                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2005

Leshko v. Servis
Precedential or Non-Precedential: Precedential

Docket No. 04-2610




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"Leshko v. Servis" (2005). 2005 Decisions. Paper 484.
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                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT




                     No. 04-2610




                 KAREN M. LESHKO,

                           Appellant

                           v.

GREG SERVIS; JUDY M. SERVIS; DAUPHIN COUNTY
                 SOCIAL SERVICES
  FOR CHILDREN AND YOUTH; SANDRA MOORE,
                  Agency Director,
 Dauphin County Social Services for Children and Youth;
  DAUPHIN COUNTY; RICK WYNN, Human Services
                  Director, Dauphin
County; JEFFREY HASTE, Dauphin County Commissioner;
  LOWMAN HENRY, Dauphin County Commissioner;
           ANTHONY PETRUCCI, Dauphin
                County Commissioner
                     _______________

      On appeal from the United States District Court
          for the Middle District of Pennsylvania
              District Court No. 03-cv-00889
        District Judge: The Honorable Yvette Kane
                     _______________

                    Argued April 1, 2005
                     _______________

   Before: ALITO, SMITH, and FISHER, Circuit Judges.

                 (Filed: September 9, 2005)
                   __________________

Joseph M. Farrell (argued)
201/203 S. Railroad Street
P.O. Box 113
Palmyra, PA 17078-0113
Attorney for Appellant

David P. Karamessinis (argued)
William J. Devlin, Jr. & Associates
Suite 1500 Market Street, Suite 2920
Philadelphia, PA 19102
Attorney for Appellees
                   ___________________

                OPINION OF THE COURT
                 ____________________

                             2
SMITH, Circuit Judge.

        We weave our way in this appeal through the Supreme
Court’s labyrinthine state action jurisprudence. The question
presented is whether foster parents are state actors for purposes
of liability under 42 U.S.C. § 1983. We hold that they are not.

                               I.

                               A.

       When appellant Karen M. Leshko was two-and-a-half
years old, her foster mother, appellee Judy Servis, placed her in
the kitchen sink of the Servis home to wash her. Next to the
sink was a large pot of exceedingly hot water. Servis left the
room. Little Karen pulled the pot over on herself, sustaining
severe burns across much of her abdomen, legs and mid-section.
Neither Servis nor her husband sought medical treatment for
Karen for more than twelve hours.

        When she turned eighteen, Karen (“Leshko”) sued
Dauphin County (Pennsylvania) Social Services for Children
and Youth, Dauphin County, and various County officials under
§ 1983 for depriving her of her Fourteenth Amendment right to
be free from physical harm, and under state negligence and
constitutional theories. Leshko also sued the Servises, alleging
liability under § 1983 and state tort law. The District Court

                               -3-
dismissed the complaint in its entirety for failure to state a claim.
Leshko appeals only the District Court’s dismissal of her § 1983
claim against the Servises, inasmuch as the Court held that the
Servises were not state actors.

                                 B.

       Leshko was placed in the Servis home in 1985 by the
Dauphin County Social Services for Children and Youth after
being removed from her mother. The record reveals neither the
reason for Leshko’s removal, nor whether Leshko’s mother
consented to the removal. The laws governing foster care in
Pennsylvania are substantially the same today as they were in
1985. A child in Pennsylvania can be placed in foster care after
being adjudicated a “dependent child.” 42 Pa.C.S. § 6351; In re
Frank W.D., 462 A.2d 708, 711 (Pa. Super. Ct. 1983). A
dependent child in Pennsylvania is one deemed by the
Commonwealth to be abandoned, illegally offered for care or
adoption, or lacking “proper parental care or control,
subsistence, education as required by law, or other care or
control necessary for his physical, mental, or emotional health,
or morals.” 42 Pa.C.S. § 6302; Matter of Adoption of J. S. H.,
445 A.2d 162, 164 (Pa. Super. Ct. 1982). Foster care is not the
only option available for dependent children; a court might
alternatively order a dependent child to remain with his parents
or guardian under court supervision, be transferred to the
custody of an authorized private organization, or be transferred
to the custody of an authorized public agency. 42 Pa.C.S. §

                                 -4-
6351; In re Lowry, 484 A.2d 383, 385-86 (Pa. 1984). State
regulations govern the foster care relationship, and government
funding is provided. See 35 Pa. Code § 3700; In re Adoption of
Crystal D.R., 480 A.2d 1146, 1150 (Pa. Super. Ct. 1984).
Apparently for the first time, a Pennsylvania court held in 2002
that foster parents in Pennsylvania are county “employees”
under Pennsylvania’s Political Subdivision Tort Claims Act, 42
Pa.C.S. § 8501. Patterson v. Lycoming County, 815 A.2d 659,
661 (Pa. Commw. Ct. 2002).1

                                 II.

         The Fourteenth Amendment provides that “[n]o State
shall . . . deprive any person of life, liberty, or property, without
due process of law . . . .” U.S. C ONST. amend. XIV, § 1. This
Amendment governs only state action, not the actions of private
citizens or organizations. Rendell-Baker v. Kohn, 457 U.S. 830,
837-38 (1982) (citing, inter alia, Civil Rights Cases, 109 U.S. 3,
11 (1883)). Section 1983 subjects to liability those who deprive
persons of federal constitutional or statutory rights “under color
of any statute, ordinance, regulation, custom, or usage” of a
state. See 42 U.S.C. § 1983. We consider actions “under color


   1
   The District Court had jurisdiction over this case under 28
U.S.C. §§ 1331, 1343. We exercise jurisdiction over the District
Court’s order dismissing Leshko’s complaint under 28 U.S.C.
§ 1291. Our review of such dismissals is plenary. Wheeler v.
Hampton Township, 399 F.3d 238, 242 (3d Cir. 2005).

                                 -5-
of law” as the equivalent of “state action” under the Fourteenth
Amendment. Rendell-Baker, 457 U.S. at 838; Benn v. Universal
Health Sys., Inc., 371 F.3d 165, 169 n.1 (3d Cir. 2004). Thus,
to state a claim of liability under § 1983, Leshko must allege
that she was deprived of a federal constitutional or statutory
right by a state actor. See Benn, 371 F.3d at 169-70. The
Servises concede that Leshko alleges a deprivation of a
constitutional right, as they must under Nicini v. Morra, 212
F.3d 798, 810 (3d Cir. 2000) (en banc) (holding that a state may
be liable for conduct toward foster children that “shock[s] the
conscience”), so this appeal turns solely on whether the Servises
are state actors.

         Supreme Court cases under the Fourteenth Amendment
draw no “simple line” between states and private persons.
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n,
531 U.S. 288, 295 (2001). The principal question at stake is
whether 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. (quoting Jackson v.
Metro. Edison Co., 419 U.S. 345, 351 (1974)). Following the
Supreme Court’s guidance for answering that expansive
question, we attempt to align the case at hand with the Supreme
Court case most factually akin to it. See Robert S. v. Stetson
Sch., Inc., 256 F.3d 159, 164 (3d Cir. 2001); Brentwood Acad.,
531 U.S. at 295 (noting that “a host of facts” can bear on the
fairness of attributing action to the state and counseling that
“[a]midst such variety, examples may be the best teachers”). In

                                 -6-
adhering to that approach, “facts are crucial.” Crissman v.
Dover Downs Entm’t Corp., 289 F.3d 231, 234 (3d Cir. 2002)
(en banc).

        State action cases broadly divide into two factual
categories. See Brentwood Acad., 531 U.S. at 296. The first
category involves an activity that is significantly encouraged by
the state or in which the state acts as a joint participant. See
Blum v. Yaretsky, 457 U.S. 991 (1982) (holding state action to
be present where the state provides “significant encouragement,
either overt or covert” for the activity); Lugar v. Edmondson Oil
Co., 457 U.S. 922, 941 (1982) (holding state action to be present
where private citizen employed challenged state prejudgment
attachment process, thus participating in the state’s action).
Determining state action in such cases requires tracing the
activity to its source to see if that source fairly can be said to be
the state. The question is whether the fingerprints of the state
are on the activity itself.

        The second category of cases involves an actor that is
controlled by the state, performs a function delegated by the
state, or is entwined with government policies or management.
See Pennsylvania v. Bd. of Dir. of City Trusts of Philadelphia,
353 U.S. 230, 231 (1957) (per curiam) (holding private
organization to be state actor where the organization was
controlled by a state agency); West v. Atkins, 487 U.S. 42, 56
(1988) (holding private doctor to be state actor where, in an
institutional context, he performed a function traditionally and

                                 -7-
exclusively reserved to the state); Brentwood Acad., 531 U.S. at
298 (holding ostensibly private association to be state actor
because of the “pervasive entwinement of public institutions and
public officials in its composition and workings”); see also
Burton v. Wilmington Parking Auth., 365 U.S. 715, 724 (1961)
(holding private business to be state actor where there were
“mutual benefits” between the state and the business).
Determining state action in this category of cases consists of
asking whether the actor is so integrally related to the state that
it is fair to impute to the state responsibility for the action. The
question here is whether the state so identifies with the
individual (or entity) who took the challenged action that we
deem the state’s fingerprints to have been on the action.2

                                A.



  2
   We of course do not suggest that a successful showing under
one of the Supreme Court’s actor-centered cases makes a private
individual or entity an all-purpose state actor. As we have
explained, while our analytical approach in such cases starts
with the actor (as opposed to the action) we nevertheless cannot
resolve the state action question without finally also considering
the “nexus between the state and the challenged action.”
Brentwood Acad., 531 U.S. at 288 (quotation omitted).
Distinguishing between the actor-centered, versus action-
centered, approaches to finding state action is thus an effort to
speed identification of the most promising analytical point of
departure, not to pre-select our destination.

                                -8-
        We see no allegation in Leshko’s complaint that the
Commonwealth of Pennsylvania condoned the Servises’
decisions to leave Leshko sitting unattended next to a pot of hot
water and not to seek immediate medical attention, let alone
significantly encouraged or participated in them. To the
contrary, the general rule in Pennsylvania is that courts should
direct dependent children to the custody of the person or
organization “best suited to the safety, protection and physical,
mental, and moral welfare of the child.” 42 Pa.C.S. § 6351(a);
In re Lowry, 484 A.2d at 385. Leshko notes that Pennsylvania
comprehensively regulates foster care, and funds that care
together with its counties, and asks that we therefore infer a
sufficiently “close nexus” between the Servises and
Pennsylvania that we deem their decisions to be the
Commonwealth’s. But the Supreme Court repeatedly has
rejected that argument, see, e.g., American Manufacturers
Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 52 (1999)
(holding that “[a]ction taken by private entities with the mere
approval or acquiescence of the State is not state action”), as
have we, see, e.g., Crissman, 289 F.3d at 244 (holding that
detailed regulation and receipt of state funds, without more, do
not create state action) (quotation omitted). Leshko does not
allege that Pennsylvania forced or encouraged, or jointly
participated in, the Services’ negligent behavior, and therefore
she states no claim of state action on the basis of state regulation




                                -9-
and funding.3

                               B.

        While Leshko invokes the full array of actor-centered
theories of state action, only one arguably applies to her case.
There is no sense in which the Servises are a state agency akin
to the college board in Board of Directors of City Trusts of
Philadelphia, which held that a college board of directors was
a state agency because, while privately created and endowed, the
existence and activity of the board were authorized by statute.
353 U.S. at 230-31. Nor is any kind of entwinement, pervasive
or otherwise, alleged between the operation of the Servis home
and public institutions and officials. See Brentwood Acad., 531
U.S. at 298. Further, we have expressed our resolve to limit
application of Burton’s so-called symbiotic relationship test to
cases with facts replicating Burton’s, see Crissman, 289 F.3d at
242-43, and this case does not test that resolve. Burton involved
a private business that funneled substantial funds into


    3
     The Fourth Circuit has reached the same conclusion on
materially similar facts, see Milburn v. Anne Arundel County
Dep’t of Soc. Serv’s., 871 F.2d 474, 479 (4th Cir. 1989) (holding
that foster parents were not state actors because state “exercised
no coercive power over [foster parents]; neither did it encourage
them,” prompting their tortious conduct), as has the Eleventh
Circuit, see Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir.
2001) (same).

                               -10-
government coffers through a lucrative lease. 365 U.S. at 723-
24. We recognize that the Servises ostensibly served the state,
and they received government funds; so there may have been
some mutual benefit. But that is not enough. The Supreme
Court long has taught “that a private entity performs a function
which serves the public does not make its acts state action.”
Rendell-Baker, 457 U.S. at 842. Given that no tangible benefit
flowed to Pennsylvania through the Servises, Benn, 371 F.3d at
173, we have no occasion to revive Burton. Our focus thus
narrows to whether the Servises were delegated a “traditionally
and exclusively” state function. Jackson, 419 U.S. at 353. That
is a closer question.

       1. State “Employees” as State Actors

        Leshko would like us to resolve the public function
question in her favor on the simple ground that under
Pennsylvania law the Servises were public employees. We
cannot do so, though we acknowledge the force in her argument.
In Pennsylvania, “[a]ny person who is acting or who has acted
on behalf of a governmental unit, whether on a permanent or
temporary basis, whether compensated or not,” is an employee
of that governmental unit. 42 Pa.C.S. § 8501. As we noted
earlier, a Pennsylvania appellate court has held that under §
8501 foster parents are employees of the county Children and
Youth Services agency that designates them foster parents. See
Patterson, 815 A.2d at 661. The District Court dismissed
Leshko’s tort claim against the Servises in light of that case,

                              -11-
holding that the immunity provided by Pennsylvania’s tort
claims statute applied to the Servises as county employees.
Leshko finds it “anomalous” that the Servises successfully
contended in the District Court that they are employees of the
County, and yet claim here not to be state actors for purposes of
liability under § 1983.

        We acknowledge the seeming heads-we-win-tails-you-
lose aspect of the Servises’ litigation strategy, but the law is on
their side. It is true that the Supreme Court in West declared that
“state employment is generally sufficient to render the defendant
a state actor,” 487 U.S. at 24 (quoting Lugar, 457 U.S. at 935
n.18), and observed that the only time it had held that a state
employee was not a state actor was in the case of a public
defender, who was tasked with acting as the state’s adversary.
Id. at 50 (citing Polk County v. Dodson, 454 U.S. 312, 325
(1981)). Nevertheless, by its own terms, West does not allow
state definitions to dictate federal court decisions under § 1983.
The doctor in West was employed part-time by contract with the
state, but that employment did not automatically make him a
state actor. The ultimate question in West, as in all state action
cases, was whether the doctor’s conduct was “fairly attributable
to the State.” Id. at 54. “It is the physician’s function within the
state system, not the precise terms of his employment, that
determines whether his actions can fairly be attributed to the
State,” the Court explained. Id. at 55-56.

       West’s approach fits with the Supreme Court’s teaching

                               -12-
that state-hired private contractors are not automatically state
actors under § 1983, even if the state is their only patron. See
Rendell-Baker, 457 U.S. at 840-41. It also accords with the
principle that labels are not dispositive in state action cases. See
Brentwood Acad., 531 U.S. at 296. Looking to the reality over
the form of the Servises’ relationship with Pennsylvania, see
Crissman, 289 F.3d at 243, it is clear that they much more
closely resemble the private nursing home contractor held not to
be a state actor in Rendell-Baker than the officials the Supreme
Court has held acted under color of state law by virtue of their
governmental positions. See Monroe v. Pape, 365 U.S. 167, 184
(1961) (police officers); Parratt v. Taylor, 451 U.S. 527, 535-36
(1981) (prison officials); Zinermon v. Burch, 494 U.S. 113, 135-
36 (1990) (state hospital officials). As we rejected in Crissman
the notion that a state law designating private actors as state
“agents” makes them state actors per se, 289 F.3d at 243-44, we
reject the proposition that Pennsylvania’s characterization of the
Servises as “employees” automatically makes them state actors.
See Rayburn v. Hogue, 241 F.3d 1341, 1349 (11th Cir. 2001)
(holding that possession of immunity from tort suit as
“employees” of state does not make foster parents state actors).

       2. Foster Care in Pennsylvania

       The question remains, then, whether the Servises
performed a traditionally and exclusively public function. If so,
regardless of their formal designation by the state, they are state
actors. The issue thus becomes precisely what function of the
Servises to choose as our object of comparison. Should it be
their overall duties as foster parents? Should it be their daily
care for Leshko’s physical needs? Should it be their decisions
related to Leshko’s injuries? The question is critical, for its


                               -13-
answer may be outcome determinative. The Supreme Court
appears to employ varying approaches to this issue. Sometimes
the Court seems to identify the function broadly, as in Rendell-
Baker, which held in a teachers’ suit for unlawful termination
that the “education of maladjusted high school students” is not
traditionally and exclusively governmental. 457 U.S. at 842. At
other times, the Court takes a narrower view, as in Blum, which
held in a patients’ suit for unlawful transfer from a nursing
home that “decisions made in the day-to-day administration” of
the home were not traditionally and exclusively governmental.
457 U.S. at 1012. We will follow the approach in West, which
employs the broad methodology of Rendell-Baker. We follow
West because, though there are critical factual differences
between West and the present case, the claim in that case –
negligent administration of medical care – most closely parallels
Leshko’s. In West, the Supreme Court considered broadly
whether the provision of medical services to injured inmates was
a traditionally exclusive governmental function. 487 U.S. at 54-
56; Sullivan, 526 U.S. at 55 (describing function considered in
West as “provid[ing] medical treatment to injured inmates”).
We thus will ask whether the provision of care to children in
foster homes is a traditionally exclusive governmental function.

       No aspect of providing care to foster children in
Pennsylvania has ever been the exclusive province of the
government.4 Even today, while removing children from their
homes and placing them with other caregivers arguably are
exclusively governmental functions in Pennsylvania, the hands-


  4
   Following the example of the Supreme Court, we look to the
historical practice of the state at issue, rather than national
trends. See, e.g, Sullivan, 526 U.S. at 55-57.

                              -14-
on care may be tendered by families, private organizations, or
public agencies, see 42 Pa.C.S. § 6351, and thus is not
exclusively governmental. Organized placement of children in
foster homes began in late-19th century Pennsylvania as a
service of private societies to protect children from cruelty. See
L ER OY A SHBY, E NDANGERED C HILDREN: D EPENDENCY,
N EGLECT, AND A BUSE IN A MERICAN H ISTORY 55-61 (1997).5
The Pennsylvania Society for the Prevention of Cruelty to
Children, for example, regularly removed children from their
homes in the late-1800s and placed them in institutions or with
other families. Id. at 61. Between 1880 and 1905, two
organizations in Philadelphia, the Home Missionary Society of
Philadelphia and the Children’s Aid Society of Pennsylvania,
placed some 5,400 children in foster homes. See Priscilla
Ferguson Clement, Families and Foster Care: Philadelphia in
the Late Nineteenth Century, in G ROWING UP IN A MERICA:
C HILDREN IN H ISTORICAL P ERSPECTIVE 135, 139 (N. Ray Hiner
& Joseph M. Hawes, eds., 1985). “[M]ost children entrusted to
the care of [these] agencies were not vagrants picked up by the
police nor indigent children removed from their homes by
budding social workers, but youngsters whose families
deliberately relinquished them to child care agencies.” Id. at
141-42. In 1901, Pennsylvania began supervising the placement
of children in foster care and regulating that care. See Act of
May 21, 1901, P.L. 279 (“To regulate the treatment and control
of dependent, neglected, and delinquent children . . . .”)



   5
    For a brief period in the early-19th century (from 1820 to
1835), Philadelphia operated a public orphanage, but by mid-
century city officials “backed away from direct responsibility for
the city’s poor and dependent children,” and private orphanages
took over. See A SHBY, supra at 27-28.

                               -15-
(hereinafter “Juvenile Act”); Mansfield’s Case, 22 Pa. Super.
224, 235 (Pa. Super. Ct. 1903) (holding statute unconstitutional
under Pennsylvania constitution); Commonwealth v. Fisher, 62
A.2d 198, 201 (Pa. 1905) (holding revised statute
constitutional). Thus, while over time Pennsylvania began to
administer aspects of the foster care system previously
performed privately, providing hands-on care has never been,
and is not now, an exclusively governmental function. See
Milburn v. Anne Arundel County Dep’t of Soc. Serv’s., 871 F.2d
474, 479 (4th Cir. 1989) (concluding, summarily, that “[t]he
care of foster children is not traditionally the exclusive
prerogative of the state”).

       3. Distinguishing West

        West does not compel a different conclusion. We have
alluded several times to West’s teaching and methodology; we
now expressly distinguish it on its facts. In West, an inmate
claimed under § 1983 that a part-time prison physician violated
his Eighth Amendment right to be free from cruel and unusual
punishment by deliberate indifference to his serious medical
needs. 487 U.S. at 45. The Supreme Court agreed, and held
that the prison doctor was a state actor because he performed a
traditionally exclusive governmental function. Under the
federal Constitution as well as under state common law, the
Court explained, the state was required to provide adequate
medical care to those it incarcerated. Id. at 54-55. The state
delegated that public function to the prison doctor. Id.
Importantly for the West Court, the inmate received his care at
the prison hospital, and had no option of choosing medical care
outside the state system. Id. at 55-56.



                              -16-
        In several crucial ways, care for children in foster homes
in Pennsylvania differs from the medical care for inmates
considered in West. First, neither the federal Constitution nor
the Pennsylvania Constitution requires that the state provide care
for foster children.        See P A. C ONST . art. III, § 29
(“appropriations may be made for . . . assistance to mothers
having dependent children”). Constitutional obligations on a
state obviously are powerful evidence that the required functions
are traditionally governmental, but here there are no such
obligations. Instead, as we discussed above, state-supervised
foster care in Pennsylvania is a creature of statute, begun in
1901 under Pennsylvania’s Juvenile Act.6 Statutory duties of
even such early vintage are not traditionally governmental. See
Sullivan, 526 U.S. at 56-57 (holding that deciding whether to
suspend payment for disputed medical treatment was not a
traditionally exclusive governmental function because in



   6
    We note that as early as 1835 the Pennsylvania legislature
established so-called Houses of Refuge for “incorrigible or
vicious” children, and authorized aldermen or justices of the
peace to commit those children to Houses of Refuge at a
parent’s request. See Fisher, 62 A.2d at 55 (referring to Act of
April 10, 1835, P.L. 133); Act of April 21, 1850, P.L. 339
(incorporating an association to establish a house of refuge in
Western Pennsylvania). We think the passing of the Juvenile
Act is the more appropriate date for marking the beginning of
Pennsylvania’s management of the foster care system, however,
because of the Juvenile Act’s much broader application. But see
A SHBY, supra, at 25 (“Although houses of refuge were mainly
for delinquent youths, they contained substantial numbers of
dependent and neglected children. . . . This blurring of lines
between dependency and delinquency continued into the
twentieth century.”).

                               -17-
Pennsylvania before 1915 private employers made that decision
without state authorization).

       We recognize that the ancient concept of the sovereign as
parens patriae, which means “parent of his or her country,”
B LACK’S L AW D ICTIONARY 1144 (8th ed. 2004), imposed a duty
on the crown to protect the people and thus made it “the
supreme guardian and superintendent over all infants [i.e.,
children].” George B. Curtis, The Checkered Career of Parens
Patriae: The State as Parent or Tyrant, 25 D E P AUL L. R EV. 895,
897 (1976) (quoting Eyre v. The Countess of Shaftsbury, 24 Eng.
Rep. 659 (Ch. 1722)).7 And, indeed, the Pennsylvania Supreme
Court seemed to allude to the common law roots of
Pennsylvania’s Juvenile Act when it upheld a revised version of
the Act under the state constitution. Fisher, 62 A.2d at 56-57
(“Every statute which is designed to give protection, care and
training to children, as a needed substitute for parental authority
and performance of parental duty, is but a recognition of the
duty of the state, as the legitimate guardian and protector of
children where other guardianship fails.”). While under West
the existence of a common law duty can contribute to a finding
of state action, see 487 U.S. at 54-55, we do not think the
existence of a generalized duty, by itself, is enough to make the
Servises state actors. That is because liability inheres in
exercising traditionally public functions, not traditionally public


   7
    The Supreme Court has recognized the doctrine of parens
patriae as applied to care for children. See Reno v. Flores, 507
U.S. 292, 304 (1993); Schall v. Martin, 467 U.S. 253, 265
(1984) (“Children, by definition, are not assumed to have the
capacity to take care of themselves. They are assumed to be
subject to the control of their parents, and if parental control
falters, the state must play its part as parens patriae.”).

                               -18-
duties. Cf. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158
(1978) (“While many functions have been performed by
governments, very few have been exclusively reserved to the
state.”) (emphasis added). Indeed, we have found no case in
which the Supreme Court identified a traditionally exclusive
public function based on powers possessed, but not traditionally
exercised, by a state government. Thus, while Pennsylvania
may have had a broad duty to supply care for needy children
since the formation of the Commonwealth, that duty did not
become a public function until 1901 with the creation of the
Juvenile Act. And, of course, as we have explained, the hands-
on provision of foster care even now is not an exclusive public
function.

        Second, unlike in West, Leshko’s care was not delivered
in an institutional setting. West reasoned that “although the
provision of medical services is a function traditionally
performed by private individuals, the context in which
respondent performs these services . . . distinguishes the
relationship between respondent and West from the ordinary
physician-patient relationship.” 487 U.S. at 56 n.15. The Court
explained that the “correctional setting, specifically designed to
be removed from the community, inevitably affects the exercise
of professional judgment.” Id. Here, of course, Leshko’s
environs, a private home, were apparently designed so she
would not be removed from the community. It is fair to say that
a primary goal of foster care is to replicate as closely as possible
the traditional family setting in which children are cared for and
raised. See 42 Pa.C.S. § 6301(b)(1) (describing purpose of
Juvenile Act as being “to preserve the unity of the family
whenever possible or to provide an alternative permanent family
when the unity of the family cannot be maintained”). In other


                               -19-
contexts, we have noted that the home is a “sacrosanct” haven
of refuge from the government. United States v. Zimmerman,
277 F.3d 426, 432 (3d Cir. 2002) (citing Payton v. New York,
445 U.S. 573, 585 (1980)). Whereas in West the tight security-
based strictures of prison life affected the “nature, timing, and
form of medical care provided to inmates,” 487 U.S. at 56 n.15,
the Servises’ care was unaffected by such pervasive institutional
influences. Cf. Edmonson v. Leesville Concrete Co., 500 U.S.
614, 627-28 (1991) (concluding that injury caused by state
action was compounded because it occurred in a courthouse).

         Third, while only the state could choose Leshko’s
caregiver – a feature her case has in common with West – that
obligation too is comparatively new in Pennsylvania. As we
discussed earlier, in Pennsylvania, locating suitable foster homes
and placing children in them traditionally was a function of
private charitable organizations. West found it significant that
“[i]t is only those physicians authorized by the State to whom
the inmate may turn.” 487 U.S. at 55. It simply cannot be said
that, historically, foster children in Pennsylvania could only turn
to caregivers authorized by the Commonwealth. While court
approval typically was secured, see A SHBY, supra, at 61,
substantive authorization, such as it was, was in the hands of
volunteers. See Juvenile Act § 7 (providing for courts to
commit neglected or dependent children “to the care of some
suitable institution . . . or to the care of some association willing
to receive it, embracing in its object the purpose of caring or
obtaining homes for dependent or neglected children . . . .”); id.
at § 15 (authorizing parents or guardians to enter an agreement
with organizations incorporated in Pennsylvania “for the
purpose of aiding, caring for or placing in homes such children,
and being approved as herein provided, for the surrender of such


                                -20-
child to such association or institution, to be taken and cared for
. . . or put into a friendly home”); C LEMENT, supra at 139
(noting that in the mid-1800s, “[p]robably any well-dressed
person who appeared in the [Home Missionary Society’s] office
could get a child within hours,” and the Children’s Aid Society
found homes “simply by advertising in newspapers and by
‘keeping an open office’”). By contrast, the West Court seems
to have identified the selection of prison doctors traditionally
and exclusively with the state. See West, 487 U.S. at 55.

        Robert S. supports our conclusion that West does not
control the outcome here. In Robert S., a private residential
school contracted with local governments to rehabilitate juvenile
sex offenders. 256 F.3d at 162. Robert sued the school and its
employees under § 1983, alleging physical and psychological
abuse. Id. at 163. We held that the school and its employees did
not serve traditionally exclusive governmental functions because
only private schools specialized in treating sex offenders. Id. at
166. Seeming to invoke West, Robert argued that he was held
at the school against his will, and thus his situation was “entirely
analogous to [that] of either a prisoner or mentally committed
individual held against his will.” Id. Here, it is unclear whether
Leshko was voluntarily turned over to the County or was
removed against her mother’s will. Assuming that she was
forcibly removed, as we must on this appeal of a grant of a
motion to dismiss, we explained in Robert S. that “the power
that [the local government] 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.” 256 F.3d at 167 n.9 (emphasis added).


                               -21-
We reiterate that principle today as applied to foster parents.



                               III.

        Leshko’s case resembles none of those controlling
decisions where state action has been found. West alone
makes this case close, and, as we have explained, we think
Leshko’s situation is distinguishable from West. We have
observed that the traditionally exclusive public function
requirement is a “rigorous standard” that is “rarely . . .
satisfied,” Robert S., 256 F.3d at 166 (citing Mark v. Borough
of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)), and we
conclude that it is not satisfied here. There is not “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,” Brentwood Acad., 531 U.S. at 295 (citation and
internal quotations omitted). We thus hold that foster parents
in Pennsylvania are not state actors for purposes of liability
under § 1983.

         We therefore will affirm the judgment of the District
Court.




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