Robert S. v. Stetson School, Inc.

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

7-3-2001

Robert S. v. Stetson School Inc.

Precedential or Non-Precedential:

Docket 00-1438

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"Robert S. v. Stetson School Inc." (2001). 2001 Decisions. Paper 146.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/146

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed July 3, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1438

ROBERT S., a minor

Appellant

v.

STETSON SCHOOL, INC.; RICHARD J. ROBINSON,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

EXECUTIVE DIRECTOR OF THE STETSON SCHOOL;

DAVE LAPRADE, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS UNIT COUNSELOR, EMPLOYED BY THE

STETSON SCHOOL; RAY WILLIAMS, INDIVIDUALL Y AND

IN HIS OFFICIAL CAPACITY AS UNIT COUNSELOR,

EMPLOYED BY THE STETSON SCHOOL; MIKE

WILLIAMS, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS UNIT COUNSELOR, EMPLOYED BY THE

STETSON SCHOOL; ROBERT MARTIN, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY AS UNIT COUNSELOR,

EMPLOYED BY THE STETSON SCHOOL

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 99-cv-6710)

District Court Judge: Norma L. Shapiro

Argued: April 20, 2001

Before: ALITO, McKEE, Circuit Judges , and

ALARCON, Senior Circuit Judge1

_________________________________________________________________

1. The Honorable Arthur L. Alarcon, United States Court of Appeals for

the Ninth Circuit, sitting by designation.

(Opinion Filed: July 3, 2001)

JONATHAN J. JAMES

ARTHUR B. JARRETT (argued)

James & Jarrett, P.C.

Stephen Girard Building - 7th Floor

21 South 12th Street

Philadelphia, PA 19107

Counsel for Appellant

JONATHAN D. WEISS

JOHN C. FARRELL (argued)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, PA 19103

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Robert S. ("Robert"), then a minor,filed this action

against the Stetson School ("Stetson"), several Stetson

employees, and others. His complaint asserted claims

against the school and its staff members under 42 U.S.C.

S 1983 for violating his federal constitutional rights by

subjecting him to physical and psychological abuse. 2 The

complaint also contained a variety of state-law claims

against these defendants. In this appeal, Robert challenges

the District Court's decision that Stetson and its staff did

not act under color of state law, as well as two of the

District Court's evidentiary rulings. We affirm.

I.

Robert was a victim of sexual abuse, and he in tur n

_________________________________________________________________

2. The complaint also included claims against the City of Philadelphia,

the Philadelphia Department of Human Services, and city officials. These

claims are not before us in this appeal.

2

molested his younger brother. In 1993, when Robert was

13, the Philadelphia Court of Common Pleas found him to

be a "dependent child,"3see 42 PA. CONS. STAT. ANN. SS 6302,

_________________________________________________________________

3. A "dependent child" is a child who:

(1) is without proper parental car e or control, subsistence,

education as required by law, or other car e or control necessary

for

his physical, mental, or emotional health, or morals. A

determination that there is a lack of pr oper parental care or

control

may be based upon evidence of conduct by the par ent, guardian or

other custodian that places the health, safety or welfare of the

child

at risk, including evidence of the parent's, guardian's or other

custodian's use of alcohol or a controlled substance that places

the

health, safety or welfare of the child at risk;

(2) has been placed for care or adoption in violation of law;

(3) has been abandoned by his parents, guar dian, or other

custodian;

(4) is without a parent, guardian, or legal custodian;

(5) while subject to compulsory school attendance is habitually

and without justification truant from school;

(6) has committed a specific act or acts of habitual disobedience

of the reasonable and lawful commands of his parent, guardian or

other custodian and who is ungovernable and found to be in need

of care, treatment or supervision;

(7) is under the age of ten years and has committed a delinquent

act;

(8) has been formerly adjudicated dependent, and is under the

jurisdiction of the court, subject to its conditions or placements

and

who commits an act which is defined as ungover nable in paragraph

(6);

(9) has been referred pursuant to section 6323 (relating to

informal adjustment), and who commits an act which is defined as

ungovernable in paragraph (6); or

(10) is born to a parent whose par ental rights with regard to

another child have been involuntarily terminated under 23 Pa.C.S.

S 2511 (relating to grounds for involuntary termination) within

three

years immediately preceding the date of birth of the child and

conduct of the parent poses a risk to the health, safety or welfare

of

the child.

42 PA. CONS. STAT. ANN. S 6302.

3

6351, and placed him, with his mother's consent, in the

temporary custody of the Philadelphia Department of

Human Services ("DHS").4 At no time, however, did a court

find Robert to be a "delinquent child," see 42 PA. CONS. STAT.

ANN. SS 6302, 6352, nor was he convicted of any crime.

DHS decided that Robert would be best served by

enrolling him in Stetson, a school that specializes in the

treatment and education of juvenile sex of fenders. This

decision was not mandated by any court order and was

done with the consent of Robert's mother. DHS remained

Robert's legal custodian throughout his stay at Stetson and

was authorized to remove him at any time if it was not fully

satisfied with the services that Stetson was pr oviding. In

fact, at the urging of Robert's mother , DHS eventually did

remove Robert from Stetson in March 1997.

Stetson is a private, residential institution located in

Barre, Massachusetts. At the time of Robert's enrollment,

Stetson had approximately 55 residential students and four

or five commuter students. All of the Stetson students were

sex offenders. Incorporated under Massachusetts law and

licensed by the state, Stetson was governed by a board of

trustees, the members of which were elected by a board of

corporators. None of the members of the boar d of trustees

or the board of corporators were appointed by a government

entity, and none were federal, state, or local employees.

Stetson's buildings and property were all privately owned

and maintained, and Stetson had full control over its

admissions process. Admissions decisions wer e made by a

committee that reviewed applications and conducted

interviews of interested applicants. Stetson was not

obligated to accept any student. In fact, Stetson historically

refused to accept students with criminal r ecords and had

_________________________________________________________________

4. Under 42 PA. CONS. STAT. ANN. S 6351, a court may permit a

"dependent child" to remain with his or her parents, guardian, or other

custodian subject to such conditions as the court pr escribes or transfer

temporary legal custody to a private person or or ganization or "[a]

public

agency authorized by law to receive and pr ovide care for the child."

4

successfully gone to court to exclude students whom it did

not believe satisfied its stringent enrollment criteria.5

In pursuing its mission of providing tr eatment and

education to juvenile sex offenders, Stetson worked in close

concert with state and local governments. For example,

Stetson and the City of Philadelphia entered into various

financial and performance contracts r egarding Philadelphia

children placed in the school. These contracts were entered

into pursuant to the Pennsylvania Child Protective Services

Act, 23 PA. CONS. STAT. ANN. S 6301 et seq. According to the

testimony of Richard Robertson, Stetson's Executive

Director, the City of Philadelphia paid Stetson slightly more

than $200 per day for each student, an amount that was

insufficient to cover the school's actual costs. Costs not

covered by tuition were covered by grants from private

foundations, other charitable contributions, and loans.

Neither DHS nor the City of Philadelphia had any

involvement in the day-to-day management of Stetson. That

task was left entirely to the Stetson staf f.

Stetson provided a structured envir onment for its

students. Students were not permitted to leave campus

without supervision, were assigned bed times, were

generally awakened at approximately the same time, and

ate their meals at times set by the staff. Although the

school did not require uniforms, it had a dress code.6

Students were allowed to use both computers and

telephones, but when students used a telephone, a Stetson

staff member was normally in the r oom for therapeutic

reasons.7 Students wer e allowed to write and receive mail.

_________________________________________________________________

5. According to the testimony of Richar d Robertson, the Executive

Director of Stetson, on one occasion a court attempted to issue an order

placing a child at Stetson. The school objected and ultimately prevailed

in its effort to keep the student out of Stetson.

6. Richard Robinson testified, "W e don't allow T-shirts with marijuana

symbols on them, we don't allow Grateful Dead T -shirts, we don't allow

symbols and things that are sexualized in natur e; we don't allow tank

tops and short-shorts in the dining room for health code reasons."

7. Richard Robinson testified that a Stetson staff member is normally in

the room with students, but not actually on the phone. According to

Robinson, "Sometimes children can get very upset when they're talking

to parents or relatives or whoever they'r e talking to on the phone, we've

had children who have smashed windows and attacked staff." Appendix

at 186B.

5

Some were also allowed to leave campus with supervision

and to go home for vacations. Stetson did not employ any

mechanical or chemical restraints; the buildings did not

have bars on the windows; and the school did not per mit

corporal or physical punishment.

Robert alleged that Stetson staff members subjected him

to physical and psychological abuse, including wr estling

with him and kicking and punching him. Robert claimed

that this conduct violated Stetson's policy against

"horseplay"8 and sever ely disrupted his treatment. He

reported this alleged abuse to a Stetson therapist in

February 1997. After an internal investigation, Stetson

concluded that three of its counselors had violated the anti-

horseplay policy and subsequently suspended them. The

Commonwealth of Massachusetts also investigated and

decided that Stetson had acted appropriately in punishing

the counselors.

Not satisfied with the school's response, Robert filed this

action, asserting claims under S 1983 for violations of his

constitutional rights, as well as state-law claims for

intentional infliction of emotional distress, assault and

battery, false arrest, false imprisonment, invasion of

privacy, negligence, and state-law civil rights violations. On

motion of the Stetson defendants, the District Court

bifurcated the trial. After hearing evidence on the question

of state action, the Court made findings of fact r elated to

that question and held that the Stetson defendants were

not state actors. A trial was then held on Robert's state-law

claims, but the jury did not award him any r elief, and

Robert took this appeal.

_________________________________________________________________

8. The anti-horseplay policy was included in the employee manual as

part of a list of unacceptable behaviors. The policy provides:

"Horseplay" or "roughhousing" is physical playing or teasing that

has the real potential to lead to injury or afight between students

or between students and staff. If a staf f identifies the play

between

students as "horseplay" or "roughhousing", the student must stop

that kind of play or interacting. Too often"horseplay" or

"roughhousing" leads to dangerous play or fighting.

6

II.

Embodying the state-action requirement of the

Fourteenth Amendment, see Lugar v. Edmondson Oil Co.,

457 U.S. 922, 934-35 (1982); United States v. Price, 383

U.S. 787, 794 n.7 (1966), 42 U.S.C. S 1983 pr ovides a

cause of action that may be asserted against "[e]very person

who, under color of any statute, ordinance, regulation,

custom, or usage . . . of any state . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured

by the Constitution . . . " (emphasis added). Thus, a

plaintiff in a section 1983 action bears the threshold

burden of proving that "the alleged deprivation was

committed by a person acting under color of state law."

Mark v. Borough of Hatboro, 51 F .3d 1137, 1141 (3d Cir.

1995) (quoting Moore v. Tartle, 986 F.2d 682, 685 (3d Cir.

1993)).

As noted, the Stetson School is a private institution, and

thus the school and its employees do not for mally wield the

authority of the state. There are, however , some

circumstances in which "seemingly private behavior `may

fairly be treated as that of the State itself.' " Brentwood

Acad. v. Tennessee Secondary Sch., 121 S.Ct. 924, 930

(2001) (quoting Jackson v. Metropolitan Edison Co., 419

U.S. 345, 349 (1974)). The Supreme Court r ecently wrote

that there are "a host of facts that can bear on the fairness

of such an attribution" and that "[a]midst such variety,

examples may be the best teachers." Id. W e therefore begin

our analysis of the state-action question in this case with

the Supreme Court's decision in Rendell-Baker v. Kohn, 457

U.S. 830 (1982), which provides the example that is most

closely analogous to the present case.

Rendell-Baker concerned the New Perspectives School, an

institution with many similarities to the Stetson School.

The New Perspectives School was a nonprofit institution

that specialized in treating and educating students who had

experienced difficulty completing public high schools

(largely due to drug, alcohol, and behavioral problems). New

Perspectives was a private school, located on private

property, and operated by a private boar d of directors.

Students who attended New Perspectives were generally

7

referred by local school committees or the state department

of health. The school committees paid New Perspectives for

its services, and at least 90% of New Perspectives' operating

budget came from public funds. To be eligible for this

funding, New Perspectives was required to comply with

various local and state regulations. The school also entered

into contracts with governmental bodies that r eferred

students to the school.

Applying the factors discussed in Blum v. Y aretsky, 457

U.S. 991 (1982), a case handed down on the same day as

Rendell-Baker, the Supreme Court held that New

Perspectives' discharge of employees was not state action.

First, the Court rejected the argument that the school was

a state actor because "virtually all of [its] income was

derived from government funding." Rendell-Baker, 457 U.S.

at 840. The Court stated that "[a]cts of . . . private

contractors do not become acts of the government by

reason of their significant or even total engagement in

performing public contracts." Id . at 841. The Court likewise

found no merit in the argument that extensive state

regulation of the school was sufficient to make it a state

actor, because the challenged conduct by New Perspectives

"was not compelled or even influenced by any state

regulation." Id. Next, the Court concluded that New

Perspectives was not performing a function that had been

" `traditionally the exclusive prerogative of the State.' " Id. at

842 (quoting Jackson, 419 U.S. at 353 (emphasis added in

Rendell-Baker)). The Court recognized that"the education of

maladjusted high school students is a public function" and

that state law required that services be provided for these

students at public expense. 457 U.S. at 842; see also id. at

845 (Marshall, J., dissenting). But the Court noted that

"until recently the State had not undertaken to provide

education for students who could not be served by the

traditional public schools," and the Court commented:

"That a private entity performs a function which serves the

public does not make its acts state action." Id. Finally, the

Court rejected the argument that ther e was a "symbiotic

relationship" between New Perspectives and the state

sufficient to make New Perspectives a state actor . The Court

observed that "[t]he school's fiscal r elationship with the

8

State [was] not different fr om that of many contractors

performing services for the gover nment." Id.

In light of Rendell-Baker, it is appar ent that many of the

factors upon which Robert relies here ar e insufficient to

establish state action. For example, it is clear that Stetson's

receipt of government funds did not make it a state actor.

Similarly, although Robert relies on the detailed

requirements set out in DHS's contracts with Stetson, those

requirements are also insufficient because they did not

"compel or even influence" the conduct on the part of the

Stetson staff that Robert challenged. See American Mfrs.

Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) ("mere

fact that a business is subject to state regulation does not

by itself convert its action into that of the State"); Black,

985 F.2d at 710-11 (pervasive regulation"made no

difference" because the complained of conduct was "not

compelled or even influenced by any state r egulation").

Robert argues, however, that the Stetson School, unlike

the New Perspectives School, performed a function that has

traditionally been the exclusive province of the state.

Indeed, Robert's brief forswears reliance on any other

theory of state action. See Appellant's Br . at 30 ("Only the

Public Function Test is useful and relevant in reviewing the

state actorship determination by the District Court in the

present matter on appeal."). As we have noted, this test

imposes a "rigorous standard" that is "rarely . . . satisfied,"

Mark, 51 F.3d at 1142, for "[w]hile many functions have

been traditionally performed by gover nments, very few have

been `exclusively reserved to the State.' " Flagg Brothers Inc.

v. Lefkowitz, 436 U.S. 149, 158 (1978).

In this case, Robert has not made the requisite showing.

As was true of the New Perspectives School in Rendell-

Baker, the record here does not show that the Stetson

School performed a function that has been traditionally the

exclusive province of the state. In fact, the undisputed

evidence showed that the only schools that of fered services

similar to those provided by Stetson wer e private schools.

See Appendix at 149B (testimony of Richar d Robinson

indicating that he is unaware of any public schools that

specialize in educating and treating sex of fenders). The

mere fact that Stetson "perfor ms a function which serves

9

the public does not makes its acts state action." Rendell-

Baker, 457 U.S. at 842.

This conclusion is supported by our decision in Black by

Black v. Indiana Area Sch. Dist., 985 F .2d 707 (3d Cir.

1993), a case involving a private bus company with which

a school district had contracted to transport students to

and from school. We found that case to be indistinguishable

from Rendell-Baker, concluding that

[w]hile [the company and the individual defendants

affiliated with it] were carrying out a state program at

state expense, they were not perfor ming a function that

has been "traditionally the exclusive prer ogative of the

state" and there was no state regulation that

"compelled or even influenced" the conduct which is

alleged to have violated plaintiffs' constitutional rights.

Black by Black, 985 F.2d at 710-11. W e went on to state

that "as in Rendell-Baker, the cooperation between the

[state and the contractor] was only that appr opriate to the

execution of the subject matter of the contract and the

contractor's `fiscal relationship with the State is not

different from that of many contractors performing services

for the state.' " Id. at 711 (quoting Rendell-Baker, 457 U.S.

at 843). Finally, although school busing is commonly

thought of as a traditional state function, we concluded

that the "state contractor was not providing a service within

the exclusive province of the state." Id. We believe that the

facts of the present case warrant the same conclusion.

Robert appears to suggest that this case is dif ferent

because the services that Stetson provided wer e services

that DHS was required by state law to pr ovide. See

Appellant's Br. at 21, 24, 46. This very ar gument, however,

appears to have been rejected in Rendell-Baker. In dissent

in that case, Justice Marshall highlighted the fact that the

New Perspectives School "provide[d] a service that the State

[was] required to provide" under a state statute enacted a

few years earlier, 457 U.S. at 849 (Marshall, J., dissenting);

see also id. at 845, but the Court was not persuaded. See

457 U.S. at 842 ("That legislative policy choice in no way

makes these services the exclusive province of the State.").

10

Stressing the restrictions placed on students' liberty

while attending the Stetson School, Robert ar gues that "the

involuntary nature of [his] commitment" made his situation

there "entirely analogous to the situation of either a

prisoner or mentally committed individual held against

his/her will." Appellant's Br. at 44. Ther e is, however, no

factual basis for analogizing Robert's situation at the

Stetson School to that of a prisoner or a person who has

been involuntarily civilly committed. Whether or not Robert,

a minor at the time in question, personally wanted to

attend the Stetson School, his legal custodian, DHS,

wanted him placed there, and his mother consented. Thus,

his enrollment at Stetson was not "involuntary" in the

sense relevant here, i.e., he was not deprived of his liberty

in contravention of his legal custodian's (or his mother's)

wishes.9

Finally, we do not believe that the present case is

comparable to Milonas v. Williams, 691 F.2d 931 (10th Cir.

1982), a case that Robert believes is directly on point. In

Milonas, a class consisting of students at the Provo Canyon

School for Boys brought section 1983 claims against the

school and members of its staff, alleging that inhumane

treatment at the school violated the Constitution. The Provo

Canyon School, as described in the Tenth Cir cuit opinion,

was an unusual facility. A private facility for boys with

severe physical, psychological, and emotional problems, the

school was described in the District Court opinion, which

the Tenth Circuit quoted, as " `not a school in the

traditional, ordinary, classroom sense.' " 691 F.2d at 935.

Although the school did offer classes, the District Court

_________________________________________________________________

9. The power that DHS 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. The Juvenile Act, on which Robert relies,

provides that temporary custody of a dependent child such as Robert

may be transferred, not only to an authorized"public agency" such as

DHS, see 42 PA. CONS. STAT. ANN. S 6351(a)(2)(iii), but also to "[a]ny

individual resident within or without [the] Commonwealth" who is found

to be qualified or to a qualified "private organization." 42 PA. CONS.

STAT.

ANN. S 6351(a)(2)(i) and (ii).

11

observed, the school was " `also a corr ectional and detention

facility.' " While students were generally admitted at the

insistence of one or both of their parents, others were

"received at the school directly fr om juvenile courts and

probation officers from across the nation." Id. at 936.

Conditions at the school were unusually harsh and

restrictive. Id. The District Court wr ote:

Students are restricted to the grounds. Students are

confined. Some students are locked in and locked up

with varying degrees of personal liberty r estored as

each progresses through the institutional program. If a

student leaves without permission, he is hunted down,

taken into custody and returned. . . .

Regardless of origin, condition or motivation, once

arrived, each person during the beginning phases of

the school program was locked in, isolated fr om the

outside world, and whether anti-social, crippled or

learning disabled, was subject to mandated physical

standing day after day after day to promote"right

thinking" and "social conformity." Mail was censored.

Visitors were discouraged. Disparaging r emarks

concerning the institution were pr ohibited and

punished. To "graduate" from confinement to a more

liberated phase, one had to "pass" a lie detector test

relating to "attitude," "truthfulness" and "future

conduct." Some failed to pass and remained in

confinement for extended periods of time.

Id. at 935-36.

The Tenth Circuit concluded that the state "ha[d] so

insinuated itself with the Provo Canyon School as to be

considered a joint participant in the of fending actions." Id.

at 940. The Court relied on the involuntary commitment of

some students, the school's detailed contracts with the

school districts, the school's receipt of substantial state

funding, and extensive state regulation. See id. Recognizing

that the New Perspectives School in Rendell-Baker was

"indeed quite similar" to the Provo Canyon School, the

Tenth Circuit attempted to distinguish the cases by noting

that the plaintiffs in Rendell-Baker were employees of the

school, whereas the plaintiffs in Milonas were students,

12

"some of whom have been involuntarily placed in the school

by state officials who were aware of, and approved of,

certain of the practices which the district court . . .

enjoined." Id. at 940.

Milonas is not binding on us, and we cannot agree

entirely with the court's reasoning. The Milonas court's

reliance on "significant state funding of tuition" and the

detailed contracts between the school and local school

districts appears to us to be squarely inconsistent with

Rendell-Baker. Moreover, we ar e uncertain what the Milonas

court had in mind when it sought to distinguish Rendell-

Baker on the ground that the plaintif fs in that case were

school employees, rather than students. Ther e are, of

course, circumstances in which this distinction might

matter. (For example, a state directive might require a

private entity to engage in the conduct challenged by a

student while imposing no such requirement regarding

conduct challenged by an employee.) But it is unclear why

the Milonas court thought that it was important that the

plaintiffs in the case before it wer e students. It is possible

that the Milonas court took this view because it believed

that some state officials "were awar e of, and approved of "

certain of the Provo Canyon School's practices concerning

the treatment of students. It is not clear that even such

awareness and approval would be enough to establish state

action,10 but if this is not what the Milonas court had in

mind, the significance of the fact that the plaintiffs were

students is obscure.

In any event, we need not decide whether we would agree

with the Tenth Circuit on the facts pr esented in Milonas,

because the case now before us is quite dif ferent. Here,

Robert was not "involuntarily placed in the school by state

officials who were aware of, and appr oved of " the practices

attacked in Robert's complaint. Robert was enr olled at

_________________________________________________________________

10. There is tension between Milonas's reliance on such awareness and

approval as the basis for finding state action and the Supreme Court's

holding in San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522, 547

(1987) (quoting Blum, 457 U.S. at 1004-5), that governmental " `approval

of or acquiescence in' " the challenged conduct was not enough to

establish state action.

13

Stetson by his legal custodian and with his mother's

consent, and we are aware of no evidence that any state

officials were aware or approved of the conduct by the

members of the Stetson staff that forms the basis of

Robert's claims -- much less any evidence that they

"provided such significant encouragement, either overt or

covert, that the [challenged conduct] must in law be

deemed to be that of the [state]." Blum , 457 U.S. at 1004;

see also San Francisco Arts & Athletics v. U.S.O.C. , 483 U.S.

522, 546 (1987).

Moreover, for what it is worth, ther e is simply no

evidence that Stetson subjected its students to anything

approaching the conditions at the Provo Canyon School. As

far as the record here reveals, Stetson students were not

placed in solitary confinement, discouraged fr om seeing

visitors, required to take lie detector tests, or subjected to

censorship of their mail. On the contrary, it is undisputed

that Robert was allowed to leave campus with an

instructor, had regular contact with his family (including

frequent visits with his mother and step-father), was

allowed to leave campus with his family, and was even

allowed to go home for vacations.

Robert emphasizes the fact that Stetson students wer e

not allowed to leave the school grounds without permission

and that, if they did, the school would attempt to locate

and return them, with the help of the local police

department if necessary. See Appellant's Br . at 38-39. He

argues that his "complete inability to leave the Stetson

School without having a bench warrant issued for his

detention, effectively ma[de] him a`prisoner', much more

analogous to an inmate, than to any other situation." Id. at

39. In response, Stetson states:

In the event that a student were to leave campus

without permission, Stetson, like all r esponsible private

or public schools, would notify local police for the

student's own welfare and for the protection of the

community. Stetson would not issue a warrant and

arrest order because Stetson lacked the jurisdictional

basis and the legal authority on its own to invoke

custodial proceedings.

14

Appellees's Br. at 11 (citations to appendix omitted).

Robert has not referred us to any evidence in the record

that supports his assertion that the school did mor e than

simply notify the police department if a student left without

permission.11 Nor has he referred us to any provision of

Massachusetts statute or common law that gave Stetson

any greater authority with respect to a missing student

than is enjoyed by any of the state's other privately owned

and run residential schools.

In sum, whether or not we would follow Milonas , we are

satisfied that that case is easily distinguishable from the

case before us. Particularly in light of the Supreme Court's

decision in Rendell-Baker, we agree with the District Court

that Robert failed to show that the challenged actions of the

Stetson staff may be fairly attributed to the state.

III.

Robert also challenges two evidentiary rulings made by

the District Court during the trial on his state-law claims.

First, he argues that the District Court err ed by limiting the

expert testimony of Anne Wolbert Burgess, D.N.S., who was

prepared to testify that the behavior to which Robert was

subjected at Stetson constituted child abuse. The District

Court accepted Burgess as an expert in child abuse, but

the Court ruled that an expert opinion on the question

_________________________________________________________________

11. Robert's brief provides two citations. The first is to the first page

of

the transcript of the hearing before the District Court. Apparently, by

citing to this page, Robert intended to cite the entire hearing. His

second

citation is to a page of the District Court opinion stating that

"Plaintiff

also proved that Stetson contacts the police when a child leaves the

premises without permission." The District Court did not make any

reference to the issuance of a warrant, and in the next sentence, the

Court found that, despite the "obviously significant limitations on the

freedom of students enrolled at Stetson," it did not believe that Stetson

was "fulfilling the traditional public function of incarcerating

criminals."

Id. The District Court pointed out that Robert was never adjudicated a

criminal, the decision to place him at Stetson was made with the advice

and support of his mother, and many of the r estrictions imposed on

students at Stetson were no greater than those imposed at any strict

private boarding school. See id.

15

whether specific conduct constituted child abuse would not

be helpful to the jury under Fed. R. Evid. 702. Mor oever,

the Court concluded that testimony by Burgess on this

point would result in "undue delay, waste of time, or

needless presentation of cumulative evidence" within the

meaning of Fed. R. Evid. 403, and the Court ther efore

precluded such testimony. In addition, the Court ruled that

Burgess was not qualified to "render an opinion diagnosing

plaintiff with post-traumatic stress disorder" and that "such

testimony would be unnecessarily cumulative to the

testimony of plaintiff 's other experts." As a result of these

rulings, Burgess's testimony was limited to the treatment

that she believed would have been best for Robert.

Robert argues that the District Court err ed in limiting

Burgess's testimony. He claims that Bur gess's testimony

was offered to "help explain to the jury the ramifications,

and implications, of uninvited physical contact by staff with

Plaintiff, in the guise of horseplay." Robert's Brief at 52.

More specifically, he argues that expert testimony was

necessary to explain that children "who act out sexually"

and who have been the victims of sexual abuse "ar e at an

increased risk for harm caused by . . . uninvited

inappropriate physical contact." See id. at 54. Therefore, he

contends that the District Court made it impossible for him

adequately to explain the seriousness of the horseplay by

the Stetson staff. Id. at 55-56.

We review a District Court's decision to admit or reject

testimony under Rule 403 for abuse of discretion, and, we

will not reverse such a ruling "unless it is`arbitrary and

irrational.' " Bhaya v. Westinghouse Elec. Corp., 922 F.2d

184, 187 (3d Cir. 1990) (quoting United States v. DePeri,

778 F.2d 963, 973-74 (3d Cir. 1985)), cert. denied, 501 U.S.

1217 (1991). We hold that the District Court's ruling

limiting Burgess's testimony under Fed. R. Evid. 403 was

within the proper bounds of its discretion.

In addition to Burgess, two other experts testified on

Robert's behalf at trial. See Stetson's Brief at 58. These two

witnesses, Edward J. Doughtery and Robert Pr entky, both

psychologists, testified at length about the impact that the

alleged physical and mental abuse of Robert could have on

someone with his history. See Appendix at 303B-309B

16

(portion of Doughtery's testimony); 739B-746B (portion of

Prentky's testimony). Both experts explained that someone

like Robert, who has been the victim and perpetrator of

sexual abuse, is particularly susceptible to har m caused by

inappropriate contact. See id. at 307B-308B (explaining

that, prior to entering Stetson, Robert had a "brittle

personality due to numerous problems in his early

development" and that the conduct at Stetson"caused him

a great deal of stress and problems"); Appendix at 744B

("Child abuse, virtually by definition, involves some

violation of boundaries. . . . Survivors of childhood physical

abuse grow up with an awareness, a knowledge that their

personal boundaries are highly permeable, so that learning

to trust the integrity of one's own boundaries is pr ofoundly

important. . . . When a therapist violates personal space of

survivors, it recapitulates all of the earlier experiences that

are boundary violations."). This testimony by Doughtery

and Prentky addressed the same issues that Robert sought

to address through Burgess's testimony. Therefore, the

District Court had a reasonable basis for r egarding that

testimony as cumulative, and the District Court did not

abuse its discretion in limiting Burgess's testimony.

Robert next maintains that the District Court err ed in

excluding certain evidence of prior bad acts by members of

the Stetson staff. This included evidence of an incident in

which a staff member (not one of the defendants) held a

student over a balcony railing, evidence of an incident in

which a staff member drove recklessly on campus with

students in the van, evidence of the use of inappr opriate

language by staff members, and evidence of other incidents

that did not involve Robert or the defendants. Robert

argues that this evidence was not offer ed to show that the

defendants acted in conformity with it but rather to

persuade the jury that Stetson had a permissive attitude

regarding inappropriate behavior dir ected at students by

staff. See Appellant's Br. at 60-61. The District Court

excluded the evidence of the reckless driving incident, the

incident in which a staff member held a student over a

railing, and any other prior incidents that did not involve

the plaintiff. See Appendix at 23. However, the Court

allowed evidence of the use of inappropriate language by

any of the defendants. See id.

17

Because of the distinct possibility that the jury likely

would have considered the excluded evidence for precisely

the purpose that Fed. R. Evid. 404(b) prohibits, i.e., to

show that the defendants acted in conformity with these

prior bad acts on the occasions alleged by Robert, the

District Court had a reasonable basis for ruling that

admission of this evidence created a danger of unfair

prejudice to the defendants under Fed. R. Evid. 403. In

addition, since the prior acts did not involve any of the

individual defendants or Robert and did not occur during

the same time period as Robert's claimed abuse, 12 the

District Court had a reasonable basis for concluding that

the probative value of the evidence was not gr eat and for

excluding it under Rule 403.

IV.

For the reasons discussed above, we affir m the judgment

of the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

12. The balcony incident occurred befor e Robert came to Stetson and the

reckless driving incident occurred prior to the time when Robert claims

that his abuse began.

18