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The first element of [plaintiff’s] claim is that [defendant] acted under color of state law. This means that [plaintiff] must show that [defendant] was using power that [he/she] possessed by virtue of state law.
A person can act under color of state law even if the act violates state law. The question is whether the person was clothed with the authority of the state, by which I mean using or misusing the authority of the state.
By “state law,” I mean any statute, ordinance, regulation, custom or usage of any state. And when I use the term “state,” I am including any political subdivisions of the state, such as a county or municipality, and also any state, county or municipal agencies.
COMMENT Whenever possible, the court should rule on the record whether the conduct of the defendant constituted action under color of state law. In such cases, the court can use Instruction 4.4.1 to instruct the jury that this element of the plaintiff’s claim is not in dispute.
In cases involving material disputes of fact concerning action under color of state law, the court should tailor the instructions on this element to the nature of the theory by which the plaintiff is attempting to show action under color of state law. This comment provides an overview of some theories that can establish such action; Instructions 4.4.2 and 4.4.3 provide models of instructions for use with two such theories.
“[C]onduct satisfying the state action requirement of the Fourteenth Amendment satisfies [Section 1983’s] requirement of action under color of state law.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982).14 “Like the state action requirement of the Fourteenth Amendment, the under color of state law element of § 1983 excludes from its reach ‘“merely private conduct, no matter how discriminatory or wrongful.”’” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948))). Liability under Section 1983 “attaches only to those wrongdoers ‘who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’” National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).15
The inquiry into the question of action under color of state law “is fact specific.” Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). See also Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019) (holding that the operator of public access channels on a cable television system was not a state actor, while noting that the result might be different if a local government itself operated public access channels on a local cable system or obtained a property interest in the public access channels).
“In the typical case raising a state action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action.... Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm causing individual actor.” Tarkanian, 488 U.S. at 192. Circumstances that can underpin a finding of state action include the following:
• A finding of “‘a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action of the latter may fairly be treated as that of the State itself.’”16
• A finding that “the State create[d] the legal framework governing the conduct.”17
• A finding that the government “delegate[d] its authority to the private actor.”18
• A finding that the government “knowingly accept[ed] the benefits derived from unconstitutional behavior.”19
• A finding that “the private party has acted with the help of or in concert with state officials.”20 For an instruction on private action in concert with state officials, see Instruction 4.4.3.
• A finding that the action “‘result[ed] from the State's exercise of “coercive power.”’”21
• A finding that “‘the State provide[d] “significant encouragement, either overt or covert. ”’”22
• A finding that “‘a nominally private entity... is controlled by an “agency of the State. ”’”23
• A finding that “‘a nominally private entity... has been delegated a public function by the State.’”24
• A finding that “‘a nominally private entity... is “entwined with governmental policies,” or [that] government is “entwined in [its] management or control. ”’”25
The fact that a defendant was pursuing a private goal does not preclude a finding that the defendant acted under color of state law. See Georgia v. McCollum, 505 U.S. 42, 54 (1992) (noting, in a case involving a question of “state action” for purposes of the Fourteenth Amendment, that “[w]henever a private actor’s conduct is deemed ‘fairly attributable’ to the government, it is likely that private motives will have animated the actor's decision”).
The “labyrinthine” and “murky” analysis of whether private action can be deemed that of the state can be avoided if the “actor is the government,” Sprauve v. West Indian Company, 799 F.3d 226, 229 (3d Cir. 2015) (internal quotation marks and citations omitted), such as a public corporation over which the state has “permanent and complete control” by government appointees. Id. at 233 (footnote omitted).
(Last Updated July 2019)
14 See also Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If a defendant's conduct satisfies the state action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”).
15 Compare Citizens for Health v. Leavitt, 428 F.3d 167, 182 (3d Cir. 2005) (holding that a federal regulation that “authoriz[ed] conduct that was already legally permissible” – and that did not preempt state laws regulating such conduct more strictly – did not meet the “state action requirement”).
16 McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 524 (3d Cir. 1994) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
17 Tarkanian, 488 U.S. at 192 (citing North Ga. Finishing, Inc. v. Di Chem, Inc., 419 U.S. 601 (1975)).
18 Id. (citing West v. Atkins, 487 U.S. 42 (1988)); see also Reichley v. Pennsylvania Dept. of Agriculture, 427 F.3d 236, 245 (3d Cir. 2005) (holding that trade association’s “involvement and cooperation with the Commonwealth's efforts to contain and combat” avian influenza did not show requisite delegation of authority to the trade association).
19 Tarkanian, 488 U.S. at 192 (citing Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)).
20 McKeesport Hosp., 24 F.3d at 524. The Court of Appeals has explained that Supreme Court caselaw concerning “joint action or action in concert suggests that some sort of common purpose or intent must be shown.... [A] private citizen acting at the orders of a police officer is not generally acting in a willful manner, especially when that citizen has no self interest in taking the action.... [W]illful participation... means voluntary, uncoerced participation.” Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 195-96 (3d Cir. 2005).
21 Benn v. Universal Health System, Inc., 371 F.3d 165, 171 (3d Cir. 2004) (quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982))).
22 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Blum, 457 U.S. at 1004)).
23 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Pennsylvania v. Bd. of Dir. of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957) (per curiam))).
24 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296); ); see Davis v. Samuels, 962 F.3d 105, 111-12 & n.4 (3d Cir. 2020) (stating “[w]e are deeply skeptical” of the district court’s conclusion that operators of a private prison are not government actors and noting that the “Supreme Court has not held that private prison operators cannot be liable for damages under Bivens because they are not ‘federal actors’”); compare Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005) (holding “that foster parents in Pennsylvania are not state actors for purposes of liability under § 1983"); Max v. Republican Committee of Lancaster County, 587 F.3d 198, 199, 203 (3d Cir. 2009) (holding that, under the circumstances, a political committee, its affiliate and certain of its officials were not acting as state actors when they allegedly sought to chill the speech of plaintiff – a committeewoman for the political committee – in connection with the Republican primary election).
25 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296) (quoting Evans v. Newton, 382 U.S 296, 299, 301 (1966))). See also P.R.B.A. Corp v. HMS Host Toll Roads, 808 F.3d 221 (3d Cir. 2015) (finding insufficiently pervasive entwinement between highway authorities and service area operators because there was no personnel overlap, no involvement in the particular decision at issue, and no indication that a profit sharing arrangement led to “any actual involvement of either entity in the management or control of the other,” even if the authorities required certain signs and photos be displayed).