UNPUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 21-1980

E.R.L., by and through her next friend, John Doe, 

 Plaintiff - Appellant, 

v. 

ADOPTION ADVOCACY, INC.; JUNE BOND; JOE HAYNES, 

 Defendants - Appellees,

and 

AMY CARR, 

Defendant. 

Appeal from the United States District Court for the District of South Carolina, at Beaufort. 

Richard M. Gergel, District Judge. (9:21-cv-00479-RMG) 

Argued: October 27, 2022 Decided: February 14, 2023 

Before AGEE and HARRIS, Circuit Judges, and Lydia K. GRIGGSBY, United States 

District Judge for the District of Maryland, sitting by designation. 

Vacated and remanded by unpublished per curiam opinion. 

ARGUED: Robert James Butcher, CAMDEN LAW FIRM, PA, Camden, South Carolina, 

for Appellant. Steven Chase Parker, LEWIS BRISBOIS BISGAARD & SMITH LLP, 

Savannah, Georgia, for Appellees. ON BRIEF: Deborah J. Butcher, CAMDEN LAW 

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FIRM, PA, Camden, South Carolina, for Appellant.

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM:

E.R.L. is a minor child who suffered severe abuse at the hands of her adoptive 

parents. She alleges that Adoption Advocacy, Inc., a private agency that contracted with 

state officials to arrange her adoptive placement, violated her constitutional rights by 

placing her with known abusers in deliberate indifference to her personal safety and 

security. The district court dismissed E.R.L.’s complaint, reasoning that Adoption 

Advocacy and its employees, as private actors, did not owe E.R.L. any constitutional duty. 

But in certain circumstances, a private party that assumes a state’s affirmative 

constitutional obligations may act under color of law for purposes of 42 U.S.C. § 1983. 

See West v. Atkins, 487 U.S. 42, 56 (1988). Because the district court did not address this 

theory of state action, we vacate its judgment and remand for the court to conduct this 

analysis in the first instance.

I.

E.R.L. was born in Franklin County, Ohio, in 2011. When E.R.L. was young, the 

state of Ohio terminated her biological parents’ rights and placed her in the custody of 

Franklin County Children Services (“FCCS”). She remained a ward of the state until 2015, 

when FCCS arranged for her permanent adoptive placement in South Carolina. 

FCCS did not itself undertake to identify a suitable home for E.R.L. Instead, Ohio 

officials contracted with Adoption Advocacy, Inc., a private “child placing agency” 

registered in South Carolina and licensed by the South Carolina Department of Social 

Services (“SCDSS”). Under South Carolina law, child placing agencies must follow 

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rigorous procedures when selecting a prospective adoptive family. See S.C. Code § 63-9-

520; S.C. Code Regs. § 114-4980. These include a pre-placement screening, multiple 

interviews and home visits, and a comprehensive investigation of the family’s background 

and fitness to care for the child. S.C. Code § 63-9-520(A)(1)(a); S.C. Code Regs. § 114-

4980(E)(3). The agency must then monitor the child’s pre-adoptive placement, prepare a 

final report, and present its findings to the family court before an adoption decree may 

issue. S.C. Code § 63-9-520(A)(2).

These procedures, to the extent they were followed here, proved woefully 

inadequate to protect E.R.L. from harm. From the moment Adoption Advocacy placed 

E.R.L. in the prospective home of Herbert and Yulanda Mitchell, she suffered severe 

emotional and physical abuse.1

 The Mitchells beat E.R.L. with whips, belts, and hangers. 

They deprived her of food and water while forcing her to watch them eat complete meals. 

During her pre-adoptive placement, E.R.L. – then a four-year-old girl – lost one and a half 

pounds. But Adoption Advocacy failed to identify these signs of abuse and instead filed a 

post-placement report recommending E.R.L.’s adoption. On October 15, 2015, a Beauford 

County family court granted a final adoptive decree for E.R.L. to the Mitchells based on 

this recommendation. 

1 Because the district court dismissed this action under Federal Rule of Civil 

Procedure 12(b)(6), “we recount the facts as alleged by [E.R.L.], accepting them as true 

for purposes of this appeal.” Jackson v. Lightsey, 775 F.3d 170, 173 (4th Cir. 2014). We

note, however, that the Mitchells’ subsequent criminal convictions of unlawful conduct 

toward a child, S.C. Code § 63-5-70(A)(1), confirm the essential nature of their abuse. 

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The Mitchells’ pattern of blatant child abuse – and Adoption Advocacy’s role in 

enabling that abuse – preceded E.R.L.’s 2015 placement. Sometime before 2010, a family 

court found that Yulanda Mitchell physically abused a foster child; as a result, SCDSS 

listed her on its Registry of Abuse and Neglect. Nonetheless, between 2010 and 2015, 

Adoption Advocacy placed four children with the Mitchells for adoption. Each child, like 

E.R.L., was repeatedly starved and beaten. The children were locked in their rooms, forced 

to sleep on the floor without blankets, and made to eat feces as punishment. At school, the 

children were observed eating from trash cans and drinking from toilets. All but one of the 

children fell far below the first percentile for height and weight, and each was subsequently 

diagnosed with severe failure to thrive. On many occasions, school and medical officials 

reported these clear signs of abuse and malnutrition to SCDSS. But Adoption Advocacy 

still chose to place E.R.L. with the Mitchells. 

Finally, in November 2015 – just weeks after E.R.L.’s adoption was finalized –

SCDSS intervened. After one of the children reported the Mitchells’ abuse to his teacher, 

South Carolina officials placed the children in emergency protective custody. The state

then terminated the Mitchells’ parental rights and initiated criminal proceedings. Yulanda 

and Herbert Mitchell ultimately pled guilty to multiple counts of unlawful conduct toward 

a child, S.C. Code § 63-5-70(A)(1), and were sentenced to ten and four years’ 

incarceration, respectively. 

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II.

In February 2021, E.R.L. filed suit under 42 U.S.C. § 1983, alleging that her 

placement with the Mitchells violated her Fourteenth Amendment rights. Due to state 

confidentiality laws and E.R.L.’s youth at the time of her abuse, her counsel had no 

knowledge of the individuals – presumed to be SCDSS employees – who arranged and 

supervised her placement. The district court thus allowed E.R.L. to serve an expedited 

subpoena on SCDSS in order to “properly identify the defendants in this action.” Order at 

1, E.R.L. ex rel. Doe v. Adoption Advoc., Inc., No. 9:21-cv-479-RMG (D.S.C. Feb. 24, 

2021), ECF No. 9. SCDSS, in turn, identified Adoption Advocacy as the sole entity

responsible for E.R.L.’s placement. E.R.L. then amended her complaint to bring claims 

against Adoption Advocacy and its employees alone. 

The defendants moved to dismiss the case, arguing that E.R.L.’s complaint failed to 

allege that Adoption Advocacy’s employees acted under color of state law when they

placed E.R.L. with the Mitchells. The district court granted the motion, holding that the 

private agency and its employees did not owe E.R.L. a constitutional duty. See E.R.L.,

2021 WL 3493179, at *3 (D.S.C. Aug. 9, 2021). The court recognized that private actors 

may, under certain circumstances, engage in state action for purposes of § 1983. But it 

construed E.R.L.’s complaint and briefing to raise only one such theory: that Adoption 

Advocacy was engaged in a “traditionally exclusive public function.” Id. at *2. Because 

“[t]he care of foster children is not traditionally the exclusive prerogative of the State,” the 

court concluded, E.R.L. failed to allege that her adoptive placement implicated state action. 

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Id. (quoting Milburn by Milburn v. Anne Arundel Cnty. Dep’t of Soc. Servs., 871 F.2d 474, 

479 (4th Cir. 1989)). 

Performing an “exclusive public function,” however, is only one way that a private 

party may act on behalf of the state. See Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 

115 (4th Cir. 2022) (en banc) (“The Supreme Court has identified various circumstances 

in which a private actor may be found to have engaged in state action.”). As relevant here, 

a private party also “may, under certain circumstances, be deemed a state actor when the 

government has outsourced one of its constitutional obligations to a private entity.” 

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1929 n.1 (2019) (citing West 

v. Atkins, 487 U.S. 42, 56 (1988)).

2

 

In West, the Supreme Court identified one such circumstance, holding that a private 

physician providing medical services in state prison acted under color of law for purposes 

of § 1983. Because the state “has a constitutional obligation, under the Eighth Amendment, 

to provide adequate medical care to those whom it has incarcerated,” the Court reasoned, 

contracting out that obligation “does not relieve the [s]tate of its constitutional duty to 

provide adequate medical treatment to those in its custody, and it does not deprive the 

2 We do not in any way fault the district court for failing to parse out these separate 

theories of state action. Though West liability is analytically distinct from “exclusive 

public function” liability – resting on a private party’s assumption of a state’s affirmative 

constitutional duty, rather than a state’s traditional prerogative – courts at times conflate 

the two. Moreover, the parties’ exceptionally voluminous filings in the district court did 

little to clarify these distinct inquiries or otherwise provide guidance on the state action 

question.

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[s]tate’s prisoners of the means to vindicate their Eighth Amendment rights.” 487 U.S. at 

54–56. 

Here, E.R.L. alleges that the state of Ohio terminated her birth parents’ rights and 

placed her in the custody of state officials. She also alleges that until her adoption was 

finalized, Ohio retained legal custody and control over her autonomy. See Ohio Rev. Code 

§ 5103.23. And the Fourth Circuit has held that “when a state involuntarily removes a 

child from her home, thereby taking the child into its custody and care, the state has taken 

an affirmative act to restrain the child’s liberty, triggering the protections of the Due 

Process Clause.” Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 175 (4th 

Cir. 2010). “Such responsibility, in turn, includes a duty not to make a foster care 

placement that is deliberately indifferent to the child’s right to personal safety and 

security.” Id. 

Under West, the state’s delegation of an affirmative constitutional duty to Adoption 

Advocacy’s employees may give rise to liability under § 1983. The district court here did 

not consider whether Doe imposed such an affirmative constitutional duty on the state with 

respect to E.R.L.’s placement with the Mitchells. Nor did it consider whether the 

delegation of any such duty to private adoption agency employees might suffice to establish 

§ 1983 liability under West. We therefore vacate the court’s judgment and remand so that 

the district court may address these questions in the first instance.3

 

3 Given this disposition, we need not resolve the somewhat perplexing discoveryrelated arguments raised by each party on appeal. E.R.L. contends that the district court 

“should have permitted limited discovery to allow [her] to defend the Motion to Dismiss” 

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III.

For the reasons given above, we vacate the district court’s order granting the motion 

to dismiss and remand for further proceedings consistent with this opinion. 

VACATED AND REMANDED

but identifies no such motion for limited discovery that was denied. In response, Adoption 

Advocacy argues that the district court appropriately denied “pre-suit discovery” under 

Federal Rule of Civil Procedure 27. But here, too, Adoption Advocacy identifies no such 

pre-suit motion, and E.R.L. represents that there is none. To the extent there exists a live 

discovery dispute between the parties, the district court can address it on remand. We also 

decline to reach Adoption Advocacy’s alternative arguments of qualified immunity and 

collateral estoppel at this juncture, leaving those, too, for the district court to address if 

necessary. 

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