Bell v. Management & Train , 122 F. App'x 219 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0088n.06
Filed: February 4, 2005
No. 03-4526
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDREA M. BELL, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
V. ) DISTRICT OF OHIO
)
MANAGEMENT & TRAINING ) OPINION
CORPORATION, et al., )
)
Defendants-Appellants.
BEFORE: COLE and CLAY, Circuit Judges, and HOOD, District Judge*.
R. GUY COLE, JR., Circuit Judge. This is an employment action brought under 42
U.S.C. § 1983. Plaintiff-Appellant Andrea Bell (a.k.a. Andrea Turza) claims that Defendants-
Appellants Management & Training Corporation (“MTC”), Warden Neil Turner, and Major Steven
Stormes violated her rights under the Fourteenth Amendment when MTC terminated her
employment. The district court granted summary judgment for the Defendants-Appellants and
dismissed the case. For the following reasons, we AFFIRM the district court.
I.
Utah-based MTC is a private company in the business of operating corrections facilities in
the United States. In April of 2001, the Ohio Department of Rehabilitation and Corrections
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 03-4526
Bell v. Management & Training Corp.
(“ODRC”) awarded MTC the contract to operate the North Coast Correctional Training Facility, a
minimum security prison and treatment center located in Grafton, Ohio (the “Grafton prison”).
MTC began operating the Grafton prison on July 1, 2001.
Pursuant to the operating contract between the ODRC and MTC, MTC is required to
implement and comply with various Ohio and Federal laws regarding the operation of the Grafton
prison. However, the operating contract specifically exempts MTC from complying with Ohio and
ODRC policies and procedures regarding human resources and employment. Rather, MTC is
permitted to promulgate its own internal policies and procedures regarding employment. Pursuant
to such procedures and policies, MTC generally requires a 180-day probationary period for new
corrections employees. After the end of the probationary period, MTC performs a staff assessment
in which a supervisor recommends whether the probationary employee should be retained.
Andrea Bell was employed by MTC’s predecessor at the Grafton prison, CiviGenics
Corporation, for the ten months prior to the transfer of operations to MTC. Bell’s position was
Executive Secretary to the Warden of the Grafton prison. Like other so-called “legacy employees,”
Bell was invited to apply for the same position with MTC. After an application and interview, Bell
was hired by MTC as an administrative assistant to Warden Turner. At that time, Bell also executed
an employment agreement with MTC, which specifically noted that she was an at-will employee and
that she was subject to a 180-day probationary employment period.
In December 2001, MTC performed a review of its probationary employees, including Bell.
Since Bell worked directly for Warden Turner, he evaluated her performance. Turner noted that Bell
had failed to properly perform various filings, including administrative review filings for inmates
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subject to discipline, and forms relating to the transfer of inmates from facility to facility. Turner
also noted that Bell had been subject to official discipline. Turner then elected not to extend a non-
probationary position to Bell.
Bell brought two suits under § 1983, claiming that MTC, Turner, and others, had violated
her rights under the First Amendment and the Equal Protection and Due Process Clauses of the
Fourteenth Amendment. The cases were consolidated, and MTC moved for summary judgment.
In her opposition to MTC’s motion, Bell raised only her Due Process claim, and stated she would
“not pursue the other claims asserted in the complaints that began these actions.”
The district court granted summary judgment for the Defendants-Appellants and dismissed
the case. This timely appeal ensued.
II.
A. Standard of Review
This Court reviews de novo a district court’s grant of summary judgment under Federal Rule
of Civil Procedure 56(c). City Mgmt. Corp. v. U.S. Chem. Co., Inc., 43 F.3d 244, 250 (6th Cir.
1994). In doing so, the Court must “consider all the facts and inferences therefrom in the light most
favorable to nonmoving party.” Id.
B. 42 U.S.C. § 1983
By its terms, § 1983 requires a plaintiff to show: (1) that the challenged conduct was
attributable to a person acting under color of state law that (2) deprives the plaintiff of “any rights,
privileges, or immunities secured by the Constitution” or the laws of the United States. 42 U.S.C.
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§ 1983; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). We will address each
element in turn.
1. State Action
Section 1983 is only applicable to private parties where the actions taken “can fairly be seen
as state action.” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). The Sixth Circuit has
recognized the following three tests for determining whether a private party has acted under color
of state law: (1) the public function test; (2) the state compulsion test; and (3) the symbiotic
relationship or nexus test. See Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992); Lansing v.
City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). Bell argues that MTC’s actions qualify as state
action under the public function test.
The “public function test requires that the private entity exercise powers which are
traditionally exclusively reserved to the state, such as holding elections.” Wolotsky, 960 F.2d at
1335. Case law establishes that private companies operating prisons can be state actors for the
purposes of controlling or providing services to inmates. See West v. Atkins, 487 U.S. 42, 54-56
(1988) (noting that doctor under contract with the state, who gave deficient medical treatment to a
prisoner, was a state actor under the public function test); Hicks v. Frey, 992 F.2d 1450, 1458 (6th
Cir. 1993) (private contractor operating a prison held to be state actor for purposes of § 1983 claim
of deliberate indifference to the needs of a paraplegic inmate); Street v. Corrections Corp. of Am.,
102 F.3d 810, 814 (6th Cir. 1996) (prison officials employed by private contractor held state actors
in § 1983 claim alleging deliberate indifference in failure to prevent another inmate’s attack); Flint
v. Ky. Dep’t of Corrections, 270 F.3d 340, 351-52 (6th Cir. 2001) (noting that private party
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providing housing and security for prisoners was a state actor under the public function test for the
purposes of a § 1983 claim alleging complicity of prison officials in murder of inmate).
Ample case law also establishes, however, that a plaintiff’s mere employment with a state
contractor does not convert the employer into a state actor. For example, in Rendell-Baker, the
plaintiffs were school teachers employed by a private company under contract with Massachusetts
to operate a high school for maladjusted teens. The school received most of its students, and almost
all of its funding, from various surrounding city schools. The teachers brought suit under § 1983
claiming that they were discharged in violation of certain constitutional rights. See Rendell-Baker,
457 U.S. at 831-32, 834-35. The Supreme Court disagreed, noting that the acts of “private
contractors do not become the acts of the government by reason of their significant or even total
engagement in performing public contracts.” Id. at 841. The Supreme Court noted that while the
high school was heavily regulated, Massachusetts did not regulate personnel actions within the
school. Id. Regarding the “public function” of the privately run school, the Supreme Court
emphasized that the proper inquiry is whether “the function performed has been traditionally the
exclusive prerogative of the State.” Id. at 842 (emphasis in original, internal quotes removed). Here,
the mere fact that the “private entity performs a function which serves the public does not make its
acts state action.” Id.
Following Rendell-Baker, the Sixth Circuit has noted that mere employment with a
government contractor does not render personnel decisions state action. See Wolotsky, 960 F.2d at
1333, 1335 (where Ohio had no input on personnel actions within a privately run facility that
provided mental health, drug, and alcohol rehabilitative services to Summit County, despite
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extensive funding, regulation, and oversight by the State, discharge of employees was not state
action); Crowder v. Conlan, 740 F.2d 447, 451 (6th Cir. 1984) (personnel disciplinary action by
privately run hospital with extensive Kentucky and county contacts held not state action, since State
did not regulate personnel decisions of the hospital). Our sister circuits have specifically applied
such reasoning to § 1983 prison employment actions. See George v. Pacific CSC Work Furlough,
91 F.3d 1227, 1230-32 (9th Cir. 1996) (terminated prison guard’s § 1983 claim dismissed where
State had no input or regulation governing employment decisions regarding discipline or termination
at a privately-run prison); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996) (“The
fact that a municipality is responsible for providing medical attention to persons held in custody may
make an independent contractor rendering such services a state actor within the meaning of § 1983
with respect to the services so provided . . . but that fact does not make the contractor a state actor
with respect to its employment decisions.”) (internal citations removed); Cunningham v. Southlake
Ctr. for Mental Health, Inc., 924 F.2d 106, 107, 109 (7th Cir. 1991) (counselor employed by
privately run prison challenged termination under § 1983; no state action found for employment
actions by a private contractor).
Nor is it important that incarcerating prisoners is a “function traditionally reserved for the
state.” Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991). The operation of prisons by
private companies is commonplace and has been for many years. See Richardson v. McKnight, 521
U.S. 399, 404-07 (1997) (noting the long history of private firms managing or operating state prison
systems). The foregoing case law is merely an extension of the uncontroversial principle that “[a]n
entity may be a state actor for some purposes but not for others.” George, 91 F.3d at 1230. The lack
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of state action is especially apparent in internal employment matters, where even government
employers are given considerable latitude. See, e.g., Connick v. Myers, 461 U.S. 138, 146-47 (1983)
(noting that government employment decisions that do not violate laws or regulation are
unreviewable, even if mistaken or unreasonable).
In the instant case, it is undisputed that Ohio had no input in, and no regulation applicable
to, MTC’s internal personnel actions. Indeed, the ODRC-MTC operating contract specifically
excludes MTC from compliance with Ohio and ODRC personnel regulations. Nor are the reasons
for Bell’s termination a mere gloss for state action, a public function, or otherwise reviewable
conduct. According to her direct supervisor, Bell was dismissed because she failed to adequately
file certain reports and was subject to discipline – conduct that is the essence of an internal personnel
decision.
2. Property Right
Section 1983 also requires a plaintiff to show some deprivation of a constitutional right. 42
U.S.C. § 1983. Since Bell is asserting a Fourteenth Amendment Due Process claim, she must
establish that there is a “protected property or liberty interest.” Johnston-Taylor v. Gannon, 907
F.2d 1577, 1581 (6th Cir. 1990). “A property interest can be created by a state statute, a formal
contract, or a contract implied from the circumstances.” Ludwig v. Bd. of Trs. of Ferris State Univ.,
123 F.3d 404, 409 (6th Cir. 1997). It is well-settled in Ohio that a probationary employee has no
property interest in her employment. Curby v. Archon, 216 F.3d 549, 553-54 (6th Cir. 2000); Ste.
Marie v. City of Dayton, 109 F. Supp. 2d 846, 854 (S.D. Ohio 2000); Bashford v. City of
Portsmouth, 556 N.E.2d 477, 479-80 (Ohio 1990).
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Nevertheless, Bell argues that such well-established precedent does not apply to her since
she worked at the Grafton prison, albeit for two different companies, for a period longer than MTC’s
probationary period. For support, she notes that Ohio allows for bridging an individual’s past
service with current service for the purposes of a probationary period. Since Bell was employed by
CiviGenics at the Grafton prison for ten months prior to her employment by MTC, she argues she
cannot be a probationary employee.
This argument is without merit. Under the terms of the MTC-ODRC operating contract,
MTC need not comply with the civil service protections under Ohio law and ODRC regulations.
MTC therefore issued its own personnel policies, as permitted, which required that new employees
are subject to a 180-day probationary period, with regular employment awarded based on a
performance review and supervisor recommendations. It is not disputed that MTC complied with
these internal policies. Furthermore, Bell specifically agreed in an employment contract that she
was a probationary employee, and subject to MTC’s internal policies and procedures. As Bell was
clearly a probationary employee, she has no property right in continued employment.
C. Equal Protection Clause
Finally, Bell claims that the MTC-ODRC operating contract violates the Equal Protection
clause of the Fourteenth Amendment. Since Bell waived this claim in district court, it is not
reviewable. See Baily v. Floyd County Bd. of Educ., 106 F.3d 135, 143 (6th Cir. 1997) (noting a
court of appeals may not review a claim raised for the first time on appeal unless failure to consider
the issue results in a plain miscarriage of justice).
III.
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For the foregoing reasons, we AFFIRM the judgment of the district court in all respects.
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