Delegating Care, Evading Review: The Federal Tort Claims Act and Access to Medical Care in Federal Private Prisons

26 Pages Posted: 18 Jun 2019 Last revised: 23 Mar 2020

Date Written: March 3, 2020


Accounts of the conditions inside America’s prisons and our government’s treatment of people who are incarcerated often never escape the prison’s walls; that is, unless one is willing to listen to the many people seeking redress for harms they have endured through the courts. Seminal lawsuits, from Farmer v. Brennan to Brown v. Plata to Estelle v. Gamble, have shaped the way prisoners, prisoners’ rights advocates, and correctional systems view and approach incarceration. But the impact of prisoners’ suits goes only as far as the law provides a remedy for people who allege violations of their rights.

This Article highlights and focuses on one discrete — but critical — way in which the federal government evades judicial review of its conduct: its reliance on the Federal Tort Claims Act's independent-contractor exception when faced with prisoners’ claims of inadequate medical care in private prisons. Private prisons are not unique to the federal government. Indeed, states, counties, and municipalities rely increasingly on the contract services of corporations to operate prisons and jails. But many states recognize a common-law principle that the provision of adequate medical care to prisoners is a nondelegable duty of state and municipal governments. This means that the governmental entity contracting for the operation of the prison or the provision of medical care within the prison cannot evade liability for torts relating to the provision of medical care by simply asserting the responsibility was delegated to the contractor. This duty ensures an accountability structure remains in place despite the government’s delegation of a traditional state function to a private business.

Increasingly, the federal government attempts to evades its own nondelegable duty of care owed to prisoners in its custody, however, by invoking the FTCA’s independent-contractor exception. When federal prisoners confined in private prisons attempt to hold the federal government liable for inadequate care they have received in those prisons, the government asserts it cannot be liable for the conduct of a third-party contractor. And to date, many courts have adopted this view of the government’s role when relying on the services of private prisons. This Article asserts this lack of parity between the remedies available to state prisoners and federal prisoners in private prisons undermines the rights of people in federal custody and is contrary to public policy: It incentivizes the federal government to contract away the quintessential government function of incarcerating its citizens, at a time when the business of incarceration is booming.

Keywords: Prison, Private Prisons, Torts, Federal Tort Claims Act, Independent Contractor

Suggested Citation

Jefferis, Danielle C., Delegating Care, Evading Review: The Federal Tort Claims Act and Access to Medical Care in Federal Private Prisons (March 3, 2020). Louisiana Law Review, Forthcoming, Available at SSRN: or

Danielle C. Jefferis (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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