United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 7, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40493
Summary Calendar
BILLY D ROSBOROUGH
Plaintiff - Appellant
v.
MANAGEMENT & TRAINING CORPORATION,
UNIDENTIFIED SHIRLEY, Corrections Officer
Defendants - Appellees
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Appeal from the United States District Court
for the Eastern District of Texas
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Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:
Billy Rosborough is a prisoner in the Bradshaw State Jail, a
Texas prison owned and operated by defendant Management and
Training Corporation (“MTC”), a private prison-management
corporation. Defendant Chris Shirley is a corrections officer
employed by MTC at the jail. Rosborough sued MTC and Shirley
under 42 U.S.C. § 1983 alleging that he was subjected to cruel
and unusual punishment in violation of the Eighth Amendment when
Shirley maliciously slammed a door on Rosborough’s fingers,
severing two fingertips. Rosborough also alleges that Shirley
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displayed deliberate indifference to Rosborough’s resulting
serious medical condition. In addition, Rosborough alleges that
MTC is liable under 42 U.S.C. § 1983 for its improper training
and supervision of Shirley. Rosborough supplemented his federal
action with state-law negligence claims.
The district court sua sponte dismissed Rosborough’s action
on the ground that Shirley was an employee of MTC rather than an
employee of the State of Texas and, therefore, was not acting
under color of state law for purposes of suit under 42 U.S.C.
§ 1983. The court dismissed the supplemental state-law claims
but did not address MTC’s potential liability for failing to
train Shirley. Rosborough appeals.
We review de novo the district court’s decision to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th
Cir. 1995) (per curiam). We accept the plaintiff’s factual
allegations as true and uphold the district court’s dismissal
“only if it appears that no relief could be granted under any set
of facts that could be proven consistent with the allegations.”
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (internal
quotation marks and citation omitted).
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v.
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Atkins, 487 U.S. 42, 48 (1988). At issue here is the “under
color of state law” requirement. The district court assumed that
this requirement prevented a person in private employ from being
sued under § 1983. The Supreme Court, however, has held that
“[t]o act ‘under color’ of law does not require that the accused
be an officer of the state.” Adickes v. S.H. Kress & Co., 398
U.S. 144, 152 (1970) (internal quotation marks and citation
omitted). Under the Supreme Court’s “public function” test, a
private entity acts under color of state law “when that entity
performs a function which is traditionally the exclusive province
of the state.” Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.
1989). The Supreme Court has explained that “when private
individuals or groups are endowed by the State with powers or
functions governmental in nature, they become agencies or
instrumentalities of the State and subject to its constitutional
limitations.” Evans v. Newton, 382 U.S. 296, 299 (1966). Thus,
the Supreme Court has found private actors to be susceptible to
suit under § 1983. E.g. West, 487 U.S. at 54-57 (holding that
private doctor under contract with a state prison to provide
medical care to prisoners acted under color of state law when he
treated inmate). Relevant to this case, the Supreme Court has
suggested--though it has not actually held--that state prisoners
might bring suit under § 1983 against privately-owned
correctional facilities. See Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 72 n.5 (2001) (“[S]tate prisoners . . . already enjoy a
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right of action against private correctional providers under 42
U.S.C. § 1983.”) (emphasis omitted); Richardson v. McKnight, 521
U.S. 399, 413 (1997) (“[We] have not addressed whether [prison
guards] are liable under § 1983 even though they are employed by
a private firm.”).
In Skelton v. Pri-Cor, Inc., the Sixth Circuit, relying on
these Supreme Court precedents, held that a private company
administering a state corrections facility could be sued under
§ 1983. 963 F.2d 100, 102 (6th Cir. 1991). The Sixth Circuit
found determinative the fact that the corporation was “performing
a public function traditionally reserved to the state.” Id.
(citing Evans, 382 U.S. at 299). The court reasoned that “the
power exercised by [the private prison-management company] is
‘possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.’” Id.
(quoting West, 487 U.S. at 49). Moreover it found that “‘[t]here
is a sufficiently close nexus between the State and the
challenged action of [the corporation] so that the action of the
latter may be fairly treated as that of the State itself.’” Id.
(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974)). Thus, according to the Sixth Circuit, the private
corporation “acted under color of law for purposes of § 1983.”
Id.
District courts within this circuit have similarly held that
private prison-management companies and their employees are
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subject to § 1983 liability because they are performing a
government function traditionally reserved to the state. See,
e.g., Palm v. Marr, 174 F. Supp. 2d 484, 487-88 (N.D. Tex. 2001);
Kesler v. King, 29 F. Supp. 2d 356, 370-71 (S.D. Tex. 1998).
We agree with the Sixth Circuit and with those district
courts that have found that private prison-management
corporations and their employees may be sued under § 1983 by a
prisoner who has suffered a constitutional injury. Clearly,
confinement of wrongdoers--though sometimes delegated to private
entities--is a fundamentally governmental function. These
corporations and their employees are therefore subject to
limitations imposed by the Eighth Amendment. Accordingly, we
find that the district court erred in dismissing Rosborough’s
§ 1983 claim.
The district court’s judgment is REVERSED, and the case is
REMANDED for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.