George v. Pacific-CSC Work Furlough

91 F.3d 1227, 1996 WL 426404
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 31, 1996
DocketNo. 94-56098
StatusPublished
Cited by62 cases

This text of 91 F.3d 1227 (George v. Pacific-CSC Work Furlough) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1996 WL 426404 (9th Cir. 1996).

Opinion

PER CURIAM:

George brought six claims against his former employer, Pacifie-CSC Work Furlough Facility a/k/a Pacific Placement Facility (Pacific). The first two were federal pursuant to 42 U.S.C. § 1983. The district court ordered George to amend these claims to allege recognizable state action. George failed to do so within the specified time period, and the court dismissed the two federal claims on the pleadings. It declined to exercise jurisdiction over the remaining four state law claims. George appeals from the dismissal. The district court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I.

Pacific Placement, a private entity, contracted with the County of San Diego to operate a correctional facility. In December 1992, Pacific Placement hired George as a custodial staff officer. The next month, George enrolled in the “Correction Officer Basic Core Course.” As a result of the training he received, George alleges he became aware of numerous safety and security violations at Pacific Placement. He discussed these problems in class, but his Pacific supervisors allegedly ordered him to stop or suffer termination. Subsequently, he brought safety and security violations to the attention of Pacific’s management.

In May 1993, Pacific terminated George on the basis of what George alleges to be false accusations. He insists that his termination was actually in response to and in reprisal for his reporting of safety and security violations and therefore violated the First Amendment and Article I, section 2 of the California Constitution.

II.

Judgments on the pleadings are reviewed de novo. Merchants Home Delivery Serv. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir.), cert. denied, — U.S.-, 116 S.Ct. 418, 133 L.Ed.2d 335 (1995). A district court will render a “judgment on the pleadings when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Yanez v. United States, 63 F.3d 870, 872 (9th Cir.1995) (quotations omitted).

Under the First Amendment, as made applicable to the states through the Fourteenth Amendment, a public employer may not fire an employee by reason of his exercise of free speech rights. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977); see also Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 334 (9th Cir.1995). But the First Amendment protects individuals only against government, not private, infringements upon free speech rights. See Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). Individuals bringing actions against private parties for infringement of their con stitutional rights, therefore, must show that the private parties’ infringement somehow constitutes state action. See Dworkin v. Hustler Magazine, 867 F.2d 1188, 1200 (9th Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 59, 107 L.Ed.2d 26 (1989). In § 1983 actions, “color of state law” is synonymous with state action. Rendell-Baker, 457 U.S. at 838, 102 S.Ct. at 2769.

Since George is not a public employee, he must plead facts which show that Pacific’s firing of him constituted state action. Gorenc v. Salt River Project Agricultural Improvement & Power Dist., 869 F.2d 503, 505 (9th Cir.), cert. denied, 493 U.S. 899, 110 S.Ct. 256, 107 L.Ed.2d 205 (1989); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 [1230]*1230(1982). Demonstrating state action is a necessary threshold which George must cross before we can even consider whether Pacific infringed upon his First Amendment rights to iree speech.

In the complaint’s first claim, George attempts to allege state action with the following language:

Defendants, at all times relevant hereto, were performing and fulfilling a traditional state and government function, i.e., operating a correctional or detention facility, pursuant to the California Penal Code, the regulations, rules and policies established thereunder, as well as pursuant to the laws, regulations, policies and procedures of the County and City of San Diego, and pursuant to the official policies and customs of the Facility, and as such, were acting under color of state law. In addition, defendants were acting as a federal correctional facility, acting under the color of federal statutes, regulations and policy.

This language was repeated in George’s second claim, and he also alleged:

Defendants, in performing the actions and conduct described herein, were acting in and as part of a conspiracy and scheme, which was designed and intended and the natural consequence of which was to deny and deprive Plaintiff of his rights guaranteed to plaintiff under the Constitutions and the laws of the United States and the State of California.

We must determine whether these allegations constitute state action. In a recent opinion, the Supreme Court observed that “it is fair to say that ‘our eases deciding when private action might be deemed that of the state have not been a model of consistency.’ ” Lebron v. National R.R. Passenger Corp., — U.S.-,-, 115 S.Ct. 961, 964, 130 L.Ed.2d 902 (1995) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632, 111 S.Ct. 2077, 2089, 114 L.Ed.2d 660 (1991) (O’Connor, J., dissenting)). We now look into the murkiness shrouding this area of the law.

III.

The Supreme Court has articulated four distinct approaches to the state action question: public function, state compulsion, nexus, and joint action. See Lugar, 457 U.S. at 939, 102 S.Ct. at 2754. The Court has not indicated whether these approaches are merely factors or independent tests. See id. (declining to resolve whether the different approaches “are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry”); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir.1995); Gorenc, 869 F.2d at 506.

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