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Ledford v. Baenen

United States District Court, E.D. Wisconsin

April 9, 2018

WILLIAM N. LEDFORD, Plaintiff,
v.
MICHAEL BAENEN, AMY BASTEN, RANDY MATTISON, CATHY JESS, YANA PUSICH, C.O. LEURQUIN, SMA CONSTRUCTION SERVICES, MIKE ABHOLD, BURT FEUCHT, and SOCIETY INSURANCE COMPANY, Defendants.

          ORDER

          J. P. STADTMUELLER U.S. DISTRICT JUDGE.

         Plaintiff William N. Ledford (“Ledford”), a prisoner proceeding pro se, filed this action to recover for injuries he allegedly sustained from the discharge of noxious fumes in his cell block during construction of a new bathhouse at Green Bay Correctional Institution. (Docket #55). In his amended complaint, Ledford asserts claims for violations of his constitutional rights under the Eighth Amendment pursuant to 42 U.S.C. § 1983. Id. at 16. He also raises claims of negligence, negligent supervision, and negligent infliction of emotional distress under Wisconsin state law. Id. at 22-26. The defendants include an array of prison officials, as well as private individuals and entities associated with the construction work. This latter group includes Mike Abhold, Burt Feucht, SMA Construction Services, and Society Insurance Company (collectively, the “Construction Company Defendants”).

         The Construction Company Defendants have moved to dismiss all claims against them. (Docket #75). First, they argue that as private citizens, they did not act under color of state law as required to sustain a claim under Section 1983. (Docket #74 at 5-7). Second, they contend that the state-law claims against them are barred by the applicable statute of limitations. Id. at 7-8. The motion is fully briefed and, for the reasons stated below, it will be granted as to the constitutional claim and denied as to the state-law claims.

         1. The Construction Company Defendants are Not State Actors

         A cause of action under Section 1983 requires that the defendants acted under the color of state law. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Generally, private parties do not act under the color of state law, but they may nevertheless be subject to suit under Section 1983 if a plaintiff can demonstrate “some nexus between the conduct complained of and the state, state official, or some state entity.” Musso v. Suriano, 586 F.2d 59, 64 (7th Cir. 1978); Jackson v. Metro. Edison Co., 419 U.S. 345, 349-51 (1974).

         Ledford alleges that the Construction Company Defendants were state actors because they contracted with the prison to construct a new bathhouse. As has been explained to Ledford several times, this contention lacks merit. See (Docket #7, #13, #54). A private party can be considered a state actor when “a state effectively directs, controls, or encourages [his] actions, ” or when “a state delegates a ‘public function' to a private entity.” Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996); Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 628 (7th Cir. 1999).

         Neither circumstance applies to the Construction Company Defendants. As to the first, there is no allegation that the state directed them to monitor or address the fumes impacting the prisoners and staff. As to the second, although these defendants worked on a contract from the state, “[t]he simple fact that a private entity performs a function that serves the public does not transform its conduct into state action.” Wade, 83 F.3d at 905. Instead, the relationship must rise to the level where the private entity becomes effectively an arm of the state by performing functions that are “traditionally the exclusive prerogative of the State.” Id. In other words, “it takes more than just a business relationship to transform a private entity into a state actor.” (Docket #7 at 7).

         Here, the Construction Company Defendants' contract with the state was limited to construction work, which is not traditionally the exclusive prerogative of the state. The mere fact that they were working on a state prison facility did not mean that the state delegated to them its responsibility to protect prisoners' constitutional rights; that responsibility always remained with the state. See White v. Cooper, 55 F.Supp.2d 848, 859 (N.D. Ill. 1999). Only the prison officials had the authority to relocate the prisoners or ensure that the fumes did not enter the cell block. The Construction Company Defendants did not assume this obligation simply by virtue of their contractual relationship with the state. As a consequence, they were not state actors.

         Ledford depends on Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816 (7th Cir. 2009), to argue against this result, but the case does not aid him. There, a Wisconsin state prisoner was transported to a hospital by a private ambulance service. Id. at 819-20. He later sued under Section 1983 for pain and injuries he sustained from a misplaced IV in his arm. Id.

         The Seventh Circuit determined that on the state of the pleadings, it could not answer the question whether the ambulance service engaged in state action. Id. at 829-30. To reach this conclusion, the court examined the “trilateral relationship” involving the prison, the ambulance service, and the prisoner. Id. Although the inmate alleged that the ambulance service employees had provided medical care to him, establishing that there was a relationship between the ambulance service and state prisoners, it was unclear whether the ambulance services had done so pursuant to a contract or whether they had done so as part of a municipal service available to all persons needing emergency medical care. Id. Because it was not clear whether a relationship existed between the prison and the ambulance service, the Seventh Circuit held that it could not be decided at the pleading stage whether the ambulance service employees had acted under color of state law. Id.

         Rodriguez does not control the outcome in this case. Ledford alleges that the prison and the construction company entered into a contract to build a new bathhouse. There is no allegation, nor can it be reasonably inferred, that as part of that contract, the construction company accepted responsibility for caring for the prisoners. As the Seventh Circuit noted in Rodriguez, “[t]o the degree that a private entity does not replace, but merely assists the state. . ., the private entity's responsibility for the level of [prisoner] care becomes more attenuated, and it becomes more difficult to characterize its actions as the assumption of a function traditionally within the exclusive province of the state.” Id. at 828. Here, while the prison and the Construction Company Defendants had a business relationship, the prisoners and the Construction Company Defendants had no relationship at all. Without some relationship between the private entity and the prisoners, the Construction Company Defendants cannot be considered state actors. Id.

         Ledford clings to communications he received in 2014 from the Correctional Management Services Director, Amy Basten (“Basten”), explaining that she would not provide him with the name of the construction company or its employees because, pursuant to the Wisconsin Administrative Code, the construction company, as an independent contractor, was considered “staff” and he was not permitted to possess identifying information about prison staff. See (Docket #77 at 7); (Docket #8-1 at 15-16). Further, he claims that the Construction Company Defendants are being indemnified by the state-an allegation that they deny. (Docket #77 at 7); (Docket #79 at 5-6). Ledford believes that these facts establish that the Construction Company Defendants are state employees.

         This is not true, since, as Magistrate Judge David E. Jones cogently explained in an earlier order,

the prison's analysis of which entities and people are “staff” for purposes of determining whether to disseminate personal contact information to prisoners is very different from the Court's analysis of whether an entity or person is a state actor for purposes of § 1983 liability. In the first, the definition of staff will necessarily be broad to protect private information from public dissemination; in the second, the definition will necessarily be narrow, to protect private parties from liability for actions that are within the exclusive ...

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