United States Court of Appeals

Fifth Circuit

FILED

November 7, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40493

Summary Calendar

 

BILLY D ROSBOROUGH

Plaintiff - Appellant

v.

MANAGEMENT & TRAINING CORPORATION,

UNIDENTIFIED SHIRLEY, Corrections Officer

Defendants - Appellees

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

--------------------

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:

Billy Rosborough is a prisoner in the Bradshaw State Jail, a

Texas prison owned and operated by defendant Management and

Training Corporation (“MTC”), a private prison-management

corporation. Defendant Chris Shirley is a corrections officer

employed by MTC at the jail. Rosborough sued MTC and Shirley

under 42 U.S.C. § 1983 alleging that he was subjected to cruel

and unusual punishment in violation of the Eighth Amendment when

Shirley maliciously slammed a door on Rosborough’s fingers,

severing two fingertips. Rosborough also alleges that Shirley
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displayed deliberate indifference to Rosborough’s resulting

serious medical condition. In addition, Rosborough alleges that

MTC is liable under 42 U.S.C. § 1983 for its improper training

and supervision of Shirley. Rosborough supplemented his federal

action with state-law negligence claims.

The district court sua sponte dismissed Rosborough’s action

on the ground that Shirley was an employee of MTC rather than an

employee of the State of Texas and, therefore, was not acting

under color of state law for purposes of suit under 42 U.S.C.

§ 1983. The court dismissed the supplemental state-law claims

but did not address MTC’s potential liability for failing to

train Shirley. Rosborough appeals.

We review de novo the district court’s decision to dismiss

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 

McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th

Cir. 1995) (per curiam). We accept the plaintiff’s factual

allegations as true and uphold the district court’s dismissal

“only if it appears that no relief could be granted under any set

of facts that could be proven consistent with the allegations.” 

Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (internal

quotation marks and citation omitted).

“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.
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Atkins, 487 U.S. 42, 48 (1988). At issue here is the “under

color of state law” requirement. The district court assumed that

this requirement prevented a person in private employ from being

sued under § 1983. The Supreme Court, however, has held that

“[t]o act ‘under color’ of law does not require that the accused

be an officer of the state.” Adickes v. S.H. Kress & Co., 398

U.S. 144, 152 (1970) (internal quotation marks and citation

omitted). Under the Supreme Court’s “public function” test, a

private entity acts under color of state law “when that entity

performs a function which is traditionally the exclusive province

of the state.” Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.

1989). The Supreme Court has explained that “when private

individuals or groups are endowed by the State with powers or

functions governmental in nature, they become agencies or

instrumentalities of the State and subject to its constitutional

limitations.” Evans v. Newton, 382 U.S. 296, 299 (1966). Thus,

the Supreme Court has found private actors to be susceptible to

suit under § 1983. E.g. West, 487 U.S. at 54-57 (holding that

private doctor under contract with a state prison to provide

medical care to prisoners acted under color of state law when he

treated inmate). Relevant to this case, the Supreme Court has

suggested--though it has not actually held--that state prisoners

might bring suit under § 1983 against privately-owned

correctional facilities. See Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 72 n.5 (2001) (“[S]tate prisoners . . . already enjoy a
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right of action against private correctional providers under 42

U.S.C. § 1983.”) (emphasis omitted); Richardson v. McKnight, 521

U.S. 399, 413 (1997) (“[We] have not addressed whether [prison

guards] are liable under § 1983 even though they are employed by

a private firm.”).

In Skelton v. Pri-Cor, Inc., the Sixth Circuit, relying on

these Supreme Court precedents, held that a private company

administering a state corrections facility could be sued under

§ 1983. 963 F.2d 100, 102 (6th Cir. 1991). The Sixth Circuit

found determinative the fact that the corporation was “performing

a public function traditionally reserved to the state.” Id.

(citing Evans, 382 U.S. at 299). The court reasoned that “the

power exercised by [the private prison-management company] is

‘possessed by virtue of state law and made possible only because

the wrongdoer is clothed with the authority of state law.’” Id.

(quoting West, 487 U.S. at 49). Moreover it found that “‘[t]here

is a sufficiently close nexus between the State and the

challenged action of [the corporation] so that the action of the

latter may be fairly treated as that of the State itself.’” Id.

(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351

(1974)). Thus, according to the Sixth Circuit, the private

corporation “acted under color of law for purposes of § 1983.” 

Id. 

District courts within this circuit have similarly held that

private prison-management companies and their employees are
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subject to § 1983 liability because they are performing a

government function traditionally reserved to the state. See,

e.g., Palm v. Marr, 174 F. Supp. 2d 484, 487-88 (N.D. Tex. 2001);

Kesler v. King, 29 F. Supp. 2d 356, 370-71 (S.D. Tex. 1998). 

We agree with the Sixth Circuit and with those district

courts that have found that private prison-management

corporations and their employees may be sued under § 1983 by a

prisoner who has suffered a constitutional injury. Clearly,

confinement of wrongdoers--though sometimes delegated to private

entities--is a fundamentally governmental function. These

corporations and their employees are therefore subject to

limitations imposed by the Eighth Amendment. Accordingly, we

find that the district court erred in dismissing Rosborough’s

§ 1983 claim.

The district court’s judgment is REVERSED, and the case is

REMANDED for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.