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                                                                          [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-13368
                           ________________________

                       D.C. Docket No. 2:17-cv-01791-ACA



CATHERINE REGINA HARPER,
on behalf of herself and those similarly situated,
JENNIFER ESSIG,
SHANNON JONES,

                                                             Plaintiffs - Appellants,

                                        versus

PROFESSIONAL PROBATION SERVICES INC,

                                                              Defendant - Appellee,

CITY OF GARDENDALE, ALABAMA THE,
a municipal corporation, et al.,

                                                                          Defendants.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                (September 25, 2020)
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Before NEWSOM and BRANCH, Circuit Judges, and BAKER,* District Judge.

NEWSOM, Circuit Judge:

       Pursuant to a contract with a municipal court, a private probation company

earned a fee for every month that a misdemeanor offender remained under its

supervision. We must decide whether the company violated the Fourteenth

Amendment’s Due Process Clause when, according to allegations that we accept as

true for purposes of our review, it unilaterally extended the duration of

probationers’ sentences, increased the fines that they owed, and imposed additional

conditions of probation. We hold that it did.

                                                I

       The municipal court in Gardendale, Alabama presides over misdemeanor

and traffic offenses.1 When a defendant can’t pay a court-imposed fine on the

spot, she is placed on probation until she can come up with the money. For nearly

two decades, Gardendale outsourced the management of its probation program to a

private, for-profit company called Professional Probation Services. PPS

supervised probationers until they paid their fines, fees, and costs in full. PPS was

compensated for its services—in the words of its contract, “not by the City, but by


*
  Honorable R. Stan Baker, United States District Judge for the Southern District of Georgia,
sitting by designation.
1
  Because this case comes to us on appeal of a district court’s dismissal for failure to state a
claim, we accept as true all non-conclusory allegations in the plaintiffs’ complaint. See Neitzke
v. Williams, 

, 326–27 (1989).

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[the] sentenced offenders” themselves. In particular, PPS collected $40 service

fees from its supervisees for every month that they remained on probation.

      The mechanics of probation in PPS-era Gardendale worked like this:

Following a defendant’s conviction, a municipal judge sentenced her to probation

by signing an “Order of Probation” form, which specified the “length of probation”

(e.g., 30 days), the “type of supervision” (e.g., “until fine, court cost and/or

restitution paid”), and any “special conditions” (e.g., “to stay off [certain]

property”). The judge separately signed a “Sentence of Probation” form, which

included blanks for each of the fields pertaining to the duration of probation, the

“total fine,” and the payment schedule, as well as an unmarked list of more than a

dozen possible probation conditions. The judge then gave the pre-signed, blank

Sentence of Probation form to PPS to complete.

      PPS proceeded to fill in the blanks so as to enhance probationers’ sentences

in one (or more) of at least three ways. First, PPS extended the duration of

probation; as the complaint explains it, “PPS typically assigned individuals to 24

months of probation, even though the Municipal Court’s Probation Order regularly

specified a shorter period of 12 months.” Second, PPS increased the fines that

probationers owed; in one plaintiff’s case, for instance, the court imposed a $282

fine, but PPS raised it to $382. And third, PPS added substantive conditions of

probation; the complaint alleges, for example, that “[g]enerally, PPS specified on


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the [Sentence of Probation] Form that persons . . . must abstain from the use of

alcohol or drugs and submit to random testing,” even though the Order of

Probation form hadn’t required either condition. Significantly, no municipal judge

ever independently reviewed or approved the enhancements that PPS unilaterally

imposed.

      PPS’s enhancements were treated as part of a probationer’s sentence in two

respects. First, unless and until a probationer satisfied all obligations imposed by

PPS, she couldn’t shed her probationary status. Second, if a probationer didn’t

abide by PPS’s enhancements, she was subject to jail-time.

      Probationers were required to make monthly payments toward their

outstanding fines, fees, or costs. PPS retained the first $40 of each probationer’s

payment to satisfy its supervisory fee and only paid the remainder, if any, to the

municipal court.

      Plaintiffs Gina Harper, Jennifer Essig, and Shannon Jones all committed

misdemeanor offenses and couldn’t pay their fines immediately, so the court

placed them on probation with PPS. PPS proceeded to enhance each of their

sentences—doubling Harper’s probationary term from 12 to 24 months, increasing

Essig’s fine by $100, and imposing additional conditions on Jones. Harper, Essig,

and Jones subsequently sued PPS for damages resulting from their sentence




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enhancements.2 Most notably, they brought claims under 42 U.S.C. § 1983,

alleging that PPS’s financial interest in keeping them on probation—so as to

continue receiving the $40 monthly fees—violated the Fourteenth Amendment’s

Due Process Clause. In particular, they contended that PPS’s skewed incentives

defied the impartiality that is required of judicial actors and (to a lesser extent)

prosecutors.3 The plaintiffs also brought a state-law abuse-of-process claim.

          On PPS’s motion, the district court dismissed the plaintiffs’ complaint. As

an initial matter, the court observed that PPS didn’t dispute that it “qualifie[d] as a

person acting under color of state law” for purposes of the plaintiffs’ due-process

claim under § 1983. Even so, the court held that the plaintiffs hadn’t shown that

“probation officers owe a duty of neutrality” to probationers and, accordingly, that

it couldn’t “conclude that PPS’s financial interest in the administration of

probation violated the duty of neutrality.” As particularly relevant here, the court

rejected the plaintiffs’ contention that PPS performed any “adjudicatory” functions

of the sort that might give rise to an obligation of impartiality: The plaintiffs, the

court held, “ha[d] not alleged any facts showing that PPS or its employees actually

performed adjudicatory functions” because “at every step, the Municipal Court



2
  Not long after the plaintiffs filed suit, a municipal-court judge ordered probationers to stop
reporting to and paying PPS. PPS subsequently terminated its contract with the city, and it no
longer operates in Gardendale.
3
    Harper and Jones asserted their § 1983 claim on behalf of a putative class.
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signed off on PPS’s actions before PPS even took them.” “Regardless of the

Municipal Court’s relinquishment of its responsibilities,” the court reasoned, “the

fact remains that the [Municipal] Court—not PPS—performed all adjudicatory

functions in this case.”

       Having dismissed the plaintiffs’ federal constitutional claim, the district

court separately declined to exercise supplemental jurisdiction over their state-law

abuse-of-process claim.

       This appeal followed.4

                                                II

       Section 1983 provides a cause of action against any person who, “under

color of” state law, deprives another of her “rights, privileges, or immunities

secured by the Constitution.” 42 U.S.C. § 1983. The constitutional right at issue

in this case is grounded in the Fourteenth Amendment’s Due Process Clause,

which provides that “[n]o State shall . . . deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1.5


4
  We review a district court order granting a motion to dismiss de novo. See Gardner v. Mutz,

, 1338 n.9 (11th Cir. 2020). A complaint may be dismissed for failure to state a
claim when, ignoring any “mere conclusory statements,” the remaining allegations do not
“plausibly suggest” that the defendant is liable. Ashcroft v. Iqbal, 

, 678, 681 (2009).
5
  Before diving into the merits, a bit of housekeeping: Was PPS—a private, for-profit probation
company—acting “under color of” state law within the meaning of § 1983 and a “[s]tate” actor
for Fourteenth Amendment purposes? As already noted, in the district court PPS didn’t contest
that it was a state actor for either purpose. To the extent PPS now disputes (however obliquely)
that it was a state actor, we hold that it was. Where “deprivations of rights under the Fourteenth
Amendment are alleged,” the under-color-of-law and state-action requirements “converge.” Am.
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       As relevant here, the Due Process Clause “entitles a person to an impartial

and disinterested tribunal in both civil and criminal cases”—or, stated differently,

it imposes a “requirement of neutrality in adjudicative proceedings.” Marshall v.

Jerrico, Inc., 

, 242 (1980). This rule of impartiality derives from the

common law, which has long recognized the principle that “[n]o man is allowed to

be a judge in his own cause; because his interest would certainly bias his judgment,

and, not improbably, corrupt his integrity.” The Federalist No. 10, at 59 (J. Cooke

ed. 1961); see also, e.g., Edward Coke, 1 Institutes of the Laws of England 141

(12th ed. 1738). The Due Process Clause constitutionalizes the judicial-

impartiality requirement because, the Supreme Court has explained, it is among

“those settled usages and modes of proceeding” that comprise “due process of

law.” Tumey v. Ohio, 

, 523 (1927). Accordingly, it is by now well-

settled that any judge—or, as we will explain below, anyone discharging a judicial

function—must be impartial.



Mfrs. Mut. Ins. Co. v. Sullivan, 

, 50 n.8 (1999); Burch v. Apalachee Cmty. Mental
Health Servs., Inc., 

, 803 (11th Cir. 1988) (same), aff’d sub nom. Zinermon v.
Burch, 

(1990). State action includes “the exercise by a private entity of powers
traditionally exclusively reserved to the [s]tate.” Jackson v. Metro. Edison Co., 

,
352 (1974); see also, e.g., Ancata v. Prison Health Servs., Inc., 

, 703 (11th Cir.
1985) (“Where a function which is traditionally the exclusive prerogative of the state . . . is
performed by a private entity, state action is present.”). More specifically, when the government
“delegates adjudicative functions to a private party,” the latter qualifies as a state actor. See
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 

,
617 (1993). Because as we explain below, PPS was performing delegated judicial functions, it
was a state actor for both § 1983 and Fourteenth Amendment purposes.

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      So far, so good—and unremarkable. To decide the case before us, however,

we must answer three subsidiary questions: (1) Exactly what does the obligation of

judicial impartiality entail? (2) Does that obligation apply to PPS? And (3) if so,

did PPS violate it here? We will address those questions in turn.

                                          A

      First, what does the judicial-impartiality requirement entail? At a bare

minimum, the Supreme Court has held that it forbids a judge from adjudicating a

case in which he has a “direct, personal, substantial, pecuniary interest.” Id.; see

also Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest

Upon the Legislative Power of the States of the American Union *411 (2d ed.

1871). It thus follows, of course, that a judge’s income can’t directly depend on

how he decides matters before him. See 

; Brown v. Vance,

, 282 (5th Cir. 1981). More broadly, though, the Supreme Court has

said that the Due Process Clause forbids any financial interest that “offer[s] a

possible temptation to the average man as a judge” to forsake his obligation of

impartiality. Ward v. Vill. of Monroeville, 

, 60 (1972) (quoting 

). This judicial-impartiality requirement imposes a “stringent rule”

that may preclude adjudication even by “judges who have no actual bias.”

(quoting In re Murchison, 

, 136 (1955)).




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      The Supreme Court has applied the impartiality requirement to invalidate

convictions and sentences even when the decisionmaker’s financial interest “was

less than what would have been considered personal or direct at common law.”

Caperton v. A.T. Massey Coal Co., 

, 877 (2009). In Tumey, for

instance, the Court voided convictions arising from a municipal court in which a

mayor (sitting as a judge) imposed fines that both funded his salary—he received a

salary bump only if he convicted the defendant—and generated sums that went

into the town’s general treasury for repairs and 

–

21. That regime violated the Due Process Clause, the Court held, “both because of

[the mayor-judge’s] direct pecuniary interest in the outcome, and because of his

official motive to convict and to graduate the fine to help the financial needs of the

village.”

So too in Ward, the Court invalidated convictions imposed by

another mayor-judge on the ground that the fines he imposed constituted a

substantial portion of the town’s income, despite the fact that his own

compensation in no way depended on his decisions. 

–60. “The

fact that the mayor [in Tumey] shared directly in the fees and costs,” the Ward

Court explained, “did not define the limits of the principle”—which, instead,

turned on the “possible temptation” of the mayor, whose “executive

responsibilit[i]es for village finances may make him partisan to maintain the high

level of contribution from [his] court.”

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       So, long story short: The Due Process Clause forbids adjudication by a judge

who has a financial interest in the outcome of his decisions, provided that the

interest—personal or otherwise—is substantial enough to give him a “possible

temptation” to forsake his obligation of impartiality.

the judicial-impartiality requirement, we must next decide

to whom it applies—and, in particular, whether it applies to PPS. PPS, after all, is

not a judge. But as the Supreme Court has repeatedly explained, the obligation of

impartiality governs not just judges, but anyone acting in a “judicial or quasi

judicial capacity.” 

(emphasis added); 

. The term “quasi-judicial” refers to the performance of a “judicial” function

by someone who isn’t technically a judge. See Quasi-Judicial Act, Black’s Law

Dictionary (10th ed. 2009) (“A judicial act performed by an official who is not a

judge.”).6 So if PPS was performing a judicial function, it was acting in a quasi-

judicial capacity and was bound by the impartiality requirement. The decisive

question, then, is whether PPS was performing a judicial function. 7


6
 Black’s defines “quasi-judicial” itself as “[o]f, relating to, or involving an executive or
administrative official’s adjudicative acts.” Quasi-Judicial, Black’s Law Dictionary (10th ed.
2009).
7
  The judicial-impartiality requirement has been applied “in a variety of settings”—not just to
judges in the traditional sense—“demonstrating the powerful and independent constitutional
interest in fair adjudicative procedure.” 

. To take just one example,
the Supreme Court has held that a state board of optometry couldn’t provide a fair and impartial
hearing because it comprised private optometrists who had a financial interest in revoking their
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       We hold that it was. Our analysis begins and ends with the uncontroversial

proposition that whatever else the judicial function entails, it includes the power to

impose a binding sentence. See, e.g., 

; United States v.

Heath, 

, 1315 (11th Cir. 2005) (“The Supreme Court has made it

clear that imposing a sentence on a defendant is a judicial function.”). So, for

instance, the Supreme Court has held that a non-judge official does not perform a

judicial function when he assesses a penalty that is subject to plenary factual and

legal review in court. See 

, 251. By contrast, the Court

has held that a non-judge official does perform a judicial function when his

decision regarding a litigant’s penalty is not subject to such review. See 

. And indeed, we have twice affirmed this proposition specifically

in the probation context, holding that probation officers perform a “judicial

function” when they determine whether a probationary sentence should include

mandatory mental-health treatment. See 

–15; United

States v. Nash, 

, 1305–06 (11th Cir. 2006). Along the same lines,

we have held that a probation officer was performing a “judicial function” when he




competitors’ licenses. See Gibson v. Berryhill, 

, 578–79 (1973) (explaining that
“those with substantial pecuniary interest in legal proceedings should not adjudicate these
disputes”).

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established a schedule for restitution payments. See United States v. Prouty, 

, 1254–55 (11th Cir. 2001). 8

       By these standards, PPS undoubtedly performed a judicial function—and

thus acted in a “quasi-judicial capacity”—when it imposed binding sentence

enhancements on probationers. As already explained, PPS unilaterally lengthened

the duration of probationary terms, increased associated fines, and added

substantive conditions. And PPS’s enhancements were final—not only were they

never subject to plenary review in a separate tribunal, they were consistently

treated as binding additions to the probationers’ sentences. Essig paid an extra

$100 as a result of PPS’s sentence enhancement; Harper went to jail for failing to

comply with hers. 9

       Despite all this, PPS contends—and the district court held—that it didn’t

perform a judicial function because it imposed its sentence enhancements on a

form that had been pre-signed by a municipal judge. We disagree. We have

already held that probation officers performed a judicial function when they set

8
  Although Heath, Nash, and Prouty all addressed the propriety of delegating Article III “judicial
power” to non-judicial actors, see U.S. Const., art. III, § 1, their assessment of what constitutes a
“judicial function” applies here, as well.
9
  For what it’s worth, Alabama law authorizes “court[s]” to “determine[]” the “period of
probation” and to “determine” and “modify” the “conditions of probation.” Ala. Code § 12-14-
13(d), (g). We don’t mean to suggest, of course, that state law controls the substance of the
judicial function for federal constitutional purposes, but Alabama law’s assignment of
responsibility further supports our conclusion that PPS was performing a judicial function when
it determined the plaintiffs’ periods of probation and then prescribed and modified the
accompanying terms.

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terms of probation, even though they too had pre-authorization from a judge. See

–15; 

–06. Unlike after-the-fact

plenary review, pre-authorization doesn’t render a probation officer’s sentence

enhancement either non-final or non-binding. Taken to its logical conclusion,

PPS’s theory implies that when a court delegates (abdicates?) its judicial function

to an entity with a personal financial stake in how that function is performed,

neither actor violates the Due Process Clause—the court skates because it’s not

partial, and the delegate gets off because it’s not judicial. That can’t be the law.

                                          C

      Because PPS was performing a judicial function, it was bound by the “strict”

impartiality requirement applicable to judges. We have little trouble concluding

that PPS’s conduct violated that requirement. PPS, recall, received its $40 monthly

fee only as long as a probationer remained on probation. Recall, as well, that PPS

unilaterally decided how many months a probationer spent on probation and

whether the probationer would be subject to additional obligations that made it

more difficult for her to complete her term. PPS thus had a direct pecuniary

interest in maximizing the length of probation: Its income, in the form of the

monthly fees, depended directly on how long each probationer remained on the




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hook. In the eyes of the law, it couldn’t determine probation sentencing matters

impartially.10

                                                III

       To recap, we hold that PPS was acting in a quasi-judicial capacity because it

performed a judicial function when it imposed binding sentence enhancements.

We further hold that PPS was not impartial because its revenue depended directly

and materially on whether and how it made sentencing decisions. Accordingly, we

hold that the plaintiffs have adequately stated a claim under the Due Process

Clause. We reverse the district court’s dismissal of the plaintiffs’ due-process

claim and remand for further proceedings.

       Having rejected the lone basis on which the district court dismissed the

state-law claim—that because the plaintiffs’ federal claim failed as a matter of law,

10
  There is one loose end, which the parties haven’t raised on appeal but which is necessary to
resolving the plaintiffs’ due-process claim: When suing a corporate entity under § 1983, a
plaintiff must show that the entity itself committed or caused the constitutional violation. See
Howell v. Evans, 

, 724 (11th Cir. 1991); Ort v. Pinchback, 

, 1107
(11th Cir. 1986). Because § 1983 doesn’t hold employers vicariously liable for the acts of their
employees, the plaintiffs here must demonstrate that the unconstitutional actions of PPS’s
employees were taken pursuant to a “policy or custom . . . made . . . by those whose edicts or
acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs., 

,
694 (1978). A “policy or custom” may be established, among other things, by a “pattern of
similar constitutional violations.” Connick v. Thompson, 

, 62 (2011).
        At the motion-to-dismiss stage, the plaintiffs have alleged a sufficient basis to conclude
that PPS’s “policy or custom” caused their injuries. PPS, they say, “typically” (and “often”)
extended probation sentences from 12 to 24 months and “[g]enerally” added substantive terms of
probation. They further contend that PPS’s conduct was part of “one central scheme” that it
operated “in materially the same manner every day, with every person assigned to PPS.” And, of
course, they assert that PPS subjected each of them to similar constitutional violations on
different occasions.

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the court had discretion to decline to consider their state-law claim—we likewise

reverse the dismissal of that claim and remand for further proceedings.

      REVERSED and REMANDED.




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