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).
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