Saturday, December 12, 2015

civil rights - sec. 1983 - under color of state law - private actor

PRBA Corp. a/k/a Bare Exposure v. HMS Host Toll Roads, Inc. – 3d Cir. – December 10, 2015



Private company that operates service plazas on New Jersey highways did not act “under color of any statute, ordinance, regulation, custom, or usage, of any State,”  42 U.S.C. § 1983, when it removed brochures belonging to a “gentleman’s club” from the common areas of its service plazas.  “The absence of any direct involvement by the state authorities either in the decision to remove the brochures or in the general, day-to-day operations of the service plazas compels this conclusion.


The touchstone for analysis of all state action claims is Brentwood v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), in which the Supreme Court held that “state action may be found if, though only if, 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. at 295; see also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights)


The Brentwood Court also gave additional structure to several tests that lower courts had previously been using to determine whether a private party satisfied the “close nexus” requirement necessary to be considered a state actor. One of these tests is called the “entwinement test,” which asks whether “[t]he nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and [thus] there is no substantial reason to claim unfairness in applying constitutional standards to it.” Brentwood, 531 U.S. at 298.  This case thus shows that the entwinement test focuses on the overlap or merger of public and private entities as a result of their shared leadership or other attributes that make it hard to separate their public functions from their private ones.


The court also relied heavily on

            - Gannett Satellite Information Network, Inc. v. Berger, 894 F.2d 61, 67 (3d Cir. 1990), hodling that the concessionaires that leased property in the Newark Airport and decided not to distribute certain newspapers were simply “private entities pursuing private ends” because there was no “explicit governmental involvement” in the decisions of the concessionaires and thus their conduct “may not fairly be attributed to the Port Authority.” 894 F.2d 61, 67 (3d Cir. 1990), which took no part in the distribution decision.  The analysis focused on evidence of explicit involvement of the governmental authority in the specific action the plaintiffs challenge.

             - Marie v. American Red Cross, elaborating a “high bar necessary for a finding of impermissible entwinement.” 771 F.3d 344 (6th Cir. 2014).   “[M]ere cooperation simply does not rise to the level of merger required for a finding of state action.” Id. at 364. Instead, there must be “pervasive entwinement of public institutions and public officials in [the private entity’s] composition and workings [such that] there is no substantial reason to claim unfairness in applying constitutional standards to it.” Id. (emphasis added).


If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)