United States Court of Appeals
Fifth Circuit
F I L E D
REVISED
March 8, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-10550
HAROLD CORNISH,
Plaintiff-Appellant,
versus
CORRECTIONAL SERVICES CORP.; ANTHONY KING; HENRY WILSON;
FRANCISCO GARCIA; JACK PATTON; PAUL DONNELLY; JAMES SLATTERY,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Harold Cornish appeals the dismissal, for failure to state a
claim, of his action under 42 U.S.C. § 1983 against his former
employer and several of its employees for retaliatory discharge,
violative of the First and Fourteenth Amendments. FED. R. CIV. P.
12(b)(6). As alleged in his complaint: Cornish was employed as a
correctional officer by Correctional Services Corp. (CSC), a Dallas
County, Texas, private corporation which operated a juvenile
correctional facility; he reported to CSC’s management and state
and local authorities CSC’s numerous violations in operating the
facility; and his employment was terminated for making these
reports. For the termination, however, CSC was not acting under
the requisite color of state law. AFFIRMED.
I.
Because we are reviewing a Rule 12(b)(6) dismissal, the
following facts are restated from Cornish’s complaint. The Lyle
Medlock Juvenile Facility (the facility) was constructed by Dallas
County, Texas. The Dallas County Commissioner’s Court delegated
operation of the facility to CSC, a private corporation.
On 17 February 2000, Cornish was employed by CSC to serve as
a correctional officer for the facility’s drug treatment unit.
Each correctional officer was required to be licenced or regulated
by the Texas Youth Council, the Dallas County Commissioner’s Court,
the Dallas County Juvenile Department, the Texas Juvenile Probation
Commission, and the Texas Commission on Alcohol and Drug Abuse; to
be certified as a juvenile correctional officer by the Texas
Juvenile Probation Commission; and to comply with all state and
local laws and regulations enacted for the protection and care of
the juvenile offenders at the facility.
On 30 September 2000, after approximately six months of
employment, Cornish reported to CSC’s management and the Texas
Youth Commission CSC’s numerous violations in operating the
facility, including: CSC failed to provide adequate staffing for
the department dedicated to the treatment of juvenile drug
offenders; the juveniles were not being administered prescribed
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medication; they were deprived of adequate medical care; they were
not provided with necessary educational materials and teachers; and
some CSC employees were not properly certified.
That December, Cornish observed another correctional officer,
Tamesha Davis-Jackson, assault a juvenile, without provocation, by
stabbing him in the hand with a ballpoint pen. Cornish reported
this incident – first to CSC supervisors, Sergeants Williams and
Singleton-Davis, and then to both the Texas Department of
Protective and Regulatory Services and the Texas Commission on
Alcohol and Drug Abuse. Later that month, Cornish reported the
assault to the facility’s administrator, Anthony King; Davis-
Jackson threatened Cornish for his reporting the assault; she was
reprimanded and placed on probation; and, subsequently, she left
CSC’s employment.
In January 2001, Henry Wilson, a CSC employee, informed
Cornish that he and King wanted to meet with him. At that meeting,
King stated his displeasure with Cornish’s report of Davis-
Jackson’s conduct; and Wilson stated that Davis-Jackson was his
friend, and that he was also displeased with Cornish’s report to
state authorities.
In September 2001, Cornish complained to the United States
Department of Labor that CSC had failed to pay some employees,
including Cornish, for overtime work. That October, after learning
of CSC’s intention to rehire Davis-Jackson, Cornish reported that
to a member of the Dallas County Commissioner’s Court.
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In November, a correctional officer in the chemical dependancy
dorm was removed, leaving it with insufficient staffing. (Texas
law requires three staff members for a 24-member juvenile residence
during hours in which the juveniles are awake and active.) In
order for the dorm to have adequate staffing, Cornish remained on
duty, even though his shift had ended. He was reprimanded by CSC
for doing so. Cornish filed a complaint with the Texas Commission
on Alcohol and Drug Abuse.
Later that month, CSC terminated Cornish’s employment, the
stated reason being his reports to state and local authorities of
CSC’s violations. In November 2003, Cornish filed this action
under 42 U.S.C. § 1983, claiming retaliatory discharge, violative
of the First and Fourteenth Amendments. Named defendants were CSC,
King, Wilson, and others (collectively, CSC). (All individual
defendants were CSC guards, supervisors, or wardens who supervised
Cornish.)
In December 2003, CSC moved to dismiss, pursuant to Rules
12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6)
(failure to state a claim upon which relief could be granted). CSC
contended: because it was a private corporation, its employment
decisions were not acts under color of state law, a necessary
element for bringing a claim pursuant to § 1983; and, therefore,
Cornish’s complaint failed to state facts sufficient for an action
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under § 1983. Pursuant to Rule 12(b)(6), the complaint was
dismissed for failure to state a claim.
II.
A Rule 12(b)(6) dismissal is reviewed de novo, to determine
“whether[,] in the light most favorable to the plaintiff and with
every doubt resolved in his behalf, the complaint states any valid
claim for relief”. Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498 (5th Cir. 2000) (quotation omitted). “However, we will
not strain to find inferences favorable to the plaintiff[].”
Southland Securities Corp. v. INSpire Ins. Solutions, Inc., 365
F.3d 353, 361 (5th Cir. 2004) (quotation omitted). For that
review, we may not look beyond the pleadings (including any
attachments thereto). Collins, 224 F.3d at 498. “A Rule 12(b)(6)
motion should be granted only if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” ABC Arbitrage Plaintiffs Group v.
Tchuruk, 291 F.3d 336, 348 (5th Cir. 2002) (citation omitted).
Texas provides a claim for professionals terminated or
discriminated against for reporting child abuse or neglect. See
TEX. FAM. CODE ANN. § 261.110 (2002) (“An employer may not suspend or
terminate the employment of ... a person who is a professional and
who in good faith: (1) reports child abuse or neglect to: (A) the
person’s supervisor; (B) an administrator of the facility where the
person is employed; (C) a state regulatory agency; or (D) a law
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enforcement agency ....”); see also TEX. FAM. CODE ANN. § 261.101(b)
(“The term [professional] includes ... juvenile detention or
correctional officers.”). Remedies under § 261.110 include:
actual and exemplary damages; court costs; reasonable attorney’s
fees; reinstatement to former position, compensation, benefits, and
seniority rights; and compensation for wages lost during the
termination. In any event, Cornish seeks relief only on a federal
law claim under § 1983.
“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.
Atkins, 487 U.S. 42, 48 (1988) (emphasis added; citation omitted).
Because Cornish’s complaint claims retaliatory discharge,
violative of the First and Fourteenth Amendments, the first prong
of § 1983 is satisfied.
Therefore, at issue is whether CSC was acting “under color of
state law” when it terminated Cornish’s employment, with the
critical inquiry being whether “the alleged infringement of federal
rights [can be] fairly attributable to the State”. Rendell-Baker
v. Kohn, 457 U.S. 830, 838 (1982) (quotation omitted). Restated,
“[m]ere[] private conduct, no matter how discriminatory or
wrongful”, is excluded from § 1983's reach. Richard v. Hoechst
Celanese Chem. Group, Inc., 355 F.3d 345, 352 (5th Cir. 2003),
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cert. denied, 125 S. Ct. 46 (2004) (quoting American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)); see also Rendell-
Baker, 457 U.S. at 844 (White, J., concurring) (“[T]he critical
factor is ... [whether] the employment decision was itself based
upon some rule of conduct or policy put forth by the State.”
(emphasis added)).
The Supreme Court has utilized a number of tests for deciding
whether a private actor’s conduct can be fairly attributable to the
State. See Richard, 355 F.3d at 352 (summarizing tests); Bass v.
Parkwood, 180 F.3d 234, 241-43 (5th Cir. 1999) (same). The “public
function test” examines whether the private entity performs a
function which is “exclusively reserved to the State”. Flagg
Brothers, Inc. v. Brooks, 436 U.S. 149, 158 (1978). Under the
“state compulsion test”, a private actor’s conduct is attributable
to the State when it exerts coercive power over the private entity
or provides significant encouragement. See Adickes v. S. H. Kress
& Co., 398 U.S. 144, 170-71 (1970). The “nexus” or “state action
test” considers whether the State has inserted “itself into a
position of interdependence with the [private actor, such] that it
was a joint participant in the enterprise”. Jackson v. Metro.
Edison Co., 419 U.S. 345, 357-58 (1974); see also Lugar v. Edmonson
Oil Co., 457 U.S. 922, 937 (1982). And, under the “joint action
test”, private actors will be considered state actors where they
are “willful participant[s] in joint action with the State or its
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agents”. Dennis v. Sparks, 449 U.S. 24, 27 (1980). The Supreme
Court has not resolved “[w]hether these different tests are
actually different in operation or simply different ways of
characterizing [this] necessarily fact-bound inquiry ....” Lugar,
457 U.S. at 939.
Deciding whether a deprivation of a protected right is fairly
attributable to the State “begins by identifying the specific
conduct of which the plaintiff complains”. Sullivan, 526 U.S. at
51 (quotation omitted). Here, that conduct is terminating
Cornish’s employment in retaliation for his reporting CSC’s
misconduct to state and local authorities. Therefore, at issue is
whether CSC’s decisions as an employer are fairly attributable to
the State. See George v. Pacific-CSC Work Furlough, 91 F.3d 1227,
1230 (9th Cir. 1996), cert. denied, 519 U.S. 1081 (1997) (“The
relevant inquiry is whether [defendant’s] role as an employer was
state action ....”) (emphasis in original; quotation omitted).
The “[a]cts of ... private contractors do not become acts of
the government by reason of their significant or even total
engagement in performing public contracts”. Rendell-Baker, 457
U.S. at 841. Moreover, “[t]he mere fact that a business is subject
to state regulation does not by itself convert its action into that
of the State for purposes of the Fourteenth Amendment”. Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982) (quoting Metro. Edison Co., 419
U.S. at 350). To make the requisite showing of state action by a
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regulated entity, Cornish must establish “a sufficiently close
nexus between the State and the challenged action of the regulated
entity”. Id. (emphasis added).
Cornish’s complaint claims: “Because [CSC] provides services
for a government entity that are required by law to be performed by
the government[,] it acts under color of law”. In addition, the
complaint states that CSC guards working at the facility are
required to obtain the same certifications, and are regulated by
the same government entities, as are guards employed by the State.
In essence, Cornish is claiming CSC performs a public function
“exclusively reserved to the State”.
For this public function test, and as CSC conceded in district
court, it acts under color of state law in providing juvenile
correctional services to Dallas County. See Pacific-CSC Work
Furlough, 91 F.3d at 1230 (“[Defendants] concede that incarceration
is a traditionally exclusive state function.”). The issue,
however, is whether CSC acted under color of state law in
terminating Cornish’s employment, not whether its providing
juvenile correctional services was state action. See id. (“An
entity may be a state actor for some purposes but not for
others.”). Cornish’s complaint alleges no facts concerning why
CSC’s role as an employer constituted state action.
Moreover, the complaint contains no factual allegations that
Dallas County exerted coercive power or provided significant
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encouragement for CSC’s decision to terminate Cornish’s employment.
Therefore, CSC’s conduct in terminating Cornish is not fairly
attributable to Dallas County under the state compulsion test.
Similarly, the complaint contains no allegations that Dallas County
willfully participated, or was a joint participant, in CSC’s
decision to terminate Cornish’s employment. Therefore, the
employment decision is not fairly attributable to Dallas County
under either the nexus/state action test or the joint action test.
In sum, Cornish has failed to plead any facts alleging that the
State encouraged, compelled, or was in any way involved in CSC’s
decision to terminate his employment.
Viewing the complaint in the light most favorable to Cornish,
and accepting all facts alleged as true, the complaint fails to
allege facts establishing that CSC’s decision to terminate
Cornish’s employment is fairly attributable to Dallas County or the
State of Texas. Cornish can prove no set of facts in support of
his claims under § 1983 which would entitle him to relief.
Accordingly, the complaint was properly dismissed for failure to
state a claim.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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