1 United States Court of Appeals,

Fifth Circuit.

No. 94-41329.

Brian Anthony LANDRY, Plaintiff-Appellant,

v.

A-ABLE BONDING, INC., et al., Defendants,

A-Able Bonding, Inc., et al., Defendants-Appellees.

Feb. 15, 1996.

Appeal from the United States District Court for the Eastern

District of Texas.

Before HIGGINBOTHAM, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff Bri an Anthony Landry appeals the district court's

final judgment dismissing his civil rights claims, brought pursuant

to 42 U.S.C. § 1983, and his state law claim for false

imprisonment. We affirm in part, reverse in part, and remand to

the district court with instructions.

I

The facts material to Landry's appeal are not in dispute.

Landry was charged with felony theft in Lafayette, Louisiana. He

entered a bail bond agreement with Defendants A-Able Bonding, Inc.,

et al. (collectively "A-Able"). In violation of the terms of the

bail bond a greement, Landry left Louisiana without informing AAble, and failed to appear on his court date. The Louisiana trial

court issued an arrest warrant and entered judgment forfeiting the

bond. Pursuant to Louisiana law, A-Able was given six months to

surrender Landry to the court in order to avoid liability for the1 Landry does not appeal that part of the district court's

judgment dismissing his state law claim for conversion.

2 bond. After receiving information concerning Landry's whereabouts,

Gerold Burrow , owner of A-Able Bonding, Inc., drove with two

employees to the home of Norman Boudreaux in Port Arthur, Texas.

When Landry appeared at the door, Burrow seized Landry, handcuffed

him, and took him to the car. Burrow then drove back to Lafayette,

Louisiana, where he surrendered Landry to the sheriff at the

Lafayette Parish Jail. Landry filed suit against A-Able in federal

district court, asserting § 1983 claims for deprivation of liberty

and property without due process of law, and state law claims for

false imprisonment and conversion. 1 After trial by consent of the

parties before a magistrate judge, the district court entered

judgment for A-Able. Landry filed a motion to alter or amend the

judgment, which was denied. Landry then filed a timely notice of

appeal.

II

A

Landry first argues that the district court erred in

dismissing his § 1983 civil rights clai m. In order to recover

under § 1983, a plaintiff must prove (1) that he was deprived of a

federally protected right, and (2) th at the deprivation occurred

under color of state law. F lagg Brothers, Inc. v. Brooks, 436 U.S.

149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). In order to

prove the deprivation of a right protected by the Due Process

Clause of the Fourteenth Amendment, a plaintiff must prove state3

action. D oe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406

(5th Cir.1995). In § 1983 actions alleging the deprivation of due

process rights, the Fourteenth Amendment's "state action"

requirement and § 1983's "under color of state law" requirement

collapse into a single inquiry. I d. The district court's opinion

concluded that Landry failed to prove that any defendant acted

under color of state law. We review the district court's findings

of fact for c lear error. F E D .R.C IV .P. 52(a). We review the

district court's conclusions of law de novo. Chandler v. City of

Dallas, 958 F.2d 85, 89 (5th Cir.1992).

A plaintiff may satisfy the "under color of state law"

requirement of § 1983 by proving that the conduct causing the

deprivation is "fairly attributab le to the State." L ugar v.

Edmondson O il Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73

L.Ed.2d 482 (1982). "Fair attribution" requires (1) that the

deprivation is caused by the exercise of a state-created right or

privilege, by a state-imposed rule of conduct, or by a person for

whom the state is responsible, and (2) that the party charged with

the deprivation may be fairly described as a state actor. Id. at

937, 102 S.Ct. at 2753-54.

Louisiana law allows bail bondsmen to arrest their principals

for p urposes of returning them to detention facility officers.

L A .C ODE C RIM .P ROC .A NN

. art. 340. Landry has therefore satisfied the

first prong of the Lugar test, by alleging that his deprivation was

caused by the exercise of a privilege created for bail bondsmen by

the State of Louisiana. Thus, in order to decide whether Burrow2 See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345,

351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (applying the "nexus"

test, which asks whether the relationship between the party's

actions and the stat e is such that the party's actions may be

fairly treated as that of the state itself); A dickes v. S.H. Kress

& Co., 398 U.S. 144, 170-71, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142

(1970) (applying the "state compulsion" test, which asks whether

the state has exercised such coercive power or significant

encouragement that the party's actions must be deemed to be that of

the state); T erry v. Adams, 345 U.S. 461, 475-77, 73 S.Ct. 809,

816-17, 97 L.Ed. 1152 (1953) (applying the "public function" test,

whi ch asks whether the party exercised powers that are

traditionally the exclusive prerogative of the state).

3 Compare Jackson v. Pantazes, 810 F.2d 426, 429 (4th Cir.1987)

(holding that bondsman was a state actor, where police officer

assisted bondsman by gaining entrance to principal's residence,

restraining an occupant of the residence, and serving warrants on

an occupant of the residence); B ailey v. Kenney, 791 F.Supp. 1511,

1521-23 (D.Kan.19 92) (holding that jury could find that bondsman

was a state acto r, where police officers assisted bondsman by

forcing entrance to principal's residence, drawing th eir weapons

when the principal appeared, and restrainin g the principal);

Maynard v. Kear, 474 F.Supp. 794, 800-03 (N.D.Ohio 1979) (holding

t hat bondsmen were state actors, where bondsmen possessed s tate

bench warrant for arrest of principal, and purported to act

pursuant to the authority of that warrant in dealing with local

4 and his employees acted under color of state law, we must determine

whether they may be fairly described as state actors. The Supreme

Court has articulated a number of different standards for

determining whether a party may be fairly described as a state

actor. 2 However, the Supreme Court has also recognized that state

action is necessarily a fact-bound inquiry wh ich should consider

the context in which state action is alleged. Lugar, 457 U.S. at

939, 102 S.Ct. at 2755.

The majority of federal courts that have addressed the state

action issue in the context of bail bondsmen have based their

decisions on whether the bondsmen enlisted the assistance of law

enforcement officers in arresting their principals. 3 However, thepolice officers) with Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d

547, 550-55 (9th Cir.1974) (holding that Nevada bondsmen were not

state actors, where the bondsmen unilaterally seized principal in

Ca lifornia and returned principal to Nevada), c ert. denied, 421

U.S. 949, 95 S.Ct. 1681, 44 L.Ed.2d 103 (1975); E asley v. Blossom,

394 F.Supp. 343, 345 (S.D.Fla.1975) (holding that bondsmen were not

state actors, where bondsmen allegedly used threat of withdrawing

bond to extort property from principal); Curtis v. Peerless Ins.

Co., 299 F.Supp. 429, 434-35 (D.Minn.1969) (holding that appointed

agents of Tennessee bonding company were not state actors, where

such agents unilaterally seized principal in Minnesota and returned

principal to Tennessee).

4 See, e.g., Jackson, 810 F.2d at 430 (finding that bondsman

was state actor because bail bondsmen rely on state licensing for

livelihood, while state relies on bondsmen to facilit ate the

pretrial release of accused persons, monitor their whereabouts, and

retrieve them for trial).

5 We are not persuaded by the Fourth Circuit's finding that the

relationship between bail bondsme n and the state criminal court

5 Fourth Circuit has alternatively found the conduct of bail bondsmen

generally to constitute state action, because of the interdependent

relationship between bondsmen and the state's crimina l court

system. 4 In the case now before us, Burrow possessed a Louisiana

state court arrest warrant for Landry at the time that Landry was

seized and driven back to Louisiana. However, Burrow did not

purport to act pursuant to the warrant in any respect. Burrow did

not attempt to enlist the assistance of local law en forcement

officials, and he did not display the warrant to Landry or anyone

else. Burrow and his two employees unilaterally seized Landry in

Texas and returned him to Louisiana. On these facts, we hold that

the mere possession of an arrest warrant does not render a bail

bondsman a state actor under § 1983, where he neither purports to

act pursuant to the warrant, nor enlists the assistance of law

enforcement officials in executing the warrant. 5 Therefore, wesystem is such that the actions of t he bondsmen may be fairly

treated as that of the state itself. S ee supra note 4. The Ninth

Circuit refused to adopt a similar rationale in Ouzts. We agree

with the Ouzts court's statement, rejecting the argument that bail

bondsmen act as unofficial agents of the courts: "[T]he bail

bondsman is in the business in order to make money and is not

acting out of a high-minded sense of devotion to the administration

of justice." 505 F.2d at 554-55.

6 We note that ou r finding that Burrow and his two employees

were not state actors means that Landry has fail ed to prove a

violation of his Fourteenth Amendment due process rights, and thus

that Landry has failed to allege the deprivation of a federally

protected right.

7 In its Memorandum Concerning Plaintiff's Motion to Alter or

Amend Judgment, the district court found that Texas law governed

Landry's false imprisonment claim. L andry v. A-Able Bonding Inc.,

870 F.Supp. 715, 718- 19 (E.D.Tex.1994). We review a district

court's choice-of-laws determination de novo. D uhon v. Union

Pacific Resources Co., 43 F.3d 1011, 1013 (5th Cir.1995). Federal

courts apply the choice-of-laws rules of the forum state. Klaxon

Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020,

1021-22, 85 L.Ed. 1477 (1941). Texas choice-of-laws rules apply

the substantive law of the state with the most significant

relationship to the facts and circumstance s surrounding the

litigation. B rown v. Cities Serv. Oil Co., 733 F.2d 1156, 1159

(5th Cir.1984). Having carefully reviewed the record, we conclude

that the district court correctly decided that Texas has the most

significant relationship to the facts and circumstances relevant to

Landry's false imprisonment claim.

6 find that Burrow and his two employees did not act under color of

state law when they seized Landry in Texas and retu rned him to

Louisiana. 6 Consequently, the district court did not err in

dismissing Landry's § 1983 claims for failure to prove that any

defendant acted under color of state law.

B

Landry next argues that the district court erred in

dismissing his state law false imprisonment claim. To recover for

false imprisonment under Texas law, 7 a plaintiff must prove willful

detention, lack of consent, and absence of authority of law. J ames7

v. Brown, 637 S.W.2d 914, 918 (Tex.1982). In its Memorandum

Concerning Plaintiff's Motion to Alter or Amend Judgment, the

district court found that Burrow and his employees wi llfully

detained Landry without his consent. L andry v. A-Able Bonding

Inc., 870 F.Supp. 715, 720 (E.D.Tex.1994). However, the district

court also found that Landry failed to show an absence of legal

authority for his arrest and detention. Id. at 721-22. A person

has legal authority for detaining another where the d etention is

executed by virtue of legally sufficient process issued by a court

of competent jurisdiction. P ete v. Metcalfe, 8 F.3d 214, 218-19

(5th Cir.1993). In this case, where none of the material facts are

in dispute, the question of whether the authority for Landry's

detention was legally sufficient is a question of law.

Texas has adopted the Uniform Criminal Extradition Act to

govern the extraditi on of "fugitives from justice." T E X .C ODE

C RIM .P ROC .A NN

. art. 51.13. Texas law defines "fugitive from justice"

as a person who is charged with a crime in one state, leaves that

state, is sought in connectio n with that charge, and is found in

another state. Ex Parte Robertson, 151 Tex.Crim. 635, 210 S.W.2d

593, 594 (1948). Landry was charged with theft in Louisiana and

released on bond. He then left Louisiana, moved to Texas, and

failed to appear for his court date. A warrant was subsequently

issued for his arrest. Landry was thus a "fugitive from justice,"

as defined by Texas law.

The Texas Unifor m Extradition Act provides that a private

p erson may execute a lawful arrest without a warrant "upon8 Possession of a valid Louisiana arrest warrant is

insufficient, in and of itself, to render an arrest in Texas

lawful. Texas law requires, among other things, that a lawful

arrest warrant issue in the name of "The State of Texas." T E X .C ODE

C RIM .P ROC .A NN

. art. 15.02. However, for purposes of determining the

legality of an arrest under provisions allowing arrests without a

warrant, courts do consider the possession of a foreign warrant as

evidence that the possessor had reasonable cause to believe the

person named in the warrant committed a crime. S ee, e.g., Stallings v. Splain, 253 U.S. 339, 341- 42, 40 S.Ct. 537, 538, 64

L.Ed. 940 (1920) ("If the bench warrant issued in Wyoming was not

effective as a warrant within the District of Columbia,

... [i]t

would, at least, serve as evidence that Splain had reasonable cause to believe that a felony had been committed by Stallings.").

8 reasonable information that the accused stands charged in the

courts of a State with a crime punishable by death or imprisonment

for a term exceeding one year ." T E X .C ODE C RIM .P ROC .A NN

. art. 51.13

§ 14. We have previously held this provision to make lawful the

arrest of a California fugitive in Texas by secret service agents

who had knowledge of a California warrant for his arrest. U .S. v.

Johnson, 815 F.2d 309, 313-14 (5th C ir.1987), c ert. denied, 484

U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988). Section 14 has

also been held to make lawful the arrest of an Alabama fugitive in

Texas by Texas authorities acting on an Alabama warrant. H eard v.

State, 701 S.W.2d 298, 302 (Tex.App.—Houston [14th Dist.] 1985,

pet. ref'd). When they arrested Landry, Burrow and his employees

were private citizens acting upon a Louisiana arrest warrant. That

warrant provided Burrow with reasonable information that Landry had

been charged in Louisiana with a crime punishable by imprisonment

for a term of more than one year. 8 Thus, Landry's arrest was

authorized by Texas law.

Liability for false imprisonment is not foreclosed by a9 In its opinion, the district court took judicial notice of

the fact that the drive from Port Arthur, Texas, to Lafayette,

Louisiana, takes about two and one-half hours.

9 lawfully executed initial arrest, for false imprisonment may result

from an unlawful detention following a lawful arrest. S ee Gladden

v. Roach, 864 F.2d 1196, 1201 (5th Cir.) (finding that no defense

of lawful authority to false imprison ment claim was available to

officers who unlawfully detained the plaintiff after a lawful

arrest), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d

700 (1989). The Texas Uniform Criminal Extradition Act provides

that, following a lawful arrest under § 14, "the accu sed must be

taken before a judge or magistrate with all practicable speed and

complaint must be made against him under oath setting forth the

ground for the arrest as in the preceding section. " T E X .C ODE

C RIM .P ROC .A NN

. art. 51.13 § 14 (emphasis added). The preceding

section, § 13, governs warrants issued upon " the oath of any

credible person before any judge or magistrate of this State. " I d.

§ 13 (emphasis added).

After ar resting Landry, Burrow immediately transported him

back to Lafayette, Louisiana, and surrendered him to auth orities

there. 9 Thus, it could be argued that Landry was taken before a

magistrate or judge "with all practicable speed," albei t a

magistrate or judge in Louisiana. However, Texas law, by providing

that an oath be sworn before a judge or magistrate of "this State,"

plainly required that Landry be taken before a magistrate or judge

in Texas. Therefore, Burrow and his employees acted contrary to

Texas law, and thus acted unlawfully, when they failed to present1 0 Contractual waivers of formal extrad ition proceedings have

been held enforceable by Texas courts. S ee, e.g., Ex parte

Johnson, 610 S.W.2d 757, 759-60 (Tex.Crim.App.1980) (holding that

"formal extradition proceedings are not necessary to the return of

absconding parolees or probationers who have signed a prior waiver

of extradition as a condition to their release"). A-Able points to

two contractual provisions as evidenc e that Landry consented to

being returned to Louisiana in the event of Landry's default. The

bonding agreement provides that "I am fully aware that if I do not

live up to any part of this agreement, A-Able Bonding Co. has the

right to pull my bond and return me to jail." The application for

the appearance bond provides that A-Able "shall have the right to

apprehend, arrest, and surrender the princi pal to the proper

officials at any time as provided by law." We find that neither of

these provi sions constitutes a waiver of extradition proceedings

otherwise "pr ovided by law" under the Texas Uniform Criminal

Extradition Act.

10 Landry before a judge or magistrate in Texas after his arrest, and

instead unilaterally transported Landry back to Louisiana. 10

A ccordingly, we hold that the district court erred in concluding

that Landry did not establish an absence of legal authority for his

detention during his transport from Texas to Louisiana. Because

the district court also found that Landry was willfully detained

without his consent, Landry has proven the elements of a claim for

false imprisonment.

We must now address the issue of damages. Landry argues that

he is entitled to damages for the fear and emotional distress

caused by his arrest and detention during the two and one-half hour

drive from Texas to Louisiana. In its opinion, the district court

found that Landry suffered no actual damages. We review this

factual fin ding for clear error. F E D .R.C IV .P. 52(a). After a

careful review of the record, we conclude that this finding is not

clearly erroneous. However, under Texas law, nominal damages are

available to plaintiffs who prove false imprisonment. W hirl v.11

Kern, 407 F.2d 781, 798 (5th Cir.), cert. denied, 396 U.S. 901, 90

S.Ct. 210, 24 L.Ed.2d 177 (1969).

III

Accordingly, we AFFIRM the district c o urt's dismissal of

Landry's § 1983 civil rights claims. We REVERSE the district

court's dismissal of Landry's sta te law claim for false

imprisonment, and we REMAND to the d istrict court for the

imposition of nominal damages.