UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-50524
FRED TOWNSEND,
Plaintiff-Appellant,
VERSUS
DAVID MOYA, Warden; MARK HILL, Lieutenant; WAYNE SCOTT, Executive
Director,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
June 5, 2002
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
After being cut with a knife by a prison guard, Fred Townsend
(“Townsend”), an inmate of the Texas Department of Criminal Justice
(“TDCJ”), filed a § 1983 suit against a guard, a prison warden, and
the executive director of the TDCJ.1 The district court granted
summary judgment to the defendants, and Townsend appeals. Because
there is no genuine issue of material fact concerning whether the
prison guard acted under color of state law, we AFFIRM.
1
Townsend also filed criminal charges for aggravated assault in
state court.
FACTUAL AND PROCEDURAL BACKGROUND
Townsend was an inmate and a state-approved trusty and worked
in the prison as a “kennelman” caring for the guards’ tracking
dogs. Defendant-Appellee Lieutenant Mark Hill (“Hill”) was in
charge of the guards who supervised the inmates working in the
field. According to Townsend, every time Hill and Townsend
interacted, they played “come on,” and referred to each other as
“my bitch” or “whore”.
On July 23, 1996, Hill and Townsend began to play “come on”.
Townsend winked at Hill and said “I’ll be your bitch,” and then
went into the kitchen to make a sandwich. Hill approached Townsend
from behind with his pocketknife in hand, saying “I told you I was
going to get you, whore.” Townsend jumped, reached behind him, and
realized he had been cut or stabbed on his buttocks. Hill laughed
at what had happened, and offered to take Townsend to the
infirmary. Townsend declined to go to the infirmary, and instead
applied “horse liniment” to himself. Townsend filed a complaint
with Internal Affairs. Hill was eventually terminated from TDCJ for
his actions. Although Townsend brought criminal charges for
aggravated assault against Hill, they were dropped for insufficient
evidence.2
On May 21, 1998, Townsend, proceeding pro se and in forma
2
The dissent accuses us of “misapprehending the relevant facts
at issue”. We respectfully disagree, and consider the dissent’s
rendition of the facts itself a mischaracterization.
2
pauperis (“IFP”), filed a civil rights complaint under 42 U.S.C. §
1983 against Wayne Scott (“Scott”), executive director of the TDCJ
– Institutional Division; David Moya (“Moya”), warden of the Hughes
Unit; and Hill.
The defendants moved to dismiss. As Townsend’s claims against
Moya and Scott were based solely on the doctrine of respondeat
superior, and as such could not stand, the district court dismissed
those claims, but allowed Townsend’s suit against Hill to proceed.
Hill filed a motion for summary judgment, arguing that he was not
acting under color of state law when he cut Townsend, and that he
was only joking and engaging in “horseplay” with him. The district
judge granted Hill’s motion, finding that Townsend and Hill were
engaged in “horseplay” and that there was no evidence indicating
that Hill had used or misused his authority to injure Townsend.
Townsend appealed and moved to proceed IFP on appeal. The
district court denied Townsend’s motion after certifying that the
appeal was not taken in good faith. Townsend moved to proceed IFP
in this court, and we granted Townsend’s motion, finding that the
appeal raised the nonfrivolous issue whether the district court
erred in concluding that there was no genuine issue of material
fact concerning whether Hill acted under color of state law. Thus,
it is that issue that is before us today.
In granting Townsend’s motion to proceed IFP, this court
ordered the parties to address its decisions in Bennett v. Pippin,
74 F.3d 578 (5th Cir. 1996), Doe v. Rains County Indep. Sch. Dist.,
3
66 F.3d 1402 (5th Cir. 1995), and Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443 (5th Cir. 1994), which concerned, in part, the “color
of state law” issue. Neither party has done so. Townsend has
essentially submitted a verbatim copy of the brief filed in
district court, and Hill has filed a pro se letter brief indicating
that he considers this appeal to be frivolous.
DISCUSSION
The only issue before us is whether the district court erred
in concluding that there was no genuine issue of material fact
concerning whether Hill acted under color of state law. We review
the district court’s grant of summary judgment de novo. Harris v.
Rhodes, 94 F.3d 196, 197 (5th Cir. 1996). Summary judgment is
appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Moreover, the evidence must
be considered in the light most favorable to the opposing party,
who must be given the benefit of all inferences that might be
reasonably drawn in his favor. W.H. Scott Constr. Co., Inc. v. City
of Jackson, 199 F.3d 206, 211 (5th Cir. 1999).
Section 1983 provides, in pertinent part, that “[e]very person
who, under color of any statute, ordinance, regulation, custom, or
usage, of any State... subjects or causes to be subjected any
4
person... to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured....” 42 U.S.C. § 1983. In short, “[s]ection 1983
provides a claim against anyone who, ‘under color of’ state law,
deprives another of his or her constitutional rights.” Doe, 15 F.3d
at 452.
“Misuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law, is action taken ‘under color of’ state law.” United
States v. Causey, 85 F.3d 407, 415 (5th Cir. 1999). That is, a
defendant acts under color of state law if he “misuses or abuses
his official power” and if “there is a nexus between the victim,
the improper conduct, and [the defendant’s] performance of official
duties.” Id. “If, [however,] a state officer pursues personal
objectives without using or misusing the power granted to him by
the state to achieve the personal aim, then he is not acting under
color of state law.” Harris v. Rhodes, 94 F.3d 196, 197 (5th Cir.
1996).
The district court found that the incident between Hill and
Townsend was “horseplay,” and, relying on Harris, concluded that
Hill was pursuing a private aim and not acting by virtue of state
authority. Dist. Ct. Op. at 3. The court concluded that because
there was “nothing to indicate that Defendant in any other manner
used or misused the authority he possessed in order to cause any
injury to Plaintiff,” Hill’s action was not under color of state
5
law. Id. at 3-4.
We agree. There is no genuine issue of material fact
concerning whether Hill’s actions were horseplay, and therefore not
under color of state law. In Harris, an inmate filed a § 1983 claim
against a maintenance worker at the jail where he was incarcerated,
claiming his constitutional rights were violated when, while joking
around together, the maintenance worker punched him. The inmate and
maintenance worker had been teasing each other about physical
attributes, which led to the physical reaction. The maintenance
worker did not use his authority to sign out the inmate for work
details in order to engage in the altercation. We affirmed the
district court’s grant of summary judgment to the maintenance
worker, concluding that his actions were not under color of state
law, as they were mere horseplay, which involves a “purely private
aim and no misuse of state authority,” and is therefore not action
under color of state law. Harris, 94 F.3d at 197.
The same is true here. Neither party contests the district
court’s factual finding that the parties were engaged in horseplay
when the cut occurred. They were calling each other names, a
“purely private aim,” and a physical reaction ensued. We accept the
undisputed finding that this was a case of horseplay, and therefore
affirm the grant of summary judgment.3
3
Following the dissent’s approach accurately and analyzing this
case under Causey, rather than Harris, brings us to the same
result. Causey requires a nexus between the victim, the conduct and
performance of official duties. See 85 F.3d at 415. No such nexus
6
Our dissenting colleague Judge Dennis argues that the case at
bar is distinguishable from Harris, because there the defendant did
not clearly have direct authority over the plaintiff, unlike here.
Moreover, there the defendant used a personal means (his fist) to
resolve a dispute, whereas here, Hill resolved his problem with a
knife he possessed by virtue of his position and authority.
With all respect, those distinctions do not negate the
applicability of Harris to the situation before us today. The key
inquiry in determining whether Hill acted under color of state law
is whether Hill had a “purely private aim”. Whether using a fist or
a knife, the answer remains that Hill and Townsend were joking
about personal matters, as they often did, and that joking ended in
a physical altercation. Moreover, that Hill had direct authority
over Townsend does not imply that he exercised that authority
during the altercation. The inquiry is not whether authority is
possessed, but whether it is used or misused. Here, it was neither
used nor misused, and therefore Hill did not act under color of
state law.
The dissent analogizes this case to Bennett, Taylor, and
Rains, arguing that there is a fact issue as to whether Hill abused
his power as a prison guard to possess a knife and verbally abuse
Townsend, which led to the stabbing. With all due respect, we find
exists here, where Hill was not performing official duties and was
pursuing entirely personal aims. Hill not once exercised his
authority in order to carry out his personal aims, and thus no
nexus exists.
7
these cases inapposite, as none involves horseplay, which the
district court found in a determination to which we must defer.
These cases are further distinguishable on the facts.
In Bennett, a sheriff, shortly after questioning a woman about
her involvement in a shooting, raped her. A panel of this court
upheld the district court’s determination that this was action
under color of state law. 74 F.3d at 589. The court relied on the
facts that in response to the woman’s refusals to have sex, the
sheriff said “I can do what I want, I’m the Sheriff”; the sheriff
used his authority to ascertain whether the woman’s husband would
be home the night of the rape; and the woman needed the sheriff’s
permission to retrieve her truck and change her place of residence.
Id. There was also evidence that when the woman protested having
sex, the sheriff told her that he could have thrown her in jail, an
explicit exercise of his authority in order to induce her to have
sex with him. Id. at 583. The decision in Bennett relied on
explicit invocations of authority made by the sheriff. Hill made no
such invocation or exercise of authority here, and thus the
reasoning in Bennett does not extend to the case at bar.
We further find this case distinguishable from Taylor, which
involved a § 1983 claim arising from a teacher’s sexual abuse of a
student. The teacher required the student to do little classwork,
rewarded her with high grades, and asked other teachers to raise
her grades in inducing her to have a sexual relationship with him.
15 F.3d at 447-52. This court sitting en banc found that the
8
teacher’s actions were under color of state law, because his
inappropriate actions were clearly connected to his duties and
obligations as a teacher. That is entirely unlike the case at bar,
where Hill’s actions were purely personal and in no way related to
his status as prison guard. Moreover, Hill never exercised any
authority as a prison guard to cause the injury to Townsend.
Finally, the dissent misreads Rains as holding that a high
school coach’s sexual abuse of a student was action under color of
state law. In fact, a panel of this court held there that a
teacher’s breach of her duty to report the coach’s sexual abuse was
not action under color of state law, because the teacher did not
have a duty to exercise authority in controlling the events that
produced the injury. 66 F.3d at 1416. This does not support the
dissent’s contention that Hill acted under color of state law.
CONCLUSION
Because we conclude that there is no genuine issue of material
fact concerning whether Hill and Townsend were engaged in
horseplay, and therefore Hill’s actions were not under color of
state law, we AFFIRM.
9
DENNIS, Circuit Judge, dissenting:
Because the majority mischaracterizes both the law and the
facts in this case, I respectfully dissent. The majority concludes
that because Hill’s actions constituted the “purely private aim” of
“horseplay,” there is no genuine issue of material fact that Hill
did not act under color of state law. In my opinion, Hill’s
actions cannot be dismissively characterized as mere “horseplay.”
Hill clearly used his authority as a prison guard to accomplish his
objectives -- albeit personal ones -- and therefore acted under
color of state law. Consequently, I would reverse the district
court’s grant of summary judgment to Hill and remand this case for
further proceedings.
As the majority properly notes, at the summary judgment stage,
the evidence must be viewed in the light most favorable to the
party opposing summary judgment, here, Townsend. W.H. Constr. Co.,
Inc. v. City of Jackson, 199 F.3d 206, 211 (5th Cir. 1999) (citing
King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992)). Townsend
must likewise be given the benefit of all reasonable inferences
that might be drawn in his favor. Id.
Nonetheless, the majority first falls into error by
misapprehending the relevant facts at issue. The majority
represents that the Hill and Townsend were both equally involved in
horseplay and “were calling each other names.” The facts in the
record, however, reveal otherwise. That is, the record
10
demonstrates that Hill, a lieutenant who oversaw not only the
inmates but also the other guards, had a history of “pull[ing]
knives” on inmates, such as Townsend. Every time Hill saw
Townsend, Hill would engage in “come on” by referring to Townsend
as his “bitch” or “whore.” Only when Townsend responded to Hill by
saying, “I’ll be your bitch,” did Hill stab Townsend.
Although the majority attempts to characterize Hill’s actions
as a mere “physical reaction” to the horseplay, Hill’s actions were
much more methodical and calculating. After Townsend had responded
to Hill’s comment, Townsend went to the upstairs kitchen and opened
the refrigerator to make himself a sandwich. Hill then stealthily
approached Townsend from behind. With his pocketknife in hand,
Hill stabbed Townsend and stated, “I told you I was going to get
you, Whore.”
Similarly, the majority states that after Hill stabbed
Townsend, Townsend refused Hill’s offer to be taken to the
infirmary and instead applied “horse liniment” to himself. While
the majority’s statement is partially correct, it neglects crucial
details. That is, after making his offer to take Townsend to the
infirmary, Hill then realized that Townsend would have to fill out
an incident report. Wanting to protect himself and his position as
a lieutenant of the Hughes unit in which Townsend was a mere
inmate, Hill told Townsend to lie and say he cut himself on a
barbed wire fence. Only then did Townsend, not wanting to lie,
decline Hill’s offer and treat himself with “horse liniment,” as he
11
had previously been instructed to do by another guard, Sergeant
Williams. Furthermore, the majority fails to state that, after the
incident, Hill sought to cover up his misdeeds by attempting to
placate Townsend with a can of snuff, an item that the Texas
Department of Criminal Justice no longer sold to inmates.
Second, the majority again errs by failing to do exactly what
the district court and the parties failed to do -- discuss the
relevant case law. Both the Supreme Court and this court, on
several occasions, have addressed the color of state law issue.
“It is firmly established that a defendant in a § 1983 suit acts
under color of state law when he abuses the position given to him
by the State.” West v. Atkins, 487 U.S. 42, 49 (1988). That is,
“[m]isuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law, is action taken ‘under color of’ state law.” United
States v. Classic, 313 U.S. 299, 326 (1941) (holding that election
officials acted under color of state law when they, in the course
of their official duties, willfully altered and falsely counted the
ballots of voters in a primary election). “Acts of officers who
undertake to perform their official duties are included whether
they hew to the line of their authority or overstep it.” Screws v.
United States, 325 U.S. 91, 92-93 (1944). Although “acts of
officers in the ambit of their personal pursuits are plainly
excluded,” id., this does not “mean that if officials act for
purely personal reasons, they necessarily fail to act ‘under color
12
of law.’” United State v. Tarpley, 945 F.2d 806, 809 (5th Cir.
1991). Rather, “individuals pursuing private aims and not acting
by virtue of state authority are not acting under color of law
purely because they are state officers.”4 Tarpley, 945 F.2d at 809
(internal citations omitted) (emphasis in original). For example,
a police officer’s purely private acts which are not furthered by
his state authority, are not acts under color of state law. See,
e.g., Delacambre v. Delacambre, 635 F.2d 407, 408 (5th Cir. 1981)
(holding that a police chief was not acting under color of state
law, even though he was on duty and at the police station, when he
assaulted his sister-in-law over personal arguments about family
matters).
In United States v. Causey, 185 F.3d 407, 411 (5th Cir.
1999),5 this court set out a framework for determining whether a
defendant’s actions were “under color of law.” The court first
determined whether the officer misused or abused his power, and
then examined whether there existed a “nexus” between the victim,
the improper conduct, and the officer’s performance of his official
duties. Id. at 415. In Causey, this court found a police officer
4
Despite the majority’s contention, the “key inquiry” in
determining whether Hill acted under color of law is not limited to
ascertaining merely “whether Hill had a ‘purely private aim.’” Maj.
Op. at 7.
5
Although this case actually involved a dispute under 18 U.S.C.
§ 242, “‘[u]nder color’ of law means the same thing in § 242 that
it does in the civil counterpart of § 242, 42 U.S.C. § 1983.”
United States v. Price, 383 U.S. 787, 794 n.7 (1966).
13
to have acted under color of state law through his involvement in
an execution-style murder of a citizen who filed an Internal
Affairs complaint against him. The defendant’s use of the police
station, patrol car, and radio to plan, execute, and cover up the
murder was sufficient to constitute misuse or abuse of official
power. Id. at 415. Moreover, the nexus between the abuse and the
crime was likewise satisfied by the defendant’s unique position as
a police officer to handle any evidence of the murder that might
link the defendants to the crime and to offer protection to his co-
conspirators from the consequences of the murder. Id.
Unfortunately, however, the majority overlooks the above
framework and mistakenly limits its analysis to analogizing this
case to Harris v. Rhodes, 94 F.3d 196 (5th Cir. 1996), despite the
obvious factual differences. Harris involved an incident between
an inmate, Harris, and a maintenance worker, Rhodes, at a Texas
county jail. Harris, 94 F.3d at 197. After joking and making
comments to each other, Rhodes became angry and punched Harris in
the nose. Id. Although Harris filed a civil rights suit, his
suit was dismissed on summary judgment because the men were engaged
in horseplay that resulted in Rhodes hitting Harris. Id. This
court stated that, regardless of whether Rhodes’s conduct was
intentional or accidental, Rhodes had not acted “under color of
state law” when he hit Harris because “[i]t [wa]s apparent that the
men were teasing each other regarding personal attributes. Rhodes
reacted to the personal comment that Harris made about him. The
14
discussion involved purely personal matters. Rhodes chose to
resolve this personal dispute through personal means -- punching
Harris. Rhodes did not use or misuse the authority he possessed to
sign out Harris for work details in order to accomplish the
horseplay or to engage in the altercation.” Id. at 197-98. In
Harris, as in Delacambre, the court found no action under color of
state law because the “state officer pursue[d] personal objectives
without using or misusing the power granted to him by the state to
achieve the personal aim,” as “[b]oth the teasing and the punch
were personal matters completely unrelated to Rhodes’ authority
granted by the state.” Id. at 198 n.2.
Here, however, Hill did use his state authority to accomplish
his personal objectives. First, in Harris, the “horseplay”
resulting in the injury was clearly a consensual matter between the
maintenance worker and the inmate. Here, however, Hill’s state-
granted authority over Townsend was much greater, as is evident by
Townsend’s reference to the guards as “bosses.” Hill was a
lieutenant in charge of other guards who supervised the inmates and
thus clearly had direct authority over Townsend. Hill clearly
abused his position and authority as a prison guard to verbally and
physically assault and abuse Townsend. Townsend made this clear in
his deposition: “I guarantee you, if I take that pen right there
and one of them bosses come in here and I stick it into something
like that there, you know what they going to do to me? They are
going to beat me down so bad and try to bury me under this prison.
15
I guess it’s all right for one of them to come up to me and do what
they did – what happened, you know.” The nexus between Hill’s
injurious conduct and his position as a prison guard is also clear.
While the defendant in Harris used a personal means (i.e.,
punching) to resolve a dispute over a personal matter, Hill
resolved his problem with a knife -- an implement he possessed by
virtue of his position and authority. Even after the incident,
Hill continued to wield his authority upon Townsend by ordering him
to lie about how he was cut and by attempting to bribe him with
snuff, a substance Townsend could not have gotten and something
that Hill would have to procure for him by virtue of his position.6
Instead, Townsend’s case is analogous to Doe v. Taylor
Independent School District, 66 F.3d 1402, 1405 (5th Cir. 1995) (en
banc), and Doe v. Rains County Independent School District, 66 F.3d
1402, 1405 (5th Cir. 1995), where this court stated that a
teacher’s abuse of his position to sexually abuse students falls
under color of state law. In Taylor Independent School District,
15 F.3d at 452 n.4 (5th Cir. 1994), the defendant, as a teacher and
coach, required the plaintiff to do little classwork, rewarded her
with high grades, spoke with other teachers to raise her grades,
purchased alcoholic beverages for her, and wrote love notes to her.
6
As the majority correctly points out, the inquiry does not end
after concluding that Hill possessed authority over Townsend;
action under color of state law requires a finding that Hill used
or misused his authority. For the foregoing reasons, this
requirement is clearly met. See also infra pp. 9-10.
16
Id. at 447-52. The defendant’s actions eventually culminated in
the two having sexual intercourse. Id. at 448. This court found
a “real nexus” to exist between the conduct out of which the
violation occurred and the defendant’s duties and obligations as a
teacher because he “took full advantage of his position as Doe’s
teacher and coach to seduce her.” Id. As his inappropriate
actions were clearly connected to his duties and obligations as a
teacher, his conduct fell under the color of state law. Id. at 452
n.4.
Likewise, in Rains County Independent School District, 66 F.3d
at 1405, this court again addressed the color of state law issue in
the context of sexual abuse of a high school student by a coach,
who used his position and authority in school to develop a sexual
relationship with a female student. Although the defendant’s
sexual conduct and advances with the plaintiff began while she was
babysitting for him at his home, the coach’s conduct continued
during school by means of inappropriate touching, gift giving, and
the passing of notes. Id. at 1407. Although the court declined to
find a third-party teacher liable under § 1983 for failing to
report the coach’s sexual abuse, the court did find it “appropriate
to assume” that the plaintiff, in light of the above facts, had
adequately alleged that the coach acted under color of state law in
depriving the student of her right to bodily integrity.
Similarly, Hill abused his power in the prison as a guard to
possess the knife, to stab Hill, and to verbally abuse Townsend.
17
As Townsend stated, Hill “loved to play come on” and state, “You my
whore” and “Come here, bitch.” Hill frequently played with knives
and often pulled them on other inmates. When Townsend responded to
Hill’s insults, Hill stabbed him. As Hill used his position as a
prison guard to gain access to Townsend and to possess the knife
which he used to stab Townsend, the nexus7 between Hill’s abuse of
power and his misconduct is clear. As in Taylor Independent School
District and Rains County Independent School District, a “real
nexus” exists here as Hill “took full advantage of his position as
[a prison guard] to [abuse Townsend].” Furthermore, Hill’s action
went even further in his attempt to conceal his misconduct by
ordering Townsend to lie about how he was cut and by offering to
use his state-granted authority to buy Townsend snuff. Unlike in
Harris, Hill’s personal aims were pursued not by personal means but
“by virtue of the power [he] possessed by state law” and were made
possible because he was “clothed in the authority of the state.”
Causey, 185 F.3d at 415.
Given the majority’s failures to glean properly the facts from
the record and to discuss the relevant caselaw, it is not
surprising that the majority reaches an erroneous conclusion. As
7
Although other cases have found a nexus between the victim, the
improper conduct, and the defendant’s state-granted authority to be
established by express invocations of the defendant’s authority
(i.e., “I can do what I want, I’m the Sheriff,”), see, e.g.,
Bennett v. Pippin, 74 F.3d 578, 589 (5th Cir. 1996); Tarpley, 945
F.2d at 809, such an invocation is unnecessary here to establish a
nexus, given the context of Hill’s action inside a prison while on
duty as a prison guard.
18
is clear from Causey, Taylor Independent School District, and Rains
Independent School District, Hill’s use of his position and
authority to abuse Townsend in conjunction with his continued
efforts to use his position to hide evidence of his misconduct
clearly constitutes action under color of state law. Therefore, I
would reverse the district court’s judgment and remand this case
for further proceedings.
19