Opposition Brief — Williams v. Jackson (No. 05-1380)

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Mut. Ins. Co., 526 U.S. at 57; Blum, 457 U.S. at 1004). The

Rayburn court also pointed out that mere inclusion of

foster parents in the definition of “state employee” within

the Georgia Tort Claims Act did not alter this conclusion,

since merely extending governmental tort liability and

immunity rules to foster parents creates a tenuous rela-

tionship between foster parents and the State, at best. Jd.

at 1349 (citing Mitchell v. Forsyth, 472 U.S. 511, 527-8

(1985)). As there was no evidence that the State was a

joint participant in the alleged child abuse, the Eleventh

Circuit concluded that the Hogues were not state actors.

Id. Based upon this binding precedent, the lower courts in

this matter correctly held that Ms. Jackson and Mr.

Hammonds were not state actors subject to liability

pursuant to § 1983.

The Eleventh Circuit based its decision in this case on

its holding in Rayburn. Virtually every other court to

consider the issue has reached the same conclusion. See,

e.g., Leshko v. Servis, 423 F.3d 337, 341, n.3 (3d Cir. 2005)

(citing Rayburn with approval); Weller v. Dep't of Social

Servs., 901 F.2d 387, 392 (4th Cir. 1990); Milburn v. Ann

Arundel County Dep't of Social Servs., 871 F.2d 474, 479

(4th Cir. 1989), cert. denied, 493 U.S. 850 (1989); K.H.

through Murphy v. Morgan, 914 F.2d 846, 852 (7th Cir.

1990); Marr, 307 F. Supp. 2d at 133-4. The only case in

which a foster parent could be deemed a state actor is if

there is evidence that state social workers had knowledge

of abuse, and it is undisputed that there is no such evi-

dence in this case. See, eg., K.H. through Murphy v.

Morgan, 914 F.2d at 852 (foster parent can only be consid-

ered a state actor when the state knows or suspects the

foster parent is an abuser); Howard, 270 F. Supp. 2d at

144 (allegation that state officials knew a foster parent

was abusing a child and they colluded to cover up the

abuse sufficient to state a claim under “nexus” or “en-

twinement” tests). As a result, Petitioner has failed to

provide any compelling reason why this Court should

grant the petition, as the lower court rulings in this

matter are absolutely consistent with the rulings of every

United States Court of Appeals on this issue.

li. THE ELEVENTH CIRCUIT'S DECISION IS CON-

SISTENT WITH THIS COURT’S DECISIONS IN

WEST AND BRENTWOOD.

West v. Atkins supports the Eleventh Circuit’s decision

in this case. West involved the delegation of a traditionally

exclusive mandatory state function — provision of medical

care to inmates — through a contract of employment with a

physician. West v. Atkins, 487 U.S. 42, 51-2 (1988). This

Court noted the physician in West functioned as the sole

means of providing medical care to inmates. Jd. at 54. This

Court concluded that the physicians were vested with the

authority to perform a mandatory state function and were

state actors, regardless of the fact they were “independent

contractors” rather than “state employees,” and noted the

importance of evaluating an individual’s function rather

than such labels in determining whether he is a state

actor. Id. at 55-6; see also, Brentwood Academy, 531 U.S.

at 296 (citing West and noting that “[wle have treated a

nominally private entity as a state actor ... when it has

been delegated a public function by the State”).

This Court has held that in evaluating whether a

private entity is performing a public function, “the ques-

tion is whether the function performed has been ‘tradi-

tionally the exclusive prerogative of the State.’” Rendell-

Baker v. Kohn, 457 U.S. 830, 842 (1982) (quoting Jackson

v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974)).

“While many functions have been traditionally performed

by governments, very few have been ‘exclusively reserved

to the State.’” Flagg Bros., Inc. v. Brooks, 486 U.S. 149,

158 (1978) (citing Jackson, 419 U.S. at 356). It is clearly

established that foster care, unlike the provision of medi-

cal care to inmates, is not an exclusive state function,

therefore this Court’s ruling in West cannot convert foster

parents into state actors. See Leshko, 423 F.3d at 347;

Milburn, 871 F.2d at 479; Rayburn, 241 F.3d at 1347;

Marr, 307 F. Supp. 2d at 134; Lintz, 807 F. Supp. at 1306.

Furthermore, the provision of day-to-day care to foster

children in a private residence is not analogous to the

provision of medical care to inmates. Leshko, 423 F.3d at

346 (“[i]t is fair to say that a primary goal of foster care is

to replicate as closely as possible the traditional family

setting in which children are cared for and raised”

“whereas in West the tight security-based strictures of

prison life affected the ‘nature, timing, and form of medical

care provided to inmates’”). “Foster homes operated by

private citizens are not comparable to state institutions

that might more accurately be characterized by the terms

‘incarceration’ and ‘institutionalization.’” Pfoltzer, 775

F. Supp. at 885, n.2.

In the 18 years since West was decided, not one of the

numerous federal courts that have analyzed whether

foster parents are state actors has concluded that West

converts these private citizens into state actors. See

Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005); Weller v.

Dep't of Social Servs., 901 F.2d 387, 392 (4th Cir. 1990);

Milburn v. Ann Arundel County Dep't of Social Servs., 871

F.2d 474, 479 (4th Cir. 1989), ceri. denied, 493 U.S. 850

(1989); K.H. through Murphy v. Morgan, 914 F.2d 846, 852

(7th Cir. 1990); Rayburn v. Hogue, 241 F.3d 1341 (11th Cir.

2001); Marr v. Schofield, 307 F. Supp. 2d 130, 134 (D. Me.

2004); PG. v. Ramsey County, 141 F. Supp. 2d 1220, 1226

(D. Minn. 2001); Walker v. Johnson, 891 F. Supp. 1040,

1050 (M.D. Pa. 1995); McCrum v. Elkhardt Dep’t of Public

Welfare, 806 F. Supp. 203, 208 (N.D. Ind. 1992); Linéz v.

Skipski, 807 F.Supp. 1299, 1307 (W.D. Mich. 1992);

Pfolizer v. County of Fairfax, 775 F. Supp. 874, 884 (E.D.

Va. 1991). In fact, every court to apply West to this issue

has specifically rejected the argument raised by Petitioner.

Leshko, 423 F.3d at 347; Marr, 307 F. Supp. 2d at 135, n.2.

Recently, the Third Circuit specifically analyzed West and

concluded that “providing hands-on care [to children} has

never been, and is not now, an exclusively governmental

function.” Leshko, 423 F.3d at 344. The Leshko court

specifically distinguished West, noting “‘the power that a

state exercises over a person whose liberty is restricted as

a result of a criminal conviction or involuntary civil

commitment’ ‘is quintessentially governmental, but a legal

guardian’s authority over a minor is not.’” Jd. at 347

(quoting Robert S. v. Stetson School, Inc., 256 F.3d 159,

162 (3d Cir. 2001)). Clearly, the Eleventh Circuit’s decision

in this case is consistent with this Court’s ruling in West v.

Atkins.

Brentwood Acad. v. Tennessee Secondary Sch. Atii/etic

Ass’n, 531 U.S. 288 (2001) also supports the decision of the

Eleventh Circuit. In Brentwood Academy, this Court

employed a fact-intensive analysis in concluding that the

relationship between the State and a nominally private

athletic association “show[ed] pervasive entwinement to

the point of largely overlapping identity.” Jd. at 303. In

reaching this conclusion, this Court noted that 84 percent

of the association’s membership consisted of public school

officials, acting in their official capacity and performing all

but the purely ministerial acts by which the Association

existed and functioned, therefore this Court found regula-

tory action by the association constituted state action. Id.

at 299-300. However, this Court noted that “state action

may be found if, though only if, there is such a ‘close nexus

between the State and the challenged action’ that seem-

ingly private behavior ‘may be fairly treated as that of the

state itself.’” Id. at 295.

This Court’s ruling in Brentwood Academy supports

the conclusion that Respondents were not state actors, as

there is no entwinement, pervasive or otherwise, between

foster parents and the State. Petitioner contends that

State regulation and oversight of foster care constitutes

“pervasive entwinement” sufficient to render foster par-

ents state actors. However, this Court and the lower courts

have repeatedly made it clear that mere funding, licens-

ing, or regulation of an individual or entity alone is insuf-

ficient for a finding of state action. San Francisco Arts &

Athletics, Inc. v. United States Olympic Committee, 483

U.S. 522, 543-4 (1987); Mentavlos v. Anderson, 249 F.3d

301, 320 (4th Cir. 2001); see also, Blum, 457 U.S. at 1004

(mere fact that an individual is “subject to state regulation

does not by itself convert its action into that of the State.”);

Jackson v. Metropolitan Edison Co., 419 U.S. at 353

(conduct by a private entity is not state action just because

subject to state regulation or business “affected with the

public interest.”); Milburn, 871 F.2d at 477 (licensing and

supervision of foster homes by state insufficient to render

foster parents state actors); Walker, 891 F. Supp. at 1051

(“while it is true that foster parents are required to be

licensed and are subject to state controls and receive state

monies for the care of the children in their charge, these

factors alone do not render them state actors”). “Action

taken by private entities with the mere approval or acqui-

escence of the State is not state action.” American Mfrs.

Mut. Ins. Co., 526 U.S. at 52. Furthermore, every Circuit

to address the issue has consistently found that the mere

extension of tort immunity is insufficient to render foster

parents state actors. Leshko, 423 F.3d at 342-3 (although

foster parents are defined as public employees for pur-

poses of being granted immunity under the state tort

claims act, such labels alone are not dispositive for deter-

mining whether an individual is a state actor; instead it is

essential to look to the function the individual serves in

determining whether there is state action); Rayburn, 241

F.3d at 1318.

The specific arguments raised by Petitioner have been

consistently rejected by every court to address the issue,

all of which have found that foster parents are not state

actors based upon the “pervasive entwinement” analysis of

Brentwood. Leshko v. Servis, 423 F.3d 337, 340-1 (3d Cir.

2005) (regulation and oversight of foster care and designa-

tion of foster parents as public employees for purposes of

immunity insufficient to establish entwinement such that

“the state’s fingerprints” are on the challenged conduct);

Marr v. Schofield, 307 F. Supp. 2d 130, 133-5 (D. Me. 2004)

(fact that foster care i8 created by state statutes and

regulations, foster parents received payments from the

state, and they are governed by rules and regulations

promulgated and enforced by the Department of Human

Services insufficient to render state actors under any state

action analysis, including “entwinement” analysis); PG. v.

Ramsey County, 141 F. Supp. 2d 1220 (D. Minn. 2001)

(finding it clear that foster parents do not act under color

of state law). As a result, the holding of the Eleventh

Circuit is consistent with the binding precedent of this

Court and certiorari should not be granted.

CONCLUSION

For the foregoing reasons, the petition should be

denied.

Respectfully submitted,

EDWIN A. TATE

SEACREST, KARESH,

TATE & BICKNESE, LLP

56 Perimeter Center East

Suite 450

Atlanta, GA 30346

(770) 804-1800

Counsel of Record

ANNARITA M. BUSBEE