Loveberry, et al v. Amos

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60603
Summary Calendar
ROSE LOVEBERRY; JOYCE WHITEHEAD;
MARGARET HALL, All Others Similarly
Situated; RUFFIN GROVE MISSIONARY
BAPTIST CHURCH,
Plaintiffs-Appellants,
VERSUS
ESTELLA AMOS; Etc.; ET AL,
Defendants,
BILL WALLACE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:97-CV-241-B-B
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June 21, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiffs Rose Loveberry, Joyce Whitehead, Margaret Hall, and
all others similarly situated, and the Ruffin Grove Missionary
Baptist Church (hereinafter “plaintiffs”) appeal the summary
judgment in favor of defendant Bill Wallace. The district court
held that Wallace was not a state actor for purposes of a claim for

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deprivation of a property right without due process under 42 U.S.C.
§ 1983. The plaintiffs argue that the evidence presented to the
district court is “undisputed” that Wallace was acting under color
of state law.
A private individual may be found to be acting under color of
law in certain circumstances. Adickes v. S.H. Kress & Co., 398
U.S. 144, 152 (1970). The court must determine that “there is a
sufficiently close nexus between the state and the challenged
action . . . so that the action . . . may fairly be treated as that
of the state itself.” Jackson v. Metropolitan Edison Co., 419 U.S.
345, 351 (1974). This nexus may be created by a state-created
legal framework governing private conduct, a delegation of
traditional state powers, or by a “symbiotic interrelationship”
between the state and a private entity. Albright v. Longview
Police Dep’t, 884 F.2d 835, 838 (5th Cir. 1989). Relevant factors
to consider are the extent to which the private actor relies on
government assistance, whether the actor is performing a
traditional government function, and whether the injury is
aggravated in a unique way by the incidents of governmental
authority. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614,
621-22 (1991).
The plaintiffs assert that Wallace was acting under color of
law when he provided them water service by extending water lines
from the city limits to property outside the city which he
developed and sold to the plaintiffs. The evidence filed in
connection with the motion for summary judgment, however, shows
little more than an arm’s length contractual arrangement in which

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the city agreed to sell and deliver water to defendant at a single
meter at the city limits. The defendant independently laid the
lines outside the city and undertook to deliver and resell the
water to the plaintiffs. Contrary to the plaintiffs’ assertions,
the evidence of mere cooperation between the city and the defendant
falls short of what is needed to prove that Wallace was a “state
actor” for purposes of § 1983. See West v. Atkins, 487 U.S. 42,
54-57 (1988); Burton v. Wilmington Parking Auth., 365 U.S. 715,
723-24 (1961). For the reasons assigned by the district court we
agree that no genuine issue for trial exists because no reasonable
trier of fact could find that defendant’s actions of which the
plaintiffs complain were state action or acts under color of state
law or that the defendant discriminated against them on the basis
of their race. The district court’s grant of summary judgment in
favor of Wallace is AFFIRMED.

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