The Constitution guards against violations of rights by government officials, not
violations by private parties. Thus, to be liable in a § 1983 claim, the defendant
must either be a state (or local) government worker or a private worker acting
under color of state law. This may be a difficult determination when the
government outsources public work to private parties. The Supreme Court has
issued some guidance in this area, holding that a "private action will be
considered to be 'state action' for purposes of [the] Fourteenth Amendment if,
though only if, there is such close nexus between state and challenged action
that seemingly private behavior may be fairly treated as that of state itself."
Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288
(2001). Such a showing is sufficient to demonstrate that the defendant
individual was acting under color of state law.
Id. Unfortunately, this standard
still leaves room for unpredictability because, as the Court declares, no single
factor is a necessary condition that applies across the board for finding state
action, nor is any set of circumstances absolutely sufficient, for there may be
some countervailing reason against attributing activity to government.
Id. at 930.
Private workers acting under color of state law can not raise the defense of
qualified immunity. Richardson v. McKnight, 521 U.S. 399 (1997). In that case,
the Court found no historical or policy reasons for granting qualified immunity
to private individuals working for a private corporation that operated a state
prison. This rule has since been applied to a physician performing contract
work for a state health facility. Jensen v. Lane County, 222 F.3d 570 (9th Cir.
In a § 1983 action, the Supreme Court ruled that a doctor who was under
contract with the state to provide medical services to a state prison hospital on
a part-time basis was acting under color of state law. West v. Atkins, 487 U.S.
42 (1988). However, many other courts have held that those who contract with
the state to perform public functions do not necessarily become state actors for
§ 1983 purposes. The Third Circuit has said that acts of private contractors do
not become acts of the state under § 1983 simply because public contracts are
being performed. Boyle v. Governor’s Outreach and Assistance Ctr., 925 F.2d
71 (3d Cir. 1991). The Sixth Circuit ruled that a private mental health facility
under contract with the state is not a state actor when it comes to personnel
decisions because such decisions are not directly related to any legal obligation
of the state. Simescu v. Emmett County Dept. of Soc. Serv., 942 F.2d 372 (6th
An example of a private contractor who received state immunity in a § 1983
action is in the case Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir. 1999). Dr.
Ostrzenski brought a § 1983 action against Dr. Seigel, who conducted a peer
review of Dr. Ostrzenski at the behest of the Maryland Board of Physician
Quality Assurance. Dr. Ostrzenski alleged that Dr. Seigel denied him due
process under the Fifth and Fourteenth Amendments as a result of procedural
irregularities in the peer review process. The court dismissed the claim,
reasoning that Dr. Seigel was entitled to absolute quasi- judicial immunity from
prosecution on Dr. Ostrzenski's § 1983 claim. In the court’s view, Dr. Seigel
was performing a function analogous to a prosecutor reviewing evidence to
determine if charges should be brought, and absolute immunity was necessary
to foster an atmosphere in which a reviewing physician could exercise
professional judgment without fear of retaliation.