Cunningham v. Southlake Center for Mental Health, Inc., 89-3174

• Decision Date: 25 January 1991
• Docket Number: No. 89-3174,89-3174
• Citation: 924 F.2d 106
• Parties: Elliott C. CUNNINGHAM, Plaintiff-Appellant, v. SOUTHLAKE CENTER FOR MENTAL HEALTH, INC., an Indiana not-for-profit corporation, Lee C. Strawhun, president of Southlake Center for Mental Health, Inc., County of Lake and Jeff Miller, individually and in his capacity as warden of the Lake County Jail, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 106

924 F.2d 106

Elliott C. CUNNINGHAM, Plaintiff-Appellant, v. SOUTHLAKE CENTER FOR MENTAL HEALTH, INC., an Indiana not-for-profit corporation, Lee C. Strawhun, president of Southlake Center for Mental Health, Inc., County of Lake and Jeff Miller, individually and in his capacity as warden of the Lake County Jail, Defendants-Appellees.

No. 89-3174.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1990.

Decided Jan. 25, 1991.

Ivan E. Bodensteiner, Valparaiso, Ind., for Elliott Cunningham.

Steven A. Johnson, Spangler, Johnson & Associates, Merrillville, Ind., Thomas Greenberg, Walker, Felming, Corbin & Greenberg, Merrillville, Ind., for Southlake Center for Mental Health, Inc. and Lee C. Strawhun.

John S. Dull, Crown Point, Ind., Mark A. Psimos, Merrillville, Ind., for County of Lake.

Charles H. Graddick, Gary, Ind., for Jeff Miller.

Before CUDAHY, POSNER and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

Elliott Cunningham was hired by Southlake Center for Mental Health, Inc. (Southlake), in 1985 to work as a counselor in the Lake County Jail. Southlake had contracted to provide mental health services for the jail as the result of a consent decree in an unrelated case. By the contract's terms, Southlake retained the exclusive authority to direct, supervise, control and manage its personnel working in the jail. In early 1986, a problem of food theft by non-inmates prompted Jeff Miller, warden of the jail, to circulate a notice warning that such behavior must cease. Apparently it did not, however, for in June, Miller wrote to Southlake that he had reason to believe its employee Cunningham had consumed inmate food, and that he hoped some disciplinary action would be taken. Southlake immediately removed Cunningham from the facility. Sometime later the warden warned Southlake he would not permit Cunningham to return to the jail. Two weeks after Miller sent his letter, Cunningham was discharged. The reason given for the discharge was Cunningham's alleged consumption of inmate food.

Cunningham testified that, while these events took place, he was receiving complaints from female inmates at the jail, stating that they were given preferential treatment in return for sexual favors provided to jail personnel. He further alleged that he reported these complaints on several occasions--both before and after Miller's accusation--to his supervisors, but they refused to act. Such a refusal would not be surprising, given his testimony that his supervisors were implicated in the complaints. Following his termination and subsequent hearing before Southlake's president, Lee Strawhun, Cunningham filed this action under 42 U.S.C. section 1983, claiming that he was fired for speaking out about this matter of public concern, in violation of his first amendment rights. He named Southlake, Strawhun, Lake County Jail and Miller as defendants. The case went to trial, but after two days, Judge Rodovich directed a verdict for the defendants. Cunningham appeals that decision.

Our summary resolves all reasonable questions of fact in plaintiff's favor, as we are required to do. The question remains whether Cunningham has presented a triable issue. To prove a section 1983 violation, a plaintiff faces two hurdles, one of which Judge Rodovich found insurmountable in this case. Cunningham must show (1) an action taken under color of state law (2) which violates his federal constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). Judge Rodovich found that the plaintiff had not presented a jury question on the issue of "action taken under color of state law." We agree.

Typically, a section 1983 violation occurs when the state or one of its agents violates a plaintiff's constitutional rights. When a private actor is implicated, the section 1983 plaintiff may nevertheless prevail if he shows sufficient state involvement in the action in question to trigger constitutional protections. National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192, 109 S.Ct. 454, 462, 102 L.Ed.2d 469 (1988). Because Southlake, rather than Lake County Jail, employed and terminated Cunningham, he must argue that there was sufficient state involvement. Cunningham presses two accepted theories for showing action taken under color of state law--"joint action" and a delegation of the state's authority to a private actor. We find that the evidence in this case supports neither theory.

First, Cunningham argues that the "joint action" theory, articulated in cases like Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980), allows him to reach the jury. Dennis held that a private defendant acts under color of state law when he is "a willful participant in joint action with the State or its agents." Id.; Malak v. Associated Physicians, Inc., 784 F.2d 277, 281 (7th Cir.1986).

A charge of joint action amounts to alleging some agreement between private and public actors to violate plaintiff's constitutional rights. See Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir.1985) ("In order to establish a conspiracy, the plaintiff must demonstrate that the state officials and the private party somehow reached an understanding to deny the plaintiffs their constitutional rights."); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983) ("To prove a conspiracy between private parties and the government under Sec. 1983, an agreement or 'meeting of the minds' to violate constitutional rights must be shown.") (citations omitted). A requirement of the joint action charge therefore is that both public and private actors share a common, unconstitutional goal. In examining the joint action claim then, we cannot ignore the constitutional injury alleged in the second element of plaintiff's section 1983 case. Where that injury can only result from a particular motive animating the defendant--here, the desire to remove Cunningham because of his choice to speak out--the state actor (Warden Miller in this case) must himself possess the required motivation.

Nor do we view such a requirement as unduly stringent. Section 1983 allows a private actor to be sued as if it were the state itself, and in the case of joint action, makes the state a potential defendant as well. Malak, 784 F.2d 277 (public and private entities sued under section 1983). A private actor thus cannot unilaterally convert a state actor's legitimate activity into an illegal act, conferring both constitutional accountability on itself and liability on the state. To decide otherwise would be to "impos[e] on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1981).

Cunningham's constitutional complaint alleges that these defendants terminated him in retaliation for his speech about the sexual abuse at the jail. Accordingly, he must prove that each of the joint actors was in some part motivated by this unconstitutional purpose. Yet Cunningham was able to present evidence only of unilateral wrongful action by Southlake. There was no evidence, nor does Cunningham contend on appeal, that any government employees knew of the sexual abuse disclosures. ¹ Without evidence that Miller knew of the complaints, Cunningham has given the jury no foundation for a finding that public actors retaliated against him unconstitutionally. The most that he can prove is that Southlake fired him in retaliation for speaking out, using Miller's good faith request as a pretext.

In Gramenos v. Jewel Cos., 797 F.2d 432, 435 (7th Cir.1986), cert. denied, ...