Terry v. County of Milwaukee et al

Filing 41

ORDER signed by Judge J.P. Stadtmueller on 1/16/2018: GRANTING 35 Defendant Armor Correctional Health Services' Motion for Judgment on the Pleadings and DISMISSING with prejudice Count V of Plaintiff's Complaint (Docket #1). (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
REBECCA TERRY,
Plaintiff,

v.

COUNTY OF MILWAUKEE, DAVID
A. CLARKE, JR., OFFICER BRIAN
WENZEL, UNKNOWN EMPLOYEES
OF MILWAUKEE COUNTY JAIL,
UNKNOWN JAIL SUPERVISORS,
ARMOR CORRECTIONAL HEALTH
SERVICES, CAROLYN EXUM,
MORGAN BEVENUE, MARGARET
HOOVER, UNKNOWN EMPLOYEES
OF ARMOR CORRECTIONAL
HEALTH SERVICES, and
UNKNOWN ARMOR
HEALTHCARE SUPERVISORS,

Case No. 17-CV-1112-JPS

ORDER

Defendants.
Plaintiff Rebecca Terry (“Terry”) filed this action pursuant to 42
U.S.C. § 1983, complaining of deliberate indifference to her serious medical
needs while in custody at the Milwaukee County Jail. Specifically, she
claims that she was not afforded any appropriate medical care while giving
birth in the Jail. See (Docket #1). Defendants include both Milwaukee
County officials and employees of Armor Correctional Health Services
(“Armor”), a private corporation that provides healthcare services to
inmates at the Jail.
In Count V of her complaint, Terry asserts a respondeat superior claim
against Armor, alleging that it is responsible for the inadequate care its

employees provided by virtue of its status as their employer. (Docket #1
¶¶ 102–04). The Supreme Court held in Monell v. Department of Social
Services, 436 U.S. 658, 693 (1978), that a local governmental body cannot
have vicarious liability for the constitutional violations of its employees.
Instead, it can only be liable under Section 1983 if the government’s policy
or custom caused the violation. Id. at 694.
All Circuits to consider the issue have extended that reasoning to
private corporations sued under Section 1983. Shields v. Ill. Dep’t of Corr.,
746 F.3d 782, 790 (7th Cir. 2014); Iskander v. Forest Park, 690 F.2d 126 (7th Cir.
1982). However, the panel in Shields discussed at length the potential
doctrinal and practical problems with applying Monell to a private
company. See Shields, 764 F.3d at 790–96. Post-Shields decisions in this
Circuit give mixed reviews of its call for reconsideration. Compare Hahn v.
Walsh, 762 F.3d 617, 639–40 (7th Cir. 2014), with Collins v. Al-Shami, 851 F.3d
727, 734 (7th Cir. 2017). Neither the Seventh Circuit sitting en banc nor the
Supreme Court have not revisited this doctrine as yet.
Consequently, Armor filed a motion for judgment on the pleadings
as to this count in Terry’s complaint, (Docket #35); Fed. R. Civ. P. 12(c), and
Terry has conceded that the claim was asserted only to preserve it for
appellate review, (Docket #40 at 6). The Court appreciates both Terry’s
position and its own obligation to apply controlling authority from the
Seventh Circuit. See Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.
1987). At this juncture, the latter consideration must win out, and Count V
of the complaint must be dismissed. Of course, Terry’s claim that Armor
had policies and customs which caused her injuries remains.

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Accordingly,
IT IS ORDERED that Defendant Armor Correctional Health
Services’ motion for judgment on the pleadings (Docket #35) be and the
same is hereby GRANTED; and
IT IS FURTHER ORDERED that Count V of Plaintiff’s complaint
(Docket #1, ¶¶ 102–04) be and the same is hereby DISMISSED with
prejudice.
Dated at Milwaukee, Wisconsin, this 16th day of January, 2018.
BY THE COURT:

__________________
J. P. Stadtmueller
U.S. District Judge

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