Private Parties as State Actors under 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.