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THORN v. COUNTY OF MONROE

February 10, 1984

Stuart B. THORN, Plaintiff,
v.
COUNTY OF MONROE, Pleasant Valley Manor, Inc., Bruce Moorehead, individually and as Administrator of Pleasant Valley Manor, Inc., Dr. James G. Kitchen, II., Claude E. Heller, Neil F. Ruddy, Dorothy Kaufman, individually and as members of the Board of Directors of Pleasant Valley Manor, Inc., and their agents and successors in office, Nancy Shukaitis, Thomas Joyce, Jesse Pierson, individually and in their official capacities as Commissioners of the County of Monroe and as members of the Board of Directors of Pleasant Valley Manor, Inc., and their agents and successors in office, and Ducat, Inc., Defendants



The opinion of the court was delivered by: CONABOY

 CONABOY, District Judge.

 I

 On February 10, 1982, Plaintiff Stuart B. Thorn's (Thorn) employment as a licensed practical nurse with Defendant Pleasant Valley Manor, Inc. (Pleasant Valley) was terminated. Thereafter, on August 5, 1982, he began this action against Pleasant Valley and the other named Defendants seeking, inter alia, reinstatement with lost benefits, compensatory and punitive damages, and a declaration that his dismissal violated his rights secured under Pennsylvania law and the First and Fourteenth Amendments to the Constitution of the United States. Thorn cites as authorization for this action 42 U.S.C. §§ 1983, 1988, *fn1" and 28 U.S.C. §§ 2201, 2202. *fn2" He invokes our jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. *fn3" The various Defendants, through their respective counsel, filed motions for summary judgment. *fn4" The motions were properly opposed with briefs, and we have also had the benefit of oral argument. The matter is now ripe for our decision. After much careful consideration, we conclude that, under the law of our Circuit, we must grant Defendants' motions. *fn5" Our reasons for so doing follow.

  II

 Prior to our discussion, however, we will set forth the standards governing our review. The instant motions are filed pursuant to Fed.R.Civ.P. 56.

 
Summary judgment may only be granted if, upon a review of the materials properly before the court, see Fed.R.Civ.P. 56(c), and viewing the evidence thus considered in a light most favorable to the non-moving party, the court is convinced that no genuine issue of material fact remains for trial and that movant is entitled to judgment as a matter of law. Scott v. Plante, 532 F.2d 939, 945 (3d Cir.1976).

 Lang v. New York Life Insurance Co., 721 F.2d 118, 119 (3d Cir.1983). We may consider not only the pleadings, but also any depositions, interrogatory answers, admissions and any affidavits on file, Fed.R.Civ.P. 56(c), but only in a light most favorable to Plaintiff Thorn, since he is the non-moving party.

 III

 Thorn's primary theory underlying this cause of action is that his civil rights were violated in contravention of 42 U.S.C. § 1983. As such, we must make an initial determination whether "the alleged infringement is 'fairly attributable to the state?'" Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982) quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1980); Jackson v. Temple University of the Commonwealth System of Higher Education, 721 F.2d 931 (3d Cir.1983). The requirement under § 1983 that the acts complained of be performed "under color of" state law is the same thing as the "state action" prerequisite for actions under the Fourteenth Amendment. U.S. v. Price, 383 U.S. 787, 794 n. 7, 86 S. Ct. 1152, 1157, 16 L. Ed. 2d 267 (1966). In short, we must first review the facts adduced thus far, and then determine whether state action is present in the acts of the Defendants.

 A.

 Plaintiff Thorn was a licensed practical nurse at the Pleasant Valley Manor Nursing Home (the Home) from January 30, 1980 until his termination. Complaint, para. 10. For many years, the home had been a county nursing home under the direct ownership and control of Defendant Monroe County (the County). Prior to the time Stuart Thorn worked at the home, the County conveyed its interest in the home to the Monroe County Industrial Development Authority, which in turn sold the home to Pleasant Valley. Complaint, paras. 10-13. Pleasant Valley is a non-profit corporation organized and existing under the laws of the Commonwealth of Pennsylvania. Complaint, para. 5. Defendants Kitchen, Heller, Ruddy, Kaufman, Shukaitis, Joyce and Pierson constitute the Board of Directors of Pleasant Valley (the Board). *fn6" The Board is responsible for the formulation of policy for Pleasant Valley. Complaint, paras. 7-8; Answer of Pleasant Valley, paras. 7-8. Defendants Shukaitis, Joyce and Pierson are also Monroe County Commissioners. The County Commissioners have sole approval power over changes in the Articles of Incorporation and By-laws of Defendant Pleasant Valley. Complaint, para. 15, Answer of Pleasant Valley, para. 15. The County also subsidizes the reasonable operating deficits of Pleasant Valley. Exhibit A to Affidavit of Defendant Bruce Moorehead. The County Commissioners have sole appointive powers over the memberships of the boards of directors of both Pleasant Valley and the Monroe County Industrial Development Authority. Complaint, para. 14, Answer of Pleasant Valley, para. 14. Defendant Pleasant Valley receives funding from both the Commonwealth of Pennsylvania and the County. Complaint para. 22, Exhibit A to Affidavit of Moorehead.

 A Declaration of Intent was executed on August 1, 1975 by the County Commissioners on behalf of the County. Exhibit A to Affidavit of Moorehead. That declaration, as noted supra, evidenced the County's intent to subsidize the reasonable operating deficits of Pleasant Valley. Further review of that declaration reveals an intention of the County to remove itself from any responsibility as an entity for the operation of the home. Additionally, the Declaration of Service Commitment executed by Pleasant Valley, also contained in Exhibit A, contains similar language evincing the County's relinquishment of control over the home. Exhibit A to Affidavit of Moorehead. We thus have the County conveying the home to the Industrial Development Authority, which in ...


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