1 Townsend also filed criminal charges for aggravated assault in

state court. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-50524

FRED TOWNSEND,

Plaintiff-Appellant,

VERSUS

DAVID MOYA, Warden; MARK HILL, Lieutenant; WAYNE SCOTT, Executive

Director,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

June 5, 2002

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

After being cut with a knife by a prison guard, Fred Townsend

(“Townsend”), an inmate of the Texas Department of Criminal Justice

(“TDCJ”), filed a § 1983 suit against a guard, a prison warden, and

the ex e cutive director of the TDCJ. 1 The district court granted

summary judgment to the defendants, and Townsend appeals. Because

there is no genuine issue of material fact concerning whether the

prison guard acted under color of state law, we AFFIRM.2 The dissent accuses us of “misapprehending the relevant facts

at issue”. We respectfully disagree, and co nsider the dissent’s

rendition of the facts itself a mischaracterization.

2 FACTUAL AND PROCEDURAL BACKGROUND

Townsend was an inmate and a state-approved trusty and worked

in the prison as a “kennelman” caring for the guards’ tracking

dogs. Defendant-Appelle e Lieutenant Mark Hill (“Hill”) was in

charge of the guards who supervised the inmates working in the

field. According to Townsend, every time Hill an d Townsend

interacted, they played “come on,” and referred to each other as

“my bitch” or “whore”.

On July 23, 1996, Hill and Townsend began to play “come on”.

Townsend winked at Hill and said “I’ll be your bitch,” and then

went into the kitchen to make a sandwich. Hill approached Townsend

from behind with his pocketknife in hand, saying “I told you I was

going to get you, whore.” Townsend jumped, reached behind him, and

realized he had been cut or stabbed on his buttocks. Hill laughed

at what had happened, and offered to take Townsend to the

infirmary. Townsend declined to go to the infirmary, and instead

applied “horse liniment” to himself. Townsend fi led a complaint

with Internal Affairs. Hill was eventually terminated from TDCJ for

his actions. Although Townsend brought criminal ch arges for

aggravated assault against Hill, they were dropped for insufficient

evidence. 2

On May 21, 1998, Townsend, proceeding pro se and in forma3

pauperis (“IFP”), filed a civil rights complaint under 42 U.S.C. §

1983 against Wayne Scott (“Scott”), executive director of the TDCJ

– Institutional Division; David Moya (“Moya”), warden of the Hughes

Unit; and Hill.

The defendants moved to dismiss. As Townsend’s claims against

Moya and Scott were based solely on the doctrine of respondeat

superior, and as such could not stand, the district court dismissed

those claims, but allowed Townsend’s suit against Hill to proceed.

Hill filed a motion for summary judgment, arguing that he was not

acting under color of state law when he cut Townsend, and that he

was only joking and engaging in “horseplay” with him. The district

judge granted Hill’s motion, finding that Townsend and Hil l were

engaged in “horseplay” and that ther e was no evidence indicating

that Hill had used or misused his authority to injure Townsend.

Townsend appealed and moved to proceed IFP on appeal. The

district court denied Townsend’s motion after certifying that the

appeal was not taken in good faith. Townsend moved to proceed IFP

in this court, and we granted Townsend’s motion, finding that the

appeal r aised the nonfrivolous issue whether the district court

erred in concluding that there was no genuine issue of material

fact concerning whether Hill acted under color of state law. Thus,

it is that issue that is before us today.

In granting Townsend’s motion to proceed IFP, this court

ordered the parties to address its decisions in Bennett v. Pippin

,

74 F.3d 578 (5th Cir. 1996), Doe v. Rains County Indep. Sch. Dist.

,4

66 F.3d 1402 (5th Cir. 1995), and Doe v. Taylor Indep. Sch. Dist.

,

15 F.3d 443 (5th Cir. 1994), which concerned, in part, the “color

of state law” issue. Neither party has done so. Townsend has

essentially submitted a verbatim copy of the brief filed in

district court, and Hill has filed a pro se letter brief indicating

that he considers this appeal to be frivolous.

DISCUSSION

The only issue before us is whether the district court erred

in concluding that there was no genuine issue of material fact

concerning whether Hill acted under color of state law. We review

the district court’s grant of summary judgment de novo. H arris v.

Rhodes

, 94 F.3d 196, 197 (5th Cir. 1996). Summary judgment is

appr opriate only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.

v. Catrett , 477 U.S. 317, 323 (1986). Moreover, the evidence must

be considered in the light most favorable to the opposing party,

who must be given the benefit of all inferences that might be

reasonably drawn in his favor. W.H. Scott Constr. Co., Inc. v. City

of Jackson , 199 F.3d 206, 211 (5th Cir. 1999).

Section 1983 provides, in pertinent part, that “[e]very person

who, under color of any statute, ordinance, regulation, custom, or

usage, of any State... subjects or causes to be subjected any5

person... to the deprivation of any righ ts, privileges, or

immunities secured by the Constitution and laws, shall be liable to

the party injured....” 42 U.S.C. § 1983. In short, “[s]ection 1983

provides a claim against anyone who, ‘under color of’ state law,

deprives another of his or her constitutional rights.” Doe

, 15 F.3d

at 452.

“Misuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law, is action taken ‘under color of’ state law.” United

States v. Causey

, 85 F.3 d 407, 415 (5th Cir. 1999). That is, a

defendant acts u nder color of state law if he “misuses or abuses

his official power” and if “there is a nexus between the victim,

the improper conduct, and [the defendant’s] performance of official

duties.” Id. “If, [however,] a state officer pursues personal

objectives without using or misusing the power granted to him by

the state to achieve the personal aim, then he is not acting under

color of state law.” Harris v. Rhodes , 94 F.3d 196, 197 (5th Cir.

1996).

The district court found that the incident between Hill and

Townsend w as “horseplay,” and, relying on H arris

, concluded that

Hill was pursuing a private aim and not acting by virtue of state

authority. Dist. Ct. Op. at 3. The court concluded that because

there was “nothing to indicate that Defendant in any other manner

used or misused the authority he possessed in orde r to cause any

injury to Plaintiff,” Hill’s action was not under color of state3 Following the dissent’s approach accurately and analyzing this

case under Causey

, rather than Harris

, brings us to the same

result. Causey requires a nexus between the victim, the conduct and

performance of official duties. See 85 F.3d at 415. No such nexus

6 law. Id. at 3-4.

We agree. There is no genuine issue of material fact

concerning whether Hill’s actions were horseplay, and therefore not

under color of state law. In Harris

, an inmate filed a § 1983 claim

against a maintenance worker at the jail where he was incarcerated,

claiming his constitutional rights were violated when, while joking

around together, the maintenance worker punched him. The inmate and

maintenance worker had been teasing each other about physical

attributes, which l ed to the physical reaction. The maintenance

worker did not use his authority to si gn out the inmate for work

details in order to engage in the altercation. We affirmed the

district court’s grant of summary judgment to the maintenance

worker, concluding that his actions were not under color of state

law, as they were mere horseplay, which involves a “purely private

aim and no misuse of state authority,” and is therefore not action

under color of state law. Harris , 94 F.3d at 197.

The same is true here. Neither party contests the district

court’s factual finding that the parties were engaged in horseplay

when the cut occurred. They were calling each other names, a

“purely private aim,” and a physical reaction ensued. We accept the

undisputed finding that this was a case of horseplay, and therefore

affirm the grant of summary judgment. 3exists here, where Hill was not performing official duties and was

pursuing entirely personal aims. Hill not once exercised his

authority in order to carry ou t his personal aims, and thus no

nexus exists.

7 Our dissenting colleague Judge Dennis argues that the case at

bar is distinguishable from Harris

, because there the defendant did

not clearly have direct authority over the plaintiff, unlike here.

Moreover, there the defendant used a personal means (his fist) to

resolve a dispute, whereas here, Hill resolved his problem with a

knife he possessed by virtue of his position and authority.

With all respe ct, those distinctions do not negate the

applicability of Harris to the situation before us today. The key

inquiry in determining whether Hill acted under color of state law

is whether Hill had a “purely private aim”. Whether using a fist or

a knife, the answer remains that Hill and Townsend were joking

about personal matters, as they often did, and that joking ended in

a physical altercation. Moreover, that Hill h ad direct authority

over Townsend does not imply that he exercised that aut hority

during the altercation. The inquiry i s not whether authority is

possessed, but whether it is used or misused. Here, it was neither

used nor misused, and therefore Hill did not act under color of

state law.

The dissent analogizes this case to Bennett

, Taylor

, and

Rains

, arguing that there is a fact issue as to whether Hill abused

his power as a prison guard to possess a knife and verbally abuse

Townsend, which led to the stabbing. With all due respect, we find8

these cases inapposite, as none involves horseplay, which the

district court found in a determination to which we must defer.

These cases are further distinguishable on the facts.

In Bennett

, a sheriff, shortly after questioning a woman about

her involvement in a shooting, raped her. A panel of this court

upheld the district court’s determ ination that this was action

under color of state law. 74 F.3d at 589. The court relied on the

facts that in response to the woman’s r efusals to have sex, the

sheriff said “I can do what I want, I’m the Sheriff”; the sheriff

used his authority to ascertain whether the woman’s husband would

be home the night of the rape; and the woman needed the sheriff’s

permission to retrieve her truck and change her place of residence.

Id. There was also evidence that when the woman protested having

sex, the sheriff told her that he could have thrown her in jail, an

explicit exercise of his authority in order to induce her to have

sex with him. Id. at 583. T he decision in B ennett relied on

explicit invocations of authority made by the sheriff. Hill made no

such invocation or exercise of authority here, and thus the

reasoning in Bennett does not extend to the case at bar.

We further find this case distinguishable from Taylor , which

involved a § 1983 claim arising from a teacher’s sexual abuse of a

student. The teacher required the student to do little classwork,

rewarded her with high grades, and asked other teachers to raise

her grades in inducing her to have a sexual relationship with him.

15 F.3d at 447-52. This court sitting en ban c found that the9

teacher’s actions we re under color of state law, because his

inappropriate actions were clearly connected to his duties and

obligations as a teacher. That is entirely unlike the case at bar,

where Hill’s actions were purely personal and in no way related to

his status as prison guard. Moreover, Hill never exercised any

authority as a prison guard to cause the injury to Townsend.

Finally, the dissent misreads Rains as holding that a high

school coach’s sexual abuse of a student was action under color of

state law. In fact, a panel of this court held there that a

teacher’s breach of her duty to report the coach’s sexual abuse was

not action under color of state law, because the teacher did not

have a duty to exercise authority in controlling the events that

pr oduced the injury. 66 F.3d at 1416. This does not support the

dissent’s contention that Hill acted under color of state law.

CONCLUSION

Because we conclude that there is no genuine issue of material

fact concerning whether Hill and Townsend were engaged in

horseplay, and therefore Hil l’s actions were not under color of

state law, we AFFIRM.10

DENNIS, Circuit Judge, dissenting:

Because the majority mischaracterizes both the law and the

facts in this case, I respectfully dissent. The majority concludes

that because Hill’s actions constituted the “purely private aim” of

“horseplay,” there is no genuine issue of material fact that Hill

did not act under color of state law. In my opinion, Hill’s

actions cannot be dismissively characterized as mere “horseplay.”

Hill clearly used his authority as a prison guard to accomplish his

objectives -- albeit personal ones -- and therefore acted under

color of state law. Consequently, I would reverse the district

court’s grant of summary judgment to Hill and remand this case for

further proceedings.

As the majority properly notes, at the summary judgment stage,

the evidence must be viewed in the light most favorable to the

party opposing summary judgment, here, Townsend. W .H. Constr. Co.,

Inc. v. City of Jackson

, 199 F.3d 206, 211 (5th Cir. 1999) (citing

King v. Chide

, 974 F.2d 653, 655-56 (5th Cir. 1992)). Townsend

must lik ewise be given the benefit of all reasonable inferences

that might be drawn in his favor. Id.

Nonetheless, the majority first falls into error by

misa pprehending the relevant facts at issue. The majority

represents that the Hill and Townsend were both equally involved in

horseplay and “were calling each other names.” The facts in the

record, however, reveal other wise. That is, the record11

demonstrat es that Hill, a lieutenant who oversaw not only the

inmates but also the other guards, had a history of “pull[ing]

knives” on inmates, such as Townsend. Every time Hill saw

Townsend, Hill would engage in “come on” by referring to Townsend

as his “bitch” or “whore.” Only when Townsend responded to Hill by

saying, “I’ll be your bitch,” did Hill stab Townsend.

Although the majority attempts to characterize Hill’s actions

as a mere “physical reaction” to the horseplay, Hill’s actions were

much more methodical and calculating. After Townsend had responded

to Hill’s comment, Townsend went to the upstairs kitchen and opened

the refrigerator to make himself a sandwich. Hill then stealthily

approached Townsend fr om behind. With his pocketknife in hand,

Hill stabbed Townsend and stated, “I told you I was going to get

you, Whore.”

Similarly, the majority states that after Hill stabbed

Townse nd, Townsend refused Hill’s offer to be taken to the

infirmary and instead applied “horse liniment” to himself. While

the majority’s statement is partially correct, it neglects crucial

details. That is, after making his offer to take Townsend to the

infirmary, Hill then realized that Townsend would have to fill out

an incident report. Wanting to protect himself and his position as

a lieutenant of the Hughes unit in which Townsend was a mere

inmate, Hill told Townsend to lie and say he cut himself on a

barbed wire fence. Only then did Townsend, not wanting to lie,

decline Hill’s offer and treat himself with “horse liniment,” as he12

had previously been instructed to do by another guard , Sergeant

Williams. Furthermore, the majority fails to state that, after the

incident, Hill sought to cover up his misdeeds by attempting to

placate Townsend with a can of snuff, an item that the Texas

Department of Criminal Justice no longer sold to inmates.

Second, the majority again errs by failing to do exactly what

the district cou rt and the parties failed to do -- discuss the

relevant case law. Both the Supreme Court and this court, on

several occasions, have addressed the color of state law issue.

“It is firmly established that a defen dant in a § 1983 suit acts

under color of state law when he abuses the position given to him

by the State.” West v. Atkins , 487 U.S. 42, 49 (1988). That is,

“[m]isuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law, is action taken ‘under color of’ state law.” U nited

States v. Classic

, 313 U.S. 299, 326 (1941) (holding that election

officials acted under color of state law when they, in the course

of their official duties, willfully altered and falsely counted the

ballots of voters in a primary e lection). “Acts of officers who

undertake to perform their official duties are incl uded whether

they hew to the line of their authority or overstep it.” S crews v.

United States

, 325 U.S. 91, 92-93 (1944). Although “acts of

officers in the ambit of their personal pursuits are plainly

excluded,” id.

, this does not “mean that if officials act for

purely personal reasons, they necessarily fail to act ‘under color4 Despite the majority’s c o ntention, the “key inquiry” in

determining whether Hill acted under color of law is not limited to

ascertaining merely “whether Hill had a ‘purely private aim.’” Maj.

Op. at 7.

5 Although this case actually involved a dispute under 18 U.S.C.

§ 242, “‘[u]nder color’ of law means the same thing in § 242 that

it does in the civil counterpart of § 242, 42 U.S.C. § 1983.”

United States v. Price , 383 U.S. 787, 794 n.7 (1966).

13 of law.’” U nited State v. Tarpley

, 945 F.2d 806, 809 (5th Cir.

1991). Rather, “ individuals pursuing private aims and not acting

by virtue of state authority are not acting under color of law

purely because they are state officers.” 4 T arpley

, 945 F.2d at 809

(internal citations omitted) (emphasis in original). For example,

a police officer’s purely private acts which are not furthered by

his state authority, are not acts under color of state law. See,

e.g.

, D elacambre v. Delacambre

, 635 F.2d 407, 408 (5th Cir. 1981)

(h olding that a police chief was not acting under color of state

law, even though he was on duty and at the police station, when he

assaulted his sister-i n-law over personal arguments about family

matters).

In United States v. Causey

, 185 F.3d 407, 411 (5th Cir.

1999), 5 this court s et out a framework for determining whether a

defendant’s actions were “under color of law.” The court first

determined whether the officer misused or abused his power, and

then examined whether there existed a “nexus” between the victim,

the improper conduct, and the officer’s performance of his official

duties. I d. at 415. In C ausey

, this court found a police officer14

to have acted under color of state law through his involvement in

an exe cution-style murder of a citizen who filed an Internal

Affairs complaint against him. The defendant’s use of the police

station, patrol car, and radio to plan, execute, and cover up the

murder was sufficient to constitute misuse or abuse of official

power. I d. at 415. Moreover, the nexus between the abuse and the

crime was likewise satisfied by the defendant’s unique position as

a police officer t o handle any evidence of the murder that might

link the defendants to the crime and to offer protection to his coconspirators from the consequences of the murder. Id.

Unfortunately, however, the majority overlooks the above

f ramework and mistakenly limits its analysis to analogizin g this

case to Harris v. Rhodes

, 94 F.3d 196 (5th Cir. 1996), despite the

obvious factual differences. Harris involved an incident between

an inmate, Harris, and a maintenance worker, Rhodes, at a Texas

county jail. H arris

, 94 F.3d at 197. After joking and making

comments to each other, Rhodes became angry and punched Harris in

the nose. I d. Although Harris filed a civil rights suit, his

suit was dismissed on summary judgment because the men were engaged

in horseplay that resulted in Rhodes hitting Harris

. Id. This

court stated that, regardless of whether Rhodes’s conduct was

intentional or accidental, Rhodes had not acted “under color of

state law” when he hit Harris because “[i]t [wa]s apparent that the

men were teasing each other regarding personal attributes. Rhodes

reacted to the personal comm ent that Harris made about him. The15

discussion involved purely personal matters. Rhodes chose to

resolve this personal dispute through personal means -- punching

Harris. Rhodes did not use or misuse the authority he possessed to

sign out Harris for work details in order to accomplish the

horseplay or to engage in the altercation.” I d. at 197-98. In

Harris

, as in Delacambre

, the court found no action under color of

state law because the “state officer pursue[d] personal objectives

without using or misusing the power granted to him by the state to

achieve the personal aim,” as “[b]oth the teasing and the punch

were personal matters completely unrelated to Rhodes’ authority

granted by the state.” Id. at 198 n.2.

Here, however, Hill did use his state authority to accomplish

his personal objectives. First, in H arris

, the “horseplay”

resulting in the injury was clearly a consensual matter between the

maintenance worker and the inmate. Here, however , Hill’s stategranted authority over Townsend was much greater, as is evident by

Townsend’s reference to the guards as “bosses.” Hill was a

lieutenant in charge of other guards who supervised the inmates and

thus clearly had direct authority over Townsend

. Hill clearly

abused his position and authority as a prison guard to verbally and

physically assault and abuse Townsend. Townsend made this clear in

his deposition: “I guarantee y ou, if I take that pen right there

and one of them bosses come in here and I stick it into something

like that there, you know what they going to do to me? They are

going to beat me down so bad and try to bury me under this prison.6 As the majority correctly points out, the inquiry does not end

after concluding that Hill posse s sed authority over Townsend;

action under color of state law requires a finding that Hill used

or m isused his authority. For the foregoing reasons, this

requirement is clearly met. See also infra pp. 9-10.

16 I guess it’s all right for one of them to come up to me and do what

they did

– what happened, you know.” The nexus between Hill’s

injurious conduct and his position as a prison guard is also clear.

While the defendant in H arris used a personal means (i.e.,

punching) to resolve a dispute over a personal matter, Hill

resolved his problem with a knife -- an implement he possessed by

virtue of his position and authority. Even after the incident,

Hill continued to wield his authority upon Townsend by ordering him

to lie about how he was cut and by attempting to bribe him with

snuff, a substance Townsend could not have gotten and something

that Hill would have to procure for him by virtue of his position. 6

Inst ead, Townsend’s case is analogous to D oe v. Taylor

Independent School District

, 66 F.3d 1402, 1405 (5th Cir. 1995) (en

banc), and Doe v. Rains County Independent School District

, 66 F.3d

1402, 1405 (5th Cir. 1995), where this court stated that a

teacher’s abuse of his position to sexually abuse students falls

under color of state law. In Taylor Independent School District

,

15 F.3d at 452 n.4 (5th Cir. 1994)

, the defendant, as a teacher and

coach, required the plaintiff to do little classwork, rewarded her

with high grades, spoke with other teachers to raise her grades,

purchased alcoholic beverages for her, and wrote love notes to her.17

Id. at 447-52. The defendant’s actions eventually culminated in

the two having sexual intercourse. Id. at 448. This court found

a “real nexus” to exist between the conduct out of w hich the

violation occurred and the defendant’s duties and obligations as a

teacher because he “took full advantage of his position as Doe’s

teacher an d coach to seduce her.” I d. As his inappropriate

actions were clearly connected to his duties and obligations as a

teacher, his conduct fell under the color of state law. I d. at 452

n.4.

Likewise, in Rains County Independent School District

, 66 F.3d

at 1405

, this court again addressed the color of state law issue in

t he context of sexual abuse of a high school student by a coach,

who used his position and authority in school to develop a sexual

relationship with a female student. Although the defendant’s

sexual conduct and advances with the plaintiff began while she was

babysitting for him at his home, the coach’s conduct continued

during school by means of inappropriate touching, gift giving, and

the passing of notes. I d. at 1407. Although the court declined to

find a third-party teacher liable under § 1983 for failing to

report the coach’s sexual abuse, the court did find it “appropriate

to assume” that the plaintiff, in light of the above facts, had

adequately alleged that the coach acted under color of state law in

depriving the student of her right to bodily integrity.

Similarly, Hill abused his power in the prison as a guard to

possess the knife, to stab Hill, and to verbally abuse Townsend.7 Although other cases have found a nexus between the victim, the

improper conduct, and the defendant’s state-granted authority to be

established by expre ss invocations of the defendant’s authority

(i.e., “I can do what I want, I ’m the Sheriff,”), s ee, e.g.

, Bennett v. Pippin , 74 F.3d 578, 589 (5th Cir. 1996); Tarpley , 945

F.2d at 809, such an invocation is unnecessary here to establish a

nexus, given the context of Hill’s action inside a prison while on

duty as a prison guard.

18 As Townsend stated, Hill “loved to play come on” and state, “You my

whore” and “Come here, bitch.” Hill frequently played with knives

and often pulled them on other inmates. When Townsend responded to

Hill’s insults, Hill stabbed him. As Hill used his position as a

prison guard to gain access to Townsend and to possess the knife

which he used to stab Townsend, the nexus 7 between Hill’s abuse of

power and his misconduct is clear. As in T aylor Independent School

D istrict and Rains County Independent School District

, a “re a l

nexus” exists here as Hill “took full advantage of his position as

[a prison guard] to [abuse Townsend].” Furthermore, Hill’s action

went even further in his attempt to conceal his misconduct by

o rdering Townsend to lie about how he was cut and by offer ing to

use his state-granted authority to buy Townsend snuff. Unlike in

Harris

, Hill’s personal aims were pursued not by personal means but

“by virtue of the power [he] possessed by state law” and were made

possible because he was “clothed in the authority of the state.”

Causey , 185 F.3d at 415.

Given the majority’s failures to glean properly the facts from

the record and to discuss the relevant caselaw, it is not

surprising that the majority reaches an erroneous conclusion. As19

is clear from Causey

, Taylor Independent School District

, and Rains

Independent School District , Hill’s use of his position and

authority to abuse Townsend in conjunction with his continued

efforts to use his position to hide evidence of his misconduct

clearly constitutes action under color of state law. Therefore, I

would reverse the district court’s judgment and remand this case

for further proceedings.