by Alessandra Quattrocchi*

Section 1983 operates as the foremost method of rights vindication for individuals in jails and prisons across the country, allowing incarcerated individuals to sue for the plethora of constitutional violations they suffer while in confinement. But the text of the statute only affirms liability for state actors. Amidst the rise in prison privatization, the Supreme Court carved out circumstances in which private actors can be held liable under § 1983. Nevertheless, the Court has yet to consider whether in such cases the relevant state actor is equally liable for the wrongs perpetuated by the private parties it chose to enter contractual arrangements with. When the state contracts out constitutional duties in jails and prisons, any ensuing rights violations that constitute the policy or custom of the contracted private actor become enshrined as state action. In turn, this Contribution argues that the state actor that sanctioned the contract can and should be held directly liable under § 1983 for the unconstitutional conduct of the private actor that was contracted to perform a constitutional duty for the local incarcerated population.

For civil rights litigators, Section 1983 operates as the cornerstone of rights vindication.1 Passed by Congress in 1871 as a Reconstruction Era effort to curtail white southerners’ resistance to emancipation, the statute provides a cause of action for money damages and equitable relief against any state actor that, operating under the color of law, causes the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”2 However, it was not until the Supreme Court’s 1961 decision in Monroe v. Pape that the statute was effectively sanctioned to hold individual state officials personally liable for constitutional violations caused to others.3 This watershed decision ultimately paved the way for § 1983’s widespread use by aggrieved individuals harmed at the hands of those in positions of state-endowed power. That set of circumstances comes to a head in jails and prisons—and, increasingly, in immigration detention centers—across the country.4

In 2021, over 24,000 § 1983 lawsuits were filed by incarcerated individuals alleging constitutional violations concerning the conditions of their confinement.5 Despite logistical obstacles plaguing the success of these claims and hampering courts’ ability to issue decisions on the merits,6 § 1983 initially made its name in prisons across the country as a powerful tool for incarcerated persons to seek relief against state actors. But as prison privatization swept the nation, corporations began to “fulfill roles traditionally performed by the state or federal government” within jails, prisons, and detention centers.7 Nowadays, states contract with major corporations to provide everyday services offered in jails and prisons, like telecommunications, mail processing, food services, medical care, and more—to the tune of billions of dollars in revenue.8 In turn, the culpable actor for violative conduct endured by incarcerated individuals receiving these services has become less and less clear, obfuscating the proper named defendant for purposes of § 1983 liability.9

Ultimately, in a series of reasoned decision-making, the Supreme Court established various circumstances in which a private actor’s unconstitutional conduct could qualify as state action to trigger § 1983 liability.10 As a result, corporations contracting with state and federal jails and prisons open themselves up to this form of third-party § 1983 liability if in the course of their business they commit constitutional wrongs.11 But when these companies do engage in violative conduct of constitutional magnitudes, they do so with the implicit endorsement of the party who willfully contracted their services: the state. Accordingly, aggrieved incarcerated persons should be able to seek redress not just from the private actor, but from the state actor that sanctioned the contractual delegation of traditional state powers to private persons to begin with. As supported by circuit court precedent, doctrinal underpinnings, and public policy, § 1983 subjects state actors to direct liability for the constitutional misdoings of their contractual underlings.

Public prison officials can and should be held directly liable under § 1983 for constitutional violations committed by private contractors even if their role in the violation amounts only to oversight and acquiescence. Otherwise, “the state [would] be free to contract out all services which it is constitutionally obligated to provide and leave its citizens with no means for vindication of those rights” against the state actor that sanctioned the harm.12 Take, for example, West v. Atkins, wherein petitioner West, who while incarcerated in state prison was treated by a privately contracted doctor for a torn Achilles tendon, was subjected to medical care so neglectful as to amount to cruel and unusual punishment under the Eighth Amendment.13 West brought suit under § 1983 only against the private doctor, Atkins, but had he chosen to also sue the relevant state actors (likely, the prison warden or the commissioner of the states’ prisons) for the role they played in contracting out and effectively rubber-stamping his unconstitutional medical care, he could have. This is because state actors should be directly liable for the harm caused by the contracted private actor when they delegate final decision-making authority on a constitutional duty and have constructive knowledge that the private actor has a policy or custom of committing rights violations.14 In West, if the state’s prison warden had been the one to enter into the contract with Dr. Atkins for the provision of medical services—which the state is constitutionally required to provide in carceral facilities15—and the warden knew or should have known that Dr. Atkins was grossly negligent in the provision of his services, then the warden himself should be liable for the role he played in the incarcerated petitioner’s harm. The Sixth, Seventh, and Eleventh Circuits have either implicitly or explicitly affirmed this theory of direct § 1983 liability for state actors, and when the proper case presents itself, the Supreme Court should not hesitate to do the same.

In Leach v. Shelby County Sheriff, plaintiff Leach, who was paraplegic and in need of attentive wound care, was detained in county jail and was subjected to deplorable conditions in violation of his Eighth Amendment rights.16 Leach did not sue the jail personnel and the private medical providers who were “directly involved,” but instead sued the mayor and sheriff under § 1983, not because they inflicted the harm on him personally but because they “knew, or should have known, of the inferior and substandard treatment of paraplegics [in jail] and that such treatment would deprive an individual of a constitutional right.”17 Although the Sixth Circuit repackaged Leach’s suit as one against the municipality, implicating separate but related § 1983 doctrine, this Contribution contends that the suit against the individual state actors could have proceeded as originally intended because the court’s logic is transferable to such a case.18 For instance, the court’s opinion did not foreclose the argument that because the sheriff19 “‘implicitly authorized, approved, or knowingly acquiesced’ in the [unconstitutional] action of the responsible [privately operating] jail personnel,” he could be held directly liable for the harm caused by the contracted medical providers.20 And rightly so, because in being entrusted with jail oversight, state actors must “retain[] responsibility despite having contracted out the medical care of [persons in detention].”21 In this sense, the mayor and the sheriff could have been held directly liable for the harms caused by the private medical providers with whom they contracted, because the providers’ custom of mistreatment was effectively adopted by these state actors.22

To unequivocally hold that the mayor and the sheriff in Leach could not be responsible for the actions of the private doctor with whom they contracted would have unintended, if not absurd, consequences. Such a finding would insulate these state actors from accountability and allow them to disregard the wrongs of their contractual underlings, giving them no reason not to contract away constitutional duties to the cheapest and perhaps least qualified providers. But by affirming that direct § 1983 liability attaches both to the private actor committing the wrong and to the state actor contracting and overseeing said private actor, § 1983 will appropriately balance the incentives and responsibilities of all participating parties, encouraging mutual respect for constitutional obligations.

The primary conflict abutting liability under § 1983 for state actors culpable for the wrongs of private contractors is the unequivocal prohibition against asserting respondeat superior, or the theory of liability requiring an employer to answer for the unauthorized wrongs of their employees.23 Although respondeat superior is championed in tort law, it has been precluded under § 1983 as inconsistent with the text and purpose of the statute.24 While that proposition has been heavily criticized as unnecessarily confounding liability,25 this Contribution does not contend that state prison officials should be held liable for the unconstitutional actions of private contractors on the basis of an employer-employee relationship, as seen in tort actions. Rather, these state actors can be directly liable for private actors’ wrongdoings due to the role they play in privatizing the provision of constitutional duties in jails and prisons.26 In that sense, the relevant state actor would only be liable when they contract out and cede all decision-making on a constitutional duty to a private party and have constructive knowledge that the private party is fulfilling said role in a violative manner by means of policy or custom. Given this limitation, state actors would not be subject to boundless liability merely for contracting with private parties.27 In turn, any liability incurred would be due to harm directly caused by the state, for which aggrieved incarcerated persons are rightly owed redress.

The Seventh Circuit was able to distinguish between direct liability and respondeat superior when it held that the county—the state actor—could be liable for Eighth Amendment violations stemming from the conduct of a private medical provider servicing its local jail.28 In King v. Kramer, the court specified that the county was only liable for the “unconstitutional acts of its employees [if] those acts were part of an official custom or policy.”29 This custom or policy requirement transforms the theory of liability attaching to the county from respondeat superior to direct liability because “the private company’s policy becomes that of the [county] if the [county] delegates final decision-making authority to it.”30 In other words, when the state contracts out a constitutional duty like medical care and cedes all decision-making in the matter, the decisions made by the private contractor are necessarily imputed onto and thereby adopted by the state actor. This is at odds with respondeat superior, where an employee’s tortious conduct while on the job can be entirely unknown or unsanctioned by their employer but may nonetheless subject their employer to liability for any harm caused.31 In King, however, the county can be said to have both adopted and endorsed the policies of the private medical provider when it agreed to contract its services.32 Therefore, the presumption of constructive knowledge on the part of the county of the private actor’s unconstitutional conduct was sufficient to establish a valid theory of liability for the purposes of overcoming summary judgment.33 In so holding, the Seventh Circuit settled the respondeat superior debate while affirmatively acknowledging the significance of this avenue for accountability, stating, “[t]he [county] cannot shield itself from § 1983 liability by contracting out its duty to provide medical services.”34

Ample support for this theory of direct liability is also derived from the Eleventh Circuit’s decision in Ancata v. Prison Health Services.35 In that case, the incarcerated plaintiff, Ancata, sued both Prison Health Services, the private medical provider responsible for his harm in jail and the local sheriffs charged with jail oversight.36 The district court dismissed the claims against the sheriffs, concluding that they were founded “on notions of respondeat superior,” but the Eleventh Circuit righted that wrong.37 The court held that because the county—through the county sheriffs—essentially had a policy of delegating constitutional duties to contracted parties, the county too could be held liable for constitutional deprivations.38 The county’s culpability was further supported by the fact that it had essentially rubber-stamped the private medical provider’s unwritten policy of unduly delaying medical care such that the unconstitutional practice became the adopted policy of the county itself.39 Once more, the Ancata court recognized that this theory of liability, despite being infrequently applied, must be affirmed not just on the letter of the law but on its sound principle. State actors entrusted with upholding constitutional duties cannot be absolved of such weighty responsibility merely by contracting away from the state’s apparatus.40 Insulating the sheriffs in Ancata from direct liability for Prison Health Services’ wrongs would establish the utmost perverse scheme, wherein the state is encouraged to contract away any and all constitutional duties in its jails and prisons for the sake of shirking culpability when said duties are violated. Given that prison privatization is already to blame for many constitutional misgivings in carceral facilities across the country, further incentivizing this arrangement is likely to do more harm than good.41

Although the existing precedent that supports holding state actors directly liable for the wrongs of their contractual underlings relies heavily, if not entirely, on the context of contractual medical services in jails and prisons, there is no reason state actors’ liability must be confined to such contexts. It is true that medical services are often contracted out in carceral facilities,42 and these providers are in prime positions to commit the most egregious rights violations, but other circumstances also warrant liability on the part of both the private party and the pertinent state actor. For instance, if a state’s prison warden contracts out food services within its prisons to a corporation with an unwritten policy or custom of not serving halal meals as a matter of religious or race-based animus amounting to a First or Fourteenth Amendment violation, and the warden has constructive knowledge of said animus,43 then the constitutional wrong must be imputed to the warden with liability flowing as much to them as to the private actor. To unnecessarily limit this theory of liability only to the facts of the few cases that have presented the issue would hamstring the hundreds of thousands of incarcerated persons that consistently suffer constitutional wrongs from a whole slew of private actors, prohibiting them from recovering from the state actors who platformed the privatization of constitutional duties to begin with.44

Additional circuit courts and the Supreme Court should not hesitate to hold state actors directly liable for the harms caused by the private actors with whom they contracted to provide constitutional duties in jails, prisons, and immigration detention centers across the country. Affirming this theory of liability under § 1983 will close a gaping loophole that allows state actors to contract out their responsibilities to private actors whom they know or should know have the propensity to violate the Constitution.45 When such a series of violations by the private actor occurs, it cannot be the case that the state actor who sanctioned the contract escapes liability despite having effectively violated the Constitution with impunity. Jails, prisons, and immigration detention facilities already present as a fragile environment for rights protections.46 Asserting direct liability under § 1983 for state actors on account of the wrongs of their contractual underlings takes a step toward readjusting the disparate power imbalance between state prison officials and incarcerated people. With various roadblocks to § 1983 recovery already in place for incarcerated plaintiffs,47 this intuitive application of liability at the very least allows for the right defendants to be held accountable for the wrongs they cause.

* Alessandra Quattrocchi is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on proper theories of Section 1983 liability asserted by incarcerated individuals against both state and private actors and was inspired by clinical work undertaken in NYU Law’s Civil Rights in the Criminal Legal System Clinic. The related case, LaKemper v. Ishee, No. 24-6930, is pending a decision by the Fourth Circuit as of date of publication.

1. 42 U.S.C. § 1983.

2. Id. See also Monroe v. Pape, 365 U.S. 167, 173 (1961) (documenting the legislative history of § 1983 as an indication of its purpose, including President Ulysses S. Grant’s message to Congress: “That the power to correct these evils [of racial violence] is beyond the control of State authorities I do not doubt . . . Therefore, I urgently recommend such legislation as . . . shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States . . . .).

3. Id. at 187 (holding that thirteen Chicago police officers who broke into Mr. Monroe’s home, ransacked it, strip searched him, and detained him—all without a search warrant, arrest warrant, or arraignment—were responsible for the “natural consequences of [their] actions”). Prior to the Monroe decision, Section 1983 was regarded as a “dormant” cause of action. See Richard Briffault, Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1137 (1977).

4. See, e.g., Hoag Levins, Reviewing The Flaws of U.S. Prisons and Jails’ Health Care System, Penn Leonard Davis Inst. of Health Econ. (Mar. 6, 2023), https://ldi.upenn.edu/our-work/research-updates/the-flaws-of-u-s-prisons-and-jails-health-care-system/ (describing widespread medical neglect and mistreatment in jails and prisons across the country); Hibah Ansari, Inside an ICE Detention Center: Detained People Describe Severe Medical Neglect, Harrowing Conditions, Am. C.L. Union (Dec. 17, 2025), https://www.aclu.org/news/immigrants-rights/inside-an-ice-detention-center-detained-people-describe-severe-medical-neglect-harrowing-conditions (same but in ICE detention centers). See also Prison Conditions, Equal Just. Initiative, https://eji.org/issues/prison-conditions/ (last visited Apr. 13, 2026) (describing various sources of mistreatment and abuse in U.S. prisons); Shon Hopwood, How Atrocious Prisons Conditions Make Us All Less Safe, Brennan Ctr. for Just. (Aug. 9, 2021), https://www.brennancenter.org/our-work/analysis-opinion/how-atrocious-prisons-conditions-make-us-all-less-safe (same).

5. Incarceration and the Law Cases and Materials, Incarceration and the L., https://incarcerationlaw.com/resources/data-update/ (last visited Apr. 13, 2026).

6. See Andrea Fenster & Margo Schlanger, Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act, Prison Pol’y Initiative (Apr. 26, 2021), https://www.prisonpolicy.org/reports/PLRA_25.html (describing the source of the logistical hurdles standing in the way of relief for incarcerated plaintiffs bringing § 1983 claims).

7. Mariana Claridad Pastore, Comment, Running from the Law: Federal Contractors Escape Bivens Liability, 4 U. Pa. J. Const. L. 850, 850 (2002).

8. Prison Contracts: Profits & Politics, Tufts Univ. Prison Divestment, https://sites.tufts.edu/prisondivestment/prison-contracts/ (last visited Apr. 13, 2026) (“Two corporations, GEO Group, Inc. and CoreCivic, Inc. (CCA), manage over half of the private prison contracts in the US. These contracts are extremely lucrative; in the 2017 fiscal year, GEO Group and CoreCivic earned a combined revenue of more than 4 billion dollars.”).

9. See Lewis v. Mitchell, 416 F. Supp. 2d 935, 946 (S.D. Cal. 2005) (“Individuals and private entities are not normally liable for violations of most rights secured by the United States Constitution.”) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982)).

10. There are three doctrinal theories whereby action by private actors satisfies the state action requirement of § 1983. See Smith v. Allwright, 321 U.S. 649, 659 (1944) (describing the public function theory); Shelley v. Kraemer, 334 U.S. 1, 19–20 (1948) (describing the government mechanism theory); Burton v. Wilmington Parking Auth., 365 U.S. 715, 724–725 (1961) (describing the entwinement theory).

11. See, e.g., West v. Atkins, 487 U.S. 42, 56 n.15 (1988) (finding a private doctor who provided part-time medical care at a state prison and was sued by a patient under § 1983 for unconstitutional medical treatment to be subject to liability because “although the provision of medical services is a function traditionally performed by private individuals, the context in which respondent performs these services for the State . . . distinguishes the relationship between respondent and [the incarcerated plaintiff] from the ordinary physician-patient relationship.”).

12. Id. at 56 n.14 (recognizing the perverse incentive created by shielding private actors from § 1983 liability). Although the quote was presented in the context of private actor liability, this Contribution asserts that the same perverse incentive exists by disallowing direct liability of the state actor that contracted a private actor to provide a constitutional obligation.

13. Id. at 43.

14. Cf. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (acknowledging that there is no respondeat superior theory of liability available under § 1983, such that the state actor can only be held directly liable for the wrongs of its underlings).

15. Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration.”).

16. Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1243 (6th Cir. 1989) (“He was forced to remain for long periods of time in his own urine due to inadequate catheter supplies and was given inadequate aid for his bowel training needs despite his repeated requests for help.”).

17. Id. at 1243–44.

18. Id. at 1245–46 (“Leach’s suit against the Mayor and the Sheriff of Shelby County in their official capacities is . . . essentially and for all purposes, a suit against the County itself.”).

19. Due to the repackaging of the claim, the mayor’s direct liability was not discussed by the court, whereas the sheriff’s direct liability capacity was.

20. Id. at 1246; id. at 1250 (“Rather, in his official capacity, the Sheriff had a duty to know and to act and his failure to do so in this and other similar cases sufficiently evidences a policy or custom of deliberate indifference sufficient to establish the liability of the County.”).

21. See Leach, 891 F.2d at 1250.

22. Id. at 1244–46.

23. See Monell, 436 U.S. at 694 (“We conclude . . . that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.”).

24. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”).

25. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 489 (1986) (Stevens, J., concurring) (“[B]oth the broad remedial purpose of [§ 1983] and the fact that it embodied contemporaneous common law doctrine, including respondeat superior, require a conclusion that Congress intended that a governmental entity be liable for the constitutional deprivations committed by its agents in the course of their duties.”); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 432 (1997) (Breyer, J., dissenting) (“Without supporting history, it is difficult to find § 1983’s words ‘every person’ inconsistent with respondeat superior liability.”).

26. See Williams v. Ward, 553 F. Supp. 1024, 1027 (W.D.N.Y. 1983) (“It is not necessary for § 1983 liability that the [defendants] directed any particular action with respect to [plaintiff], only that they affirmatively promoted a policy which sanctioned the type of action which caused the violations.” (internal quotation marks and citation omitted) (emphasis in original)).

27. Id. at 1026–27.

28. See King v. Kramer, 680 F.3d 1013, 1015 (7th Cir. 2012).

29. Id. at 1020.

30. Id. See also Scott v. Clarke, 64 F. Supp. 3d 813, 817 (W.D. Va. 2014) (affirming the state actors’ liability for the private actors’ misconduct in a prison because “[e]ven when there is a private medical contractor, the warden remains ultimately responsible for the operation of the facility, including health care treatment and security”); Simmons v. Corizon Health, Inc., 122 F. Supp. 3d 255, 267 (M.D.N.C. 2015) (finding that the private medical provider in a county jail was delegated “final policymaking authority” and that because the county failed to review the private actors’ policies—even though unconstitutional in practice—became that of the state actor, which opened the door for direct liability); Covington v. Westchester Cnty. Jail, 96 Civ. 7551 (SAS), 1998 U.S. Dist. LEXIS 626, at *2–12 (S.D.N.Y. Jan. 21, 1998) (holding that the county jail could be held directly liable for the constitutional violations of the private medical provider because the county delegated the constitutional right to medical care in prisons away from the state, entrusting the policy and customs of the private provider, and therefore it must incur the consequences of such a powerful delegation).

31. Respondeat Superior, Cornell L. Sch., https://www.law.cornell.edu/wex/respondeat_superior (last visited Apr. 13, 2026).

32. See King, 680 F.3d at 1021.

33. Id. at 1020 (“Nothing in the record as of now suggests that the County had higher aspirations for the care it was providing, but that those standards were not met.”).

34. Id.

35. Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985).

36. Id. at 705 (“Although Prison Health Services has contracted to perform an obligation owed by the county, the county itself remains liable for any constitutional deprivations caused by the policies or customs of the Health Service. In that sense, the county’s duty is non-delegable.”).

37. Id.

38. Id. at 705–06 (“[I]f Broward County established or utilized a policy or custom requiring that inmates needing medical assistance obtain court orders and the result of that . . . played a role in the delay in treatment and deliberate indifference shown towards Anthony Ancata, then the county may be liable . . . . Furthermore, if the county permitted the sheriff and/or prison health officials that it contracted with to establish such a policy or custom, it may also be liable.”).

39. Id.

40. Id. at 705.

41. Prison Profiteers: Who Makes Money from Mass Incarceration 157–265 (Tara Herivel & Paul Wright eds., 2007) (discussing the rise of privatization in prisons and the various evils that have since arisen).

42. Lauren Galik, Leonard Gilroy & Alexander Volokh, Annual Privatization Report 2014: Criminal Justice and Corrections, Reason Found. (June 2014) (finding that only 14 states had prison health services operated exclusively by the state; the rest contracted out these services to private companies).

43. Cf. King, 680 F.3d at 1020 (finding constructive knowledge because there was no indication that the “County had higher aspirations for the care [the private contractor] was providing, but that those standards were not met.”).

44. There are several viable suits one can imagine against private contractors who offer something other than medical services wherein the state should be deemed equally and directly liable if the circumstances suffice. See, e.g., Wand v. TextBehind, No. 24-1076, 2025 U.S. App. LEXIS 1783, at *1–3 (7th Cir. Jan. 27, 2025) (suing a private corporation operating the prison mail services under § 1983 for a First Amendment violation caused “by refusing to process and destroying prisoner-to-prisoner mail related to legal matters”); Griffin-El v. MCI Telecomms. Corp., 835 F. Supp. 1114, 1116–17 (E.D. Mo. 1993) (suing the private corporation servicing telephones in the state’s prisons for an alleged denial of plaintiff’s constitutional property interests). See also Lewis, 416 F. Supp. 2d at 947 (suggesting that “a private company to whom the state has delegated its obligation to provide food services to inmates” could be held liable under § 1983 for religious discrimination, in which case the same should be said of the state itself).

45. See supra note 41.

46. See supra note 4.

47. See supra note 6.