In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-3618 & 18-1281

JAMES GASTON,

Plaintiff-Appellant,

v.

PARTHASARATHI GHOSH, et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11-cv-6612 — Edmond E. Chang, Judge.

____________________

ARGUED MARCH 27, 2019 — DECIDED APRIL 3, 2019

____________________

Before EASTERBROOK, KANNE, and HAMILTON, Circuit 

Judges.

EASTERBROOK, Circuit Judge. Iskander v. Forest Park, 690 

F.2d 126 (7th Cir. 1982), holds that private corporations, 

when deemed to be state actors in suits under 42 U.S.C. 

§1983, must be treated the same as municipal corporations.

This means that they are not subject to vicarious liability. 

See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009); Monell 

v. New York City Department of Social Services, 436 U.S. 658, 
2 Nos. 17-3618 & 18-1281

691–94 (1978). Iqbal, Monell, and other decisions hold that 

municipalities and public employees may be held liable for 

their own decisions and policies but are not liable under the 

doctrine of respondeat superior for the acts, decisions, and policies of other persons, including subordinate public officials.

Iskander held that the same approach applies to private corporations and their agents, to the extent that they are treated 

as state actors for the purpose of §1983. James Gaston asks us 

to overrule Iskander and hold that in litigation under §1983 a 

private corporation may be liable vicariously to the same extent as a private corporation in the law of torts.

That argument has been made before but left unresolved, 

because the appeals could be decided on other grounds. See, 

e.g., Collins v. Al-Shami, 851 F.3d 727, 734 (7th Cir. 2017); Glisson v. Indiana Department of Corrections, 849 F.3d 372, 379 (7th 

Cir. 2017) (en banc); Shields v. Illinois Department of Corrections, 746 F.3d 782 (7th Cir. 2014). That is equally true today, 

and for the same reason as in Collins: the employee “is not 

liable, so—even if the theory of respondeat superior were 

available—neither is his employer.”

Gaston, a prisoner of Illinois, suffered injuries that led to 

surgery on both of his knees. (He had other medical problems, but treatment for them is no longer in dispute.) He first 

complained about pain in his left knee in May 2009. Drugs

did not solve the pain, and the knee did not heal on its own.

Liping Zhang, a physician employed by Wexford Health 

Sources, which Illinois uses to provide medical care in the 

state’s prisons, eventually alerted Parthasarathi Ghosh, who 

referred Gaston to an orthopedic surgeon. Delay in implementing that decision followed; the consultation occurred in

September 2010. Dr. Ghosh, the head of medical services at 
Nos. 17-3618 & 18-1281 3

the prison, approved a magnetic resonance imaging (MRI) 

exam, which the specialist had recommended, but it was not 

conducted until February 2011. It revealed a lingering injury. 

In August 2011 Samuel Chmell performed arthroscopic surgery on Gaston’s left knee, a step approved by Imhotep 

Carter, who replaced Dr. Ghosh after his retirement. (Dr. 

Chmell is an orthopedic surgeon on the staff of the University of Illinois hospital system, which handled all of the specialist work, MRI exams, and surgeries we mention.)

While Gaston’s left knee was healing, a consultative body 

within Wexford delayed approving an MRI image of his 

right knee, stating that one knee had to be sound before 

treatment of the other could proceed. In May 2012 the prison’s interim medical director (Dr. Carter having left) referred Gaston for an MRI exam on the right knee. It showed 

serious problems, and Dr. Chmell recommended another arthroscopic surgery. In August 2012 Saleh Obaisi, the prison’s 

new medical director, approved Dr. Chmell’s recommendation, and surgery occurred in October 2012. This did not 

bring the hoped-for relief, and Dr. Chmell recommended arthroplasty (i.e., knee replacement). That surgery, a much 

more substantial medical intervention, was delayed while 

specialists determined whether Gaston’s pulmonary and 

cardiology systems would handle the strain. More delay 

may have been caused by inamention to the case. The arthroplasty took place in February 2015 and was successful.

Gaston acknowledges that he has received a great deal of 

medical care. He does not contend that the diagnosis or the 

selected interventions can lead to §1983 liability under the 

approach of Estelle v. Gamble, 429 U.S. 97 (1976); Farmer v. 

Brennan, 511 U.S. 825 (1994); and PeIies v. Carter, 836 F.3d
4 Nos. 17-3618 & 18-1281

722 (7th Cir. 2016) (en banc). Instead he contends that the delays while waiting for surgeries reflect deliberate indifference to his pain, so that the pain became a form of unauthorized punishment in violation of the Eighth Amendment (applied to the states through the Due Process Clause of the 

Fourteenth Amendment). After the district court dismissed 

Gaston’s complaint, we remanded, holding that a complaint 

based on unwarranted pain during extended delay in treatment states a claim under the Eighth Amendment. 498 F. 

App’x 629 (7th Cir. 2012) (nonprecedential disposition).

Back in the district court Gaston, although represented 

by counsel, proceeded premy much as if anyone whose complaint states a legal claim prevails without needing to prove 

the complaint’s allegations. Defendants conducted discovery; Gaston not so much. In particular, Gaston did not try to 

find out either who was responsible for the delays (the four 

physicians named as defendants? back-office staff? someone 

else?) or why those delays occurred (a desire that Gaston’s 

pain continue? indifference to his pain? simple negligence? 

medical judgment?). For their part, defendants offered some 

evidence that would tend to support a conclusion that the 

delays could be chalked up to medical judgment—a preference for conservative treatment before surgery—plus occasional oversight, but never to any desire to injure Gaston or 

indifference to his pain. Dr. Chmell testified in a deposition 

that the treatment afforded to Gaston was within the standard of care in the medical profession—in other words, not 

even negligence, let alone punishment inflicted with the subjective standard required for constitutional liability.

Gaston contended that Wexford should be held liable 

even if none of the four physicians is culpable. In making 
Nos. 17-3618 & 18-1281 5

this contention, he assumed that, if Iskander should be overruled, then Wexford and other private corporations would 

become liable under §1983 for their employees’ negligence, 

no mamer what standard applies to the personal liability of 

those employees.

The district court granted summary judgment to the four 

individual defendants, ruling that the record does not show 

that any of them acted (or delayed acting) with the state of 

mind required for culpability. 2017 U.S. Dist. LEXIS 195234 

(N.D. Ill. Nov. 28, 2017). The court recognized that it lacks 

the authority to depart from Iskander. Wexford could be liable for its own unconstitutional policies, but the court concluded that the policies to which Gaston pointed, such as 

treating one condition at a time, reflected medical judgment 

rather than a constitutional problem.

It is not as if Wexford has a policy of ignoring lifethreatening conditions while a prisoner heals from surgery. 

Nor did Wexford ignore the pain from one knee while Gaston recovered from surgery on the other. He received painalleviating drugs. The district court’s decision is addressed 

to a policy providing time between surgeries, a policy that

Dr. Chmell testified is medically appropriate. The district 

judge was confident that, if a prisoner being treated for the 

flu broke his leg, Wexford would immediately provide the 

care needed to deal with a broken leg. 2017 U.S. Dist. LEXIS

195234 at *43. (The district court added that Gaston has not 

established that “treat one condition at a time” is Wexford’s 

policy, as opposed to a medical decision made about his situation, in particular.)

In this court, Gaston scarcely engages with the district 

court’s reasoning or the consequences of his failure to intro-
6 Nos. 17-3618 & 18-1281

duce evidence. Instead he asks us to overrule Iskander in the 

belief that this will eliminate the need to show that any of 

Wexford’s employees violated the Eighth Amendment. That 

not only contradicts Collins, which Gaston does not mention, 

but also misunderstands the nature of vicarious liability. It 

is—well, there’s no bemer word than vicarious.

With vicarious liability, one person is liable for another’s

wrong. In an employment relation, that means an employee 

or other agent. The wrongdoer need not be a defendant, but 

there must be an actionable wrong, by a person whose conduct is imputed to the employer. Medical negligence by one 

of Wexford’s employees could support liability under state 

tort law but not the Eighth Amendment. If only intentional 

wrongdoing by an employee leads to personal liability, then 

an employee’s negligence does not justify holding the employer liable. There’s nothing to be vicariously liable for.

These are fundamental principles of tort and agency law, 

where vicarious liability has long been common. “Vicarious 

liability is not based upon the defendant’s own fault. Rather, 

it is based upon the principle that he must bear legal responsibility for another’s wrong. From the employer-defendant’s 

point of view, vicarious liability is strict liability, since he is 

liable without personal fault. That is not quite the case from 

the plaintiff’s point of view. The plaintiff must prove that the 

employee commimed a tort and was acting within the scope 

of employment when he did so.” 2 Dan B. Dobbs, Paul T. 

Hayden & Ellen M. Bublick, The Law of Torts 782 (2d ed. 2011 

& update 2018). See also, e.g., Rosenthal & Co. v. CFTC, 802 

F.2d 963, 966 (7th Cir. 1986); National Union Fire Insurance Co. 

v. Wuerth, 122 Ohio St. 3d 594, 599 (2009) (“a principal is vicariously liable only when an agent could be held directly 
Nos. 17-3618 & 18-1281 7

liable”); Elias v. Unisys Corp., 410 Mass. 479, 481 (1991) (“The 

liability of the principal arises simply by the operation of law 

and is only derivative of the wrongful act of the agent”); Restatement (Second) of Agency §217B (1958). This also implies 

that vicarious responsibility does not change the substantive 

standard. “Vicarious liability is not an independent cause of 

action, but rather is a legal concept used to transfer liability 

from an agent to a principal”. Crawford v. Signet Bank, 179 

F.3d 926, 929 (D.C. Cir. 1999).

Vicarious liability makes a person responsible for someone else’s wrong but does not change the proof required to 

show that a legal wrong has occurred. So even if we were to 

overrule Iskander, Gaston would need to show that someone

whose acts are imputed to Wexford violated the Eighth 

Amendment, as understood in Gamble, Farmer, and PeIies. 

He did not seriously try to do so. This makes it unnecessary 

to decide whether Iskander was correctly decided.

One final observation. Gaston and other plaintiffs have 

contended that Iskander leads Wexford and similar organizations to skimp on medical care in order to enrich themselves. 

Wexford responds that, because it does not pay for the cost 

of MRI exams, surgeries, and other hospital treatment outside the prisons, it has no financial reason to withhold appropriate medical treatment. That may be true, but so far 

Wexford has not supplied evidence that it is true. Perhaps 

Wexford has contracts with hospitals providing that they 

will not bill it, but it has not produced them. Perhaps Illinois

pays for out-of-prison treatment under the Medicaid program, but again the record lacks proof. Dr. Chmell testified 

that Wexford did not pay him, but the record does not reveal 

whether Wexford paid the University of Illinois. Gaston has 
8 Nos. 17-3618 & 18-1281

lost this case for want of evidence, but the need to back up 

one’s contentions with evidence applies as much to Wexford 

as it does to any prisoner.

AFFIRMED
Nos. 17-3618 & 18-1281 9

HAMILTON, Circuit Judge, concurring. I join the court’s 

judgment and opinion. For reasons explained in Shields v. Illinois Dep’t of Corrections, 746 F.3d 782 (7th Cir. 2014), whether 

we should continue to apply the Monell standard to private 

corporations when they act under color of state law presents 

a substantial question. These appeals, however, are not the occasion to decide that larger question. Dr. Chmell’s testimony 

about the defendants’ care of plaintiff Gaston helps show that 

plaintiff cannot prove that one or more agents of Wexford 

acted with deliberate indifference toward his serious medical 

needs. Also, plaintiff has given up trying to prove that Wexford had a policy of deliberate indifference that would satisfy 

the Monell standard. Cf. Glisson v. Indiana Dep’t of Corrections, 

849 F.3d 372, 379–82 (7th Cir. 2017) (en banc) (reversing summary judgment for private healthcare provider where evidence would support finding that provider deliberately chose 

not to provide for coordination of medical care in complex 

cases, and that absence of such coordination caused prisoner’s 

death).

I write separately to highlight a set of subtler but important issues that parties, lawyers, and judges need to confront in exploring the path suggested in Shields. Proving a violation of the Eighth Amendment’s prohibition on cruel and 

unusual punishment requires proof of an intentional or criminally reckless tort. Farmer v. Brennan, 511 U.S. 825, 839–40

(1994); Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en 

banc). The question is how to prove that a corporation acted 

with the required state of mind.

The legally simplest case would prove that a specific, identified employee acted with the required deliberate indifference. The employer would then be vicariously liable for its 
10 Nos. 17-3618 & 18-1281

employee’s tort committed within the scope of employment. 

The net result in such a case, however, would not differ much

from the widespread practice of employers indemnifying 

their employees.

The next simplest case would be one in which one employee acted with deliberate indifference, but it is not possible 

to identify that employee. I expect that as long as the wrongdoer is identified reliably as an employee acting within the 

scope of employment, ordinary principles of respondeat superior liability would apply. 

The more challenging cases, and the problems that contribute to the need to reexamine the application of Monell to 

private corporations, are cases where the plaintiff cannot 

show that a single employee acted with deliberate indifference, but where the evidence allows an inference that a group 

of employees acted with a collective indifference to a prisoner’s health or safety. Experience with many prisoners’ 

health care suits suggests this pattern may be common, especially within corporate structures that diffuse responsibility

among different people. Consider, for example, the possibility 

of a scheduling team who do not try to schedule promptly 

surgeries that prisoners need to treat serious pain. 

General tort law does not seem to provide a consensus on

the problems of collective intent posed by claims for intentional torts against corporations. See Burlington Industries, Inc. 

v. Ellerth, 524 U.S. 742, 756 (1998) (discussing vicarious liability for intentional torts); Restatement (Second) Agency §§ 219 

& 228 (1958) (addressing when master will be liable for intentional torts by servant); Prosser & Keeton on The Law of Torts 

§ 70, at 505–06 (1984) (master will be liable for fraud or defamation by sales representative); see also Restatement (Third)
Nos. 17-3618 & 18-1281 11

of Agency § 7.03, comment (e) (2006) (discussing different approaches to corporate intent for purposes of punitive damages).

The problem of corporate intent can also be thorny under 

federal statutes, such as those providing civil remedies for securities fraud. See Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 

F.3d 702, 707–09 (7th Cir. 2008) (focusing on state of mind of 

corporate management for corporate liability in securities 

fraud cases and discussing Southland Securities Corp. v. INSpire 

Ins. Solutions, Inc., 365 F.3d 353, 366 (5th Cir. 2004)); Patricia S. 

Abril & Ann Morales Olazábal, The Locus of Corporate Scienter, 

2006 Colum. Bus. L. Rev. 81, 114 (2006) (“The perceived weaknesses in the respondeat superior approach have led to the 

development of a corollary to the agency principle that allows 

for aggregation of the knowledge of several corporate employees in order to find the corporation liable: the collective 

knowledge doctrine.”); Ashley S. Kircher, Corporate Criminal 

Liability versus Corporate Securities Fraud Liability, Analyzing the 

Divergence in Standards of Culpability, 46 Am. Crim. L. Rev. 157, 

161 (2009) (“Courts in the United States are in notable disarray 

when analyzing the intent of corporations sued under the securities laws. Some courts have rejected the application of the 

doctrine of collective scienter, while others have embraced the 

doctrine with varying degrees of strength.”).

I do not propose to answer those questions here, but I hope 

that parties pursuing the larger Monell issue will pay attention 

to them as they make their records and write their briefs.