Zarebicki v. Devereux Found.
| Decision Date | 30 June 2010 |
| Docket Number | No. 09-6205,09-6205 |
| Parties | ALEKSANDER ZAREBICKI v. DEVEREUX FOUNDATION, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
CIVIL ACTION
Plaintiff, Aleksander Zarebicki, through his parents, initiated this civil rights action pursuant to 42 U.S.C. § 1983 ("§ 1983") against the Devereux Foundation (Devereux), a residential group-care facility for the mentally disabled where he resided. Plaintiff alleges that Devereux failed to protect him from the assault of another resident, Justin Genuardis, who has also been sued under § 1983 and state law.
Before the Court are the motions to dismiss of Devereux and Genuardis. For the following reasons, both Defendants' motions will be granted such that Plaintiff's § 1983 claims are dismissed. We will also dismiss Plaintiff's supplemental state law claims against both Defendants, without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
The facts alleged in the amended complaint, viewed in the light most favorable to Plaintiff, are as follows.
Plaintiff suffers from significant mental disabilities and has resided in a residential group-care facility owned by Devereux since 2001. Defendant, Justin Genuardis, who also suffers from mental disabilities, also resided at Devereux. On January 5, 2008, Genuardis physically attacked Plaintiff by putting his arm around Plaintiff's neck and choking him. Devereux staff membersinitially separated the two and directed Genuardis to another room, however, shortly thereafter, Genuardis re-entered the room and bit Plaintiff on his face, near his eye lid, and on his nose, ear and upper right arm.1 (Compl. ¶¶ 1, 7, 10-17.)
Plaintiff was taken by ambulance to the hospital where he underwent plastic surgery to repair injuries to his face. He still has significant scarring as a result of his injuries and will need additional surgery to repair the tear ducts in his right eye. Along with his physical injuries, Plaintiff has suffered continuing psychological trauma. (Compl. ¶¶ 18-21.)
On December 31, 2009, Plaintiff initiated this action against Devereux and Genuardis, raising claims under 42 U.S.C. § 1983 and Pennsylvania state law. In support of his § 1983 claim, Plaintiff alleges that Devereux acted "under the color of state law" and therefore is liable for failing to keep him safe from physical violence under constitutional due process principles. Specifically, Plaintiff alleges that Devereux "has been a state actor in that they provide a public function, receive direction and aid from the state of Pennsylvania and are dependent on their funding by the State of Pennsylvania to the extent that they would cease to operate without these funds." Plaintiff also contends that Devereux "has acted together with or has obtained significant aid from state officials and by its nature, has performed services that are traditionally chargeable to the state." Plaintiff explains that he was "placed in the care of [Devereux] . . . by the Pennsylvania Department of Public Welfare," and that Devereux was "licensed by the Department of Public Welfare" and "required to comply with all applicable statutory and licensing requirements[.]" (Compl. ¶¶ 7-8, 30, 33.)
On May 5, 2010, Devereux filed a motion to dismiss, followed by Genuardis' motion todismiss, filed on May 21, 2010.
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the plaintiff. The issue "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 235-36 (1974), overruled on other grounds by Davis v. Schere, 468 U.S. 183 (1984). To survive a motion to dismiss, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires more than a "sheer possibility that a defendant has acted unlawfully." Id.
Devereux moves to dismiss Plaintiff's claims, asserting that it is a private, non-profit organization, which is not subject to liability under 42 U.S.C. § 1983. Devereux further contends that it is immune from liability under Plaintiff's state law claims. Genuardis also seeks dismissal of the claims against him, asserting that due to his severe mental disability, he does not have the legal capacity to be sued and is incapable of committing the intentional torts alleged against him. Genuardis also contends that the case should be dismissed because Plaintiff's parents, who brought the action on his behalf, are not "real parties in interest."2
We will first address Devereux's challenge to Plaintiff's § 1983 claim.
Under 42 U.S.C. § 1983, a plaintiff must demonstrate that his or her federal constitutional or statutory rights were violated by a person acting "under the color of state law." Kost v. Kozakiewitz, 1 F.3d 176, 184 (3d Cir. 1993). Plaintiff alleges that he has met this standard in that Devereux, a state actor, failed to protect him and keep him safe, as is required by the Fourteenth Amendment Due Process Clause.3 (Compl. ¶¶ 29-42.) Devereux responds that Plaintiff has failed to allege facts that demonstrate it acted "under the color of state law."
The "under color of state law" requirement ensures that only conduct fairly attributable to the state is actionable under § 1983 and that private conduct, no matter how wrongful or discriminatory, escapes liability.4 See Leshko v. Servis, 423 F.3d 337, 339-40 (3d Cir. 2005). There is no "simple line," however, between what constitutes private and state action. Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 295 (2001) (). The essential question is whether the challenged activity "may be fairly treated as that of the State itself[.]" Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). Although this is a "fact-specific inquiry[,]" it may be addressed on a motion to dismiss. Schneider v. Arc of Montgomery Cty., 497 F.Supp.2d 651, 660 (E.D.Pa. 2007) (collecting cases).
The United States Court of Appeals for the Third Circuit has developed "three broad tests" to determine whether, under the pertinent Supreme Court cases, a private defendant is a state actor: (1) whether the defendant exercised powers that are "traditionally the exclusive prerogative of the state;" (2) whether the defendant acted "with the help of or in concert with state officials;" or (3) whether the Kach v. Hose, 589 F.3d 626, 645 (3d Cir. 2009) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)). In deciding whether there has been state action, the court must remain focused on the central purpose of the state action inquiry - to "assure that constitutional standards are invoked when 'it can be said that the state is responsible for the specific conduct of which plaintiff complains.'" Brentwood , 531 U.S. at 295 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original).
Plaintiff asserts that he meets tests one and three,5 set forth in Kach. We examine each test in detail below.
The first test imposes a "'rigorous standard' that is 'rarely . . . satisfied.'" Robert S. v. Stetson School, Inc., 256 F.3d 159, 165 (3d Cir. 2001) (quoting Mark, 51 F.3d at 1142); see Brown v. Phillip Morris Inc., 250 F.3d 789, 802 (3d Cir. 2001). It requires the court to determine whether the defendant was performing a function that is "traditionally and exclusively" the province of the state. Leshko, 423 F.3d at 343.
Here, Plaintiff does not allege that providing custody, care and habilitative services to its mentally disabled citizens is both a traditional and exclusive prerogative of Pennsylvania.6 See (Compl. ¶ 30) (wherein Plaintiff only alleges that Devereux performed "services that are traditionally chargeable to the state," but does not allege those services are the exclusive prerogative of Pennsylvania). Rather, Plaintiff appears to disregard the applicable standard noted above and argues that Devereux is a state actor based upon the fact that Pennsylvania has assumed a responsibility to care for mentally disabled citizens by statute and regulation and affirmatively delegated this responsibility to Devereux. Plaintiff presses this argument, relying primarily upon Fialkowski v. Greenwich Homes for Children, Inc., 683 F.Supp. 103, 104 (E.D.Pa. 1987), and urges that Devereux is a state actor by virtue of performing this delegated "public function[.]" (Pl.'s Resp. at 9.)
In Fialkowski, a mentally disabled man choked on a sandwich and died while residing at a "community living arrangement" for the mentally disabled that was operated by a private corporation. 683 F.Supp. at 104 & n.1. A § 1983 suit was brought against the corporation, alleging a failure to provide reasonable care and safe surroundings. The defendant corporation filed a motionto dismiss on state action grounds. The court denied the motion because "Pennsylvania had assumed a duty to provide custody, care, and habilitative services, including residential services," to the mentally disabled and delegated this duty to the defendant. Id. at 104-05. The court reasoned that "[w]here the state chooses to delegate these responsibilities, and an institution or other private entity chooses to assume them, neither the state nor the private...
To continue reading
Request your trial