Skelton v. Pri-Cor, Inc.

• Decision Date: 21 November 1991
• Docket Number: No. 90-5290,INC,PRI-CO,90-5290
• Parties: Jerry R. SKELTON, Plaintiff-Appellant, v., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 100

963 F.2d 100

Jerry R. SKELTON, Plaintiff-Appellant, v. PRI-COR, INC., Defendant-Appellee.

No. 90-5290.

United States Court of Appeals, Sixth Circuit.

Argued July 30, 1991.

Decided Nov. 21, 1991. ^*

Jerry R. Skelton, pro se.

Robert G. Leger, Jonesborough, Tenn. (argued & briefed), for plaintiff-appellant.

Before: KENNEDY and JONES, Circuit Judges; and GIBSON, Chief District Judge. ^**

PER CURIAM.

Plaintiff-appellant Jerry R. Skelton appeals the district court's grant of summary judgment to Pri-Cor, Inc., dismissing his 42 U.S.C. § 1983 prisoner civil rights action. For the following reasons, we affirm the judgment of the district court.

I.

On June 15, 1989, Skelton pled guilty in the United States District Court for the Eastern District of Tennessee to a charge of escaping federal custody and was incarcerated at the Greene County Detention Center ("the Center") while awaiting sentencing. Pri-Cor, Inc. ("Pri-Cor") is a private corporation which operates the Center pursuant to a contract with Greene County, Tennessee.

On August 28, 1989, Skelton filed this suit against Pri-Cor under 42 U.S.C. § 1983. Later, the district court ordered him to amend his pro se complaint to plead his claims with more specificity. On September 11, 1989, Skelton amended his complaint and alleged that Pri-Cor had violated his constitutional rights by denying him access to the law library at the Greene County Detention Center.

On September 26, 1989, Skelton filed a second civil rights complaint against Pri-Cor. In his second complaint, Skelton alleged that Pri-Cor personnel had violated his constitutional rights by returning to the publisher a hardbound Bible addressed to him and by opening and reading his legal mail. ¹ The district court consolidated these actions.

On December 29, 1989, Pri-Cor filed a motion to dismiss or for summary judgment on the pleadings. The district court treated Pri-Cor's motion as a motion for summary judgment and granted the motion on February 2, 1990. This appeal followed. The issues raised on appeal are: (1) whether the district court erred in granting summary judgment on Skelton's claim that Pri-Cor violated his first and eighth amendment rights by refusing to allow him to receive the hardbound Bible; and (2) whether the district court erred in granting summary judgment on Skelton's claim that Pri-Cor violated his rights by denying him access to the law library.

II.

Initially, we must address Pri-Cor's arguments concerning its potential liability under § 1983. In a rather conclusory fashion, Pri-Cor contends that, as a private corporation, it cannot be held liable under § 1983 because respondeat superior does not apply in § 1983 actions. This argument contains two components. First, Pri-Cor argues that the corporation cannot be held liable for the unconstitutional acts of its employees unless it is shown they are following an official policy or custom of the corporation. Pri-Cor asserts that Skelton has failed to allege a policy for which the corporate entity would be liable. While Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), is probably dispositive of this issue, we decline to address it here since we find that no constitutional violation has been committed by Pri-Cor's employees.

Second, Pri-Cor argues that "Skelton has cited no case in which a court has determined that a private corporation which administers a state corrections facility pursuant to a private contract with a local governing body acts under color of state law within the meaning of section 1983." Appellee's Brief at 35. Skelton maintains that "when officials or employees of an entity carry out official policy or when the entity delegates to officials the responsibility of creating official policy, then entity liability will lie in a § 1983 action." Appellant's Brief at 34 (emphasis in original). The affidavit of Mr. Young acknowledges that Pri-Cor officials were acting pursuant to some policy or custom. Skelton concedes that respondeat superior alone cannot create liability under § 1983. Monell v. New York City Dept. of Soc. Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). If governmental entities are acting pursuant to a policy or custom, however, a suit under § 1983 will lie. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36.

"[T]he question whether particular conduct is 'private,' on the one hand, or 'state action,' on the other, frequently admits of no easy answer." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-50, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). "To act 'under color' of law does not require that the accused be an officer of the State." Adickes v. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970). As a detention center, Pri-Cor is no doubt performing a public function traditionally reserved to the state. See Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966) ("[W]hen 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."); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Surely it can be said that the power exercised by Pri-Cor is " 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)).

Although the precise question raised by Pri-Cor has not been directly addressed by the Supreme Court, several of the Court's decisions suggest that under the facts before us Pri-Cor acted under color of law for purposes of § 1983. See, e.g., West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988) (private physician contracted by the state to provide medical services to inmates acts under color of law when treating inmates). See also Annotation, Supreme Court's Views As To When Person Is Acting "Under Color Of" State Law, Within Meaning Of Civil Rights Statute (42 U.S.C. § 1983) Providing Private Right Of Action For Violation Of Federal Rights, 101 L.Ed.2d 987 (1990).

On the whole, we think that Pri-Cor's actions can be "fairly attribut[ed] to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). "[T]here is a sufficiently close nexus between the State and the challenged action of [Pri-Cor] so that the action of the latter may be fairly treated as that of the State itself." Jackson, 419 U.S. at 351, 95 S.Ct. at 453. See also Plain v. Flicker, 645 F.Supp. 898, 907 (D.N.J.1986) ("[I]f a state contracted with a private corporation to run its prisons it would no doubt subject the private prison employees to § 1983 suits under the public function doctrine."); Davenport v. Saint Mary Hosp., 633 F.Supp. 1228, 1234-35 (E.D.Pa.1986) (if state delegates traditional public functions, a sufficiently close nexus is present between the state and the challenged conduct of the private entity). Therefore, for the purposes of this appeal, we conclude that Pri-Cor was acting under color of law.

III.

The primary issue on appeal is whether the district court erred in granting Pri-Cor summary judgment on Skelton's claim that the Center violated his first and eighth amendment rights when it refused him delivery of a hardbound Bible. We think not.

Citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the district court held that

the defendant's refusal to permit the plaintiff to possess a hard-bound Bible was a reasonable exercise of the wide-ranging discretion of prison administrators to establish policies and procedures to promote order and security within a prison inasmuch as a hard-bound book may be used as a weapon whatever its contents may be.

J.App. at 8.

In Bell the Supreme Court upheld the so-called publishers only rule, which as a security measure prohibited prisoners from receiving hardback books from persons other than publishers, bookstores, or book clubs. 441 U.S. at 550, 99 S.Ct. at 1880. In upholding this rule, the Court acknowledged that "hardback books are especially serviceable for smuggling contraband into an institution; money, drugs, and weapons easily may be secreted in the bindings. They also are difficult to search effectively." Id. at 551, 99 S.Ct. at 1880 (citation omitted). The Court recognized that prison officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id. at 547, 99 S.Ct. at 1878. We note, however, that in Bell the Court did not address the use of hardbound books as potential weapons.

In Ward v. Washtenaw Cty Sheriff's Dept., 881 F.2d 325 (6th Cir.1989), the court held that a prison policy which extended the publishers only rule to magazines was not unconstitutional. The court concluded that "defendants' regulations are reasonably related to legitimate penological interests[.]" Id. at 330. While Ward does not directly control the present case, it suggests that this circuit is not necessarily opposed to prison restrictions which exceed the holding in Bell.

Skelton relies heavily upon Jackson v. Elrod, 881 F.2d 441 (7th Cir.1989), where the court held, in addressing the question of qualified immunity, that a blanket prohibition against hardcover books was unconstitutional. The inmate in Jackson, a chronic alcoholic, was attempting to gain information on alcoholism. Prison officials returned to the sender several books on alcoholism that the inmate had ordered, both hardcover and softcover. Jackson is not on all fours with the present case because: (1) in Jackson the...