Leshko v. Servis

• Decision Date: 09 September 2005
• Docket Number: No. 04-2610.,04-2610.
• Parties: Karen M. LESHKO, Appellant v. Greg SERVIS; Judy M. Servis; Dauphin County Social Services for Children and Youth; Sandra Moore, Agency Director, Dauphin County Social Services for Children and Youth; Dauphin County; Rick Wynn, Human Services Director, Dauphin County; Jeffrey Haste, Dauphin County Commissioner; Lowman Henry, Dauphin County Commissioner; Anthony Petrucci, Dauphin County Commissioner.
• Court: U.S. Court of Appeals — Third Circuit

Page 337

423 F.3d 337

Karen M. LESHKO, Appellant v. Greg SERVIS; Judy M. Servis; Dauphin County Social Services for Children and Youth; Sandra Moore, Agency Director, Dauphin County Social Services for Children and Youth; Dauphin County; Rick Wynn, Human Services Director, Dauphin County; Jeffrey Haste, Dauphin County Commissioner; Lowman Henry, Dauphin County Commissioner; Anthony Petrucci, Dauphin County Commissioner.

No. 04-2610.

United States Court of Appeals, Third Circuit.

Argued April 1, 2005.

Filed September 9, 2005.

Joseph M. Farrell (argued), Palmyra, PA, for Appellant.

David P. Karamessinis (argued), William J. Devlin, Jr. & Associates, Philadelphia, PA, for Appellees.

Before ALITO, SMITH, and FISHER, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

We weave our way in this appeal through the Supreme Court's labyrinthine state action jurisprudence. The question presented is whether foster parents are state actors for purposes of liability under 42 U.S.C. § 1983. We hold that they are not.

I.

A.

When appellant Karen M. Leshko was two-and-a-half years old, her foster mother, appellee Judy Servis, placed her in the kitchen sink of the Servis home to wash her. Next to the sink was a large pot of exceedingly hot water. Servis left the room. Little Karen pulled the pot over on herself, sustaining severe burns across much of her abdomen, legs and mid-section. Neither Servis nor her husband sought medical treatment for Karen for more than twelve hours.

When she turned eighteen, Karen ("Leshko") sued Dauphin County (Pennsylvania) Social Services for Children and Youth, Dauphin County, and various County officials under § 1983 for depriving her of her Fourteenth Amendment right to be free from physical harm, and under state negligence and constitutional theories. Leshko also sued the Servises, alleging liability under § 1983 and state tort law. The District Court dismissed the complaint in its entirety for failure to state a claim. Leshko appeals only the District Court's dismissal of her § 1983 claim against the Servises, inasmuch as the Court held that the Servises were not state actors.

B.

Leshko was placed in the Servis home in 1985 by the Dauphin County Social Services for Children and Youth after being removed from her mother. The record reveals neither the reason for Leshko's removal, nor whether Leshko's mother consented to the removal. The laws governing foster care in Pennsylvania are substantially the same today as they were in 1985. A child in Pennsylvania can be placed in foster care after being adjudicated a "dependent child." 42 Pa.C.S. § 6351; In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708, 711 (1983). A dependent child in Pennsylvania is one deemed by the Commonwealth to be abandoned, illegally offered for care or adoption, or lacking "proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals." 42 Pa.C.S. § 6302; Matter of Adoption of J.S.H., 299 Pa.Super. 90, 445 A.2d 162, 164 (1982). Foster care is not the only option available for dependent children; a court might alternatively order a dependent child to remain with his parents or guardian under court supervision, be transferred to the custody of an authorized private organization, or be transferred to the custody of an authorized public agency. 42 Pa.C.S. § 6351; In re Lowry, 506 Pa. 121, 484 A.2d 383, 385-86 (1984). State regulations govern the foster care relationship, and government funding is provided. See 35 Pa.Code § 3700; In re Adoption of Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146, 1150 (1984). Apparently for the first time, a Pennsylvania court held in 2002 that foster parents in Pennsylvania are county "employees" under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8501. Patterson v. Lycoming County, 815 A.2d 659, 661 (Pa.Commw.Ct.2002).¹

II.

The Fourteenth Amendment 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. This Amendment governs only state action, not the actions of private citizens or organizations. Rendell-Baker v. Kohn, 457 U.S. 830, 837-38, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (citing, inter alia, Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835 (1883)). Section 1983 subjects to liability those who deprive persons of federal constitutional or statutory rights "under color of any statute, ordinance, regulation, custom, or usage" of a state. See 42 U.S.C. § 1983. We consider actions "under color of law" as the equivalent of "state action" under the Fourteenth Amendment. Rendell-Baker, 457 U.S. at 838, 102 S.Ct. 2764; Benn v. Universal Health Sys., Inc., 371 F.3d 165, 169 n. 1 (3d Cir.2004). Thus, to state a claim of liability under § 1983, Leshko must allege that she was deprived of a federal constitutional or statutory right by a state actor. See Benn, 371 F.3d at 169-70. The Servises concede that Leshko alleges a deprivation of a constitutional right, as they must under Nicini v. Morra, 212 F.3d 798, 810 (3d Cir.2000) (en banc) (holding that a state may be liable for conduct toward foster children that "shock[s] the conscience"), so this appeal turns solely on whether the Servises are state actors.

Supreme Court cases under the Fourteenth Amendment draw no "simple line" between states and private persons. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). The principal question at stake is whether there is "such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Following the Supreme Court's guidance for answering that expansive question, we attempt to align the case at hand with the Supreme Court case most factually akin to it. See Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 164 (3d Cir. 2001); Brentwood Acad., 531 U.S. at 295, 121 S.Ct. 924 (noting that "a host of facts" can bear on the fairness of attributing action to the state and counseling that "[a]midst such variety, examples may be the best teachers"). In adhering to that approach, "facts are crucial." Crissman v. Dover Downs Entm't Corp., 289 F.3d 231, 234 (3d Cir.2002) (en banc).

State action cases broadly divide into two factual categories. See Brentwood Acad., 531 U.S. at 296, 121 S.Ct. 924. The first category involves an activity that is significantly encouraged by the state or in which the state acts as a joint participant. See Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (holding state action to be present where the state provides "significant encouragement, either overt or covert" for the activity); Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (holding state action to be present where private citizen employed challenged state prejudgment attachment process, thus participating in the state's action). Determining state action in such cases requires tracing the activity to its source to see if that source fairly can be said to be the state. The question is whether the fingerprints of the state are on the activity itself.

The second category of cases involves an actor that is controlled by the state, performs a function delegated by the state, or is entwined with government policies or management. See Pennsylvania v. Bd. of Dir. of City Trusts of Philadelphia, 353 U.S. 230, 231, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957) (per curiam) (holding private organization to be state actor where the organization was controlled by a state agency); West v. Atkins, 487 U.S. 42, 56, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (holding private doctor to be state actor where, in an institutional context, he performed a function traditionally and exclusively reserved to the state); Brentwood Acad., 531 U.S. at 298, 121 S.Ct. 924 (holding ostensibly private association to be state actor because of the "pervasive entwinement of public institutions and public officials in its composition and workings"); see also Burton v. Wilmington Parking Auth., 365 U.S. 715, 724, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding private business to be state actor where there were "mutual benefits" between the state and the business). Determining state action in this category of cases consists of asking whether the actor is so integrally related to the state that it is fair to impute to the state responsibility for the action. The question here is whether the state so identifies with the individual (or entity) who took the challenged action that we deem the state's fingerprints to have been on the action.²

A.

We see no allegation in Leshko's complaint that the Commonwealth of Pennsylvania condoned the Servises' decisions to leave Leshko sitting unattended next to a pot of hot water and not to seek immediate medical attention, let alone significantly encouraged or participated in them. To the contrary, the general rule in Pennsylvania is that courts should direct dependent children to the custody of the person or organization "best suited to the safety, protection and physical, mental, and moral welfare of the child." 42 Pa.C.S. § 6351(a); In re Lowry, 484 A.2d at 385. Leshko notes that Pennsylvania comprehensively regulates foster care, and funds that care together with its counties, and asks that we therefore infer a sufficiently "close nexus" between the Servises and Pennsylvania that we deem their decisions to be the Commonwealth's. But the Supreme Court repeatedly has rejected that argument, see, e.g., American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (holding that "[a]ction taken by private entities with the mere approval or acquiescence of ...