                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2001

Robert S. v. Stetson School Inc.
Precedential or Non-Precedential:

Docket 00-1438




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Filed July 3, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1438

ROBERT S., a minor

       Appellant

v.

STETSON SCHOOL, INC.; RICHARD J. ROBINSON,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
EXECUTIVE DIRECTOR OF THE STETSON SCHOOL;
DAVE LAPRADE, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS UNIT COUNSELOR, EMPLOYED BY THE
STETSON SCHOOL; RAY WILLIAMS, INDIVIDUALL Y AND
IN HIS OFFICIAL CAPACITY AS UNIT COUNSELOR,
EMPLOYED BY THE STETSON SCHOOL; MIKE
WILLIAMS, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS UNIT COUNSELOR, EMPLOYED BY THE
STETSON SCHOOL; ROBERT MARTIN, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS UNIT COUNSELOR,
EMPLOYED BY THE STETSON SCHOOL

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 99-cv-6710)
District Court Judge: Norma L. Shapiro

Argued: April 20, 2001

Before: ALITO, McKEE, Circuit Judges , and
ALARCON, Senior Circuit Judge1
_________________________________________________________________

1. The Honorable Arthur L. Alarcon, United States Court of Appeals for
the Ninth Circuit, sitting by designation.
(Opinion Filed: July 3, 2001)

       JONATHAN J. JAMES
       ARTHUR B. JARRETT (argued)
       James & Jarrett, P.C.
       Stephen Girard Building - 7th Floor
       21 South 12th Street
       Philadelphia, PA 19107

       Counsel for Appellant

       JONATHAN D. WEISS
       JOHN C. FARRELL (argued)
       Marshall, Dennehey, Warner,
       Coleman & Goggin
       1845 Walnut Street
       Philadelphia, PA 19103

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Robert S. ("Robert"), then a minor,filed this action
against the Stetson School ("Stetson"), several Stetson
employees, and others. His complaint asserted claims
against the school and its staff members under 42 U.S.C.
S 1983 for violating his federal constitutional rights by
subjecting him to physical and psychological abuse. 2 The
complaint also contained a variety of state-law claims
against these defendants. In this appeal, Robert challenges
the District Court's decision that Stetson and its staff did
not act under color of state law, as well as two of the
District Court's evidentiary rulings. We affirm.

I.

Robert was a victim of sexual abuse, and he in tur n
_________________________________________________________________

2. The complaint also included claims against the City of Philadelphia,
the Philadelphia Department of Human Services, and city officials. These
claims are not before us in this appeal.

                                2
molested his younger brother. In 1993, when Robert was
13, the Philadelphia Court of Common Pleas found him to
be a "dependent child,"3see 42 PA. CONS. STAT. ANN. SS 6302,
_________________________________________________________________

3. A "dependent child" is a child who:

        (1) is without proper parental car e or control, subsistence,
       education as required by law, or other car e or control necessary
for
       his physical, mental, or emotional health, or morals. A
       determination that there is a lack of pr oper parental care or
control
       may be based upon evidence of conduct by the par ent, guardian or
       other custodian that places the health, safety or welfare of the
child
       at risk, including evidence of the parent's, guardian's or other
       custodian's use of alcohol or a controlled substance that places
the
       health, safety or welfare of the child at risk;

        (2) has been placed for care or adoption in violation of law;

        (3) has been abandoned by his parents, guar dian, or other
       custodian;

        (4) is without a parent, guardian, or legal custodian;

        (5) while subject to compulsory school attendance is habitually
       and without justification truant from school;

        (6) has committed a specific act or acts of habitual disobedience
       of the reasonable and lawful commands of his parent, guardian or
       other custodian and who is ungovernable and found to be in need
       of care, treatment or supervision;

        (7) is under the age of ten years and has committed a delinquent
       act;

        (8) has been formerly adjudicated dependent, and is under the
       jurisdiction of the court, subject to its conditions or placements
and
       who commits an act which is defined as ungover nable in paragraph
       (6);

        (9) has been referred pursuant to section 6323 (relating to
       informal adjustment), and who commits an act which is defined as
       ungovernable in paragraph (6); or

        (10) is born to a parent whose par ental rights with regard to
       another child have been involuntarily terminated under 23 Pa.C.S.
        S 2511 (relating to grounds for involuntary termination) within
three
        years immediately preceding the date of birth of the child and
        conduct of the parent poses a risk to the health, safety or welfare
of
        the child.

42 PA. CONS. STAT. ANN. S 6302.

                                  3
6351, and placed him, with his mother's consent, in the
temporary custody of the Philadelphia Department of
Human Services ("DHS").4 At no time, however, did a court
find Robert to be a "delinquent child," see 42 PA. CONS. STAT.
ANN. SS 6302, 6352, nor was he convicted of any crime.

DHS decided that Robert would be best served by
enrolling him in Stetson, a school that specializes in the
treatment and education of juvenile sex of fenders. This
decision was not mandated by any court order and was
done with the consent of Robert's mother. DHS remained
Robert's legal custodian throughout his stay at Stetson and
was authorized to remove him at any time if it was not fully
satisfied with the services that Stetson was pr oviding. In
fact, at the urging of Robert's mother , DHS eventually did
remove Robert from Stetson in March 1997.

Stetson is a private, residential institution located in
Barre, Massachusetts. At the time of Robert's enrollment,
Stetson had approximately 55 residential students and four
or five commuter students. All of the Stetson students were
sex offenders. Incorporated under Massachusetts law and
licensed by the state, Stetson was governed by a board of
trustees, the members of which were elected by a board of
corporators. None of the members of the boar d of trustees
or the board of corporators were appointed by a government
entity, and none were federal, state, or local employees.

Stetson's buildings and property were all privately owned
and maintained, and Stetson had full control over its
admissions process. Admissions decisions wer e made by a
committee that reviewed applications and conducted
interviews of interested applicants. Stetson was not
obligated to accept any student. In fact, Stetson historically
refused to accept students with criminal r ecords and had
_________________________________________________________________

4. Under 42 PA. CONS. STAT. ANN. S 6351, a court may permit a
"dependent child" to remain with his or her parents, guardian, or other
custodian subject to such conditions as the court pr escribes or transfer
temporary legal custody to a private person or or ganization or "[a]
public
agency authorized by law to receive and pr ovide care for the child."

                               4
successfully gone to court to exclude students whom it did
not believe satisfied its stringent enrollment criteria.5

In pursuing its mission of providing tr eatment and
education to juvenile sex offenders, Stetson worked in close
concert with state and local governments. For example,
Stetson and the City of Philadelphia entered into various
financial and performance contracts r egarding Philadelphia
children placed in the school. These contracts were entered
into pursuant to the Pennsylvania Child Protective Services
Act, 23 PA. CONS. STAT. ANN. S 6301 et seq. According to the
testimony of Richard Robertson, Stetson's Executive
Director, the City of Philadelphia paid Stetson slightly more
than $200 per day for each student, an amount that was
insufficient to cover the school's actual costs. Costs not
covered by tuition were covered by grants from private
foundations, other charitable contributions, and loans.
Neither DHS nor the City of Philadelphia had any
involvement in the day-to-day management of Stetson. That
task was left entirely to the Stetson staf f.

Stetson provided a structured envir onment for its
students. Students were not permitted to leave campus
without supervision, were assigned bed times, were
generally awakened at approximately the same time, and
ate their meals at times set by the staff. Although the
school did not require uniforms, it had a dress code.6
Students were allowed to use both computers and
telephones, but when students used a telephone, a Stetson
staff member was normally in the r oom for therapeutic
reasons.7 Students wer e allowed to write and receive mail.
_________________________________________________________________

5. According to the testimony of Richar d Robertson, the Executive
Director of Stetson, on one occasion a court attempted to issue an order
placing a child at Stetson. The school objected and ultimately prevailed
in its effort to keep the student out of Stetson.
6. Richard Robinson testified, "W e don't allow T-shirts with marijuana
symbols on them, we don't allow Grateful Dead T -shirts, we don't allow
symbols and things that are sexualized in natur e; we don't allow tank
tops and short-shorts in the dining room for health code reasons."

7. Richard Robinson testified that a Stetson staff member is normally in
the room with students, but not actually on the phone. According to
Robinson, "Sometimes children can get very upset when they're talking
to parents or relatives or whoever they'r e talking to on the phone, we've
had children who have smashed windows and attacked staff." Appendix
at 186B.

                               5
Some were also allowed to leave campus with supervision
and to go home for vacations. Stetson did not employ any
mechanical or chemical restraints; the buildings did not
have bars on the windows; and the school did not per mit
corporal or physical punishment.

Robert alleged that Stetson staff members subjected him
to physical and psychological abuse, including wr estling
with him and kicking and punching him. Robert claimed
that this conduct violated Stetson's policy against
"horseplay"8 and sever ely disrupted his treatment. He
reported this alleged abuse to a Stetson therapist in
February 1997. After an internal investigation, Stetson
concluded that three of its counselors had violated the anti-
horseplay policy and subsequently suspended them. The
Commonwealth of Massachusetts also investigated and
decided that Stetson had acted appropriately in punishing
the counselors.

Not satisfied with the school's response, Robert filed this
action, asserting claims under S 1983 for violations of his
constitutional rights, as well as state-law claims for
intentional infliction of emotional distress, assault and
battery, false arrest, false imprisonment, invasion of
privacy, negligence, and state-law civil rights violations. On
motion of the Stetson defendants, the District Court
bifurcated the trial. After hearing evidence on the question
of state action, the Court made findings of fact r elated to
that question and held that the Stetson defendants were
not state actors. A trial was then held on Robert's state-law
claims, but the jury did not award him any r elief, and
Robert took this appeal.
_________________________________________________________________

8. The anti-horseplay policy was included in the employee manual as
part of a list of unacceptable behaviors. The policy provides:

       "Horseplay" or "roughhousing" is physical playing or teasing that
       has the real potential to lead to injury or afight between students
       or between students and staff. If a staf f identifies the play
between
       students as "horseplay" or "roughhousing", the student must stop
       that kind of play or interacting. Too often"horseplay" or
       "roughhousing" leads to dangerous play or fighting.

                               6
II.

Embodying the state-action requirement of the
Fourteenth Amendment, see Lugar v. Edmondson Oil Co.,
457 U.S. 922, 934-35 (1982); United States v. Price, 383
U.S. 787, 794 n.7 (1966), 42 U.S.C. S 1983 pr ovides a
cause of action that may be asserted against "[e]very person
who, under color of any statute, ordinance, regulation,
custom, or usage . . . of any state . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution . . . " (emphasis added). Thus, a
plaintiff in a section 1983 action bears the threshold
burden of proving that "the alleged deprivation was
committed by a person acting under color of state law."
Mark v. Borough of Hatboro, 51 F .3d 1137, 1141 (3d Cir.
1995) (quoting Moore v. Tartle, 986 F.2d 682, 685 (3d Cir.
1993)).

As noted, the Stetson School is a private institution, and
thus the school and its employees do not for mally wield the
authority of the state. There are, however , some
circumstances in which "seemingly private behavior `may
fairly be treated as that of the State itself.' " Brentwood
Acad. v. Tennessee Secondary Sch., 121 S.Ct. 924, 930
(2001) (quoting Jackson v. Metropolitan Edison Co., 419
U.S. 345, 349 (1974)). The Supreme Court r ecently wrote
that there are "a host of facts that can bear on the fairness
of such an attribution" and that "[a]midst such variety,
examples may be the best teachers." Id. W e therefore begin
our analysis of the state-action question in this case with
the Supreme Court's decision in Rendell-Baker v. Kohn, 457
U.S. 830 (1982), which provides the example that is most
closely analogous to the present case.

Rendell-Baker concerned the New Perspectives School, an
institution with many similarities to the Stetson School.
The New Perspectives School was a nonprofit institution
that specialized in treating and educating students who had
experienced difficulty completing public high schools
(largely due to drug, alcohol, and behavioral problems). New
Perspectives was a private school, located on private
property, and operated by a private boar d of directors.
Students who attended New Perspectives were generally

                               7
referred by local school committees or the state department
of health. The school committees paid New Perspectives for
its services, and at least 90% of New Perspectives' operating
budget came from public funds. To be eligible for this
funding, New Perspectives was required to comply with
various local and state regulations. The school also entered
into contracts with governmental bodies that r eferred
students to the school.

Applying the factors discussed in Blum v. Y aretsky, 457
U.S. 991 (1982), a case handed down on the same day as
Rendell-Baker, the Supreme Court held that New
Perspectives' discharge of employees was not state action.
First, the Court rejected the argument that the school was
a state actor because "virtually all of [its] income was
derived from government funding." Rendell-Baker, 457 U.S.
at 840. The Court stated that "[a]cts of . . . private
contractors do not become acts of the government by
reason of their significant or even total engagement in
performing public contracts." Id . at 841. The Court likewise
found no merit in the argument that extensive state
regulation of the school was sufficient to make it a state
actor, because the challenged conduct by New Perspectives
"was not compelled or even influenced by any state
regulation." Id. Next, the Court concluded that New
Perspectives was not performing a function that had been
" `traditionally the exclusive prerogative of the State.' " Id. at
842 (quoting Jackson, 419 U.S. at 353 (emphasis added in
Rendell-Baker)). The Court recognized that"the education of
maladjusted high school students is a public function" and
that state law required that services be provided for these
students at public expense. 457 U.S. at 842; see also id. at
845 (Marshall, J., dissenting). But the Court noted that
"until recently the State had not undertaken to provide
education for students who could not be served by the
traditional public schools," and the Court commented:
"That a private entity performs a function which serves the
public does not make its acts state action." Id. Finally, the
Court rejected the argument that ther e was a "symbiotic
relationship" between New Perspectives and the state
sufficient to make New Perspectives a state actor . The Court
observed that "[t]he school's fiscal r elationship with the

                               8
State [was] not different fr om that of many contractors
performing services for the gover nment." Id.

In light of Rendell-Baker, it is appar ent that many of the
factors upon which Robert relies here ar e insufficient to
establish state action. For example, it is clear that Stetson's
receipt of government funds did not make it a state actor.
Similarly, although Robert relies on the detailed
requirements set out in DHS's contracts with Stetson, those
requirements are also insufficient because they did not
"compel or even influence" the conduct on the part of the
Stetson staff that Robert challenged. See American Mfrs.
Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) ("mere
fact that a business is subject to state regulation does not
by itself convert its action into that of the State"); Black,
985 F.2d at 710-11 (pervasive regulation"made no
difference" because the complained of conduct was "not
compelled or even influenced by any state r egulation").

Robert argues, however, that the Stetson School, unlike
the New Perspectives School, performed a function that has
traditionally been the exclusive province of the state.
Indeed, Robert's brief forswears reliance on any other
theory of state action. See Appellant's Br . at 30 ("Only the
Public Function Test is useful and relevant in reviewing the
state actorship determination by the District Court in the
present matter on appeal."). As we have noted, this test
imposes a "rigorous standard" that is "rarely . . . satisfied,"
Mark, 51 F.3d at 1142, for "[w]hile many functions have
been traditionally performed by gover nments, very few have
been `exclusively reserved to the State.' " Flagg Brothers Inc.
v. Lefkowitz, 436 U.S. 149, 158 (1978).

In this case, Robert has not made the requisite showing.
As was true of the New Perspectives School in Rendell-
Baker, the record here does not show that the Stetson
School performed a function that has been traditionally the
exclusive province of the state. In fact, the undisputed
evidence showed that the only schools that of fered services
similar to those provided by Stetson wer e private schools.
See Appendix at 149B (testimony of Richar d Robinson
indicating that he is unaware of any public schools that
specialize in educating and treating sex of fenders). The
mere fact that Stetson "perfor ms a function which serves

                               9
the public does not makes its acts state action." Rendell-
Baker, 457 U.S. at 842.

This conclusion is supported by our decision in Black by
Black v. Indiana Area Sch. Dist., 985 F .2d 707 (3d Cir.
1993), a case involving a private bus company with which
a school district had contracted to transport students to
and from school. We found that case to be indistinguishable
from Rendell-Baker, concluding that

       [w]hile [the company and the individual defendants
       affiliated with it] were carrying out a state program at
       state expense, they were not perfor ming a function that
       has been "traditionally the exclusive prer ogative of the
       state" and there was no state regulation that
       "compelled or even influenced" the conduct which is
       alleged to have violated plaintiffs' constitutional rights.

Black by Black, 985 F.2d at 710-11. W e went on to state
that "as in Rendell-Baker, the cooperation between the
[state and the contractor] was only that appr opriate to the
execution of the subject matter of the contract and the
contractor's `fiscal relationship with the State is not
different from that of many contractors performing services
for the state.' " Id. at 711 (quoting Rendell-Baker, 457 U.S.
at 843). Finally, although school busing is commonly
thought of as a traditional state function, we concluded
that the "state contractor was not providing a service within
the exclusive province of the state." Id. We believe that the
facts of the present case warrant the same conclusion.

Robert appears to suggest that this case is dif ferent
because the services that Stetson provided wer e services
that DHS was required by state law to pr ovide. See
Appellant's Br. at 21, 24, 46. This very ar gument, however,
appears to have been rejected in Rendell-Baker. In dissent
in that case, Justice Marshall highlighted the fact that the
New Perspectives School "provide[d] a service that the State
[was] required to provide" under a state statute enacted a
few years earlier, 457 U.S. at 849 (Marshall, J., dissenting);
see also id. at 845, but the Court was not persuaded. See
457 U.S. at 842 ("That legislative policy choice in no way
makes these services the exclusive province of the State.").

                                10
Stressing the restrictions placed on students' liberty
while attending the Stetson School, Robert ar gues that "the
involuntary nature of [his] commitment" made his situation
there "entirely analogous to the situation of either a
prisoner or mentally committed individual held against
his/her will." Appellant's Br. at 44. Ther e is, however, no
factual basis for analogizing Robert's situation at the
Stetson School to that of a prisoner or a person who has
been involuntarily civilly committed. Whether or not Robert,
a minor at the time in question, personally wanted to
attend the Stetson School, his legal custodian, DHS,
wanted him placed there, and his mother consented. Thus,
his enrollment at Stetson was not "involuntary" in the
sense relevant here, i.e., he was not deprived of his liberty
in contravention of his legal custodian's (or his mother's)
wishes.9

Finally, we do not believe that the present case is
comparable to Milonas v. Williams, 691 F.2d 931 (10th Cir.
1982), a case that Robert believes is directly on point. In
Milonas, a class consisting of students at the Provo Canyon
School for Boys brought section 1983 claims against the
school and members of its staff, alleging that inhumane
treatment at the school violated the Constitution. The Provo
Canyon School, as described in the Tenth Cir cuit opinion,
was an unusual facility. A private facility for boys with
severe physical, psychological, and emotional problems, the
school was described in the District Court opinion, which
the Tenth Circuit quoted, as " `not a school in the
traditional, ordinary, classroom sense.' " 691 F.2d at 935.
Although the school did offer classes, the District Court
_________________________________________________________________

9. The power that DHS exercised over Robert is not comparable to the
power that a state exercises over a person whose liberty is restricted as
a result of a criminal conviction or involuntary civil commitment. The
latter power is quintessentially governmental, but a legal guardian's
authority over a minor is not. The Juvenile Act, on which Robert relies,
provides that temporary custody of a dependent child such as Robert
may be transferred, not only to an authorized"public agency" such as
DHS, see 42 PA. CONS. STAT. ANN. S 6351(a)(2)(iii), but also to "[a]ny
individual resident within or without [the] Commonwealth" who is found
to be qualified or to a qualified "private organization." 42 PA. CONS.
STAT.
ANN. S 6351(a)(2)(i) and (ii).

                               11
observed, the school was " `also a corr ectional and detention
facility.' " While students were generally admitted at the
insistence of one or both of their parents, others were
"received at the school directly fr om juvenile courts and
probation officers from across the nation." Id. at 936.
Conditions at the school were unusually harsh and
restrictive. Id. The District Court wr ote:

       Students are restricted to the grounds. Students are
       confined. Some students are locked in and locked up
       with varying degrees of personal liberty r estored as
       each progresses through the institutional program. If a
       student leaves without permission, he is hunted down,
       taken into custody and returned. . . .

       Regardless of origin, condition or motivation, once
       arrived, each person during the beginning phases of
       the school program was locked in, isolated fr om the
       outside world, and whether anti-social, crippled or
       learning disabled, was subject to mandated physical
       standing day after day after day to promote"right
       thinking" and "social conformity." Mail was censored.
       Visitors were discouraged. Disparaging r emarks
       concerning the institution were pr ohibited and
       punished. To "graduate" from confinement to a more
       liberated phase, one had to "pass" a lie detector test
       relating to "attitude," "truthfulness" and "future
       conduct." Some failed to pass and remained in
       confinement for extended periods of time.

Id. at 935-36.

The Tenth Circuit concluded that the state "ha[d] so
insinuated itself with the Provo Canyon School as to be
considered a joint participant in the of fending actions." Id.
at 940. The Court relied on the involuntary commitment of
some students, the school's detailed contracts with the
school districts, the school's receipt of substantial state
funding, and extensive state regulation. See id. Recognizing
that the New Perspectives School in Rendell-Baker was
"indeed quite similar" to the Provo Canyon School, the
Tenth Circuit attempted to distinguish the cases by noting
that the plaintiffs in Rendell-Baker were employees of the
school, whereas the plaintiffs in Milonas were students,

                               12
"some of whom have been involuntarily placed in the school
by state officials who were aware of, and approved of,
certain of the practices which the district court . . .
enjoined." Id. at 940.

Milonas is not binding on us, and we cannot agree
entirely with the court's reasoning. The Milonas court's
reliance on "significant state funding of tuition" and the
detailed contracts between the school and local school
districts appears to us to be squarely inconsistent with
Rendell-Baker. Moreover, we ar e uncertain what the Milonas
court had in mind when it sought to distinguish Rendell-
Baker on the ground that the plaintif fs in that case were
school employees, rather than students. Ther e are, of
course, circumstances in which this distinction might
matter. (For example, a state directive might require a
private entity to engage in the conduct challenged by a
student while imposing no such requirement regarding
conduct challenged by an employee.) But it is unclear why
the Milonas court thought that it was important that the
plaintiffs in the case before it wer e students. It is possible
that the Milonas court took this view because it believed
that some state officials "were awar e of, and approved of "
certain of the Provo Canyon School's practices concerning
the treatment of students. It is not clear that even such
awareness and approval would be enough to establish state
action,10 but if this is not what the Milonas court had in
mind, the significance of the fact that the plaintiffs were
students is obscure.

In any event, we need not decide whether we would agree
with the Tenth Circuit on the facts pr esented in Milonas,
because the case now before us is quite dif ferent. Here,
Robert was not "involuntarily placed in the school by state
officials who were aware of, and appr oved of " the practices
attacked in Robert's complaint. Robert was enr olled at
_________________________________________________________________

10. There is tension between Milonas's reliance on such awareness and
approval as the basis for finding state action and the Supreme Court's
holding in San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522, 547
(1987) (quoting Blum, 457 U.S. at 1004-5), that governmental " `approval
of or acquiescence in' " the challenged conduct was not enough to
establish state action.

                                13
Stetson by his legal custodian and with his mother's
consent, and we are aware of no evidence that any state
officials were aware or approved of the conduct by the
members of the Stetson staff that forms the basis of
Robert's claims -- much less any evidence that they
"provided such significant encouragement, either overt or
covert, that the [challenged conduct] must in law be
deemed to be that of the [state]." Blum , 457 U.S. at 1004;
see also San Francisco Arts & Athletics v. U.S.O.C. , 483 U.S.
522, 546 (1987).

Moreover, for what it is worth, ther e is simply no
evidence that Stetson subjected its students to anything
approaching the conditions at the Provo Canyon School. As
far as the record here reveals, Stetson students were not
placed in solitary confinement, discouraged fr om seeing
visitors, required to take lie detector tests, or subjected to
censorship of their mail. On the contrary, it is undisputed
that Robert was allowed to leave campus with an
instructor, had regular contact with his family (including
frequent visits with his mother and step-father), was
allowed to leave campus with his family, and was even
allowed to go home for vacations.

Robert emphasizes the fact that Stetson students wer e
not allowed to leave the school grounds without permission
and that, if they did, the school would attempt to locate
and return them, with the help of the local police
department if necessary. See Appellant's Br . at 38-39. He
argues that his "complete inability to leave the Stetson
School without having a bench warrant issued for his
detention, effectively ma[de] him a`prisoner', much more
analogous to an inmate, than to any other situation." Id. at
39. In response, Stetson states:

       In the event that a student were to leave campus
       without permission, Stetson, like all r esponsible private
       or public schools, would notify local police for the
       student's own welfare and for the protection of the
       community. Stetson would not issue a warrant and
       arrest order because Stetson lacked the jurisdictional
       basis and the legal authority on its own to invoke
       custodial proceedings.

                               14
Appellees's Br. at 11 (citations to appendix omitted).

Robert has not referred us to any evidence in the record
that supports his assertion that the school did mor e than
simply notify the police department if a student left without
permission.11 Nor has he referred us to any provision of
Massachusetts statute or common law that gave Stetson
any greater authority with respect to a missing student
than is enjoyed by any of the state's other privately owned
and run residential schools.

In sum, whether or not we would follow Milonas , we are
satisfied that that case is easily distinguishable from the
case before us. Particularly in light of the Supreme Court's
decision in Rendell-Baker, we agree with the District Court
that Robert failed to show that the challenged actions of the
Stetson staff may be fairly attributed to the state.

III.

Robert also challenges two evidentiary rulings made by
the District Court during the trial on his state-law claims.
First, he argues that the District Court err ed by limiting the
expert testimony of Anne Wolbert Burgess, D.N.S., who was
prepared to testify that the behavior to which Robert was
subjected at Stetson constituted child abuse. The District
Court accepted Burgess as an expert in child abuse, but
the Court ruled that an expert opinion on the question
_________________________________________________________________

11. Robert's brief provides two citations. The first is to the first page
of
the transcript of the hearing before the District Court. Apparently, by
citing to this page, Robert intended to cite the entire hearing. His
second
citation is to a page of the District Court opinion stating that
"Plaintiff
also proved that Stetson contacts the police when a child leaves the
premises without permission." The District Court did not make any
reference to the issuance of a warrant, and in the next sentence, the
Court found that, despite the "obviously significant limitations on the
freedom of students enrolled at Stetson," it did not believe that Stetson
was "fulfilling the traditional public function of incarcerating
criminals."
Id. The District Court pointed out that Robert was never adjudicated a
criminal, the decision to place him at Stetson was made with the advice
and support of his mother, and many of the r estrictions imposed on
students at Stetson were no greater than those imposed at any strict
private boarding school. See id.

                               15
whether specific conduct constituted child abuse would not
be helpful to the jury under Fed. R. Evid. 702. Mor oever,
the Court concluded that testimony by Burgess on this
point would result in "undue delay, waste of time, or
needless presentation of cumulative evidence" within the
meaning of Fed. R. Evid. 403, and the Court ther efore
precluded such testimony. In addition, the Court ruled that
Burgess was not qualified to "render an opinion diagnosing
plaintiff with post-traumatic stress disorder" and that "such
testimony would be unnecessarily cumulative to the
testimony of plaintiff 's other experts." As a result of these
rulings, Burgess's testimony was limited to the treatment
that she believed would have been best for Robert.

Robert argues that the District Court err ed in limiting
Burgess's testimony. He claims that Bur gess's testimony
was offered to "help explain to the jury the ramifications,
and implications, of uninvited physical contact by staff with
Plaintiff, in the guise of horseplay." Robert's Brief at 52.
More specifically, he argues that expert testimony was
necessary to explain that children "who act out sexually"
and who have been the victims of sexual abuse "ar e at an
increased risk for harm caused by . . . uninvited
inappropriate physical contact." See id. at 54. Therefore, he
contends that the District Court made it impossible for him
adequately to explain the seriousness of the horseplay by
the Stetson staff. Id. at 55-56.

We review a District Court's decision to admit or reject
testimony under Rule 403 for abuse of discretion, and, we
will not reverse such a ruling "unless it is`arbitrary and
irrational.' " Bhaya v. Westinghouse Elec. Corp., 922 F.2d
184, 187 (3d Cir. 1990) (quoting United States v. DePeri,
778 F.2d 963, 973-74 (3d Cir. 1985)), cert. denied, 501 U.S.
1217 (1991). We hold that the District Court's ruling
limiting Burgess's testimony under Fed. R. Evid. 403 was
within the proper bounds of its discretion.

In addition to Burgess, two other experts testified on
Robert's behalf at trial. See Stetson's Brief at 58. These two
witnesses, Edward J. Doughtery and Robert Pr entky, both
psychologists, testified at length about the impact that the
alleged physical and mental abuse of Robert could have on
someone with his history. See Appendix at 303B-309B

                               16
(portion of Doughtery's testimony); 739B-746B (portion of
Prentky's testimony). Both experts explained that someone
like Robert, who has been the victim and perpetrator of
sexual abuse, is particularly susceptible to har m caused by
inappropriate contact. See id. at 307B-308B (explaining
that, prior to entering Stetson, Robert had a "brittle
personality due to numerous problems in his early
development" and that the conduct at Stetson"caused him
a great deal of stress and problems"); Appendix at 744B
("Child abuse, virtually by definition, involves some
violation of boundaries. . . . Survivors of childhood physical
abuse grow up with an awareness, a knowledge that their
personal boundaries are highly permeable, so that learning
to trust the integrity of one's own boundaries is pr ofoundly
important. . . . When a therapist violates personal space of
survivors, it recapitulates all of the earlier experiences that
are boundary violations."). This testimony by Doughtery
and Prentky addressed the same issues that Robert sought
to address through Burgess's testimony. Therefore, the
District Court had a reasonable basis for r egarding that
testimony as cumulative, and the District Court did not
abuse its discretion in limiting Burgess's testimony.

Robert next maintains that the District Court err ed in
excluding certain evidence of prior bad acts by members of
the Stetson staff. This included evidence of an incident in
which a staff member (not one of the defendants) held a
student over a balcony railing, evidence of an incident in
which a staff member drove recklessly on campus with
students in the van, evidence of the use of inappr opriate
language by staff members, and evidence of other incidents
that did not involve Robert or the defendants. Robert
argues that this evidence was not offer ed to show that the
defendants acted in conformity with it but rather to
persuade the jury that Stetson had a permissive attitude
regarding inappropriate behavior dir ected at students by
staff. See Appellant's Br. at 60-61. The District Court
excluded the evidence of the reckless driving incident, the
incident in which a staff member held a student over a
railing, and any other prior incidents that did not involve
the plaintiff. See Appendix at 23. However, the Court
allowed evidence of the use of inappropriate language by
any of the defendants. See id.

                               17
Because of the distinct possibility that the jury likely
would have considered the excluded evidence for precisely
the purpose that Fed. R. Evid. 404(b) prohibits, i.e., to
show that the defendants acted in conformity with these
prior bad acts on the occasions alleged by Robert, the
District Court had a reasonable basis for ruling that
admission of this evidence created a danger of unfair
prejudice to the defendants under Fed. R. Evid. 403. In
addition, since the prior acts did not involve any of the
individual defendants or Robert and did not occur during
the same time period as Robert's claimed abuse, 12 the
District Court had a reasonable basis for concluding that
the probative value of the evidence was not gr eat and for
excluding it under Rule 403.

IV.

For the reasons discussed above, we affir m the judgment
of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

12. The balcony incident occurred befor e Robert came to Stetson and the
reckless driving incident occurred prior to the time when Robert claims
that his abuse began.
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