In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 22-2096 

CYLINDA SCOTT and MICHAEL SCOTT, individually and on behalf of their minor child, BABY A.

Plaintiffs-Appellants, 

v.

UNIVERSITY OF CHICAGO MEDICAL CENTER and 

STEPHANIE LIOU, 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:21-cv-00820 — Sara L. Ellis, Judge. 

____________________ 

No. 22-2108 

BRIAN BOUGHER and ANGELA BOUGHER, individually and on 

behalf of their minor daughter, BABY B., et al., 

Plaintiffs-Appellants, 

v.

SILVER CROSS HOSPITAL AND MEDICAL CENTERS, et al., 

Defendants-Appellees. 
Nos. 22-2096 & 22-2108 2

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:19-cv-06324 — Sara L. Ellis, Judge. 

____________________ 

ARGUED MAY 23, 2023 — DECIDED JULY 11, 2024 

____________________ 

Before SYKES, Chief Judge, and BRENNAN and PRYOR, Circuit 

Judges. 

PRYOR, Circuit Judge. These cases concern three sets of parents who declined preventative medical care for their newborn babies in private hospitals.1 Because the parents refused 

the treatment, hospital employees contacted the Illinois Department of Children and Family Services (“DCFS”), which in 

turn investigated the parents for medical neglect. In one case, 

hospital staff took temporary protective custody of the child. 

The parents sued under 42 U.S.C. § 1983, alleging that the 

hospitals and certain medical professionals violated their 

families’ Fourth and Fourteenth Amendment rights. Because 

private entities are susceptible to § 1983 liability only when 

engaged in state action, the district court dismissed both 

cases. We affirm. 

1 The parents are Cylinda and Michael Scott, parents to Baby A; Brian and 

Angela Bougher, parents to Baby B; and Jason and Sarah Kosek, parents 

to Baby K. In the district court, the parents were parties in two separate 

cases, both presided over by the same judge. The cases have been consolidated for the purposes of this appeal.
Nos. 22-2096 & 22-2108 3

I. BACKGROUND

For purposes of this appeal, we accept as true all wellpleaded factual allegations in plaintiffs’ complaints and draw 

all reasonable inferences in the parents’ favor. Fehlman v. Mankowski, 74 F.4th 872, 875 (7th Cir. 2023) (noting that facts are 

viewed in favor of the party who did not move for dismissal).

A. The Vitamin K Shot

The State of Illinois requires all obstetric departments to 

administer a shot of Vitamin K—the vitamin that allows 

blood to clot normally—to newborns shortly after birth. See 

ILL. ADMIN. CODE tit. 77, § 250.1830(g)(8). The shot has been 

routinely given to babies since 1961 to protect against hemorrhagic bleeding, which, although rare, can cause brain damage or death in infants.2 The shot itself comes with risks, 

which are also rare, including death.3 The plaintiffs refused 

the shot for their newborns due to concerns about these risks 

and for religious reasons.4 

2 Vitamin K Deficiency Bleeding, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/vitamin-k-deficiency/fact-sheet/. 

3 The Vitamin K shot carries a “Black Box Warning,” the highest safetyrelated warning the Food and Drug Administration can assign to a drug.

See Cynthia M. Ho, A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection, 94 IND. L.J. 773, 814 n.188 

(2019) (citing 21 C.F.R. § 201.57(c)(1) (discussing “Black Box Warnings”)). 

4 The parents also declined the administration of erythromycin eye ointment, another preventative procedure meant to avoid eye infections in 

newborns. Because the parents explicitly “focus their argument on the denial of Vitamin K injections,” we do too. 
Nos. 22-2096 & 22-2108 4

B. DCFS’s Vitamin K Policy

DCFS is the Illinois agency charged with receiving and investigating reports of child abuse and neglect. In 2015, DCFS 

adopted an internal policy—identified as Section H—stating

that Vitamin K shots or pills were a “medically necessary”

procedure for purposes of child protective services, and that 

any reports of Vitamin K refusal would be taken as reports of 

“medical neglect.”

Section H also provided guidance to DCFS employees for 

what to do when a physician informed the agency that she 

had taken temporary protective custody of a child because the 

child’s parents had refused to consent to necessary medical 

care for religious reasons. It provided that these physicians 

should contact the local State’s Attorney’s Office, and that 

DCFS would not open an investigation “unless there [was] 

additional information supporting other allegations of abuse 

or neglect.”

In June 2017, Dr. Paula Jaudes—who, at the time, was 

DCFS’s medical director and a professor of pediatrics at University of Chicago Medical Center—informed the Illinois Department of Health that DCFS had decided to rescind Section 

H so that refusal of the Vitamin K shot would no longer be 

considered per se medical neglect, mandate a call to DCFS, or 

prompt a DCFS investigation.

Dr. Jill Glick, a pediatrician at the University of Chicago

Medical Center and a member of the DCFS Advisory Board, 

disagreed with the agency’s decision to rescind Section H. She 

and other pediatricians encouraged high-ranking DCFS officials, including Dr. Jaudes, to re-implement the policy so that 

refusal of Vitamin K would again be considered neglect and 
Nos. 22-2096 & 22-2108 5

investigated accordingly. They also asked DCFS to explicitly 

encourage physicians to take protective custody of children in 

instances of Vitamin K refusal. 

In response to this lobbying, DCFS sent an email to its network in October asking doctors to report refusals of the Vitamin K shot as medical neglect. Both the University of Chicago 

Medical Center as well as Silver Cross Hospital and Medical 

Centers agreed that they would do so. In November 2017, 

DCFS re-adopted Section H as the official agency policy. 

The change did not last long. Parents soon began advocating against the policy and, by August 2018, DCFS rescinded 

Section H for the second time. In a letter to its staff and stakeholders, DCFS explained that it would no longer consider a 

parent’s refusal of Vitamin K to be medical neglect because 

determining what treatments are considered “medically necessary” fell outside the confines of the agency’s “statutory and 

professional mission and judgment.” 

C. Statutory Background

Physicians are “mandatory reporters” in Illinois, meaning 

they have a statutory duty to “immediately report” cases 

where “they have reasonable cause to believe that a child” is 

being neglected. 325 ILCS 5/4(a)(1). The Illinois Abused and 

Neglected Child Reporting Act defines medical neglect as

“not receiving the proper or necessary support or medical or 

other remedial care recognized under State law as necessary 

for a child’s well-being.” 325 ILCS 5/3 ¶ 9. The State has also 

endowed medical professionals with the power to take protective custody of a child if they believe that leaving the child 

in the guardians’ care would put the child’s health or safety 
Nos. 22-2096 & 22-2108 6

at risk and there is no time to apply for a court order. 325 ILCS 

5/5 ¶ 1. 

D. The Parents’ Experiences 

All three sets of plaintiff parents had similar experiences 

after refusing the Vitamin K shot on behalf of their newborn 

children. Despite the efforts of hospital staff to convince the 

parents to consent to the procedure, none of the newborns 

ever received the shot. 

1. The Scotts

Baby A was born to Cylinda and Michael Scott in February 

2019 at the University of Chicago Medical Center. At the time, 

the hospital had an internal policy detailing what staff should 

do in cases of Vitamin K refusal. It provided that if a parent 

declined the shot, staff were to notify the attending physician 

and the hospital’s on-call social worker. The physician would 

then speak with the parents about the risks of Vitamin K refusal. If the parents continued to decline the shot, the physician was to notify DCFS and take protective custody of the 

child. Hospital staff would then administer Vitamin K without the parents’ consent. Only then would temporary custody 

be lifted. 

Pursuant to this plan, the University of Chicago Medical 

Center staff attempted to convince the Scotts to consent to the 

Vitamin K shot shortly after Baby A’s birth. The parents refused the procedure, prompting Dr. Stephanie Liou, a defendant, to threaten to take Baby A into protective custody and 

administer the shot without their consent. The Scotts ultimately called the police, who ordered hospital staff not to take 

the child. Still, the University of Chicago Medical Center reported the Scotts to DCFS, which later investigated the case. 
Nos. 22-2096 & 22-2108 7

Following a home visit, DCFS concluded the medical neglect 

report was unfounded and closed the case.

2. The Boughers

Baby B was born to Angela and Brian Bougher in February 

2018 at Silver Cross Hospital and Medical Center. The 

Boughers promptly informed the treating nurse—Monika Kozuch, a defendant in this case—that they did not want Baby B 

to receive a Vitamin K shot. In response, Nurse Kozuch removed Baby B from the delivery room and told the new parents that she would report them to DCFS.

When Dr. Miroslaw Skalski, also a defendant, came to the 

Boughers’ hospital room to inform them that their child had 

low blood sugar and needed formula, the parents had yet to 

hold their child. When they expressed a desire for Baby B to

breastfeed, Dr. Skalski allowed Angela to visit the child in the 

nursery. After nursing, Angela was told she could not bring 

the baby back to her room. Nearly thirteen hours after the 

birth, hospital staff returned Baby B to the Boughers. 

The next day, a DCFS case worker notified the Boughers 

that Silver Cross had confirmed there were no health risks to 

Baby B, and the medical neglect report would be deemed unfounded. The case worker explained, however, that she 

would still need to complete a house visit to check on the 

Boughers’ other children. DCFS later contacted the police, 

who then conducted a welfare check at the Boughers’ home

the next week. The day after the welfare check, DCFS closed 

the investigation and concluded the medical neglect report 

was unfounded.
Nos. 22-2096 & 22-2108 8

3. The Koseks

Baby K was born to Sarah and Jason Kosek in June 2018, 

also at Silver Cross. During the pregnancy, the Koseks had 

signed a form indicating their intent to refuse the Vitamin K

shot. Following Baby K’s birth, however, a Silver Cross nurse 

informed the Koseks that their decision would trigger a report 

to DCFS. 

About an hour later, a DCFS case worker appeared in the 

Koseks’ hospital room in response to a report of medical neglect. Shortly thereafter, Silver Cross’s Head of Pediatrics appeared and introduced himself. He informed the Koseks that 

Baby K could be taken away from them if they continued to 

refuse the Vitamin K shot and that he could administer the 

shot without their consent. Another Silver Cross administrator and a DCFS case worker spoke with the Koseks and echoed these warnings. Ultimately, no one removed Baby K from 

the parents during their hospital stay. Following a home visit 

and witness interviews, DCFS closed the investigation and 

determined the medical neglect report was unfounded. 

E. Procedural History

All three sets of parents brought Fourteenth Amendment 

claims against the hospitals and the medical professionals 

with whom they interacted. They alleged that by attempting 

to coerce them into consenting to the Vitamin K shot by taking 

away or threatening to take away their newborns, the defendants violated their substantive due process right to family integrity. The Boughers also brought a Fourth Amendment 

claim against Nurse Kozuch and Dr. Skalski, alleging that the 

removal of their child constituted an illegal seizure. Because 

the parents failed to plead sufficiently that the defendants 
Nos. 22-2096 & 22-2108 9

acted under color of state law when they contacted DCFS and 

temporarily removed—or threatened to remove—the newborns, the district court granted the defendants’ motions to 

dismiss. Holderman v. Walker, No. 19 C 6324, 2021 WL 1192441 

(N.D. Ill. Mar. 30, 2021); Scott v. Walker, No. 21 C 820, 2022 WL 

1421500 (N.D. Ill. May 5, 2022). The parents appeal.5 

II. ANALYSIS

We review de novo a Rule 12(b)(6) dismissal for failure to 

state a claim, meaning we take a fresh look at the legal issues.

Patrick v. City of Chicago, 81 F.4th 730, 735 (7th Cir. 2023). To 

survive dismissal, the plaintiffs need to allege “only enough 

facts to state a claim to relief that is plausible on its face.” Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

The parents bring constitutional claims under 42 U.S.C. 

§ 1983. Because § 1983 liability only extends to private parties 

when they act “under color of state law,” Alarm Detection Sys., 

Inc. v. Village of Schaumburg, 930 F.3d 812, 825 (7th Cir. 2019), 

the threshold question at the heart of this appeal is whether 

the defendants—private hospitals and healthcare workers—

were engaged in state action at the time of the alleged constitutional violations. This “state action” inquiry is fact-intensive, Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 

(1961), and is “one of the more slippery and troublesome areas of civil rights litigation,” Rodriguez v. Plymouth Ambulance 

Serv., 577 F.3d 816, 823 (7th Cir. 2009) (quoting Int'l Soc'y for 

5 At the district court, several other parents were named as plaintiffs. 

Some parents also brought claims against current and former DCFS employees for their roles in the incidents. This appeal, however, deals only 

with claims brought by the Scotts, Koseks, and Boughers against the private hospitals and their employees.
Nos. 22-2096 & 22-2108 10

Krishna Consciousness v. Air Canada, 727 F.2d 253, 255 (2d Cir.

1984)).6 

We are not, however, without guidance. The Supreme 

Court has recognized several scenarios when private entities 

will be considered state actors for the purpose of a claim pursuant to § 1983. Under the “joint action” or “conspiracy” theory, a private party who conspires with the government to infringe on a plaintiff’s rights will be classified as a state actor. 

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). So, too, 

will a party performing a function that has traditionally been 

“the exclusive prerogative of the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974). Courts will also find state action when a private party and the State are interdependent “to 

the point of largely overlapping identity.” Brentwood Acad. v. 

Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 303 (2001). Finally, the plaintiffs assert that we outlined another set of factors in Rodriguez v. Plymouth Ambulance Service, 577 F.3d at 

823, that likewise supports a finding of state action.

Although we recognize that these scenarios “do not so 

much enunciate a test or series of factors, but rather demonstrate examples of outcomes in a fact-based assessment,” Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 

811, 816 (7th Cir. 2009), it is helpful to organize our analysis 

along these lines, especially given that the parties have structured their arguments based on these scenarios. 

Before proceeding, though, we must address the issue of 

waiver. The Boughers and Koseks presented only the 

6 The state action requirement of the Fourteenth Amendment and the “under color of state law” requirement of § 1983 are treated as identical. See

Lindke v. Freed, 601 U.S. 187, 195 (2024). 
Nos. 22-2096 & 22-2108 11

conspiracy theory of state action to the district court. They 

have, therefore, waived any argument that the remaining scenarios support a finding of state action against Silver Cross or 

its employees. See Teumer v. General Motors Corp., 34 F.3d 542, 

546 (7th Cir. 1994) (“The failure to draw the district court’s 

attention to an applicable legal theory waives pursuit of that 

theory in this court.”). The Scotts are the only plaintiffs to 

have preserved all theories of state action argued on appeal, 

which we address in turn. 

A. Conspiracy or Joint Action 

The parents allege that private hospitals and their staff 

conspired with state officials from DCFS to violate the parents’ constitutional rights. They argue that this conspiracy 

had two aims: to force parents to consent to Vitamin K shots 

for their newborns and, failing that, to take—or threaten to 

take—protective custody of the infants. The parents assert 

that these joint actions show that the private hospitals and 

their staff acted “under color of state law” for purposes of 

§ 1983.7 

7 The parents’ counsel explicitly waived at oral argument any contention 

that the hospitals’ policy of reporting Vitamin K refusal to DCFS is what 

forms the basis of joint action with the state. Oral Arg. at 7:47–57. Rightly 

so, for it is well-established that “merely filing a report of child neglect 

with a state actor, even if false, is insufficient to create liability under Section 1983.” Brokaw v. Mercer County, 235 F.3d 1000, 1019 (7th Cir. 2000); see 

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

subjecting private parties to constitutional litigation “whenever they seek 

to rely on some state rule governing their interactions with the community 

surrounding them”). Reporting medical neglect to DCFS is an independent undertaking, meaning private hospitals and their employees may file 

as many such reports as they wish without any “badge of [state] 
Nos. 22-2096 & 22-2108 12

To get past the pleading stage on this theory, the parents 

must point to more than “mere allegations of joint action or a 

conspiracy” to demonstrate that the defendants acted under 

color of state law. Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 

1998). Instead, the plaintiffs must have alleged that the hospitals and DCFS “had a meeting of the minds and thus reached 

an understanding ... to deny” the parents “a constitutional 

right.” Wilson v. Warren County, 830 F.3d 464, 468 (7th Cir. 

2016) (alterations and citation omitted). We stress that there 

must have been a real agreement—explicit or implicit—between the parties. Merely working in parallel toward “a common goal” is not the same as conspiring together. Tarkowski v. 

Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir. 1980) 

(citation omitted).

We analyze the parents’ claims against each hospital (and 

its employees) separately.

1. University of Chicago Medical Center 

The Scotts allege that the University of Chicago Medical 

Center had an internal policy allowing doctors to take protective custody of newborns whose parents refused to allow the 

administration of Vitamin K shots. They claim that this policy 

was “developed” and “adopted” “in concert with high-ranking DCFS officials,” and that it was inspired by Section H, the 

DCFS regulation that considered Vitamin K refusal to be tantamount to “medical neglect.” As proof of this joint action, the 

Scotts point to the fact that two employees of the Medical Center—Dr. Jaudes and Dr. Glick—were involved with this DCFS 

authority,” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citation omitted), and DCFS retains the discretion to respond to those reports as it sees 

fit. 
Nos. 22-2096 & 22-2108 13

policy. Ultimately, the hospital’s internal policy was brought 

to bear when Dr. Liou threatened to—but ultimately did 

not—take the Scotts’ newborn into protective custody to administer the Vitamin K shot. 

The Scotts’ allegations against the University of Chicago 

Medical Center and Dr. Liou do not reveal a conspiracy with 

DCFS to infringe on the Scotts’ constitutional right to family 

integrity.8 While the allegations reveal that the hospital and 

DCFS shared “a common goal” of administering Vitamin K

shots to newborns, Tarkowski, 644 F.2d at 1206, there are no 

allegations that the hospital and DCFS “reached an understanding ... to deny” the Scotts their constitutional rights, Wilson, 830 F.3d at 468. As the Medical Center rightly notes, the 

Scotts have not identified who “among the state’s many officials” were allegedly a part of the conspiracy. See Adickes, 398 

U.S. at 152 (finding plaintiff entitled to relief under § 1983 if 

“she can prove that a Kress employee ... and a Hattiesburg 

policeman somehow reached an understanding” to infringe 

on her constitutional rights). Moreover, while the Scotts 

broadly assert that the Medical Center’s policy was developed “in concert” with DCFS, our caselaw requires more than 

“mere allegations of joint action or a conspiracy.” Fries, 146 

F.3d at 458. 

The Scotts’ arguments also run into several other roadblocks. For one, the Medical Center staff appeared to be operating within the bounds of—or at least inspired by—

8 In their complaint, the Scotts allege that two University of Chicago Medical Center employees—Dr. Jaudes and Dr. Glick—were involved in the 

reinstatement of the DCFS policy. These individuals, however, are not defendants in this case and did not report the Scotts to DCFS. 
Nos. 22-2096 & 22-2108 14

applicable Illinois regulations and law. Illinois regulations require the administration of Vitamin K to newborns “shortly 

after birth, but usually within the first hour after delivery.” 

ILL. ADMIN. CODE tit. 77, § 250.1830(g)(8). And Illinois law 

specifies that “a physician treating a child may take or retain 

temporary protective custody of the child” to administer necessary medical care under appropriate circumstances. 325 

ILCS 5/5 ¶ 1. To the extent the Medical Center may have modeled its internal procedures around public guidelines, this 

cannot support an inference of “joint action.” See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Thus, the Scotts’ 

complaint fails to support the assertion that the University of 

Chicago Medical Center defendants’ actions were made possible by Section H.

What’s more, the Scotts’ allegations reveal more conflict

between the University of Chicago Medical Center and state 

actors than joint action. Nothing in DCFS’s Section H policy 

required doctors to take temporary custody of newborns, but 

the Medical Center’s internal policy did. Moreover, DCFS ultimately rescinded Section H—determining it “inappropriately identifie[d]” what can and should be considered as

“medically necessary.” The Medical Center, however, continued recommending protective custody for newborns in instances of Vitamin K refusal. Indeed, the Scotts’ baby was 

born six months after Section H was rescinded and the Medical Center’s restrictive Vitamin K policy was still in place. Finally, when Dr. Liou threatened to take protective custody of 

the Scotts’ newborn, Chicago police officers that were called 

to the scene put a stop to it. By including these allegations in 

their complaint, the Scotts have shown the absence of a conspiracy between the Medical Center and DCFS. 
Nos. 22-2096 & 22-2108 15

2. Silver Cross Hospital

Two sets of parents—the Boughers and the Koseks—allege that Silver Cross Hospital, several of its doctors, and a 

nurse acted under color of state law by conspiring with DCFS. 

They claim that the hospital had a policy or practice of coercing parents into consenting to Vitamin K shots for newborns 

under the threat of reporting the parents to DCFS or taking 

protective custody of the newborn. Indeed, after the Boughers 

refused administration of Vitamin K for their newborn, Nurse 

Kozuch took the newborn and told the Boughers that she was 

reporting them to DCFS. Similarly, Dr. Skalski threatened the 

Boughers with a DCFS investigation to try to get them to accept the Vitamin K shot. 

For the Koseks, a Silver Cross nurse allegedly told them 

that DCFS would be called due to their refusal of the Vitamin 

K shot. The head of pediatrics at Silver Cross reinforced this 

by telling the Koseks that the hospital could take their baby 

away if they continued to refuse the Vitamin K shot. 

When reviewing these allegations, it appears Silver Cross 

employees invoked DCFS as a threat to coerce the parents to 

agree to the administration of the Vitamin K for their newborns, but there is nothing to suggest that the hospital and 

DCFS “had a meeting of the minds” about this issue. Wilson, 

830 F.3d at 468. 

The fact that Illinois’s statutory and regulatory backdrop 

permitted Silver Cross’s conduct confirms this conclusion. 

While we recognize that DCFS’s Section H policy—which 

deemed the refusal of Vitamin K administration to be “medical neglect”—was in place when Baby B and Baby K were 

born, Illinois regulations also required the administration of 
Nos. 22-2096 & 22-2108 16

Vitamin K to newborns “shortly after birth, but usually within 

the first hour after delivery.” ILL. ADMIN. CODE tit. 77, 

§ 250.1830(g)(8). Also, the law allowed physicians “treating a 

child [to] take or retain temporary protective custody of the 

child” to administer necessary medical care under appropriate circumstances. 325 ILCS 5/5 ¶ 1. The allegations in the 

complaint show that Silver Cross and its staff were aware of 

and acted in accordance with this guidance. Mere compliance 

with state regulations or guidelines cannot transform a private entity into a state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) (“[T]he mere fact that a business is 

subject to state regulation does not by itself convert its action 

into that of the State ... .”). Nor is there merit to the parents’ 

argument that the state regulations were implemented as 

“cover” for the hospital’s policy, as neither Silver Cross nor 

any of its employees are alleged to have participated in the 

creation of any of the state rules, including DCFS’s Section H

policy. At most, the Bougher and Kosek complaint asserts that 

Silver Cross’s internal policy of reporting parents who refused Vitamin K shots to DCFS was inspired by already-inplace state agency guidelines. This is not enough. Lugar, 457 

U.S. at 937. 

* * *

For these reasons, we are unable to infer that DCFS conspired with the defendants to deprive the parents of their constitutional rights. 

B. Public Function 

The parents next invoke the “public function” theory of 

state action, whereby a private individual acts under color of 

law when he or she “exercise[s] ... powers traditionally 
Nos. 22-2096 & 22-2108 17

exclusively reserved to the State.” Jackson, 419 U.S. at 352; see 

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157 (1978). In these 

cases, the private actors are “clothed with the authority of 

state law.” Rodriguez, 577 F.3d at 825. The parents argue that 

taking children into protective custody is exclusively a public 

function.

Notably, only the Boughers’ newborn was taken into protective custody and, as explained above, they waived any argument that Silver Cross or its employees were performing a 

public function. And while the Scotts preserved the public 

function argument for appeal, they allege only that Dr. Liou 

threatened to take custody of their child. 

We assume—but do not decide—that taking temporary 

protective custody of a child is an exclusive and traditional

function of the state. But, here, the University of Chicago 

Medical Center did not “exercise” that function, Jackson, 419 

U.S. at 352, given that Dr. Liou never took the Scotts’ newborn 

away from them. The Scotts have pointed to no case in which 

the mere threat of performing a traditional state function 

transforms a private actor into one acting “under color of state 

law.” Given that the Scotts have failed to show Dr. Liou and 

the University of Chicago Medical Center performed a public 

function, this theory fails.9

9 The parents argue that our decision in Rodriguez v. Plymouth Ambulance 

Service, 577 F.3d 816, outlined a fourth set of state action factors that likewise supports their theory that the hospitals and their employees were 

acting under color of state law. That decision, however, simply considered 

the “public function” question as it applies to medical providers in state 

prisons. Rodriguez, 577 F.3d at 826. The case focused primarily on “the relationship among the state, the health care provider and the prisoner,” 
Nos. 22-2096 & 22-2108 18

C. Symbiotic Relationship or Entwinement 

Lastly, the parents contend that the hospitals and their employees were interdependent “to the point of largely overlapping identity.” Brentwood Acad., 531 U.S. at 303. As before, 

only the Scotts have preserved this “entwinement” theory of 

state action, so we only consider their allegations against the 

University of Chicago Medical Center and Dr. Liou.

The Scotts argue that, when Dr. Liou threatened to call 

DCFS if the Scotts did not consent to the Vitamin K shot, “any 

reasonable person would see the two entities as working together.” But this type of state action is premised on whether 

the entities are actually entwined, not whether they appear to 

be. See Brentwood Acad., 531 U.S. at 303. And even taking the 

Scotts’ argument on its own terms, “working together” is not 

enough. Instead, there is state action only when public and 

private entities are interdependent “to the point of largely 

overlapping identity.” Id. at 300–03 (allowing § 1983 claims to 

proceed against a private athletic association when the association was entwined with the state from the “bottom up” 

through membership largely made up of public schools and 

from the “top down” through state appointment of board 

members and association employees’ inclusion in state 

recognizing that, in a prisoner context, the state is “the ultimate responsible party for the prisoner’s health care.” Id. at 826–27 (emphasis in original). Here, the state had no control or coercion over the newborns’ medical 

care, nor was there a contract between the state and the defendant providers to care for the newborns (an “important factor” in Rodriguez). Id. at 827. 

Thus, Rodriguez does little to guide our analysis. We have never applied 

the factors from Rodriguez outside of the prison context and will not do so 

here. 
Nos. 22-2096 & 22-2108 19

retirement plans). The Scotts’ allegations reveal no such interdependence here.10 

III. CONCLUSION

Without state action there can be no § 1983 liability. For 

this reason, we AFFIRM the district court’s dismissals of the 

parents’ claims.

10 Because Silver Cross was not acting under color of state law, we need 

not address the parties’ argument that Monell liability applies. See Iskander 

v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (noting that, to state 

a Monell claim against a private corporation, a plaintiff must allege that 

the corporation was acting under color of state law). Similarly, because 

none of the hospital employees acted under color of state law, we need not 

address the parents’ invitation to overturn our holding in Iskander that 

plaintiffs cannot premise § 1983 claims on respondeat superior liability. See 

id.