                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JOHN RENE RODRIGUEZ; RAYSHAWN           
WARD,
               Plaintiffs-Appellees,
                 v.
SMITHFIELD PACKING COMPANY,
INCORPORATED; DANIEL M. PRIEST,
             Defendants-Appellants,
                and
LASAVEN RICHARDSON, in his
individual and official capacities as
a Bladen County Deputy Sheriff;
TERRY C. DAVIS, in his individual
and official capacities as a Bladen
                                           No. 02-1835

County Deputy Sheriff; BRYSON
ROBINSON, in his individual and
official capacities as a Bladen
County Deputy Sheriff; GENE
LAMBERT, in his individual and
official capacities as a Bladen
County Deputy Sheriff; BLADEN
COUNTY SHERIFF’S DEPARTMENT;
PEERLESS INSURANCE COMPANY; THE
INSURANCE COMPANY OF NORTH
AMERICA,
                          Defendants.
                                        
2            RODRIGUEZ v. SMITHFIELD PACKING COMPANY



JOHN RENE RODRIGUEZ; RAYSHAWN           
WARD,
              Plaintiffs-Appellants,
                 v.
SMITHFIELD PACKING COMPANY,
INCORPORATED; DANIEL M. PRIEST,
              Defendants-Appellees,
                and
LASAVEN RICHARDSON, in his
individual and official capacities as
a Bladen County Deputy Sheriff;
TERRY C. DAVIS, in his individual
and official capacities as a Bladen
                                             No. 02-1893

County Deputy Sheriff; BRYSON
ROBINSON, in his individual and
official capacities as a Bladen
County Deputy Sheriff; GENE
LAMBERT, in his individual and
official capacities as a Bladen
County Deputy Sheriff; BLADEN
COUNTY SHERIFF’S DEPARTMENT;
PEERLESS INSURANCE COMPANY; THE
INSURANCE COMPANY OF NORTH
AMERICA,
                          Defendants.
                                        
             RODRIGUEZ v. SMITHFIELD PACKING COMPANY             3



JOHN RENE RODRIGUEZ; RAYSHAWN            
WARD,
               Plaintiffs-Appellees,
                  v.
DANIEL M. PRIEST; LASAVEN
RICHARDSON, in his individual and
official capacities as a Bladen
County Deputy Sheriff; TERRY C.
DAVIS, in his individual and official
capacities as a Bladen County
Deputy Sheriff; BRYSON ROBINSON,
in his individual and official
capacities as a Bladen County                   No. 02-2024
Deputy Sheriff; GENE LAMBERT, in
his individual and official capacities
as a Bladen County Deputy Sheriff;
BLADEN COUNTY SHERIFF’S
DEPARTMENT,
               Defendants-Appellants,
                 and
SMITHFIELD PACKING COMPANY,
INCORPORATED; PEERLESS INSURANCE
COMPANY SURETY; THE INSURANCE
COMPANY OF NORTH AMERICA,
                        Defendants.
                                         
           Appeals from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                W. Earl Britt, Senior District Judge.
                       (CA-00-613-5-BR(2))

                        Argued: June 3, 2003

                       Decided: July 30, 2003
4             RODRIGUEZ v. SMITHFIELD PACKING COMPANY
       Before WILKINSON and MOTZ, Circuit Judges, and
         Robert R. BEEZER, Senior Circuit Judge of the
       United States Court of Appeals for the Ninth Circuit,
                      sitting by designation.



Affirmed in part and reversed in part by published opinion. Judge
Wilkinson wrote the opinion, in which Judge Motz and Senior Judge
Beezer joined.


                              COUNSEL

ARGUED: Earle Duncan Getchell, Jr., MCGUIREWOODS, L.L.P.,
Richmond, Virginia; Andrew John Hanley, CROSSLEY, MCIN-
TOSH, PRIOR & COLLIER, Wilmington, North Carolina, for Appel-
lants. Michael Griffin Okun, PATTERSON, HARKAVY &
LAWRENCE, L.L.P., Raleigh, North Carolina, for Appellees. ON
BRIEF: Jeffrey S. Shapiro, Jonathan P. Harmon, MCGUIRE-
WOODS, L.L.P., Richmond, Virginia, for Appellants. Ann E. Gron-
inger, PATTERSON, HARKAVY & LAWRENCE, L.L.P., Raleigh,
North Carolina, for Appellees.


                               OPINION

WILKINSON, Circuit Judge:

   Plaintiffs John Rodriguez and Rayshawn Ward filed suit against
Daniel Priest, Smithfield Packing Company, and several members of
the Bladen County Sheriff’s Department, alleging that they were
unlawfully arrested in the wake of a unionization election at a Smith-
field Packing facility. After dismissing the Sheriff’s Department
defendants and some of the claims against Smithfield Packing and
Priest, the district court allowed the case to go to trial. The jury found
both Priest and Smithfield Packing liable for violating plaintiffs’ con-
stitutional rights. Because plaintiffs released Priest and the Sheriff’s
Department defendants from liability, and because Priest’s actions did
              RODRIGUEZ v. SMITHFIELD PACKING COMPANY                 5
not constitute official policymaking on behalf of Smithfield Packing,
we affirm in part and reverse in part. To do otherwise would trans-
form a private company into a municipal corporation without suffi-
cient justification.

                                   I.

   Smithfield Packing operates a pork processing plant in Tar Heel,
North Carolina, which is located in Bladen County. Defendant Daniel
Priest was Chief of Security at the Tar Heel plant. He had been
responsible for setting up the security program at the Tar Heel facil-
ity, including hiring the security guards and developing security pro-
cedures. On a day to day basis, he was charged with overseeing the
plant’s twenty-four full-time security guards and protecting Smith-
field’s employees and assets.

   Priest was also affiliated with the Bladen County Sheriff’s Depart-
ment as an auxiliary deputy sheriff — a sworn deputy sheriff who is
not on the payroll and works at the discretion of the County Sheriff.
As an auxiliary deputy sheriff, Priest had the same legal authority as
a full-time deputy, including the power to arrest. The County Sheriff
also charged Priest with handling many law enforcement functions on
behalf of the Sheriff’s Department at the Tar Heel plant, including
criminal investigations and the service of civil papers and criminal
warrants. This freed up the full-time deputies to handle incidents else-
where in Bladen County. Priest also performed special assignments
for the Sheriff’s Department that were unrelated to Smithfield Pack-
ing. Priest was at all times, however, in a subordinate role within the
Sheriff’s Department: he reported to the County Sheriff, was subject
to Sheriff’s Department regulations, and had no managerial authority
over other deputies when they were dispatched to the Tar Heel plant
(as they were, on average, three or four times a week when Priest was
unavailable).

  In 1997, after previous efforts to unionize the workers at the Tar
Heel plant had failed, the United Food and Commercial Workers
Union began a new organization campaign at the facility. John Rodri-
guez was an organizer for the union who worked on the Smithfield
Packing organization campaign. Rayshawn Ward was a Smithfield
employee who served as an election observer on behalf of the union.
6                RODRIGUEZ v. SMITHFIELD PACKING COMPANY
   At the conclusion of the unionization campaign, the NLRB con-
ducted an election at the Tar Heel Plant in August 1997. On August
22, 1997, the votes were counted in the employee cafeteria. Priest
requested the assistance of the Sheriff’s Department with security
during the count, and the Sheriff sent between eight and ten deputies
to the plant. In the cafeteria, there were between 100 and 150 support-
ers of Smithfield management and between fifteen and twenty repre-
sentatives of the union. Both Ward and Rodriguez were in the
cafeteria during the vote count.

   After the votes were counted, it was announced that the union had
lost the election. The union representatives were ordered to leave the
premises, and they began to walk out. At this point, trouble broke out.
While the parties disagree about which side was at fault for the ensu-
ing melee, the facts relevant to our decision are clear. Priest sprayed
Ward with pepper spray, kneed him in the back as Ward lay on the
ground, handcuffed him, and arrested him. A full-time sheriff’s dep-
uty handcuffed Rodriguez and arrested him. Both Ward and Rodri-
guez were then taken to jail on a series of misdemeanor charges,
apparently according to Priest’s instructions.1 Ward was charged with
two counts of assault, one count of property destruction, and one
count of inciting a riot, and Rodriguez was charged with two counts
of assault on government officials.

   Plaintiffs were represented on their criminal charges by a union
attorney, J. Michael McGuinness. McGuinness met with the County
Sheriff and suggested that plaintiffs sign a release of civil liability in
exchange for a delayed prosecution agreement. McGuinness then met
with an Assistant District Attorney and made the same proposal.
McGuinness subsequently drafted the releases himself. The release
agreements read, in relevant part:

        I hereby fully release and forever discharge the Bladen
        County Sheriff’s Department, including but not limited to
        Sheriff Steve Bunn [and several named sheriff’s deputies]
        . . . from all existing claims which I may have against [them]
    1
   Although this point is contested, we assume for the purposes of this
opinion that Priest was responsible for the arrest of both Ward and Rodri-
guez.
              RODRIGUEZ v. SMITHFIELD PACKING COMPANY                   7
      for alleged conduct that occurred on or about August 22,
      1997. . . .

      I will not initiate any lawsuit, complaint or legal claim
      against any of the Releasees in any federal, state or any
      other court or other tribunal for any conduct that occurred
      on or about August 22, 1997.

Ward signed the release on September 29, 1997, and the prosecution
against him was suspended on the same day with the understanding
that all charges would be dropped if Ward did not violate any North
Carolina laws for the following twelve months. Rodriguez signed the
release on October 7, 1997, and his prosecution was then suspended
under the same conditions that Ward received.

   In August 2000, Ward and Rodriguez filed suit in federal court
against the Bladen County Sheriff’s Department, the County Sheriff,
and several individual sheriff’s deputies ("the Sheriff’s Department
defendants"), as well as Smithfield Packing and Priest. Ward and
Rodriguez claimed that defendants had violated the First Amendment,
the Fourth Amendment, the Fourteenth Amendment, and 42 U.S.C.
§ 1981. Ward and Rodriguez also brought several state law claims,
including false arrest, malicious prosecution, and assault and battery.
The district court granted summary judgment to the Sheriff’s Depart-
ment defendants on all counts. The district court also granted sum-
mary judgment to Priest and Smithfield on all counts except
plaintiffs’ Fourth Amendment and Equal Protection Clause claims.2

   The case then proceeded to trial. After evidence had been pre-
sented, the district court granted judgment as a matter of law to the
plaintiffs under Fed. R. Civ. P. 50 on two issues, holding that Priest
and Smithfield Packing had acted under color of state law on August
22, and that Priest was a final policymaker for Smithfield under 42
U.S.C. § 1983. The case was sent to the jury, which found that Priest
had violated plaintiffs’ constitutional rights. The jury awarded Rodri-
  2
   The district court dismissed all state law claims against Smithfield on
the ground that they were either time-barred under North Carolina law
or preempted under the NLRA. Plaintiffs do not challenge these rulings
on appeal.
8             RODRIGUEZ v. SMITHFIELD PACKING COMPANY
guez $25,000 in compensatory damages and $130,000 in punitive
damages, and awarded Ward $75,000 in compensatory damages and
$525,000 in punitive damages. The district court denied defendants’
post-trial motions for judgment as a matter of law or a new trial. This
appeal ensued.

                                   II.

   Ward and Rodriguez appeal the district court’s grant of summary
judgment to the Sheriff’s Department defendants. They argue that the
release-dismissal agreements are unenforceable under federal law and
cannot support summary judgment on those claims.

   We review the district court’s grant of summary judgment on this
score de novo. Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
In deciding whether a genuine issue of material fact exists, "the evi-
dence of the nonmoving party is to be believed and all justifiable
inferences must be drawn in its favor." Id. (citation omitted).

   In Town of Newton v. Rumery, 480 U.S. 386 (1987), the Supreme
Court held that "a court properly may enforce an agreement in which
a criminal defendant releases his right to file an action under 42
U.S.C. § 1983 in return for a prosecutor’s dismissal of pending crimi-
nal charges." Id. at 389, 397. Justice O’Connor, whose fifth vote was
dispositive, observed in her concurrence that in order to escape liabil-
ity under a release-dismissal agreement, "[t]he defendants in a § 1983
suit . . . must prove" that a release of liability "was voluntarily made,
not the product of prosecutorial overreaching, and in the public inter-
est." Id. at 401 (O’Connor, J., concurring in part and concurring in the
judgment) (emphasis in original); see also id. at 398 (majority opin-
ion). Of particular interest in this case-by-case inquiry are the "knowl-
edge and experience of the criminal defendant," the "nature of the
criminal charges," the "existence of a legitimate criminal justice
objective for obtaining the release," "whether the defendant was coun-
seled," and whether the agreement was "executed under judicial
supervision." Id. at 401-02 (O’Connor, J.).

   The circumstances surrounding the execution of plaintiffs’ release-
dismissal agreements lead us to conclude that the agreements must be
enforced in this case. Most important, plaintiffs conceived, initiated,
               RODRIGUEZ v. SMITHFIELD PACKING COMPANY                      9
and proposed the arrangement; it was not presented to them immedi-
ately after their arrest by an overreaching prosecutor who knew that
civil liability might arise from the underlying events. Furthermore,
plaintiffs drafted the release document, giving themselves first oppor-
tunity to shape its scope and effect. They were represented by counsel
and have not challenged his competency or experience. They had
more than a month to decide whether or not to actually proceed with
the agreement. And the likelihood that plaintiffs were unduly coerced
is particularly small, since they faced only misdemeanor charges. See
id. at 401 ("[T]he greater the charge, the greater the coercive effect.").3
We therefore hold that the release-dismissal agreement was enforce-
able, and the Sheriff’s Department defendants were properly dis-
missed from this case.4

  3
     Plaintiffs also argue that the release, despite its express language, was
not supported by consideration sufficient to render it enforceable,
because the release was not executed in return for the dismissal agree-
ment. See Maynard v. Durham & S. Ry. Co., 365 U.S. 160, 163 (1961).
The evidence, however, shows that plaintiffs proposed the release-
dismissal agreement to both the Sheriff and the prosecutor. At the least,
a Sheriff’s agreement to support the dismissal of criminal charges consti-
tutes adequate consideration for the release in this case. Moreover, what-
ever the level of prosecutorial involvement, the release serves the public
interest by sparing Bladen County the expense of future civil litigation.
See Town of Newton, 480 U.S. at 399-400 (O’Connor, J., concurring in
part and concurring in the judgment) ("Sparing the local community the
expense of litigation associated with some minor crimes for which there
is little or no public interest in prosecution may be a legitimate objective
of a release-dismissal agreement.").
   4
     While we reject the plaintiffs’ appeal on this score, we deny the Sher-
iff’s Department defendants’ request for attorney’s fees under 42 U.S.C.
§ 1988. Plaintiffs’ argument was not "frivolous, unreasonable, or without
foundation." DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir. 1999) (cita-
tion omitted). But since "in the ordinary course, a prevailing party is enti-
tled to an award of costs," Teague v. Bakker, 35 F.3d 978, 996 (4th Cir.
1994), we hold that costs must be awarded to the Sheriff’s Department
defendants. Plaintiffs have suggested no reason to depart from this "pre-
sumption in favor of an award of costs to the prevailing party." Id.
10            RODRIGUEZ v. SMITHFIELD PACKING COMPANY
                                  III.

   For their part, defendants argue that Priest should not have been
found liable for violating plaintiffs’ constitutional rights. They con-
tend that the district court should instead have granted Priest judg-
ment as a matter of law.

   We review de novo the district court’s denial of Priest’s motion for
judgment as a matter of law under Fed. R. Civ. P. 50(b). Austin v.
Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999). In doing
so, we view the evidence in the light most favorable to plaintiffs, and
draw all reasonable inferences in their favor. Id.

   In order to render Priest liable under 42 U.S.C. § 1983, plaintiffs
must show that he was acting under color of state law. Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) ("‘[T]he party charged
with the deprivation [of federally secured rights] must be a person
who may fairly be said to be a state actor.’"). The Fourth Circuit has
held that "‘[o]ne of the paradigmatic means by which a private party
becomes subject to section 1983 is through the government’s confer-
ral upon that party of what is, at core, sovereign power’" — a power,
in other words, that is "‘traditionally the exclusive prerogative of the
State.’" Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d
337, 342 (4th Cir. 2000) (citation omitted). "[T]he ultimate resolution
of whether an actor was . . . functioning under color of law is a ques-
tion of law for the court." Id. at 344 n.7.

   In this case, Priest was an auxiliary deputy sheriff invested with the
full panoply of powers afforded to full-time deputies, including the
power to arrest. The County Sheriff had given Priest primary respon-
sibility in his role as auxiliary deputy sheriff for a broad range of law
enforcement work at the plant, from conducting criminal investiga-
tions and making arrests to serving civil and criminal papers. On
August 22, Priest was working in concert with the Sheriff’s Depart-
ment to provide security in a potentially volatile situation. He had a
deputy sheriff badge clipped on his belt, a sheriff’s department radio,
handcuffs, pepper spray, and a gun. And he testified that he told Ward
"Sheriff’s Department, you are under arrest," handcuffed him, and
enlisted another deputy to help him take Ward out of the building and
to the waiting police car. All of this was the natural result of Priest’s
              RODRIGUEZ v. SMITHFIELD PACKING COMPANY                 11
official role within Bladen County, in which he was expected to per-
form law enforcement functions at the Tar Heel plant on behalf of the
Sheriff’s Department.

   In light of these facts, we are compelled to find that Priest was act-
ing under color of state law when making arrests at the Tar Heel facil-
ity on August 22. It is beyond dispute that the police function is "one
of the basic functions of government," a "most fundamental obliga-
tion of government to its constituency." Foley v. Connelie, 435 U.S.
291, 297 (1978). And an arrest is "the function most commonly asso-
ciated with the police." Id. at 298. It would be hard to imagine, in
other words, a more prototypically representative government func-
tion than Priest’s use of his official capacity to effectuate the arrest
of Ward and Rodriguez.

   The problem for plaintiffs, however, is that once we find that Priest
was acting under color of state law when making the arrests, he is
covered by the release and cannot be sued by Ward or Rodriguez. The
agreements plaintiffs signed "fully release and forever discharge the
Bladen County Sheriff’s Department, including but not limited to [the
County Sheriff and several named deputies]." Since plaintiffs were
responsible for drafting this agreement, we must construe its terms
against them. Because Priest was acting as an auxiliary deputy sheriff
when making the arrests, and because the agreement evinces the
unmistakable intent to release all agents of the Bladen County Sher-
iff’s Department, we hold that Priest was covered by the release. He
is therefore not subject to suit for the actions he took on August 22.

                                  IV.

   Defendants also argue that Smithfield Packing should not have
been found liable for violation of plaintiffs’ constitutional rights. We
review de novo the district court’s decision to deny Smithfield Pack-
ing’s motion for judgment as a matter of law. Paramount Parks, 195
F.3d at 727.

   "[T]he principles of § 1983 municipal liability . . . apply equally to
a private corporation that employs special police officers." Id. at 727-
28. This means that "a private corporation is not liable under § 1983
for torts committed by special police officers when such liability is
12            RODRIGUEZ v. SMITHFIELD PACKING COMPANY
predicated solely upon a theory of respondeat superior." Id. at 728.
Rather, private corporations can only be held liable under § 1983 if
"an official policy or custom of the corporation causes the alleged
deprivation of federal rights." Id. While "‘official policy’ often refers
to formal rules or understandings," Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986), corporate liability may also "be imposed
for a single decision by [corporate] policymakers under appropriate
circumstances." Id.

   Plaintiffs argue that, given his position as Chief of Security, Priest
was the final policymaker for Smithfield Packing with respect to all
arrests and investigations at the Tar Heel plant. They point to evi-
dence that Smithfield Packing made Priest the manager of security at
the Tar Heel plant, and contend that his decision to arrest Ward and
Rodriguez must therefore be imputed to Smithfield Packing for the
purposes of § 1983 liability.

    What plaintiffs ignore, however, is that Smithfield Packing could
not have delegated any policymaking authority over arrests to Priest,
because the company had no authority over county law enforcement
policies that it could have delegated. Instead, because the arrest of
Ward and Rodriguez was explicitly executed under Priest’s authority
as a sheriff’s deputy seeking to enforce North Carolina state law, it
was a decision which flowed from the authority delegated to Priest by
the County Sheriff. And that authority was, naturally enough, con-
strained at all times by the County Sheriff’s oversight; plaintiffs do
not argue that the Sheriff had anything less than direct control over
Priest’s activities as an auxiliary deputy sheriff. In his capacity as
auxiliary deputy sheriff, in other words, Priest reported to the County
Sheriff, not to Smithfield Packing. The testimony of both Priest and
the County Sheriff make this abundantly clear. Priest stated that he
"work[ed] at the discretion of the Sheriff," and the Sheriff acknowl-
edged that Priest reported to him "with respect to work that [Priest]
did in helping out the Sheriff’s Department" and could not "ignore or
. . . override any of [the Sheriff’s] instructions with respect to provid-
ing law enforcement at the Tar Heel facility." Any relevant policy for
Monell purposes with respect to arrests anywhere in Bladen County
was thus set by the County Sheriff, not Priest, and any status as a poli-
               RODRIGUEZ v. SMITHFIELD PACKING COMPANY                     13
cymaker on that score was likewise defined by the Sheriff’s Depart-
ment’s internal organization structure.5

   We do not, of course, hold that a private corporation may never be
liable under § 1983 for the actions of a sheriff’s deputy hired as a
security guard. See Paramount Parks, 195 F.3d at 727-28. When a
security guard is acting as a sheriff’s deputy exercising the quintes-
sential state function of arrest, however, the assumption is that state
policies and state training would be guiding the exercise of that
authority, at least in the absence of evidence that the private entity
sought to supplant state policies or training procedures with policies
of its own. And while plaintiffs argue the presence of anti-union ani-
mus on the part of the company, there is insufficient evidence to sup-
port their view that any such policy displaced the Sheriff’s procedures
with respect to the arrest of one (or at most two, if one were to count
Rodriguez) of approximately twenty union supporters at the meeting.

   In short, we see no evidence that "an official policy or custom of
the corporation cause[d] the alleged deprivation of federal rights." Id.
at 728. We therefore hold that the district court erred by denying
Smithfield Packing’s motion for judgment as a matter of law and
reverse its judgment on that score.

                                     V.

   In the final analysis, we cannot accept plaintiffs’ efforts to avoid
the consequences of their state action argument and the consequences
of having signed the release. Plaintiffs have understandably argued
that Priest was a state actor. We agree, but plaintiffs must then accept
the legal consequences that flow from that status. The release applied
to Priest because he is an auxiliary deputy sheriff, and the policies
that guided his actions in carrying out his sheriff’s duties are also pre-
  5
    Plaintiffs’ argument in the alternative that Priest was a joint actor with
the Sheriff’s Department is similarly unavailing. See Dennis v. Sparks,
449 U.S. 24, 27-29 (1980). Even assuming arguendo that he was a joint
actor, Priest would still have to be found to be a policymaker in order to
impute liability to Smithfield Packing under § 1983. And of course the
release-dismissal agreement would still absolve Priest himself of legal
liability for the August 22 events.
14            RODRIGUEZ v. SMITHFIELD PACKING COMPANY
sumptively those of the state. For this reason, the judgment against
defendants cannot stand.

   We affirm the dismissal of the claims against the Sheriff’s Depart-
ment defendants, affirm the district court’s decision not to grant attor-
ney’s fees to the Sheriff’s Department defendants, hold that judgment
as a matter of law should have been granted to both Priest and Smith-
field Packing on all issues related to liability, and remand the case for
further proceedings consistent with this opinion.

                   AFFIRMED IN PART AND REVERSED IN PART
