2005 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

"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
2

_______________

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

____________________
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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
-4-

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. §
 The District Court had jurisdiction over this case under 28 1

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-

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. CONST. 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
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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
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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
 We of course do not suggest that a successful showing under 2

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 actioncentered, 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.

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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.
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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
 The Fourth Circuit has reached the same conclusion on 3

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).

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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
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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,
-12-

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-youlose 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
-13-

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
 Following the example of the Supreme Court, we look to the 4

historical practice of the state at issue, rather than national

trends. See, e.g, Sullivan, 526 U.S. at 55-57.

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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 RendellBaker, 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. Even today, while removing children from their 4

homes and placing them with other caregivers arguably are

exclusively governmental functions in Pennsylvania, the hands-
 For a brief period in the early-19th century (from 1820 to 5

1835), Philadelphia operated a public orphanage, but by midcentury city officials “backed away from direct responsibility for

the city’s poor and dependent children,” and private orphanages

took over. See ASHBY, supra at 27-28. 

-15-

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

LEROY ASHBY, ENDANGERED CHILDREN: DEPENDENCY,

NEGLECT, AND ABUSE IN AMERICAN HISTORY 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 GROWING UP IN AMERICA:

CHILDREN IN HISTORICAL PERSPECTIVE 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 . . . .”)
-16-

(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.
 We note that as early as 1835 the Pennsylvania legislature 6

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

ASHBY, 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.”).

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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 PA. CONST. 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. Statutory duties of 6

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
 The Supreme Court has recognized the doctrine of parens 7

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.”).

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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,”

BLACK’S LAW DICTIONARY 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 DE PAUL L.REV. 895,

897 (1976) (quoting Eyre v. The Countess of Shaftsbury, 24 Eng.

Rep. 659 (Ch. 1722)). And, indeed, the Pennsylvania Supreme 7

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
-19-

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 handson 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
-20-

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 securitybased 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 ASHBY, 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
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child to such association or institution, to be taken and cared for

. . . or put into a friendly home”); CLEMENT, 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).
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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.