Rhiannon Nugent v. Spectrum Juvenile Justice Servs.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0141p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
RHIANNON NUGENT and JUAN QUINTANA, SR., Co-
│
Personal Representatives of the Estate of Juan A.
│
Quintana, II, deceased, > No. 22-1487
Plaintiffs-Appellants, │
│
│
v. │
│
SPECTRUM JUVENILE JUSTICE SERVICES; SPECTRUM │
HUMAN SERVICES, INC., │
Defendants-Appellees. │
┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:21-cv-12741—George Caram Steeh III, District Judge.

Argued: March 8, 2023

Decided and Filed: June 28, 2023

Before: GRIFFIN, BUSH, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Jonathan R. Marko, MARKO LAW, PLLC, Detroit, Michigan, for Appellant.
Nathan Scherbarth, ZAUSMER, P.C., Farmington Hills, Michigan, for Appellees. ON BRIEF:
Jonathan R. Marko, MARKO LAW, PLLC, Detroit, Michigan, for Appellant. Nathan
Scherbarth, Mark J. Zausmer, Jonathan R. Reshour, ZAUSMER, P.C., Farmington Hills,
Michigan, for Appellees.

BUSH, J., delivered the opinion of the court in which MURPHY, J., joined. GRIFFIN, J.
(pp. 13–18), delivered a separate dissenting opinion.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 2

_________________

OPINION
_________________

JOHN K. BUSH, Circuit Judge. This case arises from the suicide of Juan Quintana, II, a
fifteen-year-old, at a facility operated by defendants Spectrum Juvenile Justice Services and
Spectrum Human Services, Inc. (collectively, Spectrum) in Highland Park, Michigan.
Representatives of Quintana’s estate sued Spectrum based on Monell v. Department of Social
Services, 436 U.S. 658 (1978). The complaint alleges that Spectrum functioned as a state actor
and violated Quintana’s Eighth and Fourteenth Amendment rights when its personnel failed to
visually check on him as required by state contract. The district court dismissed plaintiffs’ suit
on the ground that the complaint did not plausibly allege state action under 42 U.S.C. § 1983.
We respectfully disagree, as explained below. We therefore REVERSE and REMAND for
further proceedings.

I.

We recite the relevant facts as alleged in the complaint. Spectrum is licensed by the State
of Michigan to run a “private child caring institution.” Spectrum contracts with the state to
house children who are ordered to be detained in Spectrum’s facilities. The facilities are “similar
to a prison setting”—the children are completely restricted in their movements, and the state
requires Spectrum to monitor them on a 24/7 basis.

A court ordered Quintana’s detention at Spectrum’s Highland Park facility on August 24,
2018. In the days that followed, he struggled with depression, anxiety, and difficulty sleeping,
among other things. On the evening of September 11, 2018, between 7:57 PM and 8:42 PM,
Quintana took his own life in his bedroom at the facility. He died alone. No one checked his
room in the forty-five minutes between the last time he was seen alive and when his body was
found.

That fatal omission violated a contractual requirement the state imposed on Spectrum to
surveil children through “eye-on checks” every fifteen minutes when they are “outside of the
direct supervision of staff.” The failure of Spectrum to check on Quintana for forty-five minutes
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 3

was not an aberration from normal practice. In fact, Spectrum had a policy or custom of
skipping many eye-on checks and falsifying supervision logs to reflect that the eye-on checks
had been performed. These neglectful and deceptive activities were all the more troubling
because Spectrum’s residents often struggled with self-harm and suicide, “so much so that
employees would walk around with scissors in their pockets in order to cut down inmates who
were attempting to hang themselves.” Compl., R.10, at ¶50.

In the immediate aftermath of Quintana’s suicide, plaintiffs brought a state-law
negligence claim related to the death against Spectrum in Michigan state court. A little over a
year later, plaintiffs filed the present action in the district court. Plaintiffs allege a Monell claim
against Spectrum based on Eighth or Fourteenth Amendment violations; they argue that
Spectrum violated Quintana’s constitutional rights by its policy or custom of deliberately
foregoing eye-on checks. That policy or custom, in turn, amounted to deliberate indifference
toward his patent risk of committing suicide.

Spectrum moved to dismiss on several grounds. At issue in this appeal is Spectrum’s
argument that plaintiffs failed plausibly to allege state action. Spectrum maintains that it was not
engaged in a public function and therefore a claim under 42 U.S.C. § 1983 is untenable. The
district court agreed and dismissed the complaint for failure to state a claim on which relief could
be granted. The court analogized the Highland Park facility to the foster home at issue in Howell
v. Father Maloney’s Boys’ Haven, Inc., 976 F.3d 750 (6th Cir. 2020), that we determined was
not a state actor.

Plaintiffs timely appealed.

II.

This court reviews grants of motions to dismiss de novo. See Bouye v. Bruce, 61 F.4th
485, 489 (6th Cir. 2023). We accept all well-pleaded allegations in the plaintiff’s complaint as
true and view facts in the light most favorable to the plaintiff, though we “need not accept as true
legal conclusions or unwarranted factual inferences.” Id. (quoting JPMorgan Chase Bank, N.A.
v. Winget, 510 F.3d 577, 581–82 (6th Cir. 2007)); see Evans-Marshall v. Bd. of Educ., 428 F.3d
223, 228 (6th Cir. 2005).
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 4

I.

A § 1983 claim under a Monell theory of liability requires the plaintiff to allege that the
local government’s official policy was “the moving force behind the constitutional violation.”
City of Canton v. Harris, 489 U.S. 378, 389 (1989) (cleaned up) (quoting Monell, 436 U.S. at
694). Here, plaintiffs allege that Spectrum’s custom or policy of skipping eye-on checks rose to
the level of a constitutional violation in the form of deliberate indifference to Quintana’s serious
medical needs. But to maintain such a claim, plaintiffs also must sufficiently allege that
Spectrum was a state actor. We conclude they have met this latter requirement.

Section 1983’s text and history confirm that it covers the acts of private individuals in
certain cases. Start with the text. Section 1983 expressly applies to “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes
to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws.” 42 U.S.C. § 1983. The plain reading of the text envisions
liability for “every person” who violates the provision, not just public officials. See id. Supreme
Court precedent confirms this reading, noting that “a private party . . ., even though not an
official of the State, can be liable under § 1983.” Adickes v. S. H. Kress & Co., 398 U.S. 144,
152 (1970) (“Private persons, jointly engaged with state officials in the prohibited action, are
acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not
require that the accused be an officer of the State. It is enough that he is a willful participant in
joint activity with the State or its agents[.]” (quoting United States v. Price, 383 U.S. 787, 794
(1966))).

This interpretation of § 1983 is deeply rooted in its history. The provision comes from
§ 1 of the Enforcement Act of 1871, also known as the Ku Klux Klan Act. 17 Stat. 13. That
statute, like other civil-rights legislation of its era, sought to regulate the actions of not only the
state, but also private individuals who acted under the color of law. See Adickes, 398 U.S. at
162–66; Jones v. Alfred H. Mayer Co., 392 U.S. 409, 424–26 (1968) (describing how the Civil
Rights Act of 1866, 14 Stat. 27—legislation that the Enforcement Act closely mirrors—was also
intended to redress the deprivation of rights inflicted on Blacks by both private and government
actors). Congress’s first attempt to provide remedies for the deprivation of civil rights of U.S.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 5

citizens took the form of § 2 of the Civil Rights Act of 1866. 14 Stat. 27–30. But there was fear
that Congress lacked constitutional power to pass such legislation, which pre-dated the
Fourteenth Amendment. See Kurt T. Lash, 2 THE RECONSTRUCTION AMENDMENTS 12 (Kurt T.
Lash, ed., 2021). So, after the Fourteenth Amendment was ratified, Congress passed the
1870 Enforcement Act and later § 1 of the Enforcement Act of 1871, a provision to the same
effect as § 2 of the Civil Rights Act of 1866. See id. at 601; Adickes, 398 U.S. at 162–63.
Following enactment of the 1871 Enforcement Act, the Civil Rights Cases clarified that, under
the Fourteenth Amendment, Congress could only remedy federal rights deprivations that could
properly be attributed to a state. 109 U.S. 3, 10–11, 16–18 (1883). But the Court has since
construed “under color of law” to carry a meaning that encompasses more than just state officials
acting pursuant to state law. See Monroe v. Pape, 365 U.S. 167, 183–85 (1961). Recodified
under 42 U.S.C. § 1983, § 1 of the Enforcement Act of 1871 carries a history of enforcement
that has reached not only the main evil at the beginning of the post-bellum United States, the
Ku Klux Klan, but also other private actors who violate federal rights while acting “under color
of law”—that is, those who act, in some capacity, as agents of a state. See Monroe, 365 U.S. at
176 (enforcement meant to target “those who represent[] a State in some capacity.”); Lugar
v. Edmondson Oil Co., 457 U.S. 922, 935 (1982) (“If the challenged conduct . . . constitutes state
action as delimited by our prior decisions, then that conduct was also action under color of state
law and will support a suit under § 1983.”).

Our circuit precedent, accordingly, recognizes that private actors may be subject to
§ 1983 claims if their conduct qualifies them to be considered state actors. Carl v. Muskegon
Cnty., 763 F.3d 592, 595 (6th Cir. 2014). Essentially, “a private party’s actions constitute state
action under section 1983 where those actions may be ‘fairly attributable to the state.’” Chapman
v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (en banc) (quoting Lugar, 457 U.S. at 947).
There are three tests for determining whether a private actor may be treated as a state actor: “the
public-function test, the state-compulsion test, and the nexus test.” Carl, 763 F.3d at 595 (citing
Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995)). On appeal, plaintiffs argue that they
pleaded sufficient facts to establish Spectrum as a state actor based on all three tests. Because
we find that plaintiffs adequately allege state action under the public-function test, we address
that test alone.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 6

It “requires that the private [individual] exercise powers which are traditionally
exclusively reserved to the state.” Carl, 763 F.3d at 595 (alteration in original) (quoting Wolotsky
v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). This authority includes such functions as holding
elections, exercising eminent domain, and operating a company-owned town. Chapman,
319 F.3d at 833–34. But we interpret the public-function test narrowly, and under it we rarely
attribute private conduct to the state. See id. In Wolotsky, for instance, a plaintiff brought a
§ 1983 claim based on wrongful termination against a mental health institution under the theory
that it was a state actor. Wolotsky, 960 F.3d at 1333. The court held that the plaintiff
insufficiently alleged state action where all that was alleged was that the institution derived
significant funding from the state and was subject to state regulations. Id. at 1336.

But sometimes we do attribute state action to a private institution. In Carl, the court
considered a state-action issue in the mental health context. We distinguished Wolotsky and
found state action on the premise that in Carl, unlike in Wolotsky, the cause of action arose from
treatment of a pretrial detainee in a custodial setting where the state “has absolute dominion over
a detainee’s care.” Carl, 763 F.3d at 597. In such a setting the state cannot simply abrogate
“§ 1983 liability by contracting out or delegating its obligations” to a private actor. Id. (citing
West v. Atkins, 487 U.S. 42, 56 n.14 (1988)).

To determine whether the public function test is satisfied, “the court conducts a historical
analysis to determine whether the party has engaged in an action traditionally reserved to the
state, and the plaintiff bears the burden of making that showing.” Wittstock v. Mark A. Van Sile,
Inc., 330 F.3d 899, 902 (6th Cir. 2003). Plaintiffs can meet that burden by “advanc[ing]
historical and factual allegations in their complaint giving rise [to] a reasonable inference that
[the function] is traditionally exclusively in the province of the State.” Marie v. Am. Red Cross,
771 F.3d 344, 362 (6th Cir. 2014) (citing Wittstock, 330 F.3d at 902) (plaintiffs failed to
adequately allege that disaster relief was a traditionally exclusive function of the state); see also
Ellison, 48 F.3d at 196 (declining to consider a function public where the “plaintiff . . . neglected
to offer any analysis concerning the history of involuntary commitment in Tennessee”). But we
have not specified how much historical detail, if any, must be alleged where, as here, there is
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 7

sufficient case precedent to guide the state-action inquiry based on the present-day description of
the facility as alleged in the complaint.1

Under our precedent, detention centers are generally considered “a public function
traditionally reserved to the state.” Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991)
(per curiam) (finding state action where a private corporation maintained a pretrial detention
facility). Skelton reasoned that a private company operating a correctional facility exercises a
power that is “possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” Id. at 102 (quoting West, 487 U.S. at 49) (cleaned up).
In Street, the panel determined that the defendants acted under the color of state law when they
performed the “‘traditional state function’ of operating a prison.” Street v. Corrs. Corp. of Am.,
102 F.3d 810, 814 (6th Cir. 1996) (citation omitted).2 Other circuits have generally held that
correctional facilities perform a traditionally exclusive public function. For example, the Fifth
Circuit cited Skelton favorably for the proposition that state prisoners can bring § 1983 claims
against privately owned correctional facilities. See Rosborough v. Mgmt. & Training Corp., 350
F.3d 459, 460–61 (5th Cir. 2003) (per curiam); see also Doe v. N. Homes, Inc., 11 F.4th 633,
637–38 (8th Cir. 2021) (holding that a juvenile facility that could detain a juvenile exercises the
power to incarcerate, a power exclusively held by the state); Smith v. Cochran, 339 F.3d 1205,
1215–16 (10th Cir. 2003) (“[P]ersons to whom the state delegates its penological functions,
which include the custody and supervision of prisoners, can be held liable for violations of the
Eighth Amendment.”); Rodriguez-Garcia v. Davila, 904 F.2d 90, 98 (1st Cir. 1990) (“[T]he
provision of education, police protection, and prisons are public functions that, when

1
We do not read Marie to require a plaintiff to allege the historical basis for every new state action claim—
only for new functions. In Marie, the proposed state function was administering disaster relief. Marie v. Am. Red
Cross, 771 F.3d 344, 362–63 (6th Cir. 2014). Here, as will be discussed, our precedent has well established that
incarceration is a traditional public function. See Street v. Corrs. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996);
Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991).
2
Our dissenting colleague relies on Ellison v. Garbarino, 48 F.3d 192, 196 (6th Cir. 1995), for the
proposition that the inquiry into traditionally exclusive public functions must be state-specific. As such, our
colleague argues that the holdings in Skelton and Street are specific to Tennessee. But Ellison opines on the state-
specific nature of the inquiry in dicta only, and in fact relies in part on historical inquiries of other states to reach its
conclusion that involuntary commitment is not a traditionally exclusive public function in Tennessee. See Ellison,
48 F.3d at 196 n.2. Likewise, neither Skelton nor Street cabins its holding concerning incarceration as a traditionally
exclusive public function to the State of Tennessee alone. See Street, 102 F.3d at 814; Skelton, 963 F.2d at 102.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 8

‘privatized,’ still retain their public nature, and action under color of law may still be found.”);
cf. George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996) (defendant
conceded that incarceration is a traditionally exclusive state function).3

The mere fact that a facility has a remedial component, however, is not enough to
demonstrate it exercises a traditionally exclusive public function—after all, some purely private
entities may exercise that power. For instance, the Supreme Court determined that a school that
provided education to maladjusted high school students was not a state actor. See Rendell-Baker
v. Kohn, 457 U.S. 830, 842 (1982). Our own precedent holds the same. In Howell, a private
entity in Kentucky, Boys’ Haven, provided “housing, education, ‘treatment[,] and crisis
stabilization of at-risk youth.’” Howell, 976 F.3d at 753. We noted that “[f]rom Kentucky’s
founding to the present, private actors have been instrumental in providing such care.” Id. The
court referenced, for example, Kentucky’s poor laws, which “empowered county courts to place
destitute children into the ‘homes of those who could afford an extra mouth to feed.’” Id.
Further, we noted that there was a near uniformity that “foster homes do not count as state
actors.” Id. (citations omitted).

As Howell recognizes, private actors may execute functions that are similar to—but not
quite—a traditionally exclusive public function. But the key for distinguishing state action is, in
part, to determine whether a private actor is “‘endowed with [state] powers beyond those
enjoyed’ by everyone else.” United States v. Miller, 982 F.3d 412, 423 (6th Cir. 2020) (quoting
United States v. Ackerman, 831 F.3d 1292, 1296 (10th Cir. 2016)) (distinguishing between a
state’s ability to investigate a crime in order to bring a prosecution, a well-recognized police
power, and a private actor’s ability to investigate crime to protect private property). In the case
of incarceration, when the state grants a private actor legal authority to exercise control over
inmates, there is state action. See West, 487 U.S. at 56. The Supreme Court in West, for
example, held that medical care provided in a correctional facility constituted state action. Id. at

3
The Fourth Circuit, however, has concluded that incarceration cannot satisfy the public function test
because it was never traditionally an exclusive state function. See Holly v. Scott, 434 F.3d 287, 293 (4th Cir. 2006).
The Holly court relied on dicta in Richardson v. McKnight, in which Justice Breyer stated, “correctional functions
have never been exclusively public.” 521 U.S. 399, 405 (1997). But we interpret Justice Breyer’s analysis to apply
only to “questions of § 1983 immunity,” not “whether [prison officials] are liable under § 1983 even though they are
employed by a private firm.” Id. at 413; see Doe, 11 F.4th at 638 (noting this distinction).
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 9

56. Medical care alone is not a traditionally exclusive public function. But the state had an
obligation to medically treat its prisoners, and those prisoners were not free to seek their own
care. Id. at 54–55. Thus, the medical care provider constituted a state actor because it acted
under authority of the state to provide the constitutionally-mandated prisoner care. Id. at 55–57.

Following West, the Eighth Circuit determined that a plaintiff plausibly alleged that a
private entity that ran a juvenile detention facility qualified as a state actor when it exercised
authority to detain the plaintiff in a corrections unit. Doe, 11 F.4th at 637–38. Howell likewise
recognizes the distinction between merely caring for troubled youth and incarcerating them. See
976 F.3d at 753. Howell distinguished its facts from West by noting that “West also involved a
‘correctional setting,’ a prototypical state function ‘designed’ to remove individuals ‘from the
community.’” Id. (citing West, 487 U.S. at 56 n.15). Boys’ Haven, in contrast, was not a state
actor because “like most foster homes, the Haven has no power to remove children and place
them under appropriate care or in juvenile correctional facilities—the kinds of things state actors
traditionally may do.” Id.; see Doe, 11 F.4th at 637–38. Rather, it facilitated the youths’
continuing engagement and presence in the community. Howell, 976 F.3d at 754.

The district court failed to recognize this distinction when it determined that Spectrum
was not a state actor. The district court cited the Supreme Court’s Richardson and Rendell-
Baker decisions, as well as this court’s Howell decision, for the proposition that the incarceration
of juveniles “is not the exclusive province of the state.” The district court further found it
significant that plaintiffs did not allege that Spectrum had the power to decide to detain juveniles.
But, as mentioned above, incarceration is a distinguishing factor for Rendell-Baker and Howell.
See Rendell-Baker, 457 U.S. at 830; Howell, 976 F.3d at 753.

We hold that the complaint contains adequate facts to establish that Spectrum is a state
actor. Plaintiffs allege Spectrum carries out the “public function of caring for youths at the
direction of the State of Michigan.” Compl., R.10, at ¶3. If the complaint’s description had
stopped there, then Spectrum’s facility would be deemed closely analogous to the facility found
to be a non-state actor in Howell. But here the allegations go further. Plaintiffs allege that the
facility does not just care for children; the facility is “similar to a prison setting.” They state that
the “Defendants had influence and control over how long a child was detained at the facilities.”
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 10

Id. at ¶26. According to the complaint, the children “are under 24 hours/7 days supervision, and
their movements are restricted as though they were prisoners.” Id. at ¶24. What’s more, the
children “are not free to leave the Defendant’s facilities on their own volition, and their liberties
are entirely restricted.” Id. at ¶25. Plaintiffs allege that the state requires Spectrum to prevent
the children from escaping and to contact local law enforcement if escape should occur. Finally,
plaintiffs allege that Spectrum fulfilled “the public function of juvenile incarceration,
detainment, commitment, [and] rehabilitation.” Id. at ¶51.

These facts, taken as true and viewed in a light most favorable to the plaintiffs, suggest
that the State of Michigan has endowed Spectrum with legal authority to exercise control over
juveniles under court-ordered confinement. Plaintiffs allege that Quintana was court-ordered to
the Spectrum facility. The facility was run like a prison, as detailed above. Quintana could
obtain his release only through court order. Such a set of facts starkly contrasts with Howell,
where the youth were not incarcerated, and the private entity served not to incarcerate but rather
to facilitate youths’ involvement in the community. Cf. Howell, 976 F.3d at 754.4

Given that our precedent has consistently held that the operation of correctional facilities
is a traditionally exclusive state function, we hold that plaintiffs pleaded sufficient facts “giving
rise [to] a reasonable inference that [the function] is traditionally exclusively in the province of
the State.” Marie, 771 F.3d at 362. The complaint therefore plausibly alleges state action.

IV.

Spectrum raised other arguments in the motion to dismiss that were not addressed below.
We briefly comment on them here but remand for the district court to address them in the first
instance.

First, Spectrum invoked qualified immunity, but that defense is “available only to
individual government officials sued in their personal capacity.” United Pet Supply, Inc. v. City

4
The parties disagreed at oral argument whether all juvenile residents at the facility were there by court
order. Spectrum’s contract with the State of Michigan, attached to the complaint, suggests that some juvenile
residents may not “have been adjudicated of a delinquency offense.” This fact, if true, however, does not render
implausible plaintiffs’ allegations that the facility functioned as a state actor with respect to Quintana’s own
detention, which is alleged to be involuntary and based on violation of a probation order.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 11

of Chattanooga, 768 F.3d 464, 484 (6th Cir. 2014). Just as the defense is “unavailable to the
public entity itself,” Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009), it is unavailable to “a
private entity acting in a governmental capacity,” United Pet Supply, Inc., 768 F.3d at 484.

Second, Spectrum argues that plaintiffs failed to plead the deliberate indifference of
Spectrum’s personnel so as to justify the claim. The deliberate-indifference standard varies
depending on whether a claim is brought under the Eighth or the Fourteenth Amendment.
Compare Wilson v. Seiter, 501 U.S. 294, 297 (1991) (applying Eighth Amendment standard),
with Helphenstine v. Lewis Cnty., 60 F.4th 305, 317 (6th Cir. 2023) (applying Fourteenth
Amendment standard). Plaintiffs allege violations under both the Eighth and Fourteenth
Amendment, but it is unclear which of these provisions applies because the complaint does not
state clearly whether Quintana was formally convicted of a crime (in which case the Eighth
Amendment would seem to govern) or instead his custodial status was more akin to that of a
pretrial detainee (to whom the Fourteenth Amendment would appear to apply). The complaint
states only that Quintana was “court-ordered” to Spectrum’s facility. We leave it to the district
court first to determine whether the decedent’s status at the Spectrum facility was more like that
of a convicted prisoner or that of a pretrial detainee, and then to apply the proper standard based
on that determination.

Finally, Spectrum seeks dismissal under the abstention doctrine of Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976). Under Colorado River,
“considerations of judicial economy and federal-state comity may justify abstention in situations
involving the contemporaneous exercise of jurisdiction by state and federal courts.” Romine v.
Compuserve Corp., 160 F.3d 337, 339 (6th Cir. 1998) (citing Colorado River, 424 U.S. at 817).
Spectrum argues that, because there is a pending state court action between the same parties, the
district court should abstain from exercising jurisdiction over this case. But there are several
factors to be considered under a Colorado River abstention analysis, and we decline to review
them in the first instance. See Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 576 (6th Cir.
2013) (declining to rule on issues not decided below); cf. Romine, 160 F.3d at 339
(“[T]he district court must first determine that the concurrent state and federal actions are
actually parallel.” (citing Crawley v. Hamilton Cnty. Comm’rs, 744 F.2d 28 (6th Cir. 1984))).
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 12

V.

For the reasons stated above, we REVERSE the district court’s dismissal of plaintiffs’
Monell claim and REMAND for further proceedings consistent with this opinion.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 13

_________________

DISSENT
_________________

GRIFFIN, Circuit Judge, dissenting.

The sole issue in this appeal is whether plaintiffs’ complaint sufficiently alleged that
defendants Spectrum Juvenile Justice Services and Spectrum Human Services, Inc. (Spectrum)
are state actors for purposes of liability under 42 U.S.C. § 1983. Without engaging in the
requisite historical analysis of Michigan’s approach to caring for juveniles, the majority opinion
finds defendants, who privately own and operate a juvenile detention center, to be state actors
solely because of the correctional nature of their facility. I respectfully disagree and would
affirm the district court.

I.

Defendants are private entities, and, as such, can only be subject to constitutional liability
if their conduct is “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922,
937 (1982). We have recognized several tests when conducting this inquiry. See, e.g., Howell v.
Father Maloney’s Boys’ Haven, Inc., 976 F.3d 750, 752 (6th Cir. 2020). Today’s appeal
involves just one: the public-function test.1 It provides that “a private entity may qualify as a
state actor when it exercises powers traditionally exclusively reserved to the State.” Manhattan
Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (internal quotation marks omitted).

The public-function “test has been interpreted narrowly.” Chapman v. Higbee Co.,
319 F.3d 825, 833 (6th Cir. 2003) (en banc). Key is whether the government “traditionally and
exclusively performed the function” at issue. Halleck, 139 S. Ct. at 1929. That emphasized
conjunctive is crucial: “[i]t is not enough that the federal, state, or local government exercised

1
Plaintiffs’ brief asserts other ways to establish that a private entity is a state actor, but those arguments are
abandoned and forfeited. In the district court, defendants moved for dismissal under Rule 12 contending that none
of the applicable state-actor tests applied. In response, plaintiffs addressed only the public-function test. Their
failure to substantively rebut defendants’ positions on those other state-actor tests meant that they abandoned any
argument on those tests below, see, e.g., Doe v. Bredesen, 507 F.3d 998, 1007–08 (6th Cir. 2007), and forfeited any
here, Mynatt v. United States, 45 F.4th 889, 897 (6th Cir. 2022).
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 14

the function in the past, or still does. And it is not enough that the function serves the public
good or the public interest in some way.” Id. at 1928–29. “[V]ery few functions,” the Court has
“stressed,” so qualify. Id. at 1929 (internal quotation marks omitted); see also Carl v. Muskegon
Cnty., 763 F.3d 592, 595 (6th Cir. 2014) (“[R]arely have we attributed private conduct to the
state.”).

Our inquiry “require[s] some historical analysis to determine whether an action is one
traditionally the exclusive prerogative of the state.” Ellison v. Garbarino, 48 F.3d 192, 196
(6th Cir. 1995). That historical showing is not one of general applicability; rather, it must be
“state specific.” Id. And because attaching constitutional liability to a private actor is the rare
exception, we have emphasized that it is a plaintiff’s burden to muster the historical facts in
support. See Marie v. Am. Red Cross, 771 F.3d 344, 362–63 (6th Cir. 2014); Wittsock v. Mark A.
Van Sile, Inc., 330 F.3d 899, 902–03 (6th Cir. 2003); Tahfs v. Proctor, 316 F.3d 584, 593 (6th
Cir. 2003); Ellison, 48 F.3d at 196. Thus, to survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a plaintiff must “advance historical and factual allegations in [the]
complaint giving rise [to] a reasonable inference that [the function at issue] is traditionally
exclusively in the province of the State.” Marie, 771 F.3d at 362.

Plaintiffs’ complaint falls woefully short of satisfying this burden. Nowhere does it
allege that defendants performed duties that the State of Michigan has exclusively and
historically performed. True, it describes the prison-like nature of the facility; defendants’
contractual and regulatory obligations to Michigan; the details of Juan Quintana II’s mental-
health struggles; and the alleged abhorrent conduct by defendants’ employees. But it lacks any
assertions regarding Michigan’s historical approach to caring for juveniles. Tellingly, neither the
word “history,” nor any of its derivatives, appear in plaintiffs’ complaint. Plaintiffs’ briefing on
appeal is similarly devoid of any Michigan-specific history.

As our court has stated many times before, “[c]onsidering that plaintiff bears the burden
on this issue, this failure alone renders this test inapplicable.” Ellison, 48 F.3d at 196; accord
Tahfs, 316 F.3d at 593; Marie, 771 F.3d at 363; Miller v. Gettel, 2023 WL 2945340, at *4 (6th
Cir. Apr. 14, 2023); Cleary v. Cnty. of Macomb, 409 F. App’x 890, 901 n.6 (6th Cir. 2011);
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 15

Reguli v. Guffee, 371 F. App’x 590, 600 (6th Cir. 2010); Durante v. Fairlane Town Ctr., 201 F.
App’x 339, 342 (6th Cir. 2006). The same is true for the present case.

II.

A.

The majority opinion attempts to rescue plaintiffs’ deficient pleading not with history, but
with inapposite caselaw. Two of our cases are relied upon, which each held that private
corporations operating adult correctional facilities in Tennessee were state actors under the
public-function test. Street v. Corrs. Corp. of Am., 102 F.3d 810, 812, 814 (6th Cir. 1996);
Skelton v. Pri-Cor, Inc., 963 F.2d 100, 101–02 (6th Cir. 1991) (per curiam). The majority tries
to extend that caselaw here, but there are several reasons why we should not do so.

First, while both Tennessee cases contain a categorical assertion that operating a prison is
a “traditional state function [of Tennessee],” Street, 102 F.3d at 812; accord Skelton, 963 F.2d at
101, “no one fact can function as a necessary condition across the board for finding state action,”
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).
Precedent dictates our focus must not be on blanket claims of state action, but rather on the “state
specific” historical nature of the function at issue. Ellison, 48 F.3d at 196. Both Street and
Skelton involved private prisons in Tennessee, not Michigan. Street, 102 F.3d at 812; Skelton,
963 F.2d at 101. Without an established, similar state history in Michigan, Street and Skelton
cannot control.

Second, the state-actor analysis in Street and Skelton is fundamentally deficient. Both
cases relied on just one of the test’s two components—that the adult prisons at issue there were
“performing a public function traditionally reserved to the state.” Skelton, 963 F.2d at 102;
accord Street, 102 F.3d at 814. Like the majority today, the cursory analysis in both opinions
conducted no kind of historical examination as to whether Tennessee also “exclusively
performed the function” of operating a prison. Halleck, 139 S. Ct. at 1929.

Third, the Supreme Court has cast significant doubt on the holdings of Skelton and Street.
In Richardson v. McKnight, the Court signaled history is not on their side—in a dispute
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 16

involving a private adult prison in Tennessee, nonetheless. 521 U.S. 399, 404–05 (1997). The
question there was whether employees of a private prison were entitled to qualified immunity
from § 1983 claims. Id. at 401. History informed the Court’s conclusion that immunity was
unavailable due in part to the lack of a “firmly rooted tradition of immunity applicable to
privately employed prison guards.” Id. at 404 (internal quotation marks omitted).

To arrive at that conclusion, the Supreme Court chronicled the history of private prison
systems generally, beginning in the Middle Ages in England and through the Nineteenth Century
here in the United States. Id. at 405–07. “[C]orrectional functions” in the United States,
Richardson proclaimed, “have never been exclusively public. Private individuals operated local
jails in the 18th century, and private contractors were heavily involved in prison management
during the 19th century.” Id. at 405 (internal citations omitted). Importantly, the Court
highlighted that “[d]uring that time, some States, including southern States like Tennessee, leased
their entire prison systems to private individuals or companies which frequently took complete
control over prison management, including inmate labor and discipline.” Id. (emphasis added).
This description contradicts Street’s and Skelton’s perfunctory assertions that running prisons is a
“function traditionally reserved to the state.” Skelton, 963 F.2d at 102; accord Street, 102 F.3d at
814.2

Fourth, Skelton and Street are distinguishable because they addresssed the incarceration
of adults. Inmates at adult facilities are institutionalized based on criminal convictions and
resulting sentences.3 See, e.g., Chapman v. United States, 500 U.S. 453, 465 (1991). Juveniles
are different. See, e.g., Schall v. Martin, 467 U.S. 253, 265 (1984) (explaining that a juvenile’s
“interest in freedom from institutional restraints . . . must be qualified by the recognition that
juveniles, unlike adults, are always in some form of custody” and “may, in appropriate

2
True, Richardson addressed only the qualified-immunity defense and expressly reserved judgment on the
state-actor issue given it was assumed below. 521 U.S. at 413. But that caveat does not license ignoring the Court’s
historical findings about the role private contractors have played in managing prisons. See also Bell v. Mgmt. &
Training Corp., 122 F. App’x 219, 223 (6th Cir. 2005) (in a § 1983 case, distinguishing Skelton, because, as noted
by Richardson, “[t]he operation of prisons by private companies is commonplace and has been for many years”).
3
The majority opinion suggests the facility at issue in Skelton was a “pretrial detention facility.” But the
plaintiff there had pleaded guilty to escaping federal custody and was incarcerated while awaiting sentencing.
963 F.2d at 101.
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 17

circumstances, be subordinated to the State’s parens patriae interest in preserving and promoting
the welfare of the child” (internal quotation marks omitted)). In equating adult incarceration
with juvenile care, the majority expands the reaches of our caselaw.

B.

Michigan law broadly grants state court judges significant authority to remove an at-risk
youth from a home and place him in public or private custody. See Mich. Comp. Laws
§§ 712A.2, 712A.18. Here, a state court exercised its jurisdiction over Juan Quintana II and,
based on its judgment to promote his “welfare and the best interest of the state,” id. § 712A.1(3),
arranged for his placement into a “child caring institution . . . licensed by the department [of
health and human services] to receive for care juveniles,” id. § 712A.16(2)(b). That parens
patriae action is fundamentally distinct from Michigan’s penal prerogatives.

It is also a function that has historical anchors in both public and private action. See, e.g.,
Lorna Hurl & David Tucker, The Michigan County Agents and the Development of Juvenile
Probation, 1873-1900, 30 J. of Soc. Hist. 905, 908–09 (1997) (detailing historical efforts in
Michigan “to keep children from being admitted to institutions” and providing courts “with
several options in dealing with children charged with crimes: dismissing the charges, or if the
children were found guilty, sending them to reform school, finding or cautioning them and
sending them home, or authorizing agents to place the children in suitable private homes”); cf.
Howell, 976 F.3d at 753 (detailing Kentucky’s history of relying on “families and private
associations to care for Kentucky’s young”).

Indeed, private companies have apparently long had a hand in operating juvenile
facilities. See Jeffrey A. Butts & John Pfaff, It’s About Quality: Private Confinement Facilities
in Juvenile Justice, 18 Crim. & Pub. Pol’y 361, 364 (2019) (“[I]nstitutions for youth were a
mainstay of the nation’s juvenile justice system well into the twentieth century. It was not
unusual for private organizations to supply institutional space for court-involved youth, and most
of the community-based programing for youth was delivered by private agencies.” (citation
omitted)); see also Robert Vinter, George Downs, & John Hall, Juvenile Corrections in the
States: Residential Programs and Deinstitutionalization 12 (1975) (noting that in 1974, forty-six
 No. 22-1487 Nugent, et al. v. Spectrum Juvenile Justice Servs., et al. Page 18

states had delinquent juveniles in private care and that those “assigned to private facilities
constituted . . . about 10% of those in state-operated facilities”). And that trend continues to this
day in Michigan. See COVID-19 in the Michigan Youth Justice System, Mich. Ctr. For Youth
Just., Wayne State Univ. 2 (May 2020) (noting nearly half of Michigan’s juvenile facilities are
operated by private entities).

Perhaps Michigan’s history is different from that set forth (or from that detailed in our
analogous decision in Howell, which illustrates how courts must look to history to find state
action, 976 F.3d at 752–53). But plaintiffs here made no effort to satisfy their pleading burden
by identifying such distinctions, Marie, 771 F.3d at 362, and it is not our role to save plaintiffs’
defective complaint, cf. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)
(“[I]n both civil and criminal cases, in the first instance and on appeal, we rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties
present.” (citation and ellipsis omitted)).

C.

Finally, the majority opinion seeks to fill in the gap between adult prisons and juvenile-
detention facilities by following an equally historically barren (and divided) decision from the
Eighth Circuit. However, that opinion suffers from the same flaws as today’s decision—it lacks
any kind of historical analysis and wrongly equates wards-of-the-state juveniles with adjudicated
adult prisoners. See Doe v. North Homes, Inc., 11 F.4th 633, 638–39 (11th Cir. 2021).

III.

For these reasons, plaintiffs have not carried their pleading burden to “advance historical
and factual allegations in their complaint giving rise [to] a reasonable inference that [defendants’
juvenile detention center performs a function that] is traditionally exclusively in the province of
the State” of Michigan. Marie, 771 F.3d at 362. Accordingly, the district court correctly
dismissed plaintiffs’ complaint on the ground that it did not plausibly allege defendants were
state actors under 42 U.S.C. § 1983. I would affirm the judgment of the district court and
therefore respectfully dissent.