Private Parties as State Actors for purposes of Section 1983

“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law….”  42 U.S.C. § 1983. 

Thus, to establish a claim under Section 1983, a
plaintiff must plead a deprivation of a right secured by the Constitution and
the laws of the United
States that was committed by a person acting
under color of state law.  Machon
v. Pennsylvania
Dept. of Public Welfare
, 847 F.Supp.2d 734 (E.D.Pa. 2012).  Where a plaintiff lodges a Section 1983 claim
against a private party (as opposed to a governmental entity), the defendant
can be held liable where he is “fairly said to be a state actor.”  Pugh v.
Downs
, 641 F. Supp.2d 468, 472 (E.D.Pa.
2009).  See also Lugar v. Edmondson Oil
Co.
, 457 U.S.
922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982) (stating that our cases
have insisted that conduct allegedly causing deprivation of federal rights be
fairly attributable to the state). 

A private party can be “fairly said to be a state
actor” for purposes of Section 1983 under four tests.  First, under the “close nexus” test a private
party can be fairly said to be a state actor where “there is a sufficiently
close nexus between the state and the challenged action of the [private] entity
so that the action of the latter may fairly be treated as that of the state
itself.”  Blum v. Yaretsky,
457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (holding state responsible
for private decision where it has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice must be
deemed to be that of the State).  Second,
under the “symbiotic relationship” test a private party can be fairly said to
be a state actor where “the state has so far insinuated itself into a position
of interdependence” with a private party that “it must be recognized as a joint
participant in the challenged activity.” 
Burton v. Wilmington Parking
Auth.
, 365 U.S. 715,
725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding privately owned restaurant’s
refusal to serve an African American customer constituted state action where
the restaurant leased space from a parking garage owned by state agency).  Third, under the “joint action” test a
private party can be fairly said to be a state actor where a private party is a
“willful participant in joint action with the State or its agents.”  Lugar, 457 U.S. at 941, 102 S.Ct. 2744
(1982).  Fourth, under the “public
function” test a private party can be fairly said to be a state actor where the
private party has been “delegated…a power traditionally exclusively reserved to
the State.”  Terry v. Adams,
345 U.S.
461, 468-470, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (state action found where
private actor administered election of public officials). 

If you think you might have an action under
Section 1983, please contact the experienced lawyers at Sidkoff, Pincus &
Green in Philadelphia, who are licensed to
practice law in all courts in Pennsylvania and
New Jersey.

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