                                                                [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               FEB 16 2001
                                                           THOMAS K. KAHN
                                                                 CLERK
                                No. 99-14729

                   D. C. Docket No. 97-00151-CV-JTC-3




BRANTLEY TYLER RAYBURN, a minor, by and through his mother
and next friend Wendy Anny Rayburn; BRANDON GEOFFREY RAYBURN,
a minor, by and through his mother and next friend Wendy Anny Rayburn,

                                                      Plaintiffs-Appellees,

     versus

SKIP HOGUE, DEE HOGUE,

                                                      Defendants-Appellants.



                 Appeal from the United States District Court
                    for the Northern District of Georgia

                            (February 16, 2001)


Before DUBINA, FAY and COX, Circuit Judges.

DUBINA, Circuit Judge:
       This case involves an interlocutory appeal of the district court’s order

denying summary judgment to Skip and Dee Hogue (“the Hogues” or “the foster

parents”) who were alleged to have violated the constitutional rights of two of their

foster children. We reverse.

                                     I. BACKGROUND1

A. Facts

       Wendy Ann Rayburn is the mother of three children: Tyler, Brandon, and

Cameron.2 On October 21, 1995, Dora Farnesi, a case worker with the Carroll

County Department of Family and Children’s Services (“DFACS”), removed the

Rayburn children from the physical custody of their mother, Ms. Rayburn. The

removal occurred after the juvenile court in Carroll County, Georgia, entered an

order finding the Rayburn children to be deprived and granting their temporary

legal custody to DFACS.3 At the time Ms. Farnesi removed the children from Ms.


       1
          For the purposes of this appeal, we accept the district court’s determination of the facts
and recite those facts as set forth in the district court’s order, supplementing them with additional
evidentiary findings of our own from the record where necessary. See Cottrell v. Caldwell, 85
F.3d 1480, 1486 (11th Cir. 1996); see also Johnson v. Jones, 515 U.S. 304, 319 (1995) ("[T]he
court of appeals can simply take, as given, the facts that the district court assumed when it
denied summary judgment.").
       2
           Cameron Rayburn is not a party to the present case.
       3
           DFACS is a branch of the Georgia Department of Human Resources (“DHR”), which
is a State agency that, through its own programs and those of County Departments of Family and
Children’s Services, is authorized to provide deprived children with boarding care, or payment

                                                 2
Rayburn’s custody, Tyler was five years old, Brandon was ten years old, and

Cameron was seven years old. Ms. Farnesi placed the children in overnight

emergency care in the home of Gail Brooks.

       On October 22, 1995, Ms. Farnesi placed the children in foster care with Dee

and Skip Hogue.4 On October 26, 1995, Dee Hogue called DFACS and informed

Donna Ivey, a services clerk at DFACS, that she wanted all three Rayburn children

out of her home. Ms. Hogue indicated that the children, especially Cameron,

disrupted her household and were hard to control. Ms. Ivey conveyed this message

to Ms. Farnesi. Ms. Farnesi discussed the situation with Debra Trent, a Social

Services Supervisor in charge of caseworkers, and Wylene Williams, the county

director of DFACS. The three agreed to move Cameron out of the Hogue




of maintenance costs in foster family homes. O.C.G.A. § 49-5-8(a)(2)(E). DHR is also
empowered to contract with private agencies, individuals, and other governmental agencies to
provide child-protection services. O.C.G.A. § 49-5-16(a)(1). Furthermore, DHR has the power
to license and regulate foster family homes and child-care facilities. O.C.G.A. §§ 49-5-8(a)(6),
49-5-12(j)-(k).
       4
          The Hogues have been foster parents since December 21, 1993, when they contracted
with DFACS. In their contract, the Hogues agreed to provide care to the children placed with
them and to do so in accordance with DFACS general policy guidelines. These guidelines
prohibited “spanking, shaking and all other forms of physical punishment.” Additionally, the
guidelines required the Hogues to take all reasonable precautions to protect the children “from
unsafe or unsanitary living conditions and physical, mental, emotional, or sexual abuse.” In
return, DFACS agreed to pay the Hogues a per diem rate for the maintenance and support of the
children, to furnish necessaries for the children, and to provide “general supervision,
information, and assistance” related to the children’s welfare.

                                                3
household. On October 27, 1995, DFACS transferred Cameron to another foster

home.

        Ms. Farnesi served as the caseworker for the Rayburn children. On

November 8, 1995, Brandon Rayburn visited Ms. Farnesi’s office. During this

visit Brandon and Ms. Farnesi discussed Brandon’s fights with Chrystal Fernander,

another foster child in the Hogue home. Brandon also related to Ms. Farnesi that

he wished to go home.

        On November 9, 1995, Wendy Rayburn visited with her children in the

presence of Ms. Farnesi at the DFACS office. At this meeting Ms. Rayburn

observed a bruise on Brandon’s arm. Ms. Rayburn vocalized concern about the

bruise and asked Ms. Farnesi to look at it. Ms. Farnesi asked Brandon if the bruise

resulted from being bitten by Chrystal Fernander, another foster child at the Hogue

residence. Brandon agreed that the bite caused the bruise. During this visit,

Brandon told Ms. Farnesi that he was being mistreated in the Hogue household. It

later became evident, however, that Brandon meant that Tom Anderson, another

foster child at the Hogue residence, had been mean to him.

        After Ms. Rayburn’s visit with her children, Ms. Farnesi spoke with Ms.

Hogue about the bite mark. Ms. Hogue explained that Brandon and Chrystal had

been playing roughly. Ms. Hogue stated that Chrystal bit Brandon when he


                                          4
refused to let her out of a headlock. Ms. Farnesi questioned Brandon and Chrystal

separately, and both children confirmed this account.

      On November 13, 1995, Ms. Rayburn called Debra Trent and told her that

her children were being abused in the Hogue foster home. Ms. Rayburn relayed

her observation about the bruise and bite mark on Brandon’s upper arm, and she

stated that Brandon was afraid to tell her how it happened. Ms. Rayburn also said

that Brandon told her that Ms. Hogue threatened that he would never see his

mother again.

      Ms. Trent referred Ms. Rayburn to Ruth Reid, an intake worker at DFACS.

Ms. Rayburn made a referral to Ruth Reid on November 13. On November 14,

Ellen Taylor, an investigator at DFACS, conducted an investigation into Ms.

Rayburn’s claims. Ms. Taylor interviewed separately Brandon, Tyler, Chrystal,

Tom Anderson, David S. (another foster child), and Ms. Hogue about Ms.

Rayburn’s allegations. On November 15, Taylor reported the findings of her

investigation to Ms. Trent. Taylor found that the allegations of physical abuse

were unfounded and that other concerns raised in the referral were without merit.

Specifically, Taylor concluded that the bite marks occurred as a result of a

wrestling incident between Brandon and Chrystal.




                                          5
       On November 15, 1995, DFACS held a panel review concerning the

Rayburn children. Ms. Rayburn, Ms. Trent, Wylene Williams, Ms. Farnesi, and

Becca Aanstoos, a private counselor retained by DFACS to work with Brandon,

attended. Brandon and Tyler did not attend.5 At this meeting Ms. Farnesi reported

the bite mark episode to the panel.

       On November 21, 1995, Ms. Rayburn came for a scheduled visit with her

children at DFACS. Ms. Rayburn discovered that the visit had been rescheduled to

the next day. Ms. Rayburn had not received any notification of the change from

Ms. Farnesi. Ms. Farnesi was on vacation from November 20 through November

28. Ms. Rayburn spoke with Georgia Brown, the investigative supervisor at

DFACS, and alleged that Ms. Hogue was abusing the Rayburn children. Ms.

Brown asked if Ms. Rayburn made a referral about the matter, and Ms. Rayburn

responded that she had. Ms. Brown stated that the matter would be investigated.

       On November 25, Margaret Raiden, the on-call caseworker, received and

returned a telephone call from Ms. Hogue. Ms. Hogue informed Ms. Raiden that

Brandon and Chrystal had ridden their bicycles from her home to the home of

Chrystal’s mother. Chrystal later testified that she and Brandon ran away to find

       5
           Defendants claim that Brandon attended this meeting. However, for purposes of
deciding this appeal, we must view the evidence in light most favorable to Plaintiffs. See Stanley
v. City of Dalton, Ga., 219 F.3d 1280, 1287 (11th Cir. 2000). Therefore, like the district court,
we assume that Brandon did not attend this meeting.

                                                6
someone to tell what was going on in the Hogue household. (Chrystal Fernander

Dep., pp. 14-15.). Brandon testified that he also wanted to run away in order to tell

his mother how he was being treated. (B. Rayburn Dep., p. 34.). When the

children returned to the Hogue household, they were apologetic.

      On November 25, Ms. Raiden also spoke with Ms. Rayburn. Ms. Rayburn

indicated that she received a message from Brandon on the answering machine

informing her that he had ridden to Villa Rica with another foster child. Ms.

Raiden informed Ms. Rayburn that Brandon was already back at his foster home.

Ms. Rayburn demanded to speak with Brandon on the telephone. Ms. Raiden set

up a three way conference call. During the phone conversation, Brandon became

extremely upset and asked his mother not to tell people that he was being

mistreated in the foster home. Raiden ended the conversation by stating that the

purpose of the call was to let Ms. Rayburn know that Brandon was all right and not

to get into what may or may not have been happening in the foster home. Ms.

Raiden reported the incident to Ms. Farnesi and Ms. Trent.

      On November 27, 1995, Ms. Taylor received a phone call from an upset Ms.

Rayburn. Ms. Rayburn reported that the Hogues psychologically abused the foster

children in the home. Ms. Rayburn related that Brandon had run away two days

earlier. She stated that she had recorded the last visitation with her children. Ms.


                                          7
Rayburn alleged that her children had been told that they would not be allowed to

see her again if they cried. Ms. Rayburn also stated for the first time that she had

heard that sexual abuse occurred in the Hogue home.

      Ms. Taylor tried to reassure Ms. Rayburn about the safety of the children.

Ms. Taylor told Ms. Rayburn about the interviews she conducted with the children

on November 14. Ms. Taylor related that neither Brandon nor Tyler expressed any

fear of the Hogues in her interviews with them. Ms. Taylor did not initiate another

investigation because Ms. Rayburn could not provide any specifics as to her

allegations of sexual abuse. While Ms. Taylor felt that it was the same things she

had investigated two weeks earlier, she nevertheless apprized Ms. Trent and Ms.

Williams of her conversation with Ms. Rayburn.

      When Ms. Farnesi returned from her vacation on November 29, she spoke

by phone with Ms. Hogue about the bicycle incident on November 25. Ms. Hogue

informed Ms. Farnesi that Brandon and Chrystal had ridden their bicycles to the

home of Chrystal’s mother and that Chrystal’s mother returned them to the police.

      On December 8, Ms. Rayburn attended a meeting at the DFACS office with

Ms. Farnesi, Ms. Trent, and counselor Becca Aanstoos. The group discussed a

number of things, including the bite mark incident and general claims of

mistreatment.


                                          8
         Due to illness, Ms. Farnesi was out of the office from December 18, 1995,

until December 22, 1995. Ms. Farnesi was out of town from December 28, 1995,

until January 9, 1996, due to a death in the family.

         On December 24, 1995, Chrystal Fernander heard Tyler screaming in Tom

Anderson’s bedroom. Chrystal entered Tom’s room and found Tyler and Tom in

the same bed. Chrystal took Tyler out of bed and found that he was naked from the

waist down. The next day Brandon told Chrystal that Tom had been molesting

Tyler.

         Brandon and Tyler went to tell Ms. Hogue about the incident, but Ms.

Hogue told them that they were lying.6 Chrystal also told Ms. Hogue that she saw

Tyler and Tom in bed together and that Tyler did not have on shorts.

         Tyler later testified that Tom had sexually molested him. Tyler also testified

that Tom Anderson forced Candis Fernander, another foster child at the Hogues’

home, to get in bed with Tyler on one occasion.

         Ms. Rayburn met with her children in the presence of Ms. Ivey at the

DFACS office on December 28, 1995. The children did not discuss the December

24 incident with their mother at that meeting. On January 2, 1996, Brandon and



         6
          Defendants dispute this fact, but, like the district court, we must construe the evidence
in light most favorable to Plaintiffs for purposes of this appeal. See Stanley, 219 F.3d at 1287.

                                                 9
Tyler again visited with their mother, and the three did not discuss the incident at

that time.

       On January 5, 1996, the juvenile court held a custody hearing. The judge

awarded physical custody of the Rayburn children to Ms. Rayburn while legal

custody remained with DFACS. The children returned home with their mother that

day.

       On January 10, 1996, Ms. Farnesi took Tyler to a local medical clinic. A

staff member at the clinic observed Tyler briefly and stated that he had been

sexually abused. On January 12, Tyler visited Scottish Rite Medical Center. Dr.

Phillip Kelley, the attending physician, observed a yellow discharge from Tyler’s

anus. Dr. Kelley took a rectal culture. On January 17, 1996, Dr. Terez DeGrandi

at Scottish Rite took a rectal culture from Brandon Rayburn. Both cultures tested

positive for betahemolytic strep Group A.7 Dr. DeGrandi opined that it is more

probable than not that Tyler was sexually abused.

       DFACS initiated an investigation into the possible sexual abuse of Tyler

Rayburn. Susan Souligny, an investigator at DFACS, conducted the investigation.

Ms. Souligny concluded that Tyler Rayburn had been sexually abused. Ms.

Souligny also concluded that the time frame suggested that the abuse likely


       7
           Betahemolytic strep Group A can be sexually transmitted.

                                               10
occurred while Tyler lived with the Hogues. However, Ms. Souligny stated that no

evidence indicated that the Hogues were involved in the sexual abuse.

B. Procedural History

      In October 1997, Tyler and Brandon commenced this lawsuit by and through

their mother and next friend, Ms. Rayburn. The Rayburns named as Defendants

nine officers and employees of the DFACS, along with two Jane Does and the

Hogues. The Rayburns alleged that the Hogues physically and emotionally

punished Tyler and Brandon and observed “most, if not all” of the abuse inflicted

upon them by Tom Anderson. Additionally, they alleged that the DFACS

employees failed to properly supervise and monitor their foster care. On the basis

of these allegations, the Rayburns asserted in Count One of their complaint a claim

under 42 U.S.C. § 1983 against all Defendants for violation of Tyler and

Brandon’s substantive due process rights under the Fifth and Fourteenth

Amendments of the United States Constitution. In Count Two, the Rayburns

asserted another § 1983 claim against all defendants for violation of procedural due

process under the Fifth and Fourteenth Amendments. The remaining claims were

based on State law and were asserted only against the Hogues. Count Three was a

claim for the Hogues’ alleged breach of contract with DFACS to provide foster

care. In Count Four, the Rayburns asserted a negligence claim, and in Count Five


                                        11
they asserted a claim for intentional infliction of emotional distress, as well as

assault and battery.

       The Defendants responded by denying all allegations of wrongdoing and

pleading the defenses of qualified immunity, State sovereign and official

immunities, and failure to state a redressable claim. Additionally, the Hogues

argued that they were not State actors for Fourteenth Amendment purposes, and

even if they were, the federal law as to foster parents was not clearly established.8

Based on these arguments, the Defendants moved for summary judgment on all

counts.

       The district court granted summary judgment to all Defendants on all counts,

with the exception of the Fourteenth Amendment substantive due process claim

against the Hogues. In denying summary judgment on this claim, the court found

that the Hogues were not entitled to qualified immunity because they were State

actors, the law was clearly established as to foster parents, and there was a jury




       8
          All Defendants, including the Hogues, initially pleaded that they were acting under
color of State law during all relevant times. Subsequently, the Hogues filed a motion to amend
this pleading to reflect their argument that they were not State actors. However, the district court
denied this motion, reasoning, inter alia, that such an amendment would not change its analysis
of the State action question. We agree that such an amendment would not affect the State action
analysis; thus, we do not consider this matter on appeal.

                                                12
question on the issue of whether the Hogues had actual knowledge of the abuse of

the Rayburn children. The Hogues then perfected this appeal.9

                                        II. ISSUES

(1)    Whether the Hogues are State actors for § 1983 purposes.

(2)    Whether the Hogues are entitled to qualified immunity.

                 III. JURISDICTION AND STANDARD OF REVIEW

       This court has jurisdiction to hear an interlocutory appeal from a district

court's denial of summary judgment based on qualified immunity. Suissa v. Fulton

County, Ga., 74 F.3d 266, 269 (11th Cir. 1996). The district court's denial of

summary judgment is subject to de novo review, with all facts and reasonable

inferences therefrom reviewed in the light most favorable to the nonmoving

parties. Ayres v. General Motors Corp., 234 F.3d 514, 520 (11th Cir. 2000).

                                    IV. DISCUSSION

       Because of the Hogues’ status as private individuals contracting with a State

agency, DFACS, we must determine whether, given the allegations and facts of

this case, the Hogues could be liable under § 1983 before we consider the issue of

qualified immunity. That is, we must first determine whether the Hogues are State

       9
          The Rayburns filed a cross-appeal of the district court’s decision to grant summary
judgment on all other claims. However, on July 21, 2000, this court dismissed the cross-appeal
for lack of jurisdiction. See Rayburn ex rel. Rayburn v. Farnesi, No. 99-14729-EE (11th Cir.
July 21, 2000).

                                              13
actors because § 1983 only provides for claims to redress State action. See 42

U.S.C. § 1983; see also Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315

(11th Cir. 2000) (“To obtain relief under § 1983, [a party] must show that he [or

she] was deprived of a federal right by a person acting under color of state law.”).

Should we conclude that there is no State action, we must dismiss the Rayburn’s

claim without reaching the qualified immunity issue. See id.; see also Burrell v.

Board of Trustees of Ga. Military College, 970 F.2d 785, 790 n.13 (11th Cir. 1992)

(“Since § 1983 requires action ‘under color of state law,’ only government officials

acting under color of state law may assert qualified immunity.”).

      “Only in rare circumstances can a private party be viewed as a ‘[S]tate actor’

for section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.

1992). Indeed, to hold that private parties, such as the Hogues, are State actors,

this court must conclude that one of the following three conditions is met: (1) the

State has coerced or at least significantly encouraged the action alleged to violate

the Constitution (“State compulsion test”); (2) the private parties performed a

public function that was traditionally the exclusive prerogative of the State (“public

function test”); or (3) "the State had so far insinuated itself into a position of

interdependence with the [private parties] that it was a joint participant in the




                                           14
enterprise[]" (“nexus/joint action test”). NBC, Inc. v. Communications Workers of

America, 860 F.2d 1022, 1026-27 (11th Cir. 1988).

      The district court found that the first two conditions were not met because

“the [S]tate exercised no encouragement of the Hogues’ actions, nor is foster care

traditionally an exclusive [S]tate prerogative.” We agree. However, based on the

reasoning set forth below, the district court reached a different conclusion with

respect to the third condition:

      Under the Georgia Tort Claims Act, the [S]tate waives sovereign
      immunity for the torts of employees and officers committed within the
      scope of official duties or employment. O.C.G.A. § 50-21-23(a). In
      addition, the Act provides total immunity for employees who commit
      torts within the scope of employment. O.C.G.A. § 50-21-25(a). By
      including foster parents in the definition of [S]tate employees, the Act
      expressly grants foster parents this protection. Id. Likewise, the State
      expressly waives sovereign immunity and consents to suit for the torts
      of foster parents. The State’s decision to waive sovereign immunity
      and consent to suit for the torts of foster parents, combined with the
      decision to provide total immunity to foster parents for torts
      committed during their employment as foster parents, creates a nexus
      between the State and the regulated activity of foster parents that is
      sufficient to make the Hogues [S]tate actors . . . .

Rayburn ex rel. Rayburn v. Farnesi, 70 F. Supp. 2d 1334, 1344 (N.D. Ga. 1999).

We disagree with this conclusion.

      As stated, the relevant inquiry under the nexus/joint action test is whether

“the State has so far insinuated itself into a position of interdependence with the

[private parties] that it was a joint participant in the enterprise.” NBC, 860 F.2d at

                                          15
1026-27. “To charge a private party with [S]tate action under this standard, the

governmental body and private party must be intertwined in a ‘symbiotic

relationship.’” Id. at 1027 (quoting Jackson v. Metropolitan Edison Co., 419 U.S.

345, 357 (1974)). The Supreme Court has indicated that the symbiotic relationship

must involve the “‘specific conduct of which the plaintiff complains.’” See

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v.

Yaretsky, 457 U.S. 991, 1004 (1982)); see also NBC, 860 F.2d at 1027 (noting that

the “Supreme Court has suggested that the symbiotic relationship must involve the

alleged constitutional violation.”). Moreover, this court has recognized that

      ‘[i]f a thread of commonality is to be drawn from the various forms in
      which state action can manifest itself through the conduct of private
      parties, it is that attribution is not fair when bottomed solely on a
      generalized relation with the [S]tate. Rather, private conduct is fairly
      attributable only when the [S]tate has had some affirmative role, albeit
      one of encouragement short of compulsion, in the particular conduct
      underlying a claimant’s civil rights grievance.’

NBC, 860 F.2d at 1025 n.4 (emphasis added) (quoting Frazier v. Board of Trustees

of Northwest Miss., 765 F.2d 1278, 1286, modified on other grounds, 777 F.2d 329

(5th Cir. 1985)). Therefore, because the particular conduct at issue here is child

abuse, we must determine whether the State was a “joint participant” with the




                                         16
Hogues in the context of child abuse.10 NBC, 860 F.2d at 1027. The answer is

“no.”

        While the State of Georgia does regulate foster parenting to an extent, and,

thus, arguably has a symbiotic relationship with the Hogues, this relationship

certainly does not encourage or sanction child abuse in any way. To the contrary,

the State and DFACS specifically forbid such conduct. Moreover, the mere fact

that a State regulates a private party is not sufficient to make that party a State

actor. See Blum, 457 U.S. at 1004; American Mfrs. Mut. Ins., 526 U.S. at 57.

        Likewise, the act of extending governmental tort liability and immunity rules

to foster parents does not transform the Hogues into State actors. If that were the

case, then even foster children would be considered State actors because the

Georgia Torts Claim Act includes foster children in the definition of State

employees. O.C.G.A. § 50-21-22(7). At most, the relationship between Georgia’s

extension of immunity to foster parents and the alleged child abuse of which the

        10
            The Parties assert, and we agree, that this precise issue is one of first impression. Yet,
we note that when addressing similar issues, other courts have generally refused to attribute the
actions of foster parents to the State. See Milburn v. Anne Arundel County Dept. of Social
Services, 871 F.2d 474, 479 (4th Cir. 1989); Lintz v. Skipski, 807 F. Supp. 1299, 1306-7 (W.D.
Mich, 1992) (“This Court is unaware of any case which has held that foster parents are [S]tate
actors.”) , aff’d, 25 F.3d 304 (6th Cir. 1994); Pfoltzer v. County of Fairfax, 775 F.Supp. 874, 891
(E.D.Va. 1991), aff’d, 966 F.2d 1443 (6th Cir. 1992); see also K.H. v. Morgan, 914 F.2d 846,
852 (7th Cir. 1990) (assuming, without deciding, that “foster parents, even if paid by the [S]tate,
are not state agents for constitutional purposes”); but cf. Perez v. Sugarman, 499 F.2d 761, 765-
66 (2d Cir. 1979) (conduct of private child-caring institutions acting on behalf of the City of
New York was determined to be State action).

                                                 17
Rayburns complain is a tenuous one. See generally Mitchell v. Forsyth, 472 U.S.

511, 527-28 (1985) (“[I]mmunity is conceptually distinct from the merits of the

plaintiff’s claim that his [or her] rights have been violated.”). Such a nebulous

connection between the State and the alleged misconduct is not sufficient to

establish State action. See American Mfrs. Mut. Ins., 526 U.S. at 52 (holding that

the question of whether “there is a sufficiently close nexus between the State and

the challenged action of [a private party] . . . depends on whether the State has

exercised coercive power or has provided such significant encouragement, either

overt or covert, that the choice must in law be deemed to be that of the State”)

(internal marks and citations omitted)). Thus, while we are sympathetic to the

Rayburns, assuming they could prove their cause of action, we simply cannot

conclude that by extending the Georgia Torts Claim Act to foster parents, the State

of Georgia became a “joint venturer[]” with the Hogues in effecting the particular

conduct underlying the Rayburns’ complaint. Moose Lodge No. 107 v. Irvis, 407

U.S. 163, 177 (1965); American Mfrs., 527 U.S. at 50-51; NBC, 860 F.2d at 1025

n.4. Because the district court found State action solely on this basis,11 we vacate



       11
          Although the Rayburns advance other theories of State action, the district court did not
address them. Consequently, this court will refrain from considering these matters for the first
time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an issue not passed upon below.”).

                                               18
that portion of the district court’s order and remand this case for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




                                          19
