PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 15-1538

_____________

P.R.B.A. CORP., t/a Bare Exposure,

 Appellant 

v.

HMS HOST TOLL ROADS, INC.; 

THE SOUTH JERSEY TRANSPORTATION 

AUTHORITY; 

THE NEW JERSEY TURNPIKE AUTHORITY;

JOHN DOES #1-15 

_____________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 1-12-cv-07914

District Judge: The Honorable Renee M. Bumb 

______________ 

Argued October 6, 2015

Before: FUENTES, SMITH, and NYGAARD,
2

Circuit Judges

(Opinion Filed: December 10, 2015)

F. Michael Daily, Jr. [ARGUED]

216 Haddon Avenue

Suite 106

Westmont, NJ 08108

Counsel for Appellant

Catherine A. Bledsoe [ARGUED]

Gordon Feinblatt

233 East Redwood Street

Baltimore, MD 21202

Counsel for Appellees

________________

OPINION

________________

SMITH, Circuit Judge.

This case requires us to determine whether a 

private company that operates service plazas on New 

Jersey highways acted “under color of any statute, 

ordinance, regulation, custom, or usage, of any State,” 42 
3

U.S.C. § 1983, when it removed brochures belonging to a

“gentleman’s club” from the common areas of its service 

plazas. We hold that it did not. The absence of any 

direct involvement by the state authorities either in the

decision to remove the brochures or in the general, dayto-day operations of the service plazas compels this

conclusion. Accordingly, we will affirm the District 

Court’s grant of summary judgment. 

I.

P.R.B.A. Corporation (t/a “Bare Exposure”) is a 

New Jersey corporation that operates a “gentleman’s 

club” in Atlantic City, New Jersey, billing itself as 

“Atlantic City’s Only All Nude Entertainment.” HMS 

Host Toll Roads, also a private corporation, leases 

service plazas located along the Garden State Parkway 

and the Atlantic City Expressway from the South Jersey 

Transportation Authority and the New Jersey Turnpike

Authority (together referred to as the “Authorities”). 

Host operates restaurants, gift shops, and convenience 

stores in the service plazas it leases from the Authorities. 

The leases also state that Host must pay the Authorities 

the higher of either a percentage of its gross sales or a 

fixed rental payment each month. The parties agree, 

however, that the Authorities are not involved in any of

Host’s day-to-day operations or overall management of 

the service plazas. Under the leases, the Authorities’

only direct responsibility is to perform long-term 
4

maintenance to parking areas, exteriors of the buildings, 

and building lobbies.

In 2003, Host entered into a contract with CTM 

Media Group, Inc. which permitted CTM to install and 

service CTM-owned brochure display racks in the 

lobbies of the service plazas. CTM pays Host the greater 

of a minimum monthly payment or 40% of the gross 

revenue generated by the brochure racks. The contract

also provides that Host “must approve all brochures or 

publications of any kind” prior to placement in the racks. 

The Authorities were not a party to this contract. 

In 2012, Kevin Diamond, a Host employee, 

discovered a Bare Exposure brochure in one of the CTM 

display racks located in a Host service plaza. Diamond 

sent a copy of the brochure to Greg Dion, Host’s General 

Manager of New Jersey Motorway Operations. Dion 

contacted CTM and instructed its representative to 

remove all Bare Exposure brochures from Host’s service 

plazas. The parties agree that Mr. Dion’s decision to 

have the brochures removed was his and his alone; he did 

not consult with or receive any direction from the 

Authorities. Nor did he review or consider any 

provisions of the New Jersey Administrative Code prior 

to making his decision. Instead, he believed that he was 

exercising Host’s right under the CTM Agreement to 

approve all brochures placed in the racks.
5

There is also no evidence that the Authorities ever 

directed Host employees to take any actions regarding 

the placement of brochures in the plazas. Further, the 

leases between Host and the Authorities are silent with 

respect to the placement of brochures and other 

marketing materials in the lobbies of the service plazas. 

That said, Bare Exposure contends that the Authorities 

placed several government signs and photographs in 

service plaza lobbies. These include photos of the 

current Governor of New Jersey, a photo of the late 

Senator Farley in the common area of one plaza, and a 

government information booth in the common area of

another. It is undisputed, however, that no representative 

of the Authorities ever instructed Host to remove a 

brochure or advertisement from the lobby of a service 

plaza along the Garden State Parkway or Atlantic City 

Expressway.

II.

After learning of the brochures’ removal, Bare 

Exposure filed suit under 42 U.S.C. § 1983 alleging that 

Host’s actions violated Bare Exposure’s First and 

Fourteenth Amendment rights. This case comes to us on

a timely appeal from the District Court’s February 6, 

2015, order granting Host’s motion for summary 

judgment. This Court has jurisdiction under 28 U.S.C. 

§ 1291 to review the District Court’s ruling on Bare 

Exposure’s § 1983 claim. Lassiter v. City of Phila., 716 

F.3d 53, 55 n.1 (3d Cir. 2013).
6

It is well established that we employ a plenary 

standard in reviewing orders entered on motions for 

summary judgment, applying the same standard as the 

district court. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 

236 (3d Cir. 1995). In considering an order entered on a 

motion for summary judgment, “we view the underlying 

facts and all reasonable inferences therefrom in the light 

most favorable to the party opposing the motion.” Id.

III.

While Bare Exposure’s appellate brief attempted to 

present two arguments as to why it believed this Court 

should find state action, at oral argument counsel 

clarified that Bare Exposure was actually limiting its 

appeal to a single argument. Specifically, counsel argued 

only that Host is a state actor under the entwinement 

test.1 We confine our analysis accordingly.

2

 

 

1

Indeed, had Bare Exposure not conceded this point, the

Court would have similarly limited the scope of review 

because Bare Exposure explicitly confined itself to this 

argument when opposing Host’s motion for summary 

judgment in the District Court. Pl.’s Br. in Opp. to S.J. at 

1. See Shell Petroleum, Inc. v. United States, 182 F.3d 

212, 218 (3d Cir. 1999) (“[A litigant] must unequivocally 

put its position before the trial court at a point and in a 

manner that permits the court to consider its merits.”); 

Liberles v. Cook Cnty., 709 F.2d 1122, 1126 (7th Cir. 
7

We next turn to the merits of Bare Exposure’s state 

action argument. The touchstone for our analysis of all 

state action claims is Brentwood v. Tennessee Secondary 

School Athletic Association, 531 U.S. 288 (2001). In 

Brentwood, the Supreme Court held that “state action 

may be found if, though only if, there is such a close 

nexus between the State and the challenged action that 

seemingly private behavior may be fairly treated as that 

 

1983) (“It is a well-settled rule that a party opposing a 

summary judgment motion must inform the trial judge of 

the reasons, legal or factual, why summary judgment 

should not be entered. If it does not do so, and loses the 

motion, it cannot raise such reasons on appeal.”). 

2 We also note that Bare Exposure’s initial attempt to rely 

on the Supreme Court’s decision in Burton v. Wilmington 

Parking Authority, 365 U.S. 715 (1961), which has been 

credited with creating the symbiotic relationship test, is 

of no merit even if this argument were not waived. As 

this Court clarified in Crissman v. Dover Downs Entm’t 

Inc., “while Burton remains good law, it was crafted for 

the unique set of facts presented, and we will not expand 

its reach beyond facts that replicate [it].” 289 F.3d 231, 

242-44, (3d Cir. 2002) (en banc). This case does not 

present such facts. Bare Exposure does not claim that 

Host’s removal of the brochures was necessary for the 

continued financial viability of either the Authorities or 

Host—one finding (among many others) necessary to 

replicate the factual scenario present in Burton.
8

of the State itself.” Id. at 295; see also Rendell-Baker v. 

Kohn, 457 U.S. 830, 838 (1982) (“The ultimate issue in 

determining whether a person is subject to suit under 

§ 1983 is the same question posed in cases arising under 

the Fourteenth Amendment: is the alleged infringement 

of federal rights fairly attributable to the State?”)

(emphasis added).

The Brentwood Court also gave additional 

structure to several tests that lower courts had previously

been using to determine whether a private party satisfied

the “close nexus” requirement necessary to be considered 

a state actor. One of these tests is called the 

“entwinement test,” which asks whether “[t]he nominally 

private character of the Association is overborne by the 

pervasive entwinement of public institutions and public 

officials in its composition and workings, and [thus] there 

is no substantial reason to claim unfairness in applying 

constitutional standards to it.” Brentwood, 531 U.S. at 

298. 

The Supreme Court also applied this test in 

Brentwood when it held that a non-profit athletic 

association which regulated interscholastic sports among 

Tennessee public and private high schools was a state 

actor. In so doing, the Court focused on the top-tobottom intermingling of association leaders and public 

school officials: “[t]here would be no recognizable 

Association, legal or tangible, without the public school 

officials, who do not merely control but overwhelmingly 
9

perform all but the purely ministerial acts by which the 

Association exists and functions in practical terms.” Id. 

at 300. Indeed, “[o]nly the 16% minority of private 

school memberships prevents this entwinement of the 

Association and the public school system from being 

total and their identities totally indistinguishable.” Id. 

This case thus shows that the entwinement test focuses 

on the overlap or merger of public and private entities as 

a result of their shared leadership or other attributes that 

make it hard to separate their public functions from their 

private ones.

Two additional cases help further flesh out the 

contours of this test. First, in Gannett Satellite 

Information Network, Inc. v. Berger, this Court

concluded that the concessionaires that leased property in 

the Newark Airport and decided not to distribute certain 

newspapers were simply “private entities pursuing 

private ends” because there was no “explicit 

governmental involvement” in the decisions of the 

concessionaires and thus their conduct “may not fairly be 

attributed to the Port Authority.” 894 F.2d 61, 67 (3d 

Cir. 1990). The Gannett Court also went on to note that, 

“[a]bsent any explicit governmental involvement in the 

distribution decisions of these private newsstands, the 

actions taken by the concessionaires in this case may not 

fairly be attributed to the Port Authority.” Id. at 67

(emphasis added). Gannett thus makes clear that our 

analysis should also focus on evidence of explicit
10

involvement of the governmental authority in the specific 

action the plaintiffs challenge. In Gannett, it was the 

decision not to sell certain newspapers. Here, it was the 

removal of Bare Exposure’s brochures.

Second, in Marie v. American Red Cross, the Sixth 

Circuit further elaborated on the high bar necessary for a 

finding of impermissible entwinement. 771 F.3d 344 

(6th Cir. 2014). In this case, even the close working 

relationship between several state agencies and the Red 

Cross was not sufficient to constitute entwinement. The 

Sixth Circuit reiterated that “mere cooperation simply 

does not rise to the level of merger required for a finding 

of state action.” Id. at 364. Instead, there must be

“pervasive entwinement of public institutions and public 

officials in [the private entity’s] composition and 

workings [such that] there is no substantial reason to 

claim unfairness in applying constitutional standards to 

it.” Id. (emphasis added).

All these cases show that we must carefully 

analyze the entire record to determine whether the 

Authorities were so pervasively entwined in the structure 

and management of Host that Host should fairly be 

treated as a government entity under the Constitution.

The record in this case does not suggest any 

pervasive entwinement. There was no personnel overlap 

between the Authorities and Host, and no specific 

involvement of the Authorities in Host’s decision to 
11

remove the brochures. Bare Exposure’s strongest 

argument is the presence of a provision in the service 

plaza leases that requires Host, in certain situations, to 

pay a varying percentage of its gross sales income to the 

Authorities instead of a fixed amount. There is no 

indication, however, that this profit sharing led to any 

actual involvement of either entity in the management or 

control of the other. Thus, without more, this financial 

remuneration for the leasehold fails to provide any 

indication of the “pervasive entwinement” required under 

Brentwood.

We also hold that the presence of government

signs and images of state officials in the service plazas—

without more—does not constitute entwinement. Even 

assuming that the Authorities required Host to place 

these signs and images in the common areas, this fact still 

does not suggest actual entwinement, let alone “pervasive

entwinement” as required by Brentwood. Without any 

showing of the involvement of the Authorities in the 

operations of Host, this can at best be viewed as an 

additional requirement placed on Host as a condition of 

its continued leasing of the service plazas. This type of 

detailed control or regulation, however, is not a form of

entwinement. See Crissman v. Dover Downs Entm’t Inc., 

289 F.3d 231, 243 (3d Cir. 2002) (en banc) (“[T]he Court 

has repeatedly opined that regulation—even detailed 

regulation, as we have here—does not equate to state 

action.”). 
12

The same can be said of Bare Exposure’s 

allegation that the Authorities’ signs and photographs 

create the perception that the service plazas are run by 

the state. Even assuming this to be true, the mere

perception of governmental control is insufficient for 

finding state action under the entwinement test. See S. F.

Arts & Athletics, Inc. v. U. S. Olympic Comm., 483 U.S. 

522, 546 n.27 (1987) (noting that, “absent the additional 

element of governmental control,” the mere 

representation of the United States in the Olympics by 

the USOC is not sufficient for a finding of state action).

IV. 

For the reasons above, we conclude that the 

District Court appropriately granted summary judgment 

in favor of Host. Accordingly, we will AFFIRM.