropriate when there is no dispute of
material fact and the moving party is entitled to judgment as
a matter of law. Id. Because we are reviewing a grant of
summary judgment, we must give Shields as the non-moving
party the benefit of conflicts in the evidence and any
reasonable inferences from the evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250–51 (1986); Williams v. City of
Chicago, 733 F.3d 749, 755 (7th Cir. 2013). Our account of the
facts therefore is not necessarily accurate in an objective sense
but reflects the evidence through the lens of summary
judgment.
In 2008, plaintiff Earnest Shields was a prisoner at Hill
Correctional Center in Galesburg, Illinois. He was transferred
to the Stateville Correctional Center in Romeoville, Illinois, in
January 2009. Inmates at both Hill and Stateville receive their
medical care from Wexford, a company that contracted with
the Illinois Department of Corrections to provide medical care
to inmates. Defendants Arthur Funk, Robert Migliorino,
Richard Shute, and Ronald Schaefer are all physicians who
were employed by Wexford and had some involvement in
treating Shields. Dr. Funk was the regional medical director in
charge of overseeing medical care at Hill. Dr. Migliorino was
the medical director for Hill until October 7, 2008. After Dr.
Migliorino left Hill, the medical director position rotated
among several doctors, including Dr. Schaefer. Dr. Shute was
6 Nos. 12-2746 and 13-1143
employed by Wexford as a traveling physician serving several
prisons.
Southern Illinois University School of Medicine (“SIU”) is
part of a state university with main campuses in Carbondale
and Springfield. SIU employed defendant Dr. David Olysav.
Dr. John Froelich also worked at SIU as a resident.
On June 16, 2008, Shields injured his shoulder while lifting
weights at Hill. Dr. Migliorino examined Shields that same
day, diagnosed a possible dislocated shoulder, and had him
sent to a hospital emergency room where an MRI was taken.
The MRI seemed to show a partial tear of the supraspinatus
tendon in Shields’ left shoulder. Dr. Migliorino recommended
that Shields be seen by an orthopaedic surgeon. As required by
Wexford procedure, Dr. Migliorino conducted a “collegial
review” with Dr. Funk to obtain approval for his
recommendation. Collegial reviews frequently took place over
the telephone, and Dr. Funk did not review patients’ charts as
part of the collegial review.
Dr. Funk approved Dr. Migliorino’s referral
recommendation, and Shields was seen by Dr. Schierer, an
orthopaedic surgeon who is not a defendant. Dr. Schierer
diagnosed a different problem, a ruptured left pectoralis
tendon. He recommended that Shields see a shoulder specialist
for surgery. Dr. Migliorino then secured Dr. Funk’s approval
through collegial review to have Shields see Dr. Clark, a
shoulder specialist who is also not a defendant. Dr. Clark
confirmed Dr. Schierer’s diagnosis but said he did not feel
comfortable performing the surgery himself. Dr. Clark
recommended that Shields see Dr. Gibbons, another shoulder
Nos. 12-2746 and 13-1143 7
specialist who is not a defendant, for the surgery. Dr.
Migliorino seconded Dr. Clark’s recommendation and
obtained Dr. Funk’s approval via collegial review. Shields was
scheduled to visit Dr. Gibbons, but before the visit took place,
Dr. Gibbons notified Hill that he, too, would not feel
comfortable performing the necessary surgery. Dr. Clark
recommended finding another shoulder specialist to perform
it. By this time, almost two months had passed since Shields’
injury.
At this point, a critical error occurred. The regional director
responsible for Hill (Dr. Funk) and Hill’s medical director (Dr.
Migliorino) did not select specific doctors for referrals. When
a referral was authorized, staff in Hill’s Medical Records
department selected the specific doctor for the referral from a
list of local specialists that they maintained. When Dr.
Migliorino and Dr. Funk referred Shields to a shoulder
specialist for the third time, Hill’s list did not contain any more
shoulder specialists. Hill staff therefore contacted Wexford
staff to find an out-of-area shoulder specialist to examine
Shields. Wexford staff consulted their list of out-of-area
shoulder specialists, drew the name of SIU’s Dr. Olysav from
the list, and provided it to Hill. Dr. Olysav is a board-certified
orthopaedic surgeon, but he is not a shoulder specialist. For the
present we must assume he was included on Wexford’s list by
mistake. No one detected the error, and Shields was sent to SIU
for evaluation by Dr. Olysav and Dr. Froelich.
After Dr. Froelich conducted a physical examination and
took Shields’ medical history, Dr. Olysav examined Shields.
Dr. Olysav’s treatment recommendation differed dramatically.
All the specialists who had examined Shields up to that point
8 Nos. 12-2746 and 13-1143
had recommended surgery to repair the torn tendon. Dr.
Olysav, however, recommended only physical therapy. He did
not recommend that a follow-up visit take place, nor did he
indicate whether or under what conditions any further
treatment might be needed. Dr. Funk and Dr. Migliorino
approved Dr. Olysav’s recommendation. They also did not
double-check Dr. Olysav’s credentials before approving his
recommendation, missing an opportunity to discover that
Olysav was not in fact a shoulder specialist.
On August 27, 2008, the day after being prescribed physical
therapy, Shields filed a formal grievance because he was not
receiving the surgery that several doctors had told him he
needed. The Hill employee who reviewed Shields’ grievance
spoke with a health care unit administrator, learned that the
last “specialist” to examine Shields had prescribed physical
therapy rather than surgery, and denied the grievance on that
basis. She, too, did not double-check Dr. Olysav’s credentials.
A designee of Hill’s warden approved the denial based solely
on the grievance and the response. He did not examine any
other documents or conduct any independent investigation
into the counselor’s conclusions.
Shields did not begin physical therapy at Hill until October
2008. He was not able to complete the therapy. The physical
therapist wrote on Shields’ chart that he was in too much pain
to continue. The therapist suggested evaluation by an
orthopaedist if such an evaluation had not already taken place.
Despite the therapist’s notes, no follow-up examination was
conducted and no further treatment was scheduled. (Dr.
Migliorino left Hill while Shields’ therapy was in progress.) In
fact, there is no indication that anyone checked whether
Nos. 12-2746 and 13-1143 9
Shields’ therapy had resolved his injury, or even read the
therapist’s note indicating that the physical therapy had not
been successful.
A couple of months later, Dr. Schaefer, a Wexford traveling
physician filling in for the departed Dr. Migliorino, was asked
to lift the medical hold that had been placed on Shields. (A
medical hold prevents a prisoner from being moved to a
different prison during medical treatment, to ensure continuity
of care.) Dr. Schaefer reviewed Shields’ chart, asked Wexford
staff if further treatment was planned, was told no, and
accordingly lifted the medical hold on December 17, 2008. He
made this decision without examining Shields.
Shields was transferred to Stateville in January 2009. After
visiting the Stateville health care unit several times in April
and May complaining of shoulder pain, Shields was referred
to a shoulder specialist at the University of Illinois—Chicago.
That doctor confirmed in July 2009 that his left pectoralis
tendon had been ruptured. Unfortunately for Shields, though,
too much time had passed for surgery to be effective. The
result is that Shields’ left shoulder is permanently atrophied.
His chest has sunk in around the left pectoralis tear, and he
will never regain anything resembling full function in his left
arm. We must assume that these permanent injuries would
have been prevented by timely surgery. Surgery is the
standard treatment for a pectoralis tear and typically results in
a favorable outcome—but only if it is done promptly.
10 Nos. 12-2746 and 13-1143
II. Analysis
A. Eighth Amendment
Shields alleges that Wexford and Drs. Funk, Migliorino,
Shute, and Schaefer (“the Wexford defendants”), and SIU and
Drs. Olysav and Froelich (“the SIU defendants”) were
deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment and actionable under
§ 1983. We address each group of defendants in turn.
1. The Wexford Defendants
Shields argues that Wexford and the doctors it employed
were deliberately indifferent to his medical needs, in violation
of the Eighth Amendment’s prohibition on cruel and unusual
punishment. He also argues that Drs. Funk, Migliorino, Shute,
and Schaefer, in their individual capacities and as Wexford
employees, were deliberately indifferent to those needs.
a. Wexford Health Sources, Inc.
We consider first the claim against the Wexford corporation
itself. The question posed here is how § 1983 should be applied
to a private corporation that has contracted to provide essential
government services—in this case, health care for prisoners.
The answer under controlling precedents of this court is clear.
Such a private corporation cannot be held liable under § 1983
unless the constitutional violation was caused by an
unconstitutional policy or custom of the corporation itself.
Respondeat superior liability does not apply to private
corporations under § 1983. E.g., Iskander v. Village of Forest Park,
690 F.2d 126, 128 (7th Cir. 1982). Because Shields has no
Nos. 12-2746 and 13-1143 11
evidence of an unconstitutional policy or custom of Wexford
itself, these precedents doom his claim against the corporation.
For reasons we explain below, however, Iskander and our
cases following it on this point deserve fresh consideration,
though it would take a decision by this court sitting en banc or
pursuant to Circuit Rule 40(e), or a decision by the Supreme
Court to overrule those decisions. We start with the
background of § 1983 and the Supreme Court cases relevant to
the issue, then turn to circuit court decisions, and finally
discuss reasons to question those circuit decisions and adopt
a different approach for private corporations.
The law now codified as 42 U.S.C. § 1983 was enacted as
part of the Civil Rights Act of 1871, also known as the Ku Klux
Klan Act, to provide a private right of action against persons
acting under color of state law who violated constitutional
rights. See 17 Stat. 13, § 1. The statute provides in relevant part:
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress … .” The 42nd Congress
enacted the law as part of a series of steps to protect freed
slaves and their supporters from abuses of local and state
government power in the Reconstruction era.
The statute was not used often until the Supreme Court
held in Monroe v. Pape, 365 U.S. 167, 183 (1961), that § 1983
12 Nos. 12-2746 and 13-1143
could provide a federal remedy for constitutional violations
even if the defendant’s action also violated state law and even
if a state remedy was available. After Monroe, § 1983 became
the most important vehicle for enforcing federal constitutional
rights against state and local governments and their agents.
Monroe also held, however, that a local government was not a
“person” that could be sued under § 1983. 365 U.S. at 187–92.
Most defendants under § 1983 are public employees, but
private companies and their employees can also act under
color of state law and thus can be sued under § 1983. E.g.,
Wyatt v. Cole, 504 U.S. 158, 161–62 (1992); Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922, 937 (1982). In a case involving a
private company, the Supreme Court took for granted that the
corporate defendant would be liable under § 1983 for a
constitutional tort committed by its employee. In Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970), a woman sued both a police
officer and a private corporation under § 1983 for race
discrimination. The plaintiff was a white teacher who had
entered a restaurant in Mississippi with several African
American students. She had been refused service and was then
arrested when she left the restaurant.
The Supreme Court reversed summary judgment for the
restaurant and explained that the plaintiff could recover from
the restaurant if she could prove “that a Kress employee, in the
course of employment, and a Hattiesburg policeman somehow
reached an understanding to deny Miss Adickes service in the
Kress store, or to cause her subsequent arrest because she was
a white person in the company of Negroes.” 398 U.S. at 152. In
other words, the Court indicated that a private corporation
could be held liable under § 1983 on a theory of respondeat
Nos. 12-2746 and 13-1143 13
superior liability. Interestingly, Adickes was decided at a time
when a municipal government could not be held liable at all
under § 1983.
For present purposes, the next pivotal decision was Monell
v. Department of Social Services, 436 U.S. 658 (1978). Monell first
overruled Monroe in part and held that a local government
could be sued as a person under § 1983. Id. at 690. The Court
then considered the issue of respondeat superior liability under
§ 1983, and held that “respondeat superior is not a basis for
rendering municipalities liable under § 1983 for the
constitutional torts of their employees.” Id. at 663 n.7. The
Court held instead that a local government could be held liable
under § 1983 only if the government’s own policy or custom
had caused the violation. Id. at 694.
In a number of decisions since Monell, our court has applied
the Monell standard to private corporations. We said it first in
Iskander: “Moreover, just as a municipal corporation is not
vicariously liable upon a theory of respondeat superior for the
constitutional torts of its employees, [Monell, 436 U.S. at 694],
a private corporation is not vicariously liable under § 1983 for
its employees’ deprivations of others’ civil rights.” 690 F.2d at
128; see also Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010);
Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 822 (7th
Cir. 2009); Woodward v. Correctional Medical Services of Illinois,
Inc., 368 F.3d 917, 927 (7th Cir. 2004). All other circuits that
14 Nos. 12-2746 and 13-1143
have addressed the issue have reached the same conclusion,
extending the Monell standard to private corporations.2
Such a unified phalanx of decisions from our own and
other circuits is entitled to considerable respect. Upon closer
examination, however, there are substantial grounds to
question the extension of the Monell holding for municipalities
to private corporations.
A close look at the reasoning of Monell provides no
persuasive reason to extend its holding to private corporations.
Monell gave two reasons for barring respondeat superior liability
for municipalities under § 1983. First, the Court focused on the
language of § 1983, which imposes liability on a person who
“shall subject, or cause to be subjected,” any person to a
deprivation of Constitutional rights:
The italicized language [of causation] plainly
imposes liability on a government that, under
color of some official policy, “causes” an
employee to violate another’s constitutional
rights. At the same time, that language cannot be
easily read to impose liability vicariously on
2
See Iskander, 690 F.2d at 128; Rojas v. Alexander’s Dept. Store, Inc., 924 F.2d
406, 408–09 (2d Cir. 1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th
Cir. 1982); Street v. Corrections Corp. of America, 102 F.3d 810, 818 (6th Cir.
1996); Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir. 1989); Tsao v. Desert Palace,
Inc., 698 F.3d 1128, 1139 (9th Cir. 2012); DeVargas v. Mason & Hanger-Silas
Mason Co., 844 F.2d 714, 723 (10th Cir. 1988); Harvey v. Harvey, 949 F.2d 1127,
1129–30 (11th Cir. 1992). See also Lyons v. National Car Rental Systems, Inc.,
30 F.3d 240, 246 (1st Cir. 1994); Defreitas v. Montgomery County Corr. Facility,
525 Fed. Appx. 170, 176 (3d Cir. 2013).
Nos. 12-2746 and 13-1143 15
governing bodies solely on the basis of the
existence of an employer-employee relationship
with a tortfeasor. Indeed, the fact that Congress
did specifically provide that A’s tort became B’s
liability if B “caused” A to subject another to a
tort suggests that Congress did not intend § 1983
liability to attach where such causation was
absent.
436 U.S. at 692.
Second, the Court concluded that the legislative history of
the Civil Rights Act of 1871 showed that Congress did not
intend to impose respondeat superior liability on municipalities.
Id. at 693. The Court focused on a rejected proposal known as
the Sherman Amendment. Directed at Ku Klux Klan activity in
the Reconstruction-era South, the amendment would have held
a municipality liable for the torts of private citizens not under
the municipality’s control, and thus would have imposed in
essence a generalized duty to keep the peace. See 436 U.S. at692–94 & n.57. The amendment was rejected largely due to
concerns about its constitutionality. See id. at 678–79. The
Monell Court seems to have concluded that if the 1871
Congress rejected the Sherman Amendment on constitutional
grounds, then it similarly would have thought that respondeat
superior liability for municipalities was unconstitutional, so
respondeat superior liability for municipalities must be implicitly
barred under § 1983. See id. at 693. While the Court’s
discussion is opaque, it was clearly focused on municipalities
and did not consider private corporations, such as in Adickes v.
Kress.
16 Nos. 12-2746 and 13-1143
The rejection of respondeat superior liability for
municipalities in Monell has been the subject of extensive
analysis and criticism. See Board of County Com’rs v. Brown, 520
U.S. 397, 430–37 (1997) (Breyer, J., dissenting) (calling for
reconsideration of Monell rejection of respondeat superior
liability); City of Oklahoma City v. Tuttle, 471 U.S. 808, 834–44
(1985) (Stevens, J., dissenting) (same); see also, e.g., Jack M.
Beermann, Municipal Responsibility for Constitutional Torts,
48 DePaul L. Rev. 627 (1999); Peter H. Schuck, Municipal
Liability Under Section 1983: Some Lessons from Tort Law and
Organization Theory, 77 Geo. L.J. 1753 (1989); Larry Kramer
and Alan O. Sykes, Municipal Liability Under Section 1983: A
Legal and Economic Analysis, 1987 S. Ct. Rev. 249 (1987);
Susanah M. Mead, 42 U.S.C. § 1983 Municipal Liability: The
Monell Sketch Becomes a Distorted Picture, 65 N.C. L. Rev. 517(1987); Karen M. Blum, From Monroe to Monell: Defining the
Scope of Municipal Liability in Federal Courts, 51 Temple L.Q.
409 (1978). (A reader of these critiques will find citations to
many more.) These commentators have pointed out many
critical problems with Monell’s conclusion that respondeat
superior claims against municipalities are not permitted under
§ 1983.
Perhaps the most important criticism to emerge from this
literature is that Monell failed to grapple with the fact that
respondeat superior liability for employers was a settled feature
of American law that was familiar to Congress in 1871, when
§ 1983 was enacted. Congress therefore enacted § 1983 against
the backdrop of respondeat superior liability, and presumably
assumed that courts would apply it in claims against
corporations under § 1983. Cf. Smith v. Wade, 461 U.S. 30, 38–45
Nos. 12-2746 and 13-1143 17
(1983) (considering common law in 1871 to decide standard for
punitive damages under § 1983); Carey v. Piphus, 435 U.S. 247,
257–59 (1978) (considering common law in 1871 to decide that
actual injury is needed to recover compensatory damages
under § 1983); see generally Jack M. Beermann, A Critical
Approach to Section 1983 With Special Attention to Sources of
Law, 42 Stanford L. Rev. 51, 66–73 (1989).
The Court’s reliance on the Sherman Amendment is also
problematic. The rejection of the proposal to hold
municipalities liable for actions of private citizens it could not
control says little about whether a municipality should be held
liable for constitutional torts committed by its own employees
acting within the scope of their employment. (More about this
below, when we discuss reasons not to extend the Monell
holding to private corporations.) Finally, the Court gave only
cursory and tentative treatment to the strongest foundation for
respondeat superior liability: an employer should be held
responsible for the torts of employees whose actions it can
control and from whose actions it profits. See 436 U.S. at 694 &
n.58.
Given these flaws on the surface of its reasoning, Monell is
probably best understood as simply having crafted a
compromise rule that protected the budgets of local
governments from automatic liability for their employees’
wrongs, driven by a concern about public budgets and the
potential extent of taxpayer liability.
Of course, the critiques of Monell’s rejection of respondeat
superior liability for municipalities have not yet persuaded the
Supreme Court to reconsider that rule. Given our position in
18 Nos. 12-2746 and 13-1143
the judicial hierarchy, then, we are bound to follow Monell as
far as municipal liability is concerned. We need not extend that
holding, however, to the quite different context of private
corporate defendants.
As noted, respondeat superior liability, which makes
employers liable for their employees’ actions within the scope
of their employment, is an old and well-settled feature of
American law. See, e.g., Restatement (3d) of Agency §2.04
(2006); Kerl v. Dennis Rasmussen, Inc., 682 N.W.2d 328, 334 (Wis.
2004) (Sykes, J.) (respondeat superior “has been well-settled in
the law of agency for perhaps as long as 250 years.”); Sword v.
NKC Hospitals, Inc., 714 N.E.2d 142, 147–48 (Ind. 1999); Adames
v. Sheahan, 909 N.E.2d 742, 754–55 (Ill. 2009). It is often justified
through a deterrence theory. E.g., Kerl, 682 N.W.2d at 336.
Employers are less likely than employees to be judgment-proof
and thus are more likely to be deterred by potential liability. Id.
Plus, while potential liability for a single tort may not be
enough to cause an employee to take more care, the specter of
massive aggregate liability might spur the employer to take
precautions. Employers are in the better position to take cost-
effective measures to avoid causing injury and can absorb the
costs of those precautions more easily than their individual
employees. Id. All of this suggests that making employers
liable for their employees’ torts may result in less tortious
behavior overall. We should not insulate employers from
respondeat superior liability under § 1983 without powerful
reasons to do so.
The text of § 1983 does not foreclose respondeat superior
liability for corporations. “Cause” has many legal meanings,
but it generally refers to proximate causation, which is
Nos. 12-2746 and 13-1143 19
something broader than immediate, direct causation. See
National Union Fire Ins. Co. v. Mead Johnson & Co., LLC, 735 F.3d
539, 547 (7th Cir. 2013); United States v. Laraneta, 700 F.3d 983,
990 (7th Cir. 2012). The requirement of causation certainly does
not generally preclude respondeat superior liability for a given
tort. See Dobbs’ Law of Torts § 425 (2d ed); Kerl, 682 N.W.2d at
334; Sword, 714 N.E.2d at 147–48; Adames, 909 N.E.2d at 754–55.
The causation requirement affects whether an individual
employee can be found liable for a wrong in the first place, not
whether his or her wrong can be imputed to the employer
under respondeat superior. Courts routinely applying respondeat
superior liability to corporations do not ask whether the
corporation “caused” the wrong by its employee. They ask
instead only whether the employee was acting within the scope
of employment.
The Monell Court’s interpretation of the legislative history
of the Civil Rights Act of 1871 similarly does not indicate that
Congress rejected the idea of respondeat superior liability for
corporations. The rejected Sherman Amendment, which the
Monell Court relied on to reject respondeat superior liability for
municipalities, would have made a “county, city, or parish”
vicariously liable for acts of violence committed by private
citizens. Monell, 436 U.S. at 667. The amendment was designed
to make municipalities vicariously liable for violence and
property damage inflicted by the Ku Klux Klan, regardless of
whether the municipality knew of the Klan’s planned activity
in advance or had the power to stop it. Id. at 667–68. That
proposition simply is not analogous to imposing liability on
private corporations for the tortious behavior of their own
employees acting within the scope of employment. Nothing in
20 Nos. 12-2746 and 13-1143
the Monell treatment of the legislative history bars respondeat
superior liability for corporations.
Other Supreme Court decisions also do not require the
extension of Monell to this new context. Monell itself said
nothing about whether its new “policy or custom” standard
would apply to private companies sued under § 1983. Nor did
Monell even mention Adickes’ almost reflexive application of
respondeat superior liability to a private company under § 1983.
Adickes remains good law, see Lugar, 457 U.S. at 930–31
(quoting Adickes’ discussion of private liability under § 1983 at
length and with approval), so current Supreme Court
precedent seems to support rather than reject respondeat
superior liability for private corporations under § 1983. Further,
since Monell, the Supreme Court has never held that a private
corporation may take advantage of the Monell standard that
applies to local governments. That suggests that we should
treat a private corporation like any other “person” who causes
a constitutional violation and that respondeat superior liability
should apply.
Moreover, in the related context of qualified immunity
under § 1983, the Court has distinguished between employees
of municipalities and employees of private corporations. In
both Richardson v. McKnight, 521 U.S. 399, 412 (1997), and Wyatt
v. Cole, 504 U.S. 158, 167–68 (1992), the Supreme Court based
its conclusion on grounds of both history and policy, focusing
on differences between private actors and governments.
Despite a long history of private corporations performing state
functions, there is no tradition of providing immunity to their
employees. Richardson, 521 U.S. at 405. Further, unlike
municipalities, private corporations are subject to market
Nos. 12-2746 and 13-1143 21
pressures, which provide a set of incentives entirely different
from those imposed by the democratic process. Id. at 409–11.
The conditions under which private corporations compete and
provide government services are thus materially different from
those affecting municipalities. Id. Due to these differences,
private prison employees are barred from asserting qualified
immunity from suit under § 1983. Id. at 412.
The Court’s reasoning in Richardson and Wyatt suggests that
we should not foreclose respondeat superior liability against
private corporations under § 1983. Private prison employees
and prison medical providers have frequent opportunities,
through their positions, to violate inmates’ constitutional
rights.3 It is also generally cheaper to provide sub-standard
care than it is to provide adequate care. Private prisons and
prison medical providers are subject to market pressures. Their
employees have financial incentives to save money at the
expense of inmates’ well-being and constitutional rights. The
unavailability of qualified immunity for these employees is a
deterrent against such conduct, but respondeat superior liability
for the employer itself is likely to be more effective at deterring
such actions. Insulating private corporations from respondeat
superior liability significantly reduces their incentives to control
their employees’ tortious behavior and to ensure respect for
3
Although Richardson involved a private prison, some circuits (including
our own) have applied Richardson to private medical providers, holding that
they are similarly barred from asserting immunity under § 1983. See, e.g.,
Currie v. Chhabra, 728 F.3d 626, 631–32 (7th Cir. 2013) (affirming denial of
qualified immunity for private health care providers for jail); McCullum v.
Tepe, 693 F.3d 696 (6th Cir. 2012); Jensen v. Lane County, 222 F.3d 570 (9th Cir.
2000); Hinson v. Edmond, 192 F.3d 1342 (11th Cir. 1999).
22 Nos. 12-2746 and 13-1143
prisoners’ rights. The results of the current legal approach are
increased profits for the corporation and substandard services
both for prisoners and the public.
So the Supreme Court has not directly said whether Monell
applies to private corporations, and there are powerful reasons
to say no. Yet we and all other circuits that have considered the
question have said yes. Why? It’s not easy to say. Our opinion
in Iskander and virtually all of the circuit opinions after Monell
simply cite one or more prior cases that all seem to trace back
to the terse Fourth Circuit opinion in Powell v. Shopco Laurel Co.,
678 F.2d 504 (4th Cir. 1982). The relevant portion of that
opinion said in full:
In Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978), the Supreme Court
held that a municipal corporation cannot be
saddled with section 1983 liability via
respondeat superior alone. We see this holding
as equally applicable to the liability of private
corporations. Two aspects of Monell exact this
conclusion. The Court found section 1983
evincing a Congressional intention to exclude the
imposition of vicarious answerability. For a third
party to be liable the statute demands of the
plaintiff proof that the former “caused” the
deprivation of his Federal rights. 436 U.S. at
691–92. Continuing, the Court observed that the
policy considerations underpinning the doctrine
of respondeat superior insufficient to warrant
integration of that doctrine into the statute. Id. at
694. No element of the Court’s ratio decidendi
Nos. 12-2746 and 13-1143 23
lends support for distinguishing the case of a
private corporation.
678 F.2d at 506.
There are good reasons to question the Powell conclusion.
It overlooked the fact that Monell was focused on the Sherman
Amendment, which would have imposed liability for mere
failure to prevent harm caused by private citizens, not
employees controlled by an employer. It also overlooked the
fact that respondeat superior liability was already a well
established part of the common law in 1871, so Congress could
reasonably have expected the courts to apply the doctrine
under § 1983. Perhaps most important, the Powell opinion
simply overlooked the Monell Court’s special solicitude for
municipalities and their budgets. These omissions counsel
against adopting the Powell court’s conclusion.
For all of these reasons, a new approach may be needed for
whether corporations should be insulated from respondeat
superior liability under § 1983. Since prisons and prison medical
services are increasingly being contracted out to private
parties, reducing private employers’ incentives to prevent their
employees from violating inmates’ constitutional rights raises
serious concerns. Nothing in the Supreme Court’s
jurisprudence or the relevant circuit court decisions provides
a sufficiently compelling reason to disregard the important
policy considerations underpinning the doctrine of respondeat
superior. And in a world of increasingly privatized state
24 Nos. 12-2746 and 13-1143
services, the doctrine could help to protect people from
tortious deprivations of their constitutional rights.4
If the Monell policy/custom standard did not apply here, we
would reverse the district court’s grant of summary judgment
for Wexford. Shields has offered evidence showing that the
corporation was responsible for his health care. As an entity,
the company knew of his injury, its severity, the need for
surgery, and the complete failure of physical therapy. (Recall
the therapist’s note that Shields had to stop the therapy
because of pain.) Wexford nevertheless failed to ensure that
Shields received the surgery he needed to avoid permanent
impairment of his shoulder. These facts would support
respondeat superior liability for Wexford and would lead us to
reverse summary judgment for Wexford on that ground.
The facts in this case are also an excellent example of the
problems generated by barring respondeat superior liability for
corporations under § 1983. On the facts before us, it appears
that Wexford structured its affairs so that no one person was
4
For more detailed critiques of the extension of Monell to private corpora-
tions, and for more detailed reviews of the policy considerations and the
nuances in the case law, see Richard Frankel, Regulating Privatized
Government Through § 1983, 76 U. Chi. L. Rev. 1449 (2009), and Barbara
Kritchevsky, Civil Rights Liability of Private Entities, 26 Cardozo L. Rev. 35(2004); see also Jack M. Beermann, Why Do Plaintiffs Sue Private Parties
Under Section 1983?, 26 Cardozo L. Rev. 9, 27 (2004). As just one example
of additional problems, the Monell policy/custom rule is difficult to apply
to a private corporation. How does a court identify the relevant "final
policymaker" in a corporation? Is it the CEO, the board of directors, the
shareholders? What if the corporation is a subsidiary of another? See
Kritchevsky, 26 Cardozo L. Rev. at 56–60.
Nos. 12-2746 and 13-1143 25
responsible for Shields’ care, making it impossible for him to
pin responsibility on an individual. If respondeat superior
liability were available, Wexford could not escape liability by
diffusing responsibility across its employees, and prisoners
would be better protected from violations of their
constitutional rights.
In view of these considerations, we have considered the
possibility of circulating an opinion overruling Iskander and its
progeny on this point for consideration by the entire court
under Circuit Rule 40(e). Since Shields has not asked us to
overrule those cases and Wexford has not had occasion to brief
the issue, we have decided not to take that approach. A
petition for rehearing en banc would provide an opportunity
for both sides to be heard on this issue, and our decision is of
course subject to review on certiorari. For now, this circuit’s
case law still extends Monell from municipalities to private
corporations. Iskander, 690 F.2d at 128; Gayton, 593 F.3d at 622;
Rodriguez, 577 F.3d at 822. To recover against Wexford under
our current precedent, Shields must offer evidence that his
injury was caused by a Wexford policy, custom, or practice of
deliberate indifference to medical needs, or a series of bad acts
that together raise the inference of such a policy. Woodward, 368
F.3d at 927.
Shields attempts to proceed by showing a series of bad acts.
He argues that mistakenly referring him to the wrong doctor
(and failing to detect or correct that mistake), combined with
failing to promptly discipline and eventually replace Dr.
Migliorino, shows that Wexford was deliberately indifferent to
his medical needs.
26 Nos. 12-2746 and 13-1143
Such isolated incidents do not add up to a pattern of
behavior that would support an inference of a custom or
policy, as required to find that Wexford as an institution/
corporation was deliberately indifferent to Shields’ needs. See
Palmer v. Marion County, 327 F.3d 588, 596 (7th Cir. 2003)
(“proof of isolated acts of misconduct will not suffice; a series
of violations must be presented to lay the premise of deliberate
indifference”); Cornfeld v. Consolidated High School Dist. No. 230,
991 F.2d 1316, 1326 (7th Cir. 1993) (requiring “a pattern or
series of incidents of unconstitutional conduct” in the absence
of an explicit policy). Under our existing case law, summary
judgment was properly granted for Wexford on this claim.
b. Drs. Funk, Migliorino, Shute, and Schaefer
Shields contends that Drs. Funk, Migliorino, Shute, and
Schaefer were all deliberately indifferent to his medical needs.
However, he has not come forward with evidence that would
allow a reasonable jury to find that any one of the Wexford
doctors both knew there was a risk of harm to Shields and
consciously disregarded that risk. See Mathis v. Fairman, 120
F.3d 88, 91 (7th Cir. 1997).
The initial response to Shields’ injury was not deliberately
indifferent. Dr. Migliorino saw Shields the day he was injured
and sent him to an outside hospital emergency room. When an
MRI revealed an injury, Dr. Migliorino referred Shields to an
orthopaedic surgeon, and Dr. Funk approved the referral.
There is no indication that this response was inadequate, let
alone deliberately indifferent. Rather, Drs. Funk and
Migliorino seem to have taken prompt action to diagnose
Shields’ injury and to seek treatment for it.
Nos. 12-2746 and 13-1143 27
Shields argues that Drs. Funk and Migliorino deliberately
delayed the surgery he needed, referring him to endless
doctors in search of a different, cheaper treatment
recommendation. However, Drs. Funk and Migliorino referred
Shields to the type of doctor who seemed well qualified to
perform his surgery: an orthopaedic surgeon specializing in
the shoulder. Given that Drs. Funk and Migliorino did not
select specific doctors for referrals, referring Shields to the type
of doctor who would be able to treat his injury competently,
with surgery or otherwise, was adequate. Each time a
particular doctor said he was unwilling to try the surgery
himself, Drs. Funk and Migliorino scheduled another referral
promptly. We see no basis for holding Drs. Funk and
Migliorino responsible for the specialists’ reluctance to do the
surgery themselves. Under these circumstances, the multiple
referrals do not permit an inference of deliberate indifference.
We must assume the referral to Dr. Olysav was a mistake
since he was not the proper sort of specialist. The problem for
Shields is that § 1983 requires proof of individual
responsibility. There is no indication that Dr. Funk or Dr.
Migliorino had any involvement in that mistaken referral, let
alone that either one acted with deliberate indifference to
Shields’ health in allowing the referral to go forward.
Approving Dr. Olysav’s treatment recommendation of
physical therapy also was not deliberately indifferent. Shields
points to the fact that all previous shoulder specialists who had
seen his records had recommended surgery. However,
choosing one treatment recommendation over another does
not amount to deliberate indifference where both
recommendations are made by qualified medical professionals,
28 Nos. 12-2746 and 13-1143
as Drs. Funk and Migliorino believed to be the case here. See
Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996) (“Mere
differences of opinion among medical personnel regarding a
patient’s appropriate treatment do not give rise to deliberate
indifference.”).
Neither Dr. Funk nor Dr. Migliorino was deliberately
indifferent to Shields’ medical needs after approving him for
physical therapy as recommended by Dr. Olysav. Dr.
Migliorino left Hill before Shields’ physical therapy was
stopped because of pain, and there is simply no evidence that
Dr. Funk knew of any continuing injury after he approved Dr.
Migliorino’s recommendation that Shields undergo physical
therapy. In particular, there is no evidence that Dr. Funk saw
the physical therapist’s report that Shields could not complete
the prescribed physical therapy because of the pain it caused.
On these undisputed facts, a reasonable jury could not find
that either Dr. Funk or Dr. Migliorino personally realized there
was a risk that Shields’ injury was not being treated properly,
and so could not find that either consciously disregarded that
risk.
Finally, there is no evidence that would support a finding
that Dr. Shute or Dr. Schaefer was deliberately indifferent to
Shields’ medical needs. Dr. Schaefer’s job was limited to
determining whether further treatment was planned. After
determining it was not, he lifted the medical hold on Shields.
He did not personally examine Shields, so he did not know
that his injury had not been adequately addressed. Shields
makes no arguments about Dr. Shute on appeal, so any claim
against him is waived. Puffer v. Allstate Ins. Co., 675 F.3d 709,
718.
Nos. 12-2746 and 13-1143 29
2. The SIU Defendants
Summary judgment was also properly granted on Shields’
§ 1983 claims against SIU, Dr. Olysav, and Dr. Froelich. Shields
makes no arguments regarding SIU itself on appeal, so any
claim against SIU is waived. Puffer, 675 F.3d at 718. Shields also
has not shown that either Dr. Olysav or Dr. Froelich acted
under color of state law within the meaning of § 1983. Whether
a medical provider is a state actor is a functional inquiry,
focusing on the relationship between the state, the medical
provider, and the prisoner. Rodriguez, 577 F.3d at 826. A
business like Wexford that contracts to provide medical care to
prisoners undertakes “freely, and for consideration,
responsibility for a specific portion of the state’s overall
[constitutional] obligation to provide medical care for
incarcerated persons,” id. at 827, and thus acts under color of
state law for purposes of § 1983. On the other hand, we have
held that medical providers who have “only an incidental or
transitory relationship” with the penal system generally are not
considered state actors. Id. at 827.
The undisputed facts show here that Dr. Olysav and Dr.
Froelich each had only an incidental and transitory relationship
with the penal system. Neither was not acting under color of
state law for purposes of § 1983. Wexford referred Shields to
Dr. Olysav for a one-time examination, which he performed
with the help of Dr. Froelich. Dr. Olysav recommended
physical therapy and had nothing more to do with the patient.
Neither Dr. Olysav nor Dr. Froelich scheduled follow-up
appointments with Shields or retained responsibility for his
course of treatment, so they did not have a sufficiently direct
relationship with him to find that they were acting under color
30 Nos. 12-2746 and 13-1143
of state law. See Rodriguez, 577 F.3d at 828. Their relationship
with Wexford was similarly too attenuated to support the
conclusion that they were acting under color of state law.
Shields correctly points out that Drs. Olysav and Froelich
both indicated that they had treated inmates before and that
Wexford had made the arrangements for those treatments.
However, there is no evidence that Drs. Olysav and Froelich
had a contract with Wexford or the prison, that their practices
focused on treating inmates, or even that they regularly treated
inmates as part of their practices. Standing alone, merely
having treated inmates before does not establish the kind of
close relationship between the doctors and Wexford required
to find that they were state actors. In other words, the
undisputed facts show that Dr. Olysav and Dr. Froelich had
only incidental and transitory relationships with both Wexford
and Shields. The undisputed facts do not allow a reasonable
inference that these doctors acted under color of state law
when they took the referral from Wexford. Summary judgment
was properly granted for them on Shields’ § 1983 claims.
Accordingly, the district court also did not abuse its discretion
by declining to exercise supplemental jurisdiction over the
state law claims for medical malpractice against these
defendants. See 28 U.S.C. § 1367(c)(3).
B. Rule 60 Motion for Relief
Finally, Shields appeals the district court’s denial of his
Rule 60 motion for relief. After the district court issued its
opinion and final judgment, Shields filed a motion to amend
his complaint to add state medical malpractice claims against
Nos. 12-2746 and 13-1143 31
the Wexford defendants.5 The court found that the motion to
amend his complaint was brought under Rule 15(b), which
directs courts to grant leave to amend freely where the
opposing party will not be prejudiced by the amendment. Fed.
R. Civ. P. 15(b)(1). The court then denied the motion, holding
that Shields’ operative complaint (the second amended
complaint) did not give the Wexford defendants fair notice of
a medical malpractice claim against them. The court also held
that allowing such a late amendment would prejudice the
Wexford defendants by requiring them to devote resources to
investigating and defending the claim after having already
taken discovery and moved successfully for summary
judgment on the claims actually asserted against them. On
appeal, Shields argues that the Wexford defendants were on
sufficient notice that medical malpractice claims were being
asserted against them, so that having to defend those claims
would not have prejudiced them.
Shields’ appeal of the district court’s denial of his motion to
amend came too late. In civil cases where the federal
government is not a party, a party ordinarily must file a notice
of appeal within 30 days of the district court’s entry of
judgment. Fed. R. App. P. 4(a)(1)(A). Filing a Rule 60 motion
will toll the commencement of that time limit until the motion
is resolved, as long as the Rule 60 motion is filed within 28
days of the district court’s entry of judgment. Fed. R. App. P.
4(a)(4)(A)(vi). Filing a post-judgment Rule 15(b) motion does
5
Shields also asked the district court to amend its judgment, a request
properly brought under Rule 60. The court declined, and Shields does not
appeal that denial, so we do not discuss these claims further.
32 Nos. 12-2746 and 13-1143
not similarly toll the time to file an appeal. See Fed. R. App. P.
4(a)(4)(A).
Shields filed his Rule 60 motion thirty days after the district
court entered its final judgment. If we consider his motion to
amend as having been brought under Rule 60, he is not entitled
to the tolling provided for in Federal Rule of Appellate
Procedure 4(a)(4)(A)(vi) because he did not file his motion
within 28 days of the district court’s final judgment, as
required by the rule. If we consider Shields’ motion under Rule
15(b), then he did not file an appeal of the resolution of that
motion within 30 days of the court’s entry of judgment in his
case, as required by Rule 4(a)(1)(A). Either way, Shields’
appeal is untimely, and his claims regarding the motion are
barred.
Conclusion
There is ample evidence here that plaintiff Shields was the
victim of delayed medical care that has left him with a serious
and permanent injury that could have been avoided. The
evidence suggests that he is the victim not of any one human
being’s deliberate indifference but of a system of medical care
that diffused responsibility for his care to the point that no
single individual was responsible for seeing that he received
the care he needed in a timely way. As a result, no one person
can be held liable for any constitutional violation. Finally,
Shields’ efforts to rely on state medical malpractice law against
the Wexford defendants appear to have run afoul of
procedures courts must follow for the timely and fair
resolution of cases. As the case is presented to us, the judgment
of the district court must be and is AFFIRMED.
Nos. 12‐2746 and 13‐1143  33
TINDER,  Circuit  Judge,  concurring.  I  concur  in  the  result
reached  in  the  majority  opinion,  that  is,  affirming  the  judg‐
ment of the district court. I also join in the majority opinion
except  for  the  discussion  of  whether  the  Monell  standards
should apply to private corporations like Wexford, at pp 10‐
25  of  the  majority  opinion.  I  may  not  ultimately  disagree
with  the  thorough  and  thoughtful  points  made  in  that  dis‐
cussion. However, I would prefer to undertake that analysis
in a case in which the issue is raised and briefed by the par‐
ties. With regard to the majority opinion’s invitation to have
a petition for rehearing filed on the question, I am doubtful
that this is a proper case in which to do so.
My  understanding  of  the  record  below  is  that  this  issue
was certainly forfeited, if not waived, by Plaintiff‐Appellant
Ernest Shields. In his amended complaints before the district
court, Shields alleged the existence of “policies, regulations,
or decisions officially adopted” by Wexford. The Defendants
repeatedly  challenged  the  existence  of  such  policies  or  pro‐
cedures  in  the  district  court,  including  in  their  motion  to
dismiss and their summary judgment briefing. Instead of ar‐
guing that the Monell paradigm did not apply for the reasons
articulated  in  the  majority opinion, Shields stood on  the ar‐
gument that Wexford had policies and practices that directly
led  to  Shields’  suffering  a  deprivation  of  his  constitutional
rights;  he  stuck  to  that  theory  throughout  the  summary
judgment  briefing  and  even  in  post‐opinion  briefing.  He
never breathed a word about Monell’s relationship to corpo‐
rate liability. I would suggest that the majority opinion’s ar‐
guments in this regard were waived by Shields’ failure to ar‐
gue them before the district court. Frey Corp. v. City of Peoria,
34  Nos. 12‐2746 and 13‐1143
Ill.,  735  F.3d  505,  509  (7th  Cir.  2013)  (“When  a  party  fails  to
develop  an  argument  in  the  district  court,  the  argument  is
waived and we cannot consider it on appeal”). And so, too,
in  his  briefing  before  our  court  Shields  renewed  his  Monell
arguments  against  Wexford,  arguing  about  the  existence  of
policies or procedures that led to his constitutional depriva‐
tion.  He  did  not  assert  that  the  Monell  paradigm  should
change  in  the  context  of  a  corporate  contractor  providing
governmental services.
In  other  words,  if  Shields  accepts  the  majority  opinion’s
invitation  to  brief  this  issue  in  a  petition  for  rehearing,  he
would then be raising it for the very first time. Some cases in
our circuit state that  a  party is barred  from raising an issue
for the first time in a petition for rehearing. See, e.g., Hebron v.
Touhy, 18 F.3d 421, 424 (7th Cir. 1994) (an argument raised for
the first time in a petition for rehearing “comes too late and
has been waived”). It is true that other cases suggest that an
argument raised for the first time in a petition for rehearing
may be considered forfeited, and only on a plain error basis.
See, e.g., United States v. Rosas, 410 F.3d 332, 337 n.1 (7th Cir.
2004) (“raising a claim [for the first time] in a petition for re‐
hearing  is  the  functional  equivalent  of”  raising  the  claim
while an appeal is pending, and the claim is “considered for‐
feited  and  the  review  is  exclusively  for  plain  error”)  (citing
United States v. Macedo, 406 F.3d 778, 789 (7th Cir. 2005)); In‐
diana Gas Co., Inc. v. Home Ins. Co., 141 F.3d 314, 321 (7th Cir.
1998) (“An argument made for the first time in a petition for
rehearing has been forfeited … .”). What plain error review
Nos. 12‐2746 and 13‐1143  35
would  entail  in  this  context  is  unclear.1  But  there  exists  no
law in our circuit that would allow us to review, de novo and
on the merits, brand new arguments raised in a petition for
rehearing.
Our  sister  circuits  that  have  spoken  on  this  question
agree with our determination on this matter: in general, new
issues raised in petitions for rehearing are not eligible for re‐
view.  Numerous  circuits  hold  that  an  issue  raised  for  the
first  time  in  a  petition  for  rehearing  has  been  waived  and
cannot be reviewed.2 Some hold that this practice constitutes
1 In my view, such review ought to be exceedingly rare because it could
encourage litigants to ignore issues in the district court and before panels
of  this  court,  only  to  spring  them  for  the  first  time  in  a  petition  for  re‐
hearing. That is inefficient and could turn the steady stream of rehearing
petitions that we now experience into a flood.
2 See, e.g., United States v. Bongiorno, 110 F.3d 132, 133 (1st Cir. 1997) (“[A]
party  may  not  raise  new  and  additional  matters  for  the  first  time  in  a
petition for rehearing.”); United States v. Cross, 308 F.3d 308, 314 (3d Cir.
2002) (an issue raised for the first time in a petition for rehearing en banc
cannot  be  considered  because  it  was  not  raised  on direct  appeal);  High‐
tower v. Texas Hosp. Assʹn, 73 F.3d 43, 44 (5th Cir. 1996) (“In their petition
for rehearing, appellees have raised a number of arguments that they did
not  make  to  this  court  in  their  original  appellate  briefs … .  These  argu‐
ments  have  been  raised  too  late  in  the  appellate  process  to  be  useful  to
this court, and they are deemed waived and have played no role in our
decision.”);  Costo  v.  United  States,  922  F.2d  302,  302–03  (6th  Cir.  1990)
(“Generally,  an  argument  not  raised  in  an  appellate  brief  or  at  oral  ar‐
gument may not be raised for the first time in a petition for rehearing.”);
Johnson  v.  Woodcock,  444  F.3d  953,  954  n.2  (8th  Cir.  2006)  (an  issue  that
was not raised “in the district court or in the briefs or during oral argu‐
ment  before  this  court”  but  raised  “belatedly  by  way  of  a  petition  for
rehearing” was waived); Picazo v. Alameida, 366 F.3d 971, 971–72 (9th Cir.
36  Nos. 12‐2746 and 13‐1143
forfeiture rather than waiver.3 At least two circuits opt for a
flexible  waiver  principle,  where  the  court  occasionally
chooses  to  consider  arguments  raised  for  the  first  time  in  a
petition for rehearing, in extraordinary cases.4 But no case—
in our circuit or elsewhere—allows for a party to freely raise
a new theory of its case in a petition for rehearing, one that it
has repeatedly declined to raise in the district court or in its
briefs before us.
I agree that the matter of whether private corporate liabil‐
ity under § 1983 should be evaluated in the same manner as
municipal liability is an important question. And the majori‐
ty opinion certainly also issues an invitation to resurrect that
question  in  subsequent  cases.  The  district  courts  of  this  cir‐
2004) (“[A]t no point in this litigation until the petition for rehearing did
the state argue that we should apply Esparza, or even consider it … . Un‐
der  the  law  of  this  circuit,  we  deem  the  state’s  most  recent  argument
waived.”); United States v. Martinez, 96 F.3d 473, 475 (11th Cir. 1996) (“We
do not consider issues or arguments raised for the first time on petition
for  rehearing.”);  Haas  v.  Peake,  544  F.3d  1306,  1308  (Fed.  Cir.  2008)  (an
argument that was not argued in a brief on appeal, but raised for the first
time in the petition for rehearing, was waived).
3  See,  e.g.,  United  States  v.  Andrus,  499  F.3d  1162,  1163  (10th  Cir.  2007)
(appellant’s argument, “made for the first time in his petition for rehear‐
ing and … not initially presented to the panel,” was forfeited).
4  See  Fox  Television  Stations,  Inc.  v.  F.C.C.,  293  F.3d  537,  540  (D.C.  Cir.
2002) (court “ordinarily deems an argument raised for the first time in a
petition  for  rehearing  to  have  been  waived”  but  the  practice  is  “more
practical than rigid”); Anderson v. Branen, 27 F.3d 29, 30 (2d Cir. 1994) (a
party’s  failure  to  raise  an  argument  before  the  circuit  court  or  district
court “obviates any need on our part to address the merits of his petition
[for  rehearing]”  unless  “manifest  injustice  otherwise  would  result.”)
(quotation marks and citation omitted).
Nos. 12‐2746 and 13‐1143  37
cuit  will  likely  soon  be  faced  with  it,  and  our  court  will  no
doubt have it shortly thereafter.
I should point out one final reason why I think this case
in  particular  is  poorly  suited  for  rehearing  on  a  new  ques‐
tion.  Shields  is  currently  no  longer  represented  by  counsel.
He was represented in the district court and on the brief he
filed  in  this  court,  and  I  believe  that  he  waived  (or  at  least
forfeited)  any  contention  that  respondeat  superior  ought  to
apply  to  Wexford  through  his  counsel’s  argument  in  those
proceedings. His counsel was permitted to withdraw shortly
before this appeal was submitted to us on the briefs in lieu of
holding  oral  argument.  Even  if  Shields  obtains  counsel  to
pursue  a  petition  for  rehearing  in  a  fairly  short  period  of
time,  the  litigation  choices  made  by  Shields’  prior  counsel
will pose difficult hurdles to overcome in a rehearing effort.