Cornish v. Correctional Services Corp.

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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