### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-60553

DAVID C. JOHNSON, Plaintiff–Appellant,
v. CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; BARBERS EXAMINATION BOARD AS JOHN DOE NUMBER 2; STATE HEALTH DEPARTMENT AS JOHN DOE NUMBER 3; AMERICAN CORRECTION ASSOCIATION AS JOHN DOE NUMBER 4; SOUTH MISSISSIPPI CORRECTION INSTITUTION AS JOHN DOE NUMBER 1, same as Mississippi Department of Corrections Commissioner, Christopher Epps, Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:07-CV-719

Before KING, BARKSDALE, and OWEN, Circuit Judges. PER CURIAM: * David Johnson, Mississippi prisoner #02000, bro u gh t this civil rights action alleging that Commissioner C h r i stopher Epps of the Mississippi Department of Corre c tions violated his constitutional rights by implementing U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 21 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-60553 Document: 00511894643 Page: 1 Date Filed: 06/21/2012No. 10-60553

policies and procedures that E p p s k n e w or should have known would expose J o h n s o n and other inmates to communicable diseases through unsanitary barbering procedures. Johnson also sued several other defendants for civil rights vio l a t i o n s , and he asserted state-law claims against all defendants. He

s o u ght injunctive relief as well as actual and punitive damages. The di s t r i c t court granted summary judgment for the defendants. We reverse in part, affirm in part, and remand for further proceedings. I Johnson’s complaint, filed pro se, asserted a claim under 42 U.S.C. § 1983 for violations of his federal con s titutional rights as well as state-law claims of illegal barbering, negligence, attempted murder, and failure to prote c t from contagious diseases. He sought an injunction and damages totaling $15 million: $5 million in actual damages, $5 million in punitive damages, and $5 million for future damages. The complaint alleged that prison o f f i cials forced inmates to work as unlicensed b a rb ers and that the barbers routinely used clippers and razors

w i t h o u t sanitizing them after each use. Johnson contended that inmates w h o had diseases such as HIV and hepatitis were cut or nicked by the clippers and
razors, which contaminated the instruments with blood, and the contaminated clippers and razors then were used on uninfe c t e d inmates like Johnson, who were accordingly exposed to contaminated blood when they were cut or nicked by the barbers. In addition to such exposure, Johnson alleged that he contracted

a skin abrasion and barber’s itch. Johnson’s complaint also stated that he was forced to have his hair cut by the barbers when he entered the prison, under threat of physical harm. The original complaint named the Mississippi Department of Corrections (MDOC) and “John Does” as defendants. Informed by the magistrate judge that MDOC was not a proper defendant under § 1 983, Johnson replaced it with its

2 Case: 10-60553 Document: 00511894643 Page: 2 Date Filed: 06/21/2012No. 10-60553

commissioner, Christopher Epps, “in his official and superviso r [ s i c ] capacity” and incorporated his prior allegations against MDOC as agai n s t Epps. The magistrate judge later ordered Johnson to name the John Does; Johnson responded by adding the Mississippi Barbers Examination Board, State Health Department, and the American Correctional Association, all of which he claimed knew or should have known about the procedures but did nothing to stop them. 1 The magistrate judge held a hearing t o , among other things, screen the complaint under 28 U.S.C. § 1915A, which provides for e a r l y review of a prisoner’s complaint against a government or its officials. The magistrate judge i s s u e d a n “Omnibus Order” summarizing the proceeding. She concluded that Johnson failed to state a claim upon which relief could be gran t e d a gainst the defendants other than Epps and so did not order them served with process. She also stated that Johnson “has the option of cutting his hair himself” and had done so in the past year. Johnson filed what he termed a “motion in response” to the order, clarifying that, while he had cut his own hair, he did so in violation of prison rules and could face discipline if caught; he alleged that, in fact, he had no choice but to use the prison barbershop. Defendant Epps then moved for summary judgment, contending that he

w a s e n t i tled to qualified immunity, asserting that no facts alleged in th e complaint could overcome that immunity. He also arg u e d that Johnson failed to demonstrate d e l iberate indifference or show a serious injury beyond speculation about disease exposure. Johnson’s response to that motion added further allegations, including that Epps pers o n a l l y put in place policies that violated barbering laws and led to Johnson’s injuries. He asserted that “placing

Johns on nam ed the “Am eric an Corr ect ion Ass ocia tio n,” but it app ears he inte nded to 1
nam e the Ame ric a n Corr ect ional Ass ocia tion , wh ich has in the pas t use d the add res s he pr ovide d forthe cour t to se rve pr oce ss . The “Barbers Examin atio n Board” appe ars to be the Sta te Boardof

Barber Examin ers . See M ISS

. C ODE AN N

. § 7 3-5- 1. 3 Case: 10-60553 Document: 00511894643 Page: 3 Date Filed: 06/21/2012No. 10-60553

this plaintiff in line with other inmates” with serious diseases and forcing him to get his hair cut amounted to deliberate indifference. He also alleged that the prison, since the commencement of the suit, had adopted a new policy requiring sanitary practices in the barbershop, but he claimed that inmates could testify that the policy was “on paper only” and was not enforced. With respect to showing a serious injury, Johnson pointed out that his head was cut, bled, and became infected and swollen. Though Epps’s m otion was styled a summary judgment motion, the magistrate judge’s Report and Recommendation analyzed it under the standard for a motion to dismiss und e r F e d e r a l Rule of Civil Procedure 12(b)(6). The magistrate judge concluded t h a t Johnson’s claim against Epps (in his official capacity) was barred by Eleventh Amendment sovereign immunity and that the

c o m plaint did not allege that Epps had been personally involved in Johnson’s claimed injuries nor had he implemented a policy or custom that led to the injury. Further, the magistrate judge determined that Johnson’s claims were b a s ed on a theory of negligence on the part of the barbers, not on del ib e r a t e
a c t i o n, and that he had failed to allege an actual injury other than fear. T h e magistrate judge also noted that “illegal barbering” is a state-law clai m n o t cognizable under § 1983. Finally, she concluded that no valid claims had been made against the defendants other than Epps. Johnson objected to the Repo r t a n d Recommendation. He asserted that Epps ha d i n fact “established the customs and policies” that led to a constitutional violation and that Epps knew that these policies exposed inmates to health risks. The district court, noting that it considered the objection, then adopted t h e R eport and Recommendation as its order, granted summary judgment to Epps, and dismissed the suit with prejudice.

4 Case: 10-60553 Document: 00511894643 Page: 4 Date Filed: 06/21/2012No. 10-60553 II We libe r a l l y construe pleadings made by pro se plaintiffs. In previous 2 decisions and when justice so required, we have held that filin g s s uch as a memorandum in opposition to su m mary judgment and an opposition to a magistrate judge’s report and recommendation should have been construed by the district court as motions to amend the complaint. In many of these cases, 3

we emphasized that no responsive pleading had been filed, meaning the plaintiff

was still entitled to amend a s a matter of course, but we have also said that 4 later filings should be treated as motions to amend even in cases in which there h a d b e en a responsive pleading and granting leave to amend was within the court’s discretion. 5 Because Johnson pursues his claim pro se, the district court should have liberally construed his pleadings. Johnson’s complaint was met with an answer from Epps, so Johnson was no longer entitled to amend without leave o f t h e court or Epps’s permission. Nonethele s s , o u r precedents counsel that the 6 district court should have considered Johnson’s “response” to the O m n ib u s Order, his memorandum opposing summary judgment, and his objection to the

Johns on v. Atki ns , 999 F.2d 99, 1 0 0 (5t h Cir. 1993) ; see also Ha ine s v. Ker ner , 404 2 U. S. 519, 520 (197 2) (no ting that pr o se com plai nts are held “to les s st ringen t st andar ds than for malp lead ings dr aft ed by la wye rs ”)

.

See, e. g., Uni ted States v. Ria s c o s , 76 F.3d 93, 94 (5t h Cir. 1996) (p er cur iam ) 3 (object ion to magis tra te judge’ s rep ort); Sherm an v. Ha ll baue r , 455 F.2d 1236, 1242 (5t h Cir. 1972) ( mo tio n i n o pp os itio n t o s umm ary judgm ent fil ed by c ouns el)

. See, e. g., Bark sda le v. King , 699 F.2d 744, 747 (5t h Cir. 1983) (p er cur iam ); Mc Gr uder 4
v. Phe lp s , 608 F.2d102 3, 1025 (5t h Cir

. 1979)

. See, e .g. , Coop er v. Sheriff , Lubboc k Cnty. , Tex

. , 929 F.2d107 8, 1081 (5t h Cir

. 1991) 5 (p er cur iam ); Sherm an ,455 F. 2d at 1242. But se e Uni ted States v. A rm strong , 951 F.2d626 , 630 (5t h Cir. 1992) (r efu sin g to cons ide r iss ues rais ed in obj e c t i o n t o magis tra te judge’ s find ings beca u s e g o v e rnm ent had fil ed a res pons ive ple adin g and pr iso ner se ek ing pos tconvic tio n r elie f had not so ught leave to ame nd)

. F E D

. R. C IV

. P. 15(a). 6 5 Case: 10-60553 Document: 00511894643 Page: 5 Date Filed: 06/21/2012No. 10-60553

R eport and Recommendation as motions to amend his complaint to clari f y t h e allegations made against Epps. We review the district court’s failure to allow such an a m e n d m e n t for abuse of discretion. While “leave to amend is by no mean s a u t omatic” and is 7 “entrusted to the sound discretion of the district court,” Rule 15(a) requires that 8 it be granted freely “when justice so requires.” “The policy of the federal rules 9 is to permit liberal amendment to facilitate determination of claims on the

m e r i ts and to prevent litigation from becoming a technical exercise in th e f i n e points of pleading.” With this policy in mind, the district court “may consider 1 0

a variety of factors” when deciding whether to grant leave to amend, “including undue delay, bad faith or d i l a t o ry motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendmen t , a n d f u tility of the amendment.” “ [ U]nless there is a substantial reason to deny leave to 11 amend, the discretio n o f t h e district court is not broad enough to permit denial.” 1 2 Prior to the filings at issue here, Johnson had already twice amended his complaint, but those amendments were made pursuant to th e m agistrate judge’s orders that Johnson name appropriate defendants; the magistrate judge did not inform him of any other deficiencies in need of modification, and Johnson did not

Ria sco s , 76 F. 3d at 94. 7
Jones v. Robi nson Prop

. Gr p. , L.P. , 427 F.3d 987, 994 ( 5 t h C i r . 2005) (quo ting 8 Qu inta nil lav . Tex

. Tel ev is ion, Inc. , 139 F.3d494 , 499 (5t h Cir

. 1998) ).
F E D

. R. C IV

. P. 15(a)( 2). 9
Du sso uy v. G ulf

Coa st Inv

. Corp

. , 660 F.2d594 , 598 (5t h Cir

. 1981)

. 1 0
Jones , 427 F.3dat994 ( cit ing Du sso uy , 600 F.2dat598 ). 1 1
Du sso uy , 660 F.2dat598

. 1 2 6 Case: 10-60553 Document: 00511894643 Page: 6 Date Filed: 06/21/2012No. 10-60553

attempt to addres s a n y. The later filings do not appear to have been made in bad faith or with undue dela y : J o hnson corrected the magistrate judge’s misunderstand i n g about his ability to cut his own hair in a response approximately tw o weeks after the Omnibus Order, before Epps filed for
summary judgment, and the initial error seemed to be due to a lack of clarity in Jo h n s on’s testimony rather than any ill intent. Johnson’s specific allegations about Epps’s role, made in opposition to the summary judgment motion, likewise do not evince a desire to hide the allegations from Epps or delay adjudication but rather an attempt by an i n c a r c erated pro se plaintiff to comply with pleading requirements of which he may not have been fully aware until his deficiencies

were brought to his attention. Because very little discovery seems to have taken place and the motion fo r s u m m ary judgment focused on the complaint rather than any evidence, it is doubtful Epps would suffer any prejudice from allowing amendment, as he would retain every opportunit y t o d e fend against the allegations. Finally, it does not appear as though amendment would have been

1 3 futile; as explained more th o r o ughly below, adding these allegations to the complaint will enable Johnson to state a claim for relie f u n d e r t he Eighth Amendment. Consequently, the district court should have tre a ted these filings as motions to amend and should have granted them. We will consider the merits of Johnson’s complaint as if it had been so amended. 1 4

Com pa re Cran ber

g v. Consum ers Un i o n of U

. S

. , Inc., 756 F.2d 382, 392 (5t h Cir. 1 3 1985) (ap pr oving deni al of ame ndm ent fil e d eighte en mo nths aft er com plai nt, aft er all evide nce had been pr es ente d) wi th Sherm an v. Ha ll baue r , 455 F.2d 1236, 1239, 1242 (5t h Cir. 1972) (c ons tru ing a res pons e to a mo tio n f o r s u m mar y judgm ent as a mo tio n to ame nd that sho uld have bee n granted , de sp ite a “s udd en[] shi ft [] ” in theo ry of the case made “latein the day” ). See B a r k s dal e v. King , 699 F.2d 744, 747 (5t h Cir. 1983) (p er cur iam ) (c ons tru ing

1 4 opp os itio n to magis tra te’ s rep ort as ame ndm ent to the com plai nt, t h e n a s se ss ing wh ethe r com plai nt suf

fic ient ly s tat ed a c laim ). 7 Case: 10-60553 Document: 00511894643 Page: 7 Date Filed: 06/21/2012No. 10-60553 III The magistrate judge’s Report and Recommendation, adopted by the d i s trict court, concluded Johnson’s complaint failed to state a claim under 2 8 U.S.C. § 1915(e)(2)(B)(ii). We review a dismissal under this provision de novo, applying the same standard used for Federal Rule of Civil Procedure 12(b)(6). 1 5 Under that rule, “a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief t h a t is plausible on its face.’” Facial 1 6 plausibility means that the plaintiff has pleaded “factual content that allows the court to draw the reason ab l e i n ference that the defendant is liable for the misconduct alleged.” We accept all well-pleaded facts as true, b u t legal 1 7 conclusions are not entitled to that assumption. 1 8 Johnson asserted claims against Epps in both his official and supervisory capacities, seeking injunctive relief and damages. A claim for damages against

a state official in his official capacity “is no different from a sui t against the State itself,” so the official is n o t a “person” subject to a damages suit under § 1983. Consequently, the part of the claim seeking damages against Epps in

1 9 his official capacity w as properly dismissed. A state official may, however, be sued for prospective injunctive relief. With respect to the supervisory claims, 2 0

New som e v. EEO C, 301 F.3d227 , 231 (5t h Cir

. 2002) ( perc uriam ). 1 5
As hcr oft v. Iqbal , 556 U. S. 662, 678 (2009) (quot ing Bel l Atl . Corp . v. Two mbl y , 550 1 6 U. S. 544 , 570 (200 7))

.

Id. 1 7
Id. 1 8
Wil l v. Mic h. D ep ’t of State Poli ce, 491 U. S. 58, 71 (1989) ; seeals o Qu ernv. Jor dan , 1 9 440 U. S. 332, 340- 41 (197 9) (ho ldi ng that § 1983 doe s not abro gate the st ates ’ Elevent h Ame ndm ent im mun ity)

.

Frew ex rel

. Frew v. Ha wk ins , 540 U. S. 431, 437 (200 4); Edel ma n v. Jorda n , 415 U. S. 2 0 651, 677 (197 4); seeals o Wil l , 491 U. S. at 71 n.10 (“ [O ]f fic ial- cap acit y act ions for pr os pec tive reli ef are not tre atedas ac tio ns agains t the Sta te. ” (int erna l q uota tio n m ark s om itt ed) ). 8 Case: 10-60553 Document: 00511894643 Page: 8 Date Filed: 06/21/2012No. 10-60553

an official may not be held personally liable on a theory of vicarious liability, but “can be held liable when the ‘enforce m e n t of a policy or practice results in a deprivation of federally protected rights.’” 2 1 To establish a violation of the Eighth Amendment, a prisoner must show that a prison official was deliberately indifferent to a substantial risk of serious harm to the prisoner. A prison official acts with deliberate indifference only if 2 2 he “knows of and disreg a rds an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.” 2 3 A prisoner need not show “serious current symptoms” or an actual injury to state

a valid Eighth Amendment claim; it is enough that the prison conditions “pose 2 4

an u n r e a s onable risk of serious damage to his future health.” In a prior 2 5

u n p ublished opinion, this court concluded that allegations that inmates were required to share communal razors without dis i n f e cting them between uses, subjecting inmates to the risk of exposure to HIV and hepatitis, was sufficient to avoid dismissal. 2 6 With respect to deliberate indifference, Johnson’s complaint alleged that Epps “set in motion a ser[ies] of events” that led to Johnson’s injuries and “put in place p o li cies in an unlawful manner” that disregarded barbering laws and led

Bustos v. Ma rtini Club Inc. , 599 F.3d 458, 468 (5t h Cir. 2010) (quo ting Al ton v. Texas 2 1 A&M U niv

. , 168 F.3d196 , 200 (5t h Cir

. 1999) ).
Farm er v. Brenna n , 511 U. S. 825 , 828 (199 4). 2 2
Id. at837

. 2 3
He ll ing v. M

cKi nney , 509 U. S. 25, 33 (199 3). 2 4
Id. at 35 (ho ldi ng that plai ntif f st ated a clai m bas ed on expo sur e to enviro nme ntal 2 5 toba cco s mo ke f

rom ot her inm ates ’ cigar ett es ). Go me z v. War ner , No. 94-6 0530, 1994 WL 612371 at *2- *3 (5t h Cir. 1994) (p er 2 6
cur iam ) (c itin g De Gi dio v . Pung , 920 F.2d525 , 533 (8t h Cir

. 1990) ). 9 Case: 10-60553 Document: 00511894643 Page: 9 Date Filed: 06/21/2012No. 10-60553

to Johnson’s exposure to diseases. Specifically, he claimed that Epps forced 2 7 inmates to act as barbers (in violation of state law) and required the sharing of barber clippers covered in infected blood from other inmates. He later alleged, in his response to the summary judgment motion, which we construe as an amendment to his complaint, that “numerous” inmates had contracted diseases. He suggested that Epps was aware of this and was avoiding providing discovery for that reason. Further, he claimed that a new policy h a d been promulgated (possibly in response to this lawsuit) that mandated more sanitary procedures, which could indicate Epps’s subjective awareness of the problem, but he as s e rt e d that the policy was not being enforced. Finally, Johnson made clear on several occasions that, despite some confusion on the issue, he did not have the option to cut his own hair rather than utilize the services of the prison barbershop. Johnson’s filings are sufficient to state a claim. Though he alleges only limited facts, these facts permit a reasonable inference that Epps has acted with del ib e r a t e indifference by implementing a policy under which inmates use unsterilized instruments on other inmates. Johnson alleges that inmates with communicable diseases have in fact infecte d o t h er inmates. Such a policy “pose[s] an u n r e asonable risk of serious damage to [Johnson’s] future health.” Taking Johnson’s alle g a t ions as true, Epps required barbers to use and reuse clippers a n d r a z o r s contaminated with blood. The district court erred when it dismissed, for failure to state a cla i m , Johnson’s claims against Epps in his official capacity (for injunctive relief only) and in his supervisory capacity.

In the com plai nt, Johns on ref ers to the act s of “d efe ndant (s ), ” ref err ing to MD OC and 2 7 the then -unna me d John Do es . To com ply wi th an ord e r o f t h e magis tra te judge, Johns on ame nded his com plai nt to add Epp s and inco rp orat ed h i s for me r allegat ions by add ing, “all that ’s st ated about M. D. O. C. is st ated about Chris top her Epp s. ” Liber all y c o n s t r u i ng his com plai nt, as we mus t, we read any allegat ions origi nally mad e agains t “d efe nda n t ( s) ” as being mad e a gains t Epp s. 10 Case: 10-60553 Document: 00511894643 Page: 10 Date Filed: 06/21/2012No. 10-60553 IV In addition to assessing whether Johnson stated a claim, the Report and Recommendation also addressed Epps’s assertion of qualified immunity. “This court reviews de novo the district court’s resolution of legal issues on a motion for summary judgment on the basis of qualified immunity.” An y immunity 28

w o u l d a p ply only to the claims for damages, as qualified immunity does not extend to suits for injunctive relief under § 1983. 2 9 In determining wh ether qualified immunity has been negated at the pleading stage, this court applies a two-step analysis. Viewing the evidence in the light most favorable to the pla i n t i f f, the court considers whether the defendant’s conduct violated the plaintiff’ s c o n s tit u ti o n al ri ghts. If so, the court 3 0 considers whethe r th e d e f e n d a nt ’ s c o n du c t w a s “obj e c tively unreasonable in light of clearly established law” at the time of the action in question. The court may 3 1 make those inquiries in either order. 3 2 The district court held that Johnson had not alleged a constitutional violation, so it proceeded no further in its qualified immunity analysis. Because

we conclude tha t J o h n s on has alleged a constitutional violation, however, we must address the second step of the qualified immunity analysis. A “clearly established” constitutional right must b e s p e cified at the appropriate level of generality in order to hold an official personally liable for violating it; “[t]he contours of the right must be sufficiently clear that a

Free ma n v . Go re , 483 F.3d404 , 410 (5t h Cir

. 2007)

. 2 8
Chri ssy F. by Me dle

y v. Mi ss. De

p’t of Pub. Wel

fa re , 925 F.2d 844, 849 (5t h Cir. 1991)

. 2 9
Free ma n , 483 F.3dat410

. 3 0
Id. at411

. 3 1
Pear son v. Ca ll aha n , 555 U. S. 223 , 236 (200 9). 3 2
11 Case: 10-60553 Document: 00511894643 Page: 11 Date Filed: 06/21/2012No. 10-60553

reasonable official would understand that what he is doing violates that right.” 3 3 This does not require that the exact same action must previously have been held unconstitutional, but only that, in light of pre-existing law, the unlawfulness must have been apparent. 3 4 In Helling v. McKinney , the Supreme Court h eld that a prison official’s deliberate indifference to the potential futu r e h e a l th risks of exposure to envi r o nmental tobacco smoke could constitute a claim under the Eighth Amendment. The Court analogized the case before it w i t h h y p othetical

3 5 situations in which prison officials wer e deliberately indifferent to other types of potential harms, such as “exposure of inmates to a serious, commun i c ab le disease,” and expressed its view that such indifference would also be actionable even if “the complaining inmate shows no serious current symptoms.” 3 6 Here, Johnson has alleged that t h e p o l icies and practices that Epps i mplemented for the prison barbershop exposed Johnson to such s e r i o u s , communicable diseases and that Epps was aware of this risk and did nothing to eliminate that risk. In light of Helling , a reasonable official would understand that operating the barbershop in this fashion would violate Johnson’s rights. As a result, Epps is not entitled to qualified immunity. V In addition to Epps, Johnson asserted Eighth Amendment claims against the State Board of Barber Examiners, the State Health Department, and the American Correctional Association, replacing his original John Doe defendants. I n s c r e e ni ng the complaint, the magistrate judge determined that Johnson fail e d

Ande rso n v . Creighton, 483 U. S. 635 , 640 (198 7). 3 3
Id. 3 4
See He ll ing v. M

cKi nney , 509 U. S. 25, 35 (199 3). 3 5
Id. at33. 3 6 12 Case: 10-60553 Document: 00511894643 Page: 12 Date Filed: 06/21/2012No. 10-60553

t o state a claim against these entities and did not order process to be served upon them. To the extent that the State Board of Barber Examiners and the State Health Department are state entities that can be sued for injunctive relief under § 1983, Johnson’s assertions regarding their conduct do not allege tha t they

3 7

were aware of facts from which the inference could be drawn that Johnson faced

a substantial risk of serious harm and that they also drew that inference. At 3 8 most, he has alleged that they failed in their state-law oversight responsibilities, which does not amount to a federal constitutional violation. With respect to the American Correctional Association, Johnson appears to allege that the organization violated his constitutional rights by accrediting the prison despite the barbershop conditions and issues with the law library and by ignoring complaints made t o i n s pectors by prisoners. Johnson alleges that all defendants “acted ‘under color of state law,’” but the Association is not a state agency. “To act ‘under color’ of law does not require that the accused be an officer of the State”; it would be enough to be a willful participant alongside a 3 9 state agent or to be an entity that perfor m s a t r aditionally governmental function. But Johnson has not explained how the Asso c i a t i o n ’s approval of

4 0 prison conditions was an act under color of state l a w t h a t deprived him of any rights. We affirm the district court’ s d i s missal of claims against these defendants.

See Frew ex r el

. Frew v . Ha wk ins , 540 U. S. 431 , 437 (200 4). 3 7
See Farm er v. Brenna n , 511 U. S. 825 , 837 (199 4). 3 8
Adi cke s v. S. H. Kr ess& Co. , 398 U. S. 144 , 152 (197 0). 3 9
Id. ; Rosb oro ugh v. Mgm t. & Tra ini ng Corp

. , 350 F.3d 459, 460 (5t h Cir. 2003) 4 0 (al low ing s uit agains t pr ivate pr iso n-m anagem ent com pany and its em plo yees ). 13 Case: 10-60553 Document: 00511894643 Page: 13 Date Filed: 06/21/2012No. 10-60553 VI Johnson also brought claims against all defendants for negligence. Under the Mississippi Tort Claims Act, government entities and their employees acting within the scope of their employment are not liable for c l a i m s from, among others, “an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution.” State prisons and their employees are 4 1

cover e d b y this statute, as are the State Board of Barber Examiners and 4 2 Department of Health. Accordingly, Johnson’s neglige nce action cannot go forward against them. The American Correctional Association is not covered by the statute, but the neglig e n c e claim in Johnson’s original complaint pertains only to the prison barbers. He specifically implicates the Association only in his consti t u tional claims, never providing any facts supporting an inference of negligence. We affirm the district court’s dismissal of the negligence claims. VII Johnson also alleges claims for illegal barbering and attempted murder, 4 3 both criminal offenses with no express provision for a civil cause of action. “The general rule for the existence of a private right of action under a statute is that the party claiming the right of action must establish a legislative intent, express
or implied, to impose liability for v i o l a tions of that statute.” Johnson’s 4 4 complaint describes the pol i c i e s behind the barbering statutes, but it does not argue any legislative intent to create private en f o r cement for either of these offenses. Consequently, we affirm the decision below to dismiss these claims.

M ISS

. C ODE AN N

. § 1 1-46 -9( 1)( m)

. 4 1
See Cla

y v. Epp s , 19 So. 3d 743, 746 (M iss

. Ct. App

. 2008) ; Whi tt v. Go rd o n , 872 4 2 So. 2d 71, 74 (M iss

. Ct. App

. 2004) (“ [The st atut e,] wi thou t excep tio n, pr ohibit s all clai ms fr om clai man ts w ho are inm ates att he tim e t he clai m aris es .” ).
M ISS

. C ODE AN N

. §§ 73-5 -9, 73- 5-43 ( mak ing i llegal barbe ring a m isd em eanor). 4 3
Do e v. Stateex r el

. Mi ss. D ep ’t of Corr ecti ons, 859 S o. 2d 350, 355 (Mis s. 200 3). 4 4
14 Case: 10-60553 Document: 00511894643 Page: 14 Date Filed: 06/21/2012No. 10-60553 VIII Finally, we address Johnson’s claim of inadequate access to the prison law library. Inmates have a right to “meaningful access to the courts,” which may , but need not, include access to a law library. To have standing to sue, Johnson 4 5 must demonstrate an actual inj u r y s t emming from the purported violation. 4 6 The district court corr e c t l y concluded that Johnson had not alleged any actionable prejudice or h a r m t h a t resulted from the prison’s policies, and we affirm its decision on this issue. * * * For the foregoing reasons, we REVERSE the judgment of the district court in part, AFFIRM in part, and REMAND for further proceedings.

Lew is v. Case

y , 518 U. S. 343, 351 (199 6) (quo ting Bounds v. Smi th , 430 U. S. 817, 830 4 5 (197 7))

. Id. at 351.

4 6 15 Case: 10-60553 Document: 00511894643 Page: 15 Date Filed: 06/21/2012