                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2007

Smith v. Devline
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4844




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Recommended Citation
"Smith v. Devline" (2007). 2007 Decisions. Paper 783.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/783


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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 06-4844




                           KIM SMITH,
                                  Appellant

                                 v.

     DIRECTOR DEVLINE; MS. BARBARA HILL, Caseworker;
   CASE MANAGER MORRIS; CLAUDIA ASBURY, Intake Staff;
INTAKE STAFF CONNIE; CHARLES SULLIVAN; CHRIS CARDOVA;
    SHIFT SECURITY SUPERVISOR FRANK; RENEWAL INC,
                  the chairman of the board




           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                D.C. Civil Action No. 04-cv-00558
                      (Honorable Joy F. Conti)


           Submitted Pursuant to Third Circuit LAR 34.1(a)
                            July 3, 2007

 Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges

                        (Filed July 11, 2007)




                    OPINION OF THE COURT
PER CURIAM.

          Appellant, Kim Smith, proceeding pro se, appeals from the District Court’s order

entering summary judgment in favor of Appellees. For the reasons that follow, we will

affirm.

          Smith filed a complaint in the United States District Court for the Western District

of Pennsylvania pursuant to 42 U.S.C. § 1983. He alleges that in 2004, he was paroled

from the Pennsylvania State Correctional Institution-Coal Township to Renewal, Inc.

(“Renewal”), a treatment center. Smith alleges that, while he was a resident at that

center, Renewal employees denied him access to health care, prevented him from

attending medical appointments, forced him to live in a room without heat, interfered

with his access to mail, denied him the opportunity to leave the facility to seek

employment, and placed him in a job that negatively affected his medical conditions.

          Appellees filed a motion for summary judgment, arguing that they were entitled to

judgment as a matter of law because Smith could not show that Renewal and its

employees were acting “under the color of state law,” as is required to state a claim under

42 U.S.C. § 1983. Based on the affidavit of Doug Williams, Chief Executive Officer of

Renewal, the District Court granted the motion and entered judgment in favor of

Appellees.

          We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a

district court’s grant of summary judgment de novo. Pennsylvania Coal Ass’n v. Babbitt,



                                                2
63 F.3d 231, 235 (3d Cir. 1995). Summary judgment is proper only if it appears “that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828,

832-33 (3d Cir. 2002).

       To prevail on his claim under § 1983, Smith must show not only that Renewal

violated his rights, but also that it acted under the color of state law. West v. Atkins, 487

U.S. 42, 48 (1988). Smith bears the burden of proving that Renewal acted under the color

of state law. Roberts v. Stetson School, Inc., 256 F3d 159, 164 (3d Cir. 2001).

       The following facts remain uncontradicted by Smith. Renewal is a non-profit

corporation that provides treatment services to offenders in the criminal justice system to

facilitate their successful re-entry into society. Although Renewal contracts with various

government entities, some residents of the program pay the cost of the program without

any governmental assistance. Renewal is governed by a board of trustees, who volunteer

for the position and are elected by the board of directors. None of the members of the

board of directors are appointed by a governmental entity. The policies and procedures

that govern the residents of the program and the employees of Renewal are created and

adopted by Renewal and are not set by a governmental entity. Renewal has full discretion

over who is admitted into its program; a governmental entity cannot force or require

Renewal to accept any particular person into its program. When a resident commits a

program violation, Renewal does not have the authority to return the resident to prison.



                                              3
Renewal is required to notify the proper governmental authority, who then determines

whether the resident should be returned to prison or remain in the program.

       The inquiry regarding whether Renewal’s actions can be considered taken under

color of state law is fact specific. Groman v. Manalapan, 47 F.3d 628, 638 (3d Cir.

1995). Smith failed to submit any facts from which the District Court could have

concluded that Renewal and its employees were acting under the color of state law. In his

objections to the Magistrate Judge’s Report and Recommendation, Smith states that he

has never taken the position that Appellees operate under the color of state law because

such proof is not required for a civil rights action under § 1983. (Doc. 127, p. 5). Smith

is mistaken. As we have explained, a plaintiff in a § 1983 action bears the burden of

proving that the defendant was acting under the color of state law. See Roberts v. Stetson

School, Inc., 256 F3d at 164. Appellant has failed to meet that burden.

       Accordingly, we conclude that the District Court properly entered summary

judgment in favor of Appellees, and we will affirm that judgment.




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