FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 3, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15403

Non-Argument Calendar

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D. C. Docket No. 07-61207-CV-JIC

PHILIP ANDREW WILSON, 

Plaintiff-Appellant, 

versus 

DOLLAR-THRIFTY AUTO GROUP-SOUTH FLA TRANSPORT, 

d.b.a. Thrify Car Rental, 

OFFICE OF BROWARD COUNTY PUBLIC DEFENDER, 

Assistant Public Defender, Madeline Torres, 

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 3, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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Philip Andrew Wilson appeals pro se the district court’s sua sponte

dismissal of his pro se complaint against Dollar-Thrifty Auto Group and Madeline

Torres for failure to state a claim upon which relief may be granted, pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii). In his complaint, Wilson raised constitutional claims

under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983 and 1985, and state law claims

pursuant to the district court’s supplemental jurisdiction, 28 U.S.C. § 1367. 

Wilson alleged Dollar-Thrifty violated his constitutional rights by falsely reporting

he had stolen a rental car when he failed to return the car on the date it was due. In

addition, he alleged Torres, a public defender who represented Wilson in the

ensuing criminal case, violated his constitutional rights by failing to provide

adequate representation. The district court dismissed his constitutional claims

against Dollar-Thrifty as barred by the applicable statute of limitations, and also

because Dollar-Thrifty was not acting under color of state law. The court

dismissed Wilson’s constitutional claims against Torres on the ground she was

entitled to qualified immunity. After dismissing the claims over which it had

original jurisdiction, the court declined to exercise supplemental jurisdiction over

Wilson’s remaining state law claims.

Wilson asserts Dollar-Thrifty must have been acting under the color of state

law to have escaped accountability for falsely reporting he had stolen a rental car,
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and Dollar-Thrifty has contracted with the state to allow for the use of the “sun

pass system” in its rental cars. Further, he contends Torres is not entitled to

qualified immunity, because she violated his rights to effective assistance of

counsel, due process, and a jury trial. Finally, he contends the court should not

have dismissed his pendant state claims, because federal courts can intervene when

a state deprives an individual of his constitutional rights.

We review the district court’s dismissal under § 1915(e)(2)(B)(ii) de novo,

taking as true the allegations in the complaint. Alba v. Montford, 517 F.3d 1249,

1252 (11th Cir. 2008). The court shall dismiss an in forma pauperis action at any

time “if the court determines that . . . the action or appeal . . . fails to state a claim

on which relief may be granted . . . .” 28 U.S.C. § 1915(e)(2)(B)(ii). “The

standards governing dismissals under [Federal Rule of Civil Procedure] 12(b)(6)

apply to § 1915(e)(2)(B)(ii).” Alba, 517 F.3d at 1252. In addition, “pro se

pleadings are held to a less strict standard than pleadings filed by lawyers and thus

are construed liberally.” Id.

“To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a

violation of a constitutional right, and (2) that the alleged violation was committed

by a person acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256,

1258 (11th Cir. 2005). “We have employed three distinct tests in determining
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whether the actions of a private entity are properly attributed to the state.” Focus

on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th

Cir. 2003). These tests include: “(1) the public function test; (2) the state

compulsion test; and (3) the nexus/joint action test.” Id. (quoting Willis v. Univ.

Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993)). 

The public function test limits state action to instances where private

actors are performing functions traditionally the exclusive prerogative

of the state. The state compulsion test limits state action to instances

where the government has coerced or at least significantly encouraged

the action alleged to violate the Constitution. The nexus/joint action

test applies where the state has so far insinuated itself into a position

of interdependence with the [private party] that it was a joint

participant in the enterprise. 

Id. (quotations omitted). However, “[o]nly in rare circumstances can a private

party be viewed as a ‘state actor’ for [§] 1983 purposes.” Harvey v. Harvey, 949

F.3d 1127, 1130 (11th Cir. 1992). “Should we conclude that there is no State

action, we must dismiss the plaintiff’s claim without reaching the qualified

immunity issue.” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th

Cir. 2001). To that end, the Supreme Court has held that “a public defender does

not act under color of state law when performing a lawyer's traditional functions as

counsel to a defendant in a criminal proceeding.” 

The court did not err in dismissing Wilson’s complaint for failure to state a

claim with respect to his § 1983 claims against Dollar-Thrifty, because Wilson
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failed to demonstrate Dollar-Thrifty acted under color of state law when it reported

he had stolen a rental car. Nothing in Wilson’s original or amended complaint

suggests either that (1) Dollar-Thrifty was performing a public function, (2) the

state somehow coerced or compelled Dollar-Thrifty to report Wilson had stolen the

rental car, or (3) the state was a joint participant in Dollar-Thrifty’s rental

operations. See Focus on the Family, 344 F.3d at 1277. Accordingly, we affirm

the dismissal of Wilson’s § 1983 claims against Dollar-Thrifty. 

In regard to Wilson’s § 1983 claims against Torres, the court dismissed on

the ground she was entitled to qualified immunity. However, before addressing the

issue of qualified immunity, we must first determine whether Torres was a state

actor. See Rayburn, 241 F.3d at 1347. In his original and amended complaints,

Wilson alleged Torres rendered ineffective assistance of counsel, based on his

disagreement with her handling of his criminal case. However, the Supreme Court

has held “a public defender does not act under color of state law when performing

a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” 

Polk County v. Dodson, 102 S. Ct. 445, 453 (1981). As a result, Wilson has failed

to demonstrate Torres acted under color of state law in her capacity as public

defender. Accordingly, we affirm the dismissal of Wilson’s § 1983 claims against

Torres. See Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1288 (11th Cir.
 As an additional matter, Wilson also asserted claims against Dollar-Thrifty and Torres 1

under § 1985. The district court did not specifically address these claims in its order dismissing

Wilson’s complaint with prejudice, the order from which Wilson now appeals. Moreover, Wilson

raises no issue on appeal with regard to his claims under § 1985. Therefore, he has abandoned his

§ 1985 claims. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002) (concluding pro se

plaintiff waived claims he did not raise on appeal).

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2000) (stating this Court may affirm “on any adequate grounds, including grounds

other than those upon which the district court actually relied”). 

Moreover, nothing in the record suggests the court abused its discretion in

declining to exercise jurisdiction over Wilson’s remaining state law claims against

Dollar-Thrifty and Torres, and we “have encouraged district courts to dismiss any

remaining state claims when, as here, the federal claims have been dismissed . . . .” 

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088 (11th Cir. 2004). Therefore, we

affirm the dismissal of his pendant state claims.

The district court did not err in dismissing Wilson’s constitutional claims

against Dollar-Thrifty and Torres because neither party acted under color of state

law. Moreover, the court did not abuse its discretion in declining to exercise

supplemental jurisdiction over Wilson’s remaining state law claims.1

AFFIRMED.