*

Honorable James M. Burns, Senior U.S. District Judge for the District of Oregon, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit

No. 96-8949.

Junior Vondale BUCKNER, Plaintiff-Counter-Defendant-Cross-Defendant-Appellant,

v.

W. TORO, M. Davis, A. Cherry, P. Bailey, John Doe, Officers, in their respective individual

capacities, D.G. Lemacks, as Sheriff of Clayton County, Clayton County, Defendants-CounterClaimants-Cross-Claimants-Appellees,

Prison Health Services, Inc., Defendant-Appellee.

July 1, 1997.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:93-cv2770-CC), Clarence Cooper, Judge.

Before BLACK, Circuit Judge, RONEY, Senior Circuit Judge, and BURNS*

, Senior District Judge.

PER CURIAM:

Appellant Junior Vondale Buckner appeals the district court's grant of summary judgment

to Appellees on his claim that they violated 42 U.S.C. § 1983 when they exhibited deliberate

indifference to his medical and psychological needs. We affirm the grant of summary judgment.

BACKGROUND

On November 30, 1991, Appellant was injured during his arrest. The next day he was

incarcerated at Clayton County Detention Center (CCDC), where he remained until May 18, 1992.

At some point during that time, he developed a psychological condition described only as

"conversion reaction," as a result of which Appellant became unable to walk. While incarcerated

at CCDC, he received treatment from employees of Prison Health Services, Inc. (PHS), with which

Clayton County had contracted for the provision of medical care for its inmates. Appellant asserts

that his condition went undiagnosed and has now become permanent.

Appellant filed this § 1983 action alleging that Sheriff Lemacks, the County (collectively the

County), and PHS failed to provide adequate and competent psychiatric care to pre-trial detainees
and inmates and that this failure constitutes deliberate indifference to his needs in violation of the

Eighth Amendment. Both parties moved for summary judgment, and the district court granted

summary judgment to Appellees on two grounds. The district court ruled that under Monell v.

Department of Social Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a

plaintiff suing a municipality under § 1983 must show that the municipality itself injured the

plaintiff by having in place a policy or custom which violated the plaintiff's rights. The court held

that Appellant failed to demonstrate the presence of any such policy or custom by PHS or the

County. Even assuming the existence of a PHS policy or custom of failing to follow its own

procedures, the court still found that Appellant failed to show how such a policy caused his injury.

Appellant filed a motion for reconsideration in which he argued that, contrary to the district

court's statement in its first opinion, he never conceded that PHS was the functional equivalent of

a municipality. Upon partial reconsideration, the court held that the Monell policy or custom

requirement applies in cases against a private entity acting on behalf of a municipality just as it does

in a case against the municipality itself. The court reaffirmed its prior rulings that Appellant failed

to show a policy or custom and failed to demonstrate that such a policy was the legal cause of his

injuries. Accordingly, the court again granted summary judgment to Appellees.

We review a grant of summary judgment de novo, viewing all the facts and reasonable

inferences in the light most favorable to the nonmoving party. Hale v. Tallapoosa County, 50 F.3d

1579, 1581 (11th Cir.1995).

DISCUSSION

 The Supreme Court has interpreted the language of § 1983 to require that liability attaches

only to those actors who violate a plaintiff's rights. Monell v. Department of Social Servs. of New

York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Court overruled

precedent and held that municipalities are "persons" for purposes of § 1983 and can be liable where

"the action that is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id.

at 663, 690, 98 S.Ct. at 2022, 2035-36 (overruling Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961)). Likewise, municipalities may be sued for "constitutional deprivations visited

pursuant to governmental "custom' even though such a custom has not received formal approval

through the body's official decisionmaking channels." Id. at 690-91, 98 S.Ct. at 2036. The Court

concluded that:

a local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents. Instead, it 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.

Id. at 694, 98 S.Ct. at 2037-38.

Appellant argues that because PHS is a private entity, not a municipality, the Monell policy

or custom requirement does not apply. Under that theory PHS would be liable in respondeat

superior for the deliberately indifferent acts of its employees. Appellant concedes that we have

previously rejected this argument in Howell v. Evans, in which we specifically held that the Monell

rationale applies to private entities acting in the place of a municipality. Howell v. Evans, 922 F.2d

712, 724 (11th Cir.1991), vacated pursuant to settlement, 931 F.2d 711 (11th Cir.1991), reinstated

by unpublished order (June 24, 1991), cited in Howell v. Burden, 12 F.3d 190, 191 n. * (11th

Cir.1994) (explaining procedural history). Nevertheless, he argues that the Supreme Court's

decision in Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), effectively

overruled our holding in Howell. The question thus becomes whether Howell is still controlling in

light of Wyatt. After careful analysis of both opinions and related caselaw, we conclude that Howell

is unaffected by Wyatt.

 When a private entity like PHS contracts with a county to provide medical services to

inmates, it performs a function traditionally within the exclusive prerogative of the state. E.g.,

Howell, 922 F.2d at 724; Ort v. Pinchback, 786 F.2d 1105, 1107 (11th Cir.1986); Ancata v. Prison

Health Servs., Inc., 769 F.2d 700, 705 (11th Cir.1985). In so doing, it becomes the functional

equivalent of the municipality. This pre-Wyatt application of the policy or custom requirement to

private entities was based on the rationale of Monell.

The Supreme Court's rationale in Monell was based on a straightforward reading of the
 1

In Wyatt, a property owner attempted to recover property wrongfully taken in a replevin

action. Wyatt, 504 U.S. at 160, 112 S.Ct. at 1829. He sued the sheriff, the replevisor, and the

replevisor's attorney. The district court granted qualified immunity to each of these defendants,

and the Fifth Circuit affirmed. Id. The Supreme Court reversed, explaining that "the rationales

mandating qualified immunity for public officials are not applicable to private parties." Id. at

167-68, 112 S.Ct. at 1833-34. Nonetheless, the Court clearly limited its holding to "private

defendants faced with § 1983 liability for invoking a state replevin, garnishment, or attachment

statute." Id. at 168-69, 112 S.Ct. at 1834. 

 2

The Court explained:

Since the question whether local government bodies should be afforded some

form of official immunity was not presented as a question to be decided on this

petition and was not briefed by the parties or addressed by the courts below, we

express no views on the scope of any municipal immunity beyond holding that

municipal bodies sued under § 1983 cannot be entitled to an absolute immunity,

lest our decision that such bodies are subject to suit under § 1983 "be drained of

meaning."

Monell, 436 U.S. at 701, 98 S.Ct. at 2041 (citations omitted). Appellant does not attempt

to argue that Wyatt has somehow overruled Monell. In fact, Monell is never cited in the

Wyatt opinion. 

statutory language, requiring that liability be found only against persons who cause the constitutional

injury. See Monell, 436 U.S. at 692, 98 S.Ct. at 2036. This requirement is an element of the § 1983

claim. In contrast, Appellant characterizes the policy or custom requirement not as an element of

a § 1983 claim, but as a type of immunity from liability in respondeat superior—"Monell-type

immunity" or "municipal immunity." He uses that characterization to argue that § 1983 "municipal

immunity" should not be applied to private defendants for the same reasons that the Supreme Court

declined to extend qualified immunity to particular private defendants under Wyatt v. Cole, 504 U.S.

158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992).1

 Contrary to Appellant's characterization, Monell did not establish a "municipal immunity"

doctrine, but merely restricted municipal liability to instances where the municipality actually

caused the alleged deprivation of rights. Indeed, Monell explicitly declined to consider whether

municipalities might be entitled to some form of municipal immunity.2

 Monell, 436 U.S. at 701, 98

S.Ct. at 2041. We therefore reject the notion that the policy or custom requirement imposed by

Monell may be equated with qualified immunity. To the contrary, the requirement of a municipal

policy or custom constitutes an essential element of a § 1983 claim that a plaintiff must prove in
 3

We affirm the remainder of the district court's findings without discussion. 

order to establish municipal liability. Appellant raises no genuine issue of material fact on this

element of his claim, and therefore summary judgment in favor of Appellees was proper.

CONCLUSION

We conclude that the Supreme Court's decision in Wyatt has not affected our decision in

Howell v. Evans. The policy or custom requirement is not a type of immunity from liability but is

instead an element of a § 1983 claim. Accordingly, we affirm the district court's finding that the

Monell policy or custom requirement applies in suits against private entities performing functions

traditionally within the exclusive prerogative of the state, such as the provision of medical care to

inmates.3

AFFIRMED.