PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

Nos. 15-2823, 16-3837, 16-3959 

ANGELA BORRELL,

 Appellant in 16-3837 

 v. 

BLOOMSBURG UNIVERSITY 

 

ARTHUR F. RICHER; GEISINGER MEDICAL CENTER, 

 Appellants in 15-2823 

MICHELLE FICCA, 

Appellant in 16-3959 

__________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. No. 3-12-cv-02123) 

District Judge: Honorable A. Richard Caputo 

Argued May 24, 2017 

Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
2

(Filed: August 30, 2017)

Barry H. Dyller [Argued]

Theron J. Solomon

Dyller Law Firm

88 North Franklin Street

Gettysburg House

Wilkes-Barre, PA 18701

Attorneys for Plaintiff–Appellee–Cross-Appellant

Borrell

Thomas S. Giotto

Jaime S. Tuite [Argued]

Tiffany A. Jenca, Esq.

Buchanan Ingersoll & Rooney

301 Grant Street

One Oxford Centre, 20th Floor

Pittsburgh, PA 15219

Attorneys for Appellants Geisinger Medical Center 

and Arthur Richer

John G. Knorr, III [Argued] 

Maryanne M. Lewis

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Keli M. Neary

Pennsylvania State Police

Office of Chief Counsel

1800 Elmerton Avenue

Harrisburg, PA 17110
3 

Attorneys for Appellee Michelle Ficca

Seth A. Goldberg 

Philip H. Lebowitz 

Duane Morris 

30 South 17th Street 

United Plaza 

Philadelphia, PA 19103 

Attorneys for Amicus Hospital & Healthsystem 

Association of Pennsylvania

OPINION OF THE COURT 

HARDIMAN, Circuit Judge. 

This appeal—which raises questions involving the 

state action doctrine and the Due Process Clause of the 

Fourteenth Amendment—has important ramifications for 

private hospitals that partner with public universities. Angela 

Borrell, a student working at a private hospital through a 

public university’s clinical program, was dismissed for 

refusing to take a drug test in violation of hospital policy. She 

sued under 42 U.S.C. § 1983, claiming she was deprived of 

her property interest in the program without due process. 

Contrary to the judgment of the District Court, we hold that 

Defendants are entitled to judgment as a matter of law. 

I 

In 2007, Geisinger Medical Center (Geisinger or 

GMC) partnered with Bloomsburg University to establish the 

Nurse Anesthetist Program (NAP or Program). A private 
4

hospital, Geisinger runs the “Clinical Training portion of the 

Program” for the aspiring nurse anesthetists while 

Bloomsburg, a public university, teaches them in the 

classroom. App. 1510. The Program operates subject to a 

written collaboration agreement that provides, among other 

things, that Geisinger and Bloomsburg will cooperate by: 

establishing a joint admissions committee, staffing an 

advisory committee, agreeing on how many students to admit, 

approving guidelines for clinical training, and promoting and 

marketing the Program. In other ways, Geisinger’s and 

Bloomsburg’s principal roles in the Program remain distinct.

Geisinger provides certificates upon completion of its clinic 

and Bloomsburg confers Master of Science degrees to 

students who complete both the coursework and the clinical 

component. 

NAP students in Geisinger’s clinic administer medical 

care to patients under the supervision of Geisinger employees. 

Accordingly, the collaboration agreement states that 

Geisinger’s policies—including its drug and alcohol policy—

apply to NAP students while participating in the clinic. See 

App. 1512. The agreement also provides that Geisinger has 

sole authority to remove an enrollee from the clinical portion 

of the NAP due to unsatisfactory performance or failure “to 

comply with applicable policies and standards of Geisinger.” 

App. 9. Likewise, Bloomsburg’s Student Handbook requires 

students to “comply with the drug and alcohol policies and 

drug testing procedures as required by agencies affiliated with 

the Department of Nursing,” which includes Geisinger. 
5

Borrell v. Bloomsburg Univ., 63 F. Supp. 3d 418, 425 (M.D. 

Pa. 2014) (quoting policy).

1

Geisinger’s drug and alcohol policy applies to all its

employees and contractors (including clinical students 

working there). The policy states that drug tests “may be 

administered upon reasonable suspicion of substance abuse, 

(this may include [individual] situations . . . where HR is 

made aware of alleged drug/alcohol use and deems it as 

reasonable cause to test the employee).” App. 1529. Any 

Geisinger worker “who refuses to cooperate in any aspect [of 

the testing process] . . . shall be subject to disciplinary action, 

including termination, for a first refusal or any subsequent 

refusal.” App. 1527. The policy does not provide for any pretermination hearing or process. 

The Director of the NAP at all times relevant to this 

case was a Geisinger nurse anesthetist named Arthur Richer.

In that capacity, Richer became a joint employee of Geisinger

and Bloomsburg, with Bloomsburg picking up a quarter of his 

salary. Richer managed the clinical component of the NAP at 

Geisinger while Michelle Ficca (Bloomsburg’s Chair of 

Nursing) oversaw the Program’s academic component.

 1 Bloomsburg’s Student Handbook “also sets forth a 

‘review process’” for students suspected of violating its

terms. Borrell, 63 F. Supp. 3d at 426. The Student Nurse 

Anesthetist Handbook in the collaboration agreement allows 

students to “initiate a grievance” if they have a complaint 

about a disciplinary action and commits “to being reasonable 

in an attempt to correct [any] offense.” Id. The purported 

violation in this case was of GMC’s drug and alcohol policy, 

which provides no grievance process.
6

In 2012, Richer terminated Angela Borrell for

violating Geisinger’s drug and alcohol policy by refusing to 

take a drug test when asked. Borrell, who previously had been 

a registered nurse at GMC, enrolled in the NAP in 2011 and 

began her clinical work in 2012. In September 2012, another 

nurse reported to Geisinger’s Assistant Director of the NAP 

that Borrell used cocaine and “acted erratically” on a recent 

trip to New York. Borrell, 63 F. Supp. 3d at 427. This claim 

was relayed to Richer, who had previously “noticed that 

Borrell appeared disheveled on a few occasions.” Id. Richer

discussed the allegation with three other GMC employees and 

Ficca—his counterpart at Bloomsburg. Richer and a member 

of Geisinger’s Human Resources Department then met with 

Borrell and asked her to take a drug test. During this meeting, 

which lasted about an hour, Borrell asked several questions 

about the reason for the test and called her mother for advice. 

Borrell eventually refused to take the drug test, stating she

“did not want her record to show that she submitted to a 

drug/urine screen.” Id. at 428. Richer informed Borrell that 

she would have “no option to test later” and claims he told 

Borrell she might be terminated for refusing the test, but 

Borrell responded that she was willing to “face the 

consequences.” Geisinger Br. 10. Borrell claims she was 

warned of “consequences” generally, but not termination. 

Borrell, 63 F. Supp. 3d at 428.

After consulting with Geisinger’s Human Resources 

Department, Richer decided to dismiss Borrell from the 

Program the next day. He claims he did so in his capacity as 

Director of the clinical training portion of the NAP, and that

Bloomsburg and Ficca played no part in the decision—though 

he informed them of it. In a September 25, 2012 letter, Richer 

informed Borrell that she was terminated from the NAP for 
7

her refusal to take a drug test. A draft of that letter was 

circulated among Geisinger Human Resources, Ficca, and 

Richer, who “all provided comments and suggestions as to 

the contents of the letter.” Id. at 429. Richer then sent a final 

copy to Human Resources and Ficca. The letter was printed 

on joint GMC/Bloomsburg stationery and Richer and Ficca 

signed it. Richer signed as the “Director of the NAP,” and 

Ficca signed indicating that she “reviewed the above 

information and agree[d] with the decision to terminate 

Angela Borrell from the . . . Program.” Id. (first alteration in 

original).

After she received the letter terminating her from the 

Program, Borrell tried to contact “Richer and others at both 

Geisinger and Bloomsburg . . . to state her willingness to 

submit to a drug test.” Id. That request was denied. Borrell

then requested, but did not receive, a formal hearing from 

Bloomsburg to contest her termination from the Program. 

Ficca replied that since Bloomsburg had to honor Geisinger’s 

drug policy, disqualification from GMC’s clinic made her 

ineligible to complete her coursework at Bloomsburg

necessary to complete the Program.

Borrell then commenced a § 1983 action in the United 

States District Court for the Middle District of Pennsylvania 

against GMC, Richer, Bloomsburg, and Ficca for, among 

other things, violation of her due process right to a predeprivation hearing. The District Court granted Borrell’s 

motion for summary judgment with respect to GMC, Richer, 

and Ficca, holding them liable for denying Borrell due 

process. Essential to its holding, the District Court found that 

GMC and Richer were state actors and that Ficca was not 

entitled to qualified immunity. The Court then concluded that 

“because Defendants deprived Borrell of a property interest 
8

while acting under color of state law when they dismissed her 

from the NAP without due process, her motion for summary 

judgment as to liability on the procedural due process 

deprivation of property interest claim will be granted.” Id. at 

423. The case was then tried to a jury on the issue of 

damages. The jury awarded Borrell $415,000 in 

compensatory damages and $1,100,000 in punitive damages. 

Later granting the Defendants’ remittitur motions, the District 

Court reduced Borrell’s compensatory damages to $250,000 

and her punitive damages to $750,000.

GMC, Richer, and Ficca timely appealed the adverse 

summary judgment along with other issues from the 

subsequent trial.

II

The District Court had jurisdiction under 28 U.S.C. 

§§ 1331 and 1343. We have jurisdiction under 28 U.S.C. 

§ 1291. We exercise plenary review over both “orders entered 

on motions for summary judgment,” Mancini v. Northampton 

Cty., 836 F.3d 308, 313 (3d Cir. 2016), and decisions 

regarding qualified immunity as pure legal issues, Sharp v. 

Johnson, 669 F.3d 144, 159 (3d Cir. 2012).

Summary judgment should be granted only “if the 

movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). In considering a 

summary judgment decision, “we view the underlying facts 

and all reasonable inferences therefrom in the light most 

favorable to the party opposing the motion.” Blunt v. Lower 

Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (citation 

omitted). 
9

III

The primary issue on appeal is whether GMC, Richer, 

or Ficca are liable for denying Borrell due process when she 

was dismissed from the NAP. Because (A) GMC and Richer 

are not state actors with respect to Richer’s decision to 

dismiss Borrell and (B) Ficca is entitled to qualified immunity

for her involvement in Borrell’s termination, we hold that no 

Defendant is liable to Borrell.

A

First, we must determine whether the conduct of GMC

and Richer should be considered state action. “The Fourteenth 

Amendment governs only state conduct, not that of private 

citizens.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). So

Borrell’s claim is not cognizable unless she was harmed

“under color of law,” a standard identical to the Fourteenth 

Amendment’s “state action” requirement. United States v. 

Price, 383 U.S. 787, 794 n.7 (1966).

In Kach, this Court summarized “three broad tests 

generated by Supreme Court jurisprudence to determine 

whether state action exists” in close cases and they are all 

“fact-specific.” 589 F.3d at 646. Those tests are: “(1) whether 

the private entity has exercised powers that are traditionally 

the exclusive prerogative of the state; (2) whether the private 

party has acted with the help of or in concert with state 

officials; and (3) whether the state has so far insinuated itself 

into a position of interdependence with the acting party that it 

must be recognized as a joint participant in the challenged 

activity.” Id. (alterations and citation omitted). Of seminal 

importance to this appeal, we have clarified that the relevant 

question is not whether the private actor and the state have a 
10

close relationship generally, but 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.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 

2005) (emphasis added) (citation omitted). In other words, the 

government must be “responsible for the specific conduct of 

which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 

991, 1004 (1982) (emphasis omitted). And this is true even 

when the actor is employed by the state. As we explained in 

Mark v. Borough of Hatboro, “an otherwise private tort is not 

committed under color of law simply because the tortfeasor is 

an employee of the state.” 51 F.3d 1137, 1150 (3d Cir. 1995). 

Contrary to Borrell’s argument, then, Richer’s joint 

employment with Bloomsburg and GMC’s partnership with 

Bloomsburg with respect to the Program do not “end the 

inquiry” on the state actor question. Borrell Br. 33. 

Rather, the pertinent question is whether Richer was 

wearing his Geisinger hat or his Bloomsburg hat when he 

decided to terminate Borrell. Actions taken “in the ambit of 

[non–state motivated] pursuits” are excluded from state 

action. Screws v. United States, 325 U.S. 91, 111 (1945). The 

record shows that Richer’s actions were authorized by 

Geisinger to enforce its drug and alcohol policy, and not 

pursued under any authority granted him by the state. Simply 

put, Richer did not need permission from Bloomsburg to fire 

a Geisinger worker who violated a hospital policy.

In concluding that Geisinger acted under color of state 

law, the District Court focused on the fact that it “was a 

willful participant in joint activity, the NAP, with 

Bloomsburg.” Borrell, 63 F. Supp. 3d at 436. But as we 

noted, that should have been the beginning of the inquiry, not 

the end of it. The government must have also been closely 
11

involved with the decision to terminate Borrell for that action

to be “fairly attributable to the state.” Crissman v. Dover 

Downs Entm’t Inc., 289 F.3d 231, 245 n.18 (3d Cir. 2002). 

The District Court found, and Borrell argues, that 

Geisinger’s termination of Borrell is “fairly attributable to the 

state” for two main reasons: (1) Richer, a joint employee of 

GMC and Bloomsburg, terminated Borrell via a letter on 

“joint Bloomsburg-Geinsinger station[e]ry”; and (2) Ficca, a 

Bloomsburg employee, was involved in the termination 

process by providing input to Richer regarding Borrell’s

termination letter and by signing it. Borrell, 63 F. Supp. 3d at 

436. As discussed already, the fact that Richer was a joint 

employee does not answer the question of whether his 

decision to enforce GMC’s drug and alcohol policy by 

terminating Borrell was “caused by the exercise of some right 

or privilege created by the State or by a rule of conduct 

imposed by . . . a person for whom the State is responsible.” 

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). 

Richer’s decision was to enforce the hospital’s preexisting 

policy requiring employees to participate in drug tests when 

asked, and GMC had already fired four other nurses for 

violating the same policy. Neither Bloomsburg nor its 

agreement with Geisinger played any part in creating the 

policy enforced in this case; the agreement merely made clear 

that Geisinger’s employee policies would govern the behavior 

of clinical students while they were working at the hospital.

In light of the controlling legal principles we have 

articulated, the question boils down to which entity—the 

hospital or the university—exercised the authority to 

terminate Borrell for a violation of Geisinger policies. The 

District Court concluded that because Ficca signed the 

termination letter and was consulted regarding its contents, 
12

“Bloomsburg and Geisinger jointly participated in 

terminating Borrell from the NAP.” Borrell, 63 F. Supp. 3d at 

436. The Court also stated that because Richer terminated 

Borrell in his capacity as Director of the NAP, the decision 

was made under the auspices of his employment by 

Bloomsburg and therefore under the color of state law. Id. at 

437.

The agreement between Geisinger and Bloomsburg

indicates otherwise. It makes clear that Geisinger retained the 

authority to unilaterally “exclude a Student from participation 

in the Clinical Training” if the student doesn’t comply with a 

GMC policy. App. 1514. And when Richer made the decision

to terminate Borrell for violating hospital policy, he acted in 

his capacity as a GMC employee, claiming he sought to

maintain nursing standards at the hospital. And his capacity 

was not altered merely because he discussed this decision 

with—and received input on his letter from—Ficca and 

another joint-NAP employee. “Action taken by private 

entities with the mere approval or acquiescence of the State 

is not state action.” Kach, 589 F.3d at 649 (citation omitted). 

Ficca’s signature on the termination letter purports to do 

nothing more than concur with Richer’s decision, which is 

not enough for state action. Rather, the state must have 

“exercised control over the particular conduct that gave rise to 

the plaintiff’s alleged constitutional deprivation.” Id. Under 

the collaboration agreement, Bloomsburg had no such 

control.

Notwithstanding his consultation with others, Richer

made the decision to fire someone working at GMC due to

her violation of a preexisting policy of the hospital, and he 

had the authority to do so based on his position there. “[T]he 

authority of state officials . . . was wholly unnecessary to 
13

effectuate Borrell’s dismissal from the NAP.” GMC ThirdStep Br. 18. Accordingly, we must reverse the District 

Court’s holding that GMC and Richer were state actors.

B

Turning to the case against Ficca, we hold that she is

entitled to qualified immunity. We do so because it was not 

clearly established that Ficca’s agreement with Richer’s 

decision, which she reasonably believed to be within his 

authority as an employee of GMC, violated Borrell’s 

constitutional rights.

Qualified immunity protects “all but the plainly 

incompetent or those who knowingly violate the law.” Malley 

v. Briggs, 475 U.S. 335, 341 (1986). If a government 

official—in this case, Ficca—reasonably thinks her conduct 

complies with the law, she is shielded from liability. See 

Pearson v. Callahan, 555 U.S. 223, 244 (2009). Ficca is 

entitled to qualified immunity as long as she does not violate 

a “clearly established” constitutional or federal right. Sharp, 

669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S. 194, 201 

(2001)). “A right is clearly established for qualified immunity 

purposes where its contours are ‘sufficiently clear that a 

reasonable official would understand that what [s]he is doing 

violates that right.’” Id. (quoting Saucier, 533 U.S. at 202). In 

other words, the application of the right to the issue at hand

must be “beyond debate.” Zaloga v. Borough of Moosic, 841 

F.3d 170, 175 (3d Cir. 2016).

The record indicates that it is hardly “beyond debate” 

that Ficca violated Borrell’s due process rights. Although

many cases have concluded that graduate students at public 

universities have property interests in continuing their 
14

education, see Borrell, 63 F. Supp. 3d at 458 (citing cases), 

those cases do not speak to the right of a clinical student at a 

private hospital to a hearing or comparable process before 

termination—even if the natural consequence of that 

termination is an inability to complete an educational 

program. The District Court pointed to no cases even 

suggesting such a right and we are aware of no such case.

And the district court cases cited cannot clearly establish law 

for qualified immunity purposes in any event. See Camreta v. 

Greene, 563 U.S. 692, 709 n.7 (2011).

Furthermore, there is no evidence of record to suggest

that Ficca could have done anything to stop Richer’s decision 

to deny additional process to Borrell before terminating her

from the Program. The agreement between Geisinger and 

Bloomsburg states that GMC “shall have sole authority and 

control over all aspects of Clinical Training.” App. 1512. And 

while the agreement requires Geisinger to notify Bloomsburg 

before dismissing a student, Geisinger had the unilateral 

authority to dismiss students from the clinical portion of the 

Program, which would preclude them from obtaining the 

certificate necessary to become a nurse anesthetist. And if 

Ficca had no authority over Richer’s decision to terminate 

Borrell, a reasonable official in Ficca’s position would not 

have known that she owed Borrell any more process.

As for Ficca’s concurrence with Richer’s decision to 

terminate Borrell, agreement is insufficient to demonstrate 

liability absent actual authority to make the decision. And 

without actual decisionmaking authority, Ficca’s edits, 

suggestions, and participation in the termination letter do not

amount to a constitutional violation. Cf. McLaughlin v. 

Watson, 271 F.3d 566, 573 (3d Cir. 2001). Additionally, any

process provided by Ficca at Bloomsburg could not have 
15

forced Geisinger or Richer to change the decision to terminate 

Borrell from the clinical portion of the Program based on her 

violation of hospital policy. As Ficca notes by way of 

analogy, if she “had dismissed Borrell from the Program for . 

. . failing grades or cheating on an examination . . . no one 

would say that she was entitled to a hearing from Geisinger.”

See Ficca Br. 25. Likewise, it’s not clear that Borrell was 

owed a hearing from Ficca before Geisinger dismissed her 

from the Program.

To support her claim that Ficca supervised Richer’s

termination decision, Borrell notes that Ficca responded 

affirmatively when asked: “You are one person who Mr. 

Richer would need to consult [before terminating a clinical 

student], correct?” App. 329. But in context, Ficca had 

claimed she did not know whether Richer was the final 

decisionmaker on dismissals of clinical students and merely 

asserted that Richer likely had to “discuss[]” any such 

decision with other parties to make sure he was correctly 

applying “policies that have been established.” App. 328–29. 

Given the collaboration agreement’s requirement that

Bloomsburg had to receive notice of a termination decision, 

this answer does not show that Ficca had authority to prevent

Richer’s decision. It shows only that she had to be notified of 

it.2

 2 Borrell also claims that Ficca was “Richer’s direct 

supervisor at [Bloomsburg],” and is thus liable because she 

“did not take any steps to prevent her subordinate Richer 

from sending the termination letter.” Borrell Br. 61 (citing 

App. 553–54). But in the deposition to which Borrell refers, 

Richer stated only that Ficca was “above” him “[i]n the 

University hierarchy.” App. 554. While Ficca supervised 
16

In responding to Ficca’s qualified immunity argument, 

Borrell seems to miss the relevant question—would a 

reasonable official have known that her actions violated a 

clearly established right? Even if, as Borrell claims, Ficca 

should have known that Richer’s actions were disciplinary 

and not academic, and Borrell was thus entitled to more 

process from someone, this does not answer the question of 

whether Ficca was that person. Given all the factors discussed 

herein, and given her reasonable understanding that she could 

not have provided process for the clinical dismissal even if 

she thought it was necessary in the abstract, the District Court 

should have granted qualified immunity to Ficca.

IV

For the reasons stated, we will reverse the District 

Court’s summary judgment and remand the case for entry of 

judgment in favor of Geisinger, Richer, and Ficca.

 

Richer for university business, she did not supervise him in 

his other capacities—such as his GMC-related supervisory 

duties. Nothing in the NAP agreement gave Bloomsburg or 

Ficca authority to control a decision by Geisinger or Richer to 

remove a student from GMC’s clinic, and thus the Program.
1

Borrell v. Bloomsburg University et al.

Nos. 15-2823, 16-3837, 16-3959

Judge Roth, concurring in part and concurring in the 

judgment:

In regard to Part III.B, I would hold that Ficca and 

Bloomsburg University’s participation in the dismissal of 

Borrell from the program was academic, not disciplinary. 

Although Borrell’s academic marks were satisfactory, once 

she had been dismissed from the clinical portion of the NAP 

program by Geisinger, she was no longer academically 

qualified to complete the NAP. For that reason, she was not 

being dismissed from the Bloomsburg University portion of 

the program because she refused to take the drug test. She 

was being dismissed because she was no longer academically 

eligible to complete the program. Clearly, this action is 

academic, rather than disciplinary. 

Moreover, because Ficca and Bloomsburg University’s 

action in dismissing Borrell from the program was not 

disciplinary, she in fact received all the due process to which 

she was entitled. See, e.g., Board of Curators of the 

University of Missouri v. Horowitz, 435 U.S. 78, 85 (1978).