The opinion of the court was delivered by: Judge James T. Moody United States District Court
On August 2, 2008, plaintiff Marian Clark arrived at Parkview Hospital in Fort Wayne, Indiana, in labor. She was accompanied by her husband, plaintiff Robert Boyko. After the baby was delivered, Parkview employees performed a non-routine*fn2 drug test on Clark, which came back positive for opiates and phencyclidine, a controlled substance commonly abbreviated as "PCP." The newborn was also tested, but did not test positive for any drugs. Parkview forwarded the test results to Indiana's Department of Child Services ("DCS"). Parkview maintains that it was required to do so by INDIANA CODE § 31-33-5-1, which states that "any individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report [to DCS] as required by this article."
On August 6, 2008, DCS and its family case manager, Daniel A. Whiteley (together, the "State Defendants"), initiated Child in Need of Services ("CHINS") proceedings in Indiana state court, seeking to remove the newborn baby and plaintiffs' three other children from plaintiffs' custody. Plaintiffs allege that during the state court proceedings, Whitley fabricated evidence in a report to the court, claiming that the baby had tested positive for drugs, in order to effectuate removal of the children from plaintiffs' home. That same day, the state court issued a detention order directing DCS to move the children out of plaintiffs' home and into the home of the children's aunt and uncle. Whiteley effectuated the order by moving the children.
On August 8, 2008, Clark and Boyko underwent additional drug testing, and neither tested positive for any drugs. It appears undisputed that Clark's initial drug test resulted in a "false positive"; the record further suggests that the test used on Clark was defective and was later recalled by the manufacturer. The children were not returned to plaintiffs until August 25, 2008. On September 4, 2008, the CHINS case against plaintiffs was dismissed.
Plaintiffs sued Parkview, DCS, and Whiteley in his individual capacity, alleging violations of 42 U.S.C. 1983, which permits lawsuits against persons acting under color of law for violations of constitutional rights, and 42 U.S.C. § 1985, which prohibits persons from engaging in a conspiracy to deprive another of his or her civil rights. (DE ## 1, 33.) The State Defendants moved for judgment on the pleadings (DE # 46), and later filed a motion for summary judgment (DE # 68).*fn3 Parkview also filed its own motion for summary judgment. (DE # 36.) Plaintiffs responded to the State Defendants' motion for judgment on the pleadings (DE # 76) and to both motions for summary judgment (DE # 78). The State Defendants replied in support of its motion for summary judgment (DE # 82), as did Parkview (DE # 79). Parkview also filed a motion to strike portions of the affidavits submitted by plaintiffs in response to Parkview's motion for summary judgment (DE # 80), and plaintiffs responded (DE # 85). The aforementioned motions for summary judgment are fully briefed and ripe for ruling.
FEDERAL RULE OF CIVIL PROCEDURE 56 requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate--in fact, is mandated--where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted).
"[T]he burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Once the moving party has met his burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
The court's role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at 255). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998); Doe, 42 F.3d at 443.Importantly, the court is "not required to draw every conceivable inference from the record [in favor of the non-movant]-only those inferences that are reasonable." Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (emphasis added).
A. Parkview's Motion for Summary Judgment
1. Plaintiff's Section 1983 Claim
Parkview has moved for summary judgment on plaintiffs' Section 1983 claim because Parkview claims it is not a state actor subject to Section 1983 liability. There appears to be no dispute that Parkview is not a government institution, but rather a private hospital. When a plaintiff brings a Section 1983 claim against such a defendant, the plaintiff must show that the private entity acted under the color of state law. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822-23 (7th Cir. 2009); see also Parratt v. Taylor, 451 U.S. 527, 535 (1981). "This requirement is an important statutory element because it sets the line of demarcation between those matters that are properly federal and those matters that must be left to the remedies of state tort law." Rodriguez, 577 F.3d at 823. "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
Courts have long acknowledged the difficulty of determining whether a private entity has acted under the color of state law. As the Second Circuit has noted, this determination constitutes "one of the more slippery and troublesome areas of civil rights litigation." Int'l Soc'y for Krishna Consciousness v. Air Canada, 727 F.2d 253, 255 (2d Cir. 1984) (quotation marks omitted). A private actor might engage in state action if he and the state are engaged in a symbiotic relationship (that is, a long term, intimate association), if the state commanded or encouraged the actor to take certain actions, if the private actor was performing a traditionally public function, or if the state and the private actor jointly participated in an act. Rodriguez, 577 F.3d at 823-24. At the heart of all of these scenarios is the search for a "close nexus between the State and the challenged action" such that the challenged action "may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).
It is one's function, not one's title or term of employment, that determines whether one's actions can be fairly attributed to the state. West v. Atkins, 487 U.S. 42, 55-56 (1988). Accordingly, the court must consider each of Parkview's allegedly improper acts and determine whether it was functioning as a state actor or a private actor when it committed each act. In this case, plaintiffs have argued that Parkview: (1) drug-tested Clark without Clark's permission; (2) used a bad batch of ...