3d Cir. Model Jury Instr. (Civil) 4.4

11

Last updated March 2026

Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting 1

Shelley v. Kraemer, 334 U.S. 1, 13 (1948))). Liability under Section 1983 “attaches only to those 2

wrongdoers ‘who carry a badge of authority of a State and represent it in some capacity, whether 3

they act in accordance with their authority or misuse it.’ ” National Collegiate Athletic Ass ’n v. 4

Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). “The 5

traditional definition of acting under color of state law requires that the defendant in a § 1983 6

action have exercised power ‘possessed by virtue of state law and made possible only because the 7

wrongdoer is clothed with the authority of state law.’ ” West v. Atkins , 487 U.S. 42, 49 (1988) 8

(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).15 It is difficult to show the requisite 9

connection between a state and a private entity, “particularly when it hinges on the state’s 10

membership in a larger nationwide organization.” Matrix Distributors, Inc. v. Nat’l Ass’n of 11

Boards of Pharmacy, 34 F.4th 190, 195-96 (3d Cir. 2022) (explaining that it is necessary to show 12

that a party acted under color of the law of some particular state or states). 13

14

The inquiry into the question of action under color of state law “is fact-specific.” Groman 15

v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). See also Manhattan Cmty. Access 16

Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019) (holding that the operator of public access channels 17

on a cable television system was not a state actor, while noting that the result might be different if 18

a local government itself operated public access channels on a local cable system or obtained a 19

property interest in the public access channels). 20

21

“In the typical case raising a state-action issue, a private party has taken the decisive step 22

that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved 23

to treat that decisive conduct as state action. . . . Thus, in the usual case we ask whether the State 24

provided a mantle of authority that enhanced the power of the harm -causing individual actor.” 25

Tarkanian, 488 U.S. at 192. Circumstances that can underpin a finding of state action include the 26

following: 27

28

• A finding of “‘a sufficiently close nexus between the state and the challenged action of the 29

[private] entity so that the action of the latter may fairly be treated as that of the State itself.’ 30

”16 31

15 Compare Citizens for Health v. Leavitt, 428 F.3d 167, 182 (3d Cir. 2005) (holding that

a federal regulation that “authoriz[ed] conduct that was already legally permissible” – and that did

not preempt state laws regulating such conduct more strictly – did not meet the “state action

requirement”).

16 McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 524

(3d Cir. 1994) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).