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MILONAS v. WILLIAMS

Timothy MILONAS. Jr, and Kenneth Rice, by and through their Attorney and Guardian Ad Litem, Kathryn Collard, on behalf of themselves and all others similarly situated, Plaintiffs-Appelles,

v.

Jack I. WILLIAMS. Owner and Administrative Director, Provo Canyon School; Robert H. Crist, Owner and Medical Director, Provo Canyon School; D. Eugene Thorns, Owner and Executive Director, Provo Canyon School, Defendants-Appellants,

John F. McNamara. Director and

Administrator, Interstate Compact

on Juveniles. Défendant.

Nos. 80-1569, 81-1407.

United States Court of Appeals,

Tenth Circuit.

Sept. 13, 1982..

Rehearing Denied Nov. 9, 1982

Former students brought action against private school for youths with behavioral problem for its use of "behavioral-modification program allegedly violative of section 1983 and of the Rehabilitation pct. The United States District Court for hp District of Utah, Bruce S. Jerkins, J., entered judgment, and appeal was taken. 'The Court of Appeals, McWilliams, Circuit Judge held that: (1) plaintiff students' removal from private school did not preclude hem from having standing required for hem to be entitled to represent class of students: (2) owners and operators of private school for youths with behavioral problems sere acting "under color of state law," as squired for former students to be able to bring section 1983 action; (3) record supported finding that the schools use of polygraph machine it: monitoring and censoring of student mail, its use of isolation rooms, and s use of eve physical force violated students' First and Fourteenth Amendment rights; and (4) fact that some parents approved of the "behavioral-modification" program did not compel finding that practices employed were "necessary," as required for them not to violate students' constitutionally protected liberty interests.

Affirmed
1. Federal Civil Procedure 164
Uninjured plaintiff cannot bring suit on behalf of injured class. Fed.Rules Civ. Proc. Rule 23(ax3), 28 U.S.C.A.; U.S.C.A. Const.Art. 3, § 2, cl. 1.
2 Federal Civil Procedure 187.5
Plaintiff students' removal from private school did not preclude them from having standing required for them to be entitled to represent class of students in action against private school for youths with behavioral problems for its use of "behavioral-modification" program allegedly violative of section 1983 and of Rehabilitation Act Fed.Rules Civ.Proc. Rule 23(a), (b)(4). 28 U.S.C.A.; Rehabilitation Act of 1973, § 5K 29 U.S.C.A. § 794; 42 U.S.C.A_ § 1983; Education of the Handicapped Act, §§ 602-661, 612(2)(B) as amended 20 U.S. C.A.. §§ 1401-1461, 1412(2)(B).
3. Federal Civil Procedure 62 Federal Courts 817
Class certification determination is matter -within sound discretion of trial court, and its conclusions as to whether class representative has demonstrated that numerosity, commonality, typicality. and adequacy of representation requirements have been met will not be disturbed absent showing of abuse of such discretion. Fed. Rules Civ.Proc. Rule 23(a), 28 U.S.C.A.; U.S.CA.Const.Art. 3, § 1 et seq.
4. Federal Civil Procedure 187.5
Named plaintiffs' having tuition at private school funded from sources differing from those of other student members of class did riot establish lade of- typicality precluding certification in farmer students' action against private school for youths with behavioral problems for is use of behavioral-modification" program allegedly violative of section 1983 and Rehabilitation Act where all of youths at the school were in danger of being subjected to the allegedly unlawful "behavior-modification" practices. Fed.Rules Civ.Proc. Rule 23(a)(1, 3, 3, 4), 28 U.S.C.A.
5. Civil Rights 13.5(2) .
Conduct that constitutes "state action" for Fourteenth Amendment due process purposes is also action "under color of state Law" for purposes of section 19$3 civil rights suits. U.S.C.A.Const.Amend. 14; 42 U.S.C.A. § 1983. See publication words and Phrases for other judicial constructions and definitions.
6. Civil Rights 13.5(4)
Owners and operators of private school for youths with behaviors( problems were acting "under color of state law;" as required for former students to be able to bring section 1983 action against school for alleged violations of their civil rights occurring as result of the school's use of "behavioral-modification" program, where many students were placed at school involuntarily by juvenile courts and other state agencies. detailed contracts were drawn up by school administrator and agreed to by local school districts placing youths at the school, there was significant state funding of tuition, and there was extensive state regulation of educational program at the school. 42 U.S.C.A. § 19$11.
7. Prisons 4(5)
Person involuntarily confined by state is institution retains liberty interests that are protected by due process clause of Fourteenth Amendment: the right to reasonably safe conditions of confinement; the right to be free from unreasonable bodily restraints; right to such minimally adequate training as reasonably way be required by such liberty interests; right to-be free from censorship of correspondence; and right to privacy of his own thoughts, U.S.C.A.Const. Amend. 14.
8. Constitutional Law 82(13)
First Amendment rights do not terminate upon institutionalization. U.S.C.A Const,Amend. L
9. Criminal LAW 1213
The Eighth Amendment's proscription against "cruel sad unusual punishment" does not apply in situation where involuntarily confined person has not been adjudicated guilty of any crime. U.S.C.A.Const. Amend. 8.
10. Civil Right 13.13(3)
In former students' action against private school for youths with behavioral problems for its use of "behavioral-modification" program allegedly violating section 1983, record supported finding that the school's use of polygraph machine, its monitoring and censoring of student mail, its use of isolation rooms, and its use of excessive physical force violated students' First and Fourteenth Amendment rights. U.S.C.A. Const.Amends. 1, 14; 42 U.S.C.A. § 1983.

11. Constitutional Law 255(4)
Children, as well as adults, have substantial liberty interests that are protected from state action by Fourteenth Amendment, and such liberty interests. include right not to be confined unnecessarily for medical treatment, and concomitant with such right is right to be fees of unnecessary restrictions of other fundamental rights once confined to state institution. U.S.C.A. Const.Amend. 14.
12. Constitutional Law 255(4)
While judgments of parent are to be considered by court in determining "necessity" of burdens placed upon 'Wren's fundamental right by state institutions, parent -cannot authorize state to limit child's liberty without showing good cause therefore. U.S.C.A. Const.Amend. 14.
13. constitutional Law 278.5(6)
Fact that some parents approved of "behavioral-modification" program employed by private school for youths 'with behavioral problems did not compel finding that practices were "necessary,- as required for them not to violate students' constitutional protected liberty interests. U.S.C.A. Const.Amend. 14.
14. Judges 49(1)
Trial judge's serving as member of advisory counsel for local chapter of civil liberties association did not require judge's disqualification from ruling upon attorney fee application made in section 1983 action in which plaintiffs were represented by the association. 42 U.S.C.A. § 1988.
15. Civil Rights 13.17
No error occurred in including as party against whom attorney fee award was entered in section 1983 actor against private school defendant who became part owner of the school after the action was commenced 42 U.S.C.A. § 1988.
16. Federal Courts 543
Nonsettling party had no standing to appeal consent decree which. did not bind him nor interfere with legal relationship between nonsettling party and settling parties Kathryn Collard of Collard, Kuhuhausen, Pixton & Downes, Salt Lake City. Utah, and Mack I. Soler, San Francisco, Cal. (and Loren M. Warboys and Jan C. Costello, Juvenile Justice Legal Advocacy Project, San Francisco, Cal., with them on the brief), for plaintiffs-appellees. Max D. Wheeler, Salt Lake City, Utah (Harold G. Christensen and Paul C. Droz of Snow, Christensen & Martineau, Salt Lake City, Utah, with him on the beef), for defendants-appellants. Kathleen B. Boundy and Geraldine S. Hires. Attys., Cambridge, Mass, filed a brief on behalf of the Canter for Law and Educ., amicus curiae. Before McWILLIAMS and SEYMOUR. Circuit Judges, and BRINKER, District Judge.

Honorable Clarence A. Brimmer Jr. Chief Judge. U. S. District Court for the District of

McWILLLAMS, Circuit Judge.

The Provo Canyon School for Boys, located near Provo, Utah, is a private school for boys between the ages of twelve and seventeen. Timothy Milonas, Jr., age fifteen, and Kenneth Rice, age sixteen, then students at the Provo Canyon School, brought the present action against the owners and operators of the Provo Canyon School. Also named as parties defendant were various agencies, officers, and employees of the State of Utah.'
The individual plaintiffs, Milonas and Rice, challenged the education, treatment and conditions of confinement of juvenile boys placed at the Provo Canyon School and averred that the school administrators acting under color of state law, had caused the plaintiffs to suffer and to be subjected to cruel and unusual punishment, anti-therapeutic and inhumane treatment, and denial of due process of law. Milonas and Rice sought class actions certification and, both
1. Jack L Williams owner and administrative director of the Provo Canyon School and Robert K Crist. owner and medical director of the Provo Canyon School were named as parties defendant is the original complaint Filed on September 21. 1978. D. Eugene Thorne became the executive director of the Provo Canyon School on Aped 1. 1979. and was added as a party defendant as September 11. 1979. Their defendants are appellants herein.
2. State defendants were: Anthony W. Mitchell Director, of the Utah Department of Social Services; the Utah Department of Social Services; James P. Wheeler Director of the Utah Division of Family Services; the Utah Division of Family Services; John F. McNamara, Director and Administrator of the Interstate Compact on Juveniles Walter D. Talbot, Superintendent of Public Instruction. Utah State Board of Education; and the Utah State Board of Education. These defendants were either dismissed from the lawsuit or entered into consent decrees. Is this appeal, none of these defendants challenge the district court's disposition of the matter. .
3. The claim against defendant McNamara the director and Administrator of the Interstate Compact on Juveniles for the State of Utah was that he had failed to administer adequately his supervisory responsibilities regarding the placement of youths in Utah institution. It was McNamara's job to supervise the placement in Utah of juveniles from other states sent to Utah by juvenile courts and other welfare agencies. Milonas and Rice alleged that for themselves and the members of the class, asked for money damages and declaratory story and injunctive relief pursuant to 42 U.SC. § 1983 (1976). The named plaintiffs also alleged that they had been denied a free appropriate public education and sought relief pursuant to the Education for All Handicapped Children Act, 20 U.S.C §§ 1401-1461 (1976) and Section 504 of the Rehabilitation Act of 1973, 219 U.S.C. § 791 (1976).
Pursuant to Fed.R.Civ.P. 23(a) and (b)(2). the district court provisionally certified the class. For purposes of the preliminary relief requested, the class was described as consisting of all juveniles residing at the Provo Canyon School during the pendency of the civil rights action. At that time, the district court also entered a preliminary injunction that enjoined four "behavior-modification" practices then in. effect at the school.
McNamara's negligence had resulted in their placement at the Provo Canyon School, where they were subjected to abusive treatment During the course of the proceedings in the district court, the plaintiffs and defendant McNamara entered into a consent agreement in which defendant McNamara agreed, inter alis, to request that out-of-state officials hove boys form the Prow Canyon School and refrain from placing any other juveniles at the school.
The claim against defendant Talbot. the superintendent of public instruction for the State of Utah. and defendant Utah State Board of Education was that each had failed to provide an adequate free appropriate public education for all handicapped children is the State of Utah as required by the Education for All Handicapped children Act. 20 U.S.C, 1412(2)(B) (1976). During the course of the proceedings in the district court, these defendant also entered into a consent decree with the plaintiffs. In this consent decree the Utah defendants agreed. inter alis. that they were subject to the provisions of Sections 504 of the Rehabilitation Act of 1973, 29 U.S.C. ; 794 (1976). and the Education for All Handicapped Children Act, 20 U.S.C. § 1401-1461 (1976), and the regulations promulgated there under. . to adopt regulations and procedures to implement these federal laws in the State of Utah to -monitor institutional compliance with the new state guides nod to provide a safe and free appropriate public education to all handicapped children in the State of Utah.
The plaintiffs' claim for money damages was tried to a jury; the district court reserved for its determination the claims for declaratory and injunctive relief. At the conclusion of a lengthy trial, the jury returned a verdict in favor of the defendants on the damages issue. Nonetheless, the trial judge later entered a permanent injunction as to those four school administrative practices that were the subject of the preliminary injunction previously entered. For purposes of this permanent relief, the district court certified a class consisting of all boys reading at the Provo Canyon School as of the date of the permanent injunction. and in the future.
The permanent injunction specifically prohibited the defendants from: (1) opening, reading, monitoring or censoring the boys' mail; (2) administering polygraph examinations for any purpose whatsoever; (3) placing boys in isolation facilities for any reason other than to contain a boy who is physically violent; and (4) using physical force for any purpose other than to restrain a juvenile who is either physically violent and immediately dangerous to himself or others? or physically resisting institutional rules.
The district court later found that the plaintiffs were the "prevailing party" pursuant to 42 U.S.C §1988 (1976) and that they was entitled, therefore. to an award of attorneys fees The district court filed an exhaustive memorandum opinion wherein it made findings of fact and conclusions of law. This opinion was not published.
4. Tuition at the Prow Canyon School is $1,600 per month However from the date of its inception as an institution in 1973. the Provo Canyon School has received significant amounts of government money to sustain its its operations. Many of the boys are placed at the school by local school districts for special education purposes School districts in California, Wyoming, Utah. Illinois, North Carolina , Alaska, New York, Minnesota, Washington, and Idaho have sent boys to the faculty. These placement are accomplished through contractual arrangements between the local school of officials and the Provo Canyon School administrators. "Funding for the boys' special education from federal and state treasuries pursuant to the Education for All Handicapped Children Act and corresponding state special The district court then entered final judgment and fixed the attorneys' fees at $133,546.54 For a discussion of the procedural history of this appeal, see Milonas v. Williams 648 F.2d 688 (10th Cir. 1981).
The Provo Canyon School is privately owned and operated, although it does receive funds from both state governments and the United States. The school was established in 1973 for the primary purpose of educating teenage boys whose problems are so severe that their treatment and education require a restricted, therapeutic environment. All of the boys admitted to the school have problems of one sort or another, including physical, psychological, and emotional problems, and are handicapped by a general inability to conform to normal behavioral standards. The district court described the school as follows:
The Provo Canyon School is not a school in the traditional ordinary or classic sense. It does offer classes on a secondary level to its resident population, and in most instances does a good job in its formal teaching. Provo Canyon School is also a correctional and detention facility. Students are restricted to the grounds Students are confined. Some students are locked in and locked up with varying degrees of personal liberty restored as each progresses through the institutional program. If a student leaves without permission, he is hunted down, taken into custody and returned.

Provo Canyon School is also a mental health facility. Adolescent males education levee to 1979. the school received $568,278.24 from local school districts. Additional governmental funding dale has . juvenile courts said probation departments and county governments end welfare agencies. 1Ue figure below demonstrate that the school relied heavily upon government financing:perceived to have mental health or emotional difficulties or who are chemically dependent persons, see counseled and treated. Adolescent makes with forms of learning disability, physical, mental or emotional, are housed. counseled and "taught.." The student population, intermixed and various, is subjected to a form of behavior modification" described by those who run the school as eclectic. Some of its salient features are isolation from the outside world, little or no communication with the outside world, physical confinement, physical punishment, progressive restoration of liberty, investigation and evaluation of student "attitude" and "truthfulness" and "future conduct" through the use of a machine, and counseling.

Regardless of origin, condition or motivation, once arrived, each person during the beginning phases of the school program was locked in, isolated from 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 remarks concerning the institution were prohibited 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
Students generally are admitted to the Provo Canyon School at the insistence of one or both of their parents. Typically, the parents have had extreme disciplinary problems and being unable to control their child have contacted, the Provo Canyon School as a "last resort" Other boy are received at the school directly directly from juvenile courts and probation officers from across the nation. Many of the youths are placed at the Provo Canyon School by the boy's local school districts, with tuition funding coming from state and federal agencies pursuant to state special education laws and the federal Education for All Handicapped Children Act. Plaintiff Timothy Milonas Jr., had resided in the State of Nevada prior to being involuntarily committed to the Provo Canyon School by his mother. Milonas' commitment was a condition of probation imposed by a Nevada juvenile court. Milonas' father thereafter received a coded letter from his son, which letter implied that the son needed assistance. Because of that letter, Milonas' father independently contacted counsel regarding the school and how it was being run. Kenneth Rice, the other individual plaintiff, had resided in Alaska until his involuntary commitment to the Provo Canyon School. Rice was placed in the school pursuant to an order of an Alaska juvenile court. Four months after he was admitted to the Provo Canyon School, Rice ran away from the school, and, before he was returned. he made contact with an attorney and complained about conditions at the school. As a result of the complaints thus made by Milonas and Rice, the present action was instituted.
Class Certification

Both Milonas and Rice were students at the Provo Canyon School on the date this action was commenced. On the date the complaint was filed, counsel for Milonas and Rice, fearing that the boys would be subject to retaliation by the defendants because of the commencement of the lawsuit, sought and obtained an immediate hearing before the district court. Based on such bearing and a stipulation between the parties, the district court ordered that Milonas and Rice be removed temporarily from the school and placed for the time being with the Utah State Division of Family Services. Each boy sought damages and injunctive relief for himself, and, in addition, they also asked for damages and injunctive relief for a class which they sought to represent. The class, according to the complaint, consisted of "all juveniles who have been, are now, or in the future will be placed at the Provo Canyon School." The district court provisionally granted plaintiffs motion for class certification, and, later, at the conclusion of the trial, such grant was made permanent. The first issue raised by the defendants in this appeal concerns the propriety of class certification. The defendants contend that the district court erred is granting the individual plaintiffs' request for class certification. This particular contention is based on either of two grounds. Fist, the defendants assert that by leaving the Provo Canyon School on the day that the lawsuit was filed, pursuant to the order of court to which reference was made above, Milonas and Rice lost membership in the class that they sought to represent The defendants reason that Milonas and Rice. being "outsiders" at the time of class certification, could not represent those boys "inside" the school. In essence, the defendants aver that the named plaintiffs lacked standing to pursue the lawsuit on behalf of the class members. Second, the defendants assert that the individual claims of Milonas and Rice were not "typical" of the claims of the class members and, therefore, at the time of class certification, Milonas and Rice were merely "officious intermeddlers." Fed.R.Civ.P. 23(a)(3). We are not persuaded by either of these arguments.

(1) It is axiomatic that an uninjured plaintiff cannot bring suit on behalf of an injured class. U.S.Const. art III, §. 2, d 1; Worth v. Seldin, 472 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975): Bailey v. Patterson, 369 U.S. 31, 32-.33, 82 S.Ct. 549, 550-551, 7 L.Ed.2d 512 (1962). It is well settled, however, that a named plaintiff may continue to represent a class that has been certified as such even after the named plaintiff's personal stake in the outcome of5. the Supreme Court's most recent pronouncement as this matter appears in United state " Parole Comm' n v. Geraghty 445 U.S. 388. 398. 100 S.Ct. 1202, 1209. 63 L.Ed.2d 479 (1980). wherein the court noted that. [although one might argue that Sosna contains at least an implication that the critical factor for Art. III purposes is the timing of class certification other case, applying a "relation back" approach, clearly demonstrate that timing is not crucial. When the claim as the merits is "capable of repetition. yet evading review," the named plaintiff Drives the class certification issue despite loss of his personal stake in the outcome of the litigation E.g., Gerstein . Pugh, 420 the litigation has been mooted. Soma v. Iowa, 419 US. 393, 399, 95 S.Ct. 553, 657, 42 L.Ed.2d 532 (1975). Furthermore. "[there may be cases in which the controversy involving the named plaintiffs in such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion." Id at 402 n.11, 95 S.Ct. 559 n.11. In such instances, the district court may apply a "relation back" theory and grant late certification in an otherwise moot case and thereby prevent mootness. Id; Napier v. Gertude, 542 F.2d 825, 828 (10th Cir 1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977). See generally Note, Class Standing and the Class Representative, 94 Harv.L Rev. 1637 (1961). The key to whether a particular case falls within that "narrow class of cases in which the termination of a class representative's claim [prior to class certification] does not moot the claims of the unnamed members of the class," Gerstein v. Pugh. 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1975), is whether the claim on its merits is "capable of repetition, yet evading review." United States Parole Comm'n n v. Geraghty, 445 U.S. 388, 398, 100 S.Ct. 12(12, 1209, 63 L.Ed.2d 479 (1986). Ours is such a case.
[2] . When the present action was instituted, Milonas and Rice were students in the Provo Canyon School, and as such were members of the class, they sought to represent. Understandably, the boys were removed from the Provo Canyon School at the earliest possible date. The district court could not have been expected to rule on a U.S 103. 110 a.11, 1. 95 S.Ct. e54. 861 x411. 43 L.Ed.2d x (1975) The "capable of repetition, yet evading review" doctrine to be sure, was developed outside the class action context . .. but it has been applied where the named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff; the litigation then may continue notwithstanding the cased plaintiff's current. lack of a personal stake . . .. Since the litigatant faces some likelihood of becoming involved in the same controversy in the future, vigorous advocacy can be expected to continue. class certification motion prior to the date of the boys' removal from the school premises. Also, the district court's order placing the boys in the care of state officials was temporary in nature and, therefore, it was possible that the boys would be returned to the school. In our view, the fact that Milonas and Rice were removed temporarily from the school as a precautionary measure does not mean that they thereby lost their "personal stake" in the controversy. And most certainly the controversy itself was postured in a truly adversary setting. It is our conclusion, therefore, that Milonas and Rice satisfied the constitutional requirement of presenting a live case and controversy to the district court on behalf of themselves and the members of the class. Defendants' "lack of typicality" argument is based primarily on the fact that Milonas' tuition at the school was funded by his parents and that Rice's tuition was funded by the State of Alaska, whereas other students were funded by different financial sources, including federal special education money. According to counsel, such demonstrates that the individual claims of Milonas and Rice are not typical of the class's claims. We disagree.
[3] We note that in addition to Article III standing requirements, Fed.R.Civ.P. 23(a) lists four prerequisites to the certification of a class and the maintenance of a class action. Upon the failure of the class representative to meet any one of the prerequisites of the rule, class certification will be denied. This determination, however, is a matter within the sound discretion of the trial court and the trial court's conclusions as to whether the class representative has
6 Fed.R.Civ.P. 23(a) provides that a class action may be maintained only if the following requirements are met: (1) the class is so numerous that the joinder of all class members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
7. Defendants' reliance upon our decision in Albertson's; Inc. v. Amalgamated Sugar, lnc. 503
demonstrated that. the numerosity. commonality, typicality, and adequacy of representation requirements have been met "will not be disturbed absent a showing of abuse of that discretion." Rex v. Owens ex rel State of Oklahoma, 585 F.2d 432, 436 (10th Cir. 1978).
[4] In determining whether the typicality and commonality requirements have been fulfilled, either common questions of law or fact presented by the class will be deemed sufficient. Factual differences in the claims of the class members should not result in a denial of class certification where common questions of law exist. Penn v. San Juan Hospital, Me, 578 F2d 1181, 1189 (10th Cir. 1975); Lice v. Carter. 448

F2d 798, 802 (8th Cir. 1971 As we have stated previously, every member of the class need not be in a situation identical to that of the named plaintiff. Rich v. Martin Marietts Corps, 522 F.2d 333, 340 (10th Cir. 19773).
Milonas and Rice, together with the class which they were certified to represent, have common claims against the defendants, Le, that the disciplinary practices carried on at the school violated various constitutional and statutory rights of the individual plaintiffs and of the class Regardless of their source of funding or; indeed, their individual disability or behavioral problems, all of the boys at the school were in danger of being subjected to the four enjoined "behavior-modification" practices. In our view, the typicality and commonality requirements of Fed.R.Civ.P. 23(a)(3) have hem met In sum. the district court did not err in granting alas certification.
F.2d 459 (10th Cir. 1974). is misplaced In that case, we upheld the trial court 's denial of class certification because we found that the party seeking to represent the class had bad interests antagonistic to the persons he sought to represent. Id at 463. Such is not the case in the instant action.
8. No challenge is made on appeal to the district court's finding that the requirements of Fed.R Civ.P. 23(a)(l) and 23(a)(4) was satisfied.
State Action
Section 1983, 48 U.S.C. § 1983 (1976) provides, in essence,- that any Person who, under the color of state law, taste another to be deprived of rights secured by the Constitution or laws of the United States shall be liable to the-injured party in an action at law or a suit in equity. 28 U.S.C. § 1343 (1976) confers original jurisdiction on federal district snorts to hear proceedings brought under Section 1.983. In the instant cage, the plaintiffs alleged, and, at trial, attempted to show, that their constitutional and statutory rights had been violated by the owners and operators of the Provo Canyon School and that, in so doing, the defendants were acting under the color of state law. In awarding to the plaintiffs injunctive relief, the district court found that the enjoined practices were carried out under the cloak of state action This conclusion was based on the fact that various states, be it through their juvenile courts or their school districts. had planed the plaintiffs, or at least many members of the class, in the institution, and that there was significant funding and regulation by the state. We agree.
[5] When a private party, as compared to a state employee, for example, is charged with abridging rights guaranteed by the Constitution or laws of the United States. the plaintiff, in order to prevail under Section 1983,~tnust show that the private party
9. Having concluded that the district court had jurisdiction to issue the injunction under 42 U.S.G S 1983 (1976) and 28 U. S. C. § 1343 (1976), we need not decide whether there was independent jurisdiction order the Education for AV Handicapped (31iWnen Add 1975. 2O U.S.G §§ 1401-1461 (1976) or under Section 504 of the Rehabilitation Act of 1973. U.S.G § 794 (1976).
The Education for All Handicapped Children Act of 1975 is a funding statute, requiring states seeking and receiving funds under the Act to provide a free appropriate public education for all school age children in their jurisdiction. The requirements of the Act are sent forth in the form of conditions on the receipt of federal funding. For a general review of the proposes of this Act and the meaning of the term "free appropriate public education," see generally Hendrick Hudson Dist. Bd of Educ. v. Rowley, - US. -, 102 S.Ct 3034, 73 was acting under the color of state law. The reason for this is fundamental. The fourteenth amendment, which prohibits the mates from denying federal constitutional rights and which guarantees due process, applies to the acts of the states, not to acts of private persons or entities. Shelley v. Kraemer, 334 US. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948); (Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883). And Section 1983, which was enacted pursuant to the authority of Congress to enforce the fourteenth amendment, prohibits interference with federal rights by persons acting under color of state taw. Conduct that constitutes "state action" for fourteenth amendment due process purposes is also action "under color of state 4w" for purpose's of Section 183 Civil rights suits. Lugar v. Edmondson Oil Co.. -U.S.- , 102 S.Ct. 2744. 73 L.Ed.2d 482 (1982); United States v. Price, 383 U.S. 787, 794 n.7, 86 S.Ct. 1l52, 1156 n.7, 16 L.Ed.2d 267 (1966). The United States Supreme Court has stated that the ultimate issue in determining whether a person is subject to snit under Section 1983 is whether the alleged infringement of federal frights is fairly attributable to the state. Rendell-Baker v. Kohn, -U.S. , 102 S.Ct. 2764, ?3 LFd.2d 418 (198'L).
[6] In our view, the district court's finding that the defendants, owners and operators of the Provo Canyon School, were act
L.Ed.2d 690 (1962); Hyatt. Litigating the Rights of Handicapped Children to an Appropriate Education: Procedure and Remedies, 29 U.C.L.C L.Rev. 1 (1961): Note, Enforcing the Ri6ttt to as "Appropriate" Education: 'tire Education for AM Handicapped Children Act of 1975. 92 Harv.L.Rav. 1103 (1979). Section 504 of the Rehabilitation Act of 1973 Provides, in pertinent part, that "[no otherwise qualified individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial. assistance.." 28 U.S.C. f 794 (Supp. III 1979). For a general review of this Act. see Southeastern Community. College v. Davis, 442 U.S. 397.99 S.Ct 2361. 60 L.Ed.2d 980 (1979) Pushkin v. Regents of the University at Colorado 658 F.2d 1372 (10th -Cir. 1961).
ing under color of state law finds support in the record and is in accord with applicable law. In the instant case, the state has so insinuated itself with the Provo Canyon School as to be considered a joint participant in the offending actions, See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961): Browns v:Mitchell. 409 F.2d 593, 595 (10th Cir. 1969). Many of the members of the class were placed at the school involuntarily by juvenile courts and other state agencies acting alone or with the consent of the parents Detailed contracts were drawn up by the school administrators and agreed to by the many local school districts that placed boys at the school. There was significant state funding. of tuition and, in fact, the school itself promoted the availability of public school funding in its promotional pamphlet. These was extensive state regulation of the educational program at the school. These facts demonstrate that there was a sufficiently done nexus between the states sending boys to the school and the conduct of the school authorities so as to support a claim under Section 1983.
In the district coat. defendants relied heavily an Rendell-Baker v. Kohn, 641 F2d 14 (1st Cir 1981). The defendant school involved in Rendell-Baker was indeed quite similar in its, operation to the Provo Canyon School The party chiming a Section 1983 violation in that case were employees discharged flora the school. The holding of the First Circuit in Rendell-Baker was that m discharging the plaintiffs the school officials bad not acted under the color of state taw. In so ruling, the First Circuit did comment, however, that students in the school there involved "would have a stronger argument than do plaintiffs that' the school's action toward them is taken 'under color of date taw; since the school derives its authority caves them from the state." 611 F2d at 25 (in original). .
On review, the Supreme Court affirmed the First Circuit's decision. Rendell v Kohn. - U.S.- , 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). The Supreme Court phrased the issue there to be resolved as "whether a private school, whose income is derived primarily from public sources and which is regulated by public authorities, acted under the color of state law when it discharged certain employees" Id (emphasis added). As indicated, the Supreme Court held that state funding and regulation was not sufficient to support a finding of state action in the discharge by the private school of employees of the school. The Court recognized that "in contrast to the extensive regulation of the school generally, the various regulators showed relatively little interest in the school's personnel matters." Id. To us, Rendell-Baker differs from the present case in at least one important respect. The plaintiffs in the present case are not employees, but students, 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 has now enjoined. Rendell-Baker does not control the Section 1983 issue before us.
The Enjoined Practices:

As indicated, the district court entered a permanent injunction which enjoined the defendants from their use of the polygraph, monitoring and censoring of mail, use of isolation rooms, and acre of excessive physical force. In this regard, the district court found that the defendants' actions violated fast and fourteenth amendment rights of the plaintiffs.

The trial of this case was a protracted one, lasting some four weeks. The district court beard testimony from numerous educational experts, present and forever students in the school, present acrd former employees of the school, and from the defendants themselves. Needless to say, the testimony of these witnesses was in conflict to some appreciable degree. The plaintiffs witnesses tended to paint a picture of undue punishment, if not outright brutality, in no wise related to the school's educational program. The defendants' witnessed, on the contrary, indicated that the schools disciplinary practices were a necessary adjunct to its educational program and that the use of force or coercion was limited to those extreme cases where a student was "out of control" and posed a threat to himself or others. It was on this sort of a record that the district court permanently enjoined four disciplinary practices. At the same time, the district court refused to enjoin nine other practices which the plaintiffs also sought to enjoin. As noted, the district court did enjoin the defendants' use of the polygraph. Specifically, the district court made the following findings concerning the defendants' use of the polygraph:
As to the polygraph, the court has difficulty envisioning a set of facts that would justify the use of the polygraph on juveniles, either in the tame of "therapy" or for security. That set of facts certainly did not oust at Provo Canyon School. Although there was some evidence offered in support of justification, and some evidence of "voluntary" use of the Polygraph by boys. this device is inherently coercive and represents the most serious intrusion into the very thought processes of an individual. It was certainly used in a coercive manner at the Provo Canyon School. Refusal to take the polygraph resulted in punishment hours that boys ,had to sit or stand off and meant that a boy could not advance within the school program and could not leave the school. Boys were abject to punishment not only for what the polygraph revealed that they had done, but also for what the polygraph showed they had thought about doing. Until this court's Preliminary Injunction, all boys at the school were subject to the same polygraph polices, even those [boys] placed exclusively for special education and those [boys] with no record of juvenile offences.
The school also used the polygraph to prevent the flow of any negative information about the school. Boys entered into agreements and even formal contracts with the school to obey the rain acid avoid "negative thinking;" which included saying bad things about the school. The polygraph was used to test. performance of those agreements or con was used on the students. Brief mention should be made .of the defendants' use of a practice nick-named the hair- dance." The Pro" Canyon School Manual suggested that in dealing with a belligerent 'student, a school employee should grab one of the student's arms and clutch the boy's hair with his other band. Such grabbing and pulling of the hair was believed to be the least harmful and, at the same time, the most effective way of bringing a student under control. In connection with the use of force at the Novo Canyon School, the district court found as follows:
(Although written school policies forbade excessive or inappropriate use [of force] actual practices varied from written policies, and excessive and inappropriate ass of isolation and physical force tools place. The "hair dance," designed as a means of controlling physically Violent juveniles without causing them undue physical harm, was used in response to conduct other than physical violence or physical resistance, was used as punishment rather than simply for immediate control, was used as a threat, and on occasion resulted in the very physical injuries it was supposed to prevent.
[The use of the term "out of control" as a justification for the basically uncontrolled discretion in subjecting juveniles to the P-Room and hair dance permitted 'unreasonably harsh school responses b the conduct of disturbed boys.
It was the defendants' position in the district court, as it in on .appeal, that the practices enjoined by the district court are reasonably related to considerations of administration and security and am rationally directed toward the realization of legitimate and important objectives of education, therapy, and' social rehabilitation. In this regard, the defendants accept the basic constitutional standards enunciated in Bell v.
10. The eighth amendment's proscription against "cruel and unusual punishment" does not apply in the situation, such as we have in the instant case, where the involuntary confined person as not been adjudicated guilty of any crime. Bell v. Wolfish, 441 U.S. 520,535 n.16, 99 S.Ct 1861, 1871 n.16, 60 L.Ed.2d 447(1979); Ingraham v. Wright, 430 U.S 651, 97 S.Ct. Wolfish 441 US. 52D, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and assert that, under Bell, institutional restrictions which actually do infringe on specific constitutional guarantees still must be evaluated in the light of the legitimate objectives of the institution, and that a court should adopt a "reasonable relationship" test to effect the teary balancing.
[7-9] A person involuntarily confined by the state to an institution retains liberty interests that are protected by the due process clause of the fourteenth amendment. Bell v. Wolfish, 441 U.S. 520, 99 S.Ci;. laic, 60 L.Ed2d 44? (1979). Such person has the right to reasonably safe conditions of confinement, the right to be free from unreasonable bodily restraints, and the right to such minimally adequate training as reasonably may be required by these interests. Youngberg v. Romeo, -- U.S. --, lO2 S.Ct. 2452. 73 L.Ed.2d 28 (1982). Such person also loss the right to be free from censorship of correspondence, because first amendment rights do not terminate upon institutionalization. Procunier v. Martinez, 416 US. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) And such person has the right to the privacy of his own thoughts, which cannot be probed by use of polygraph examinations.
[l0] In assessing institutional restrictions. courts must take into account both the liberty interests of the individual and the legitimate seeds of the institution for order and security. The district court below properly undertook a balancing process to determine whether the challenged disciplinary practices were so onerous as to overcome the legitimate administrative sad security interests of the school. We are in accord with the district court's findings and conclusions on this matter bee each are
1401, 51 L.Ed.2d 711 (1977). Any institutional rules that amount to punishment of those involuntarily confined prior to an adjudication of guilt of criminal wrongdoing are volative of the due process clause per se. The district court blow property rejected the plaintiffs' claim that the Provo Canyon School had violated rights guaranteed by the eighth amendment.
amply supported by the record. Furthermore, we believe that the district court's conclusions of law are in accord with the applicable cases. See Procunier v. Martinez; 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (invalidating mail censorship by prison officials); Levine v. Wright, 423 F.Supp. 357, 366 (D.Utah 1976) (upholding use of polygraph by prison officials for limited purpose only); Penn v. New York State Div. for Youth, 419 F.Supp. 203 (S.D.N.Y. 1976) (use of isolation rooms for punishment unconstitutional); and Nelson v. Heyne, 491 F2d 352 (7th Cir. 1974) (nee of undue physical force invalidated).
Parental Consent

As above indicated, in many instances a parent not only consented to the placement of a con in the Provo Canyon School, but also knew in advance of the very disciplinary practices enjoined by the district court On appeal, the defendants- argue that the district court failed to give "proper deference" to such parental consent. In this connection, it is not defendants' position that parental consent permit/ the defendants to violate student/' constitutional right/. Rather, the defendant/' position on this particular matter that, in determining whether the enjoined practices bone a reasonable and rational relationship to the legitimate objectives of the Provo Canyon School, the district court failed to take into consideration. or give proper weight to, the fact that some parents consented to the enjoined "behavior modification" practices. We are not persuaded by this argument.

[11-13] Children. as well as adults, have substantial liberty interests that are protected from state action by the fourteenth amendment. See Addington Texas, 441 U.S. 418, 425, 99 3.1.1804, 1808. 9t/ L.Ed.2d 323 (1979): In re Gault; 987 U.S. 1, 21, 87 S.Ct. 1428, 1443, 18 L.Ed.2d 527 (1967). These liberty interest include the right not to be confined unnecessarily for medial treatment. Parham v. J. R, 442 U.S. 584: 600, 99 S.Ct , 2493, 2503, 61 L.Ed2d 101 (1979). Concomitant with this right is the right to be free at unnecessary restrictions
of other fundamental rights once confined to a stele institution. The district court below recognized that the boys placed at the Provo Canyon School retained certain fundamental rights that could be curtailed only if necessary to maintain order and security at the school. As indicated, the trial court? after balancing the various interests, and noting, incidentally, that same parent/ who had placed their boys in the school had knowledge of the school's disciplinary practices, concluded that the four enjoined practices were not necessary and that they unduly burdened the boys' constitutional rights. While judgments of a parent ire to be considered by the court in determining the "necessity" of burdens placed upon children's fundamental rights, a parent cannot authorize the stele to limit a child's liberty without slowing good carne therefore. Cf. Bellotti v. Baud, 443 U.S. 622, 633,-,79, 99 S.CL 3035, 30C-3016, 61 L.Ed.2d 797 (19T9); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 72-75, 96 SAX 2831, 2842-2843, 49 L.E42d 788 (1976). The district court's balancing process comported with proper constitutional procedure. We are in accord with it/ conclusion that the fact that some parents approved of the enjoined practices does not compel a finding that the practices were necessary.
Attorneys' Fees
The district court awarded to the plaintiffs attorneys fees in the amount of :133; 31654 under 42 US.C. J 1988 (L976~ On appeal, the defendants argue that if this Court should vacate the permanent injunction then the plaintiffs would cot be a "prevailing party," and, in such circumstances the sward of attorneys' fees should also be vacated. We agree. However, we are not reverses the district court is the present proceeding: but rather affirming.
[14] The Honorable Bruce S. Jenkins, a United States District Judge for the District of Utah, prided over the trial of this case and later, in a separate hearing. awarded attorneys' fees. Prior to the hearing on attorneys' fees, the defendants sought to have Judge Jenkins disqualify himself from setting the fee. The basis for this challenge was that, in 1965, long prior to his appointment as a federal district court judge, Judge Jerkins served as a member of the advisory council for the local chapter of the American Civil Liberties Union. Defense counsel argued that the American Civil Liberties Union represented Milonas and Rice in the present proceeding and that, in fact, it was the real party in interest. Judge Jenkins. who had handled pretrial matters and the lengthy trial, declined to disqualify himself in connection with the setting of attorney' fees. We find so error. Indeed, the ground for disqualification, La., some minor connection with the ACLU fifteen years ago, is most tenuous on its face.
[15] Defense counsel also its that the award of attorneys' fees against the defendant Dr. D. Eugene Thorne was not justified. We disagree. At the time of the entry of the permanent injunction, Dr. Thorne. along with Jack L. William and Robert & Crist, was a co-owner and co-operator of the Provo Canyon School. Although William and Crist had been associated with the school from its inception. Dr. Thorne became associated with the school shortly after the commencement of the present action, initially as paid consultant, and later as executive director and part owner of the school. And, as indicated, he was serving as the executive director and part owner of the school when the. permanent injunctions was entered. We find no error in including Dr. Thorns as one of the defendants against whom the award of attorneys' fees was entered.
The Consent Decrees
The three co-owners of the Provo Canyon School were not the only defendants named in the complaint. Also named as portion. defendant ware the Utah Board of Education and Walter D Talbot. Superintendent . of Public Instruction for the State of Utah. A consent decree was entered as to the Utah Board of Education and Talbot. This consent decree related to the regulation and monitoring by these particular defendants of special educational services for handicapped children in "private" institutions in the Stile of Utah, which institutions were . receiving monies from the Sate of Utah, such monies. in turn, having been received from the federal government under the provisions of the Education for All Handicapped Children Act In this connection, see also note 3, supra

Another defendant named in the complaint was John F. McNamara, the Administrator of the Interstate Compact on Juveniles for the State-of Utah. Juvenile courts in states outside of Utah placed boys at the Provo Canyon School facility. There was some dispute as to whether these placements were, strictly speaking, made under the interstate compact. or made directly by the placing state with the school. In any event, McNamara did make monthly visits to these out-of-state students and forwarded reports to tire sending states concerning the students' health and general welfare.
The plaintiffs and McNamara also entered into a consent decree in which McNamara agreed: (1) not to approve any future out-of-state placements in Provo Canyon School or any other private juvenile educational facility in Utah unless such facility was approved by the Utah Division of Family Servers: (2) to request, after thirty days, out-of-state sending officials to remove their placements from unapproved Utah facilities: and (3) to notify out-of-state Interstate Compact Administrators of the term of the consent decree. As a part of the present appeal, the co-owners of the Provo Canyon School seek to have set aside and vacated this consent decree entered against McNamara.
[16] The general rule is, that a nonsettling party has no standing to appeal a consent deem which does not bind him and interferes with no legal relationship between the nonsettling party and the settling parties. event though the noting party may have sustained some economic loss as a result of the consent decree. Utility Contractors: Amen of New Jersey, lnc: v. Toops, 507 F.2d 83 (3rd Cir: 1974). We see no reason to depart from that general rule the instant case. Further, in our view, the consent decree itself appears to be a reasonable one, and, contrary to the contention of counsel, does not impose unlawful conditions.

Judgment affirmed

 

162 F.3d 827

David TAYLOR, Plaintiff-Appellant-Cross-Appellee,
v.
CHARTER MEDICAL CORPORATION, and Charter Provo School, Inc.
d/b/a Provo Canyon School, Defendants-Appellees.

No. 97-10084.

United States Court of Appeals,
Fifth Circuit.

Dec. 9, 1998.

Page 828

        Frederick Henry Shiver, Daniel Wayne Shuman, Dallas, TX, for Plaintiff-Appellant.

        Terriann Trostle, Houston, TX, Marcy Hogan Greer, Austin, TX, Walter A. Herring, Fulbright & Jaworski, Dallas, TX, for Defendants-Appellees.

        Appeal from the United States District Court for the Northern District of Texas.

        Before SMITH, DUHE and WIENER, Circuit Judges.

        WIENER, Circuit Judge:

        Plaintiff-Appellant David Taylor ("Taylor") appeals the district court's grant of partial summary judgment in favor of Defendant-Appellee Charter Provo School, Inc. d/b/a Provo Canyon School ("New Provo Canyon"), holding that New Provo Canyon is not a state actor for purposes of 42 U.S.C. § 1983. Concluding that the district court's holding is correct, we affirm.

I.

FACTS AND PROCEEDINGS

        This case involves claims arising from the psychiatric treatment Taylor received while a student/patient at New Provo Canyon, a wholly-owned subsidiary of Defendant-Appellee Charter Medical Corporation ("CMC") and a private, adolescent, residential hospital in Provo Canyon, Utah. Taylor was a minor when his mother voluntarily admitted him to New Provo Canyon where he was a residential patient from October 1990 to August 1991.

        After attaining the age of majority, Taylor filed suit in state court in 1995 against New Provo Canyon and CMC, alleging various state law claims--fraud, medical negligence, false imprisonment, breach of fiduciary duty, and gross negligence--arising from his treatment at New Provo Canyon. After the defendants removed the case to district court on diversity grounds, Taylor amended his complaint to add specified § 1983 claims. 1 New Provo Canyon then moved for partial summary judgment as to the § 1983 claims only, insisting that it was not "acting under color of state law" when it treated Taylor and

Page 829

was thus not liable as a state actor under § 1983. Taylor countered that consideration of New Provo Canyon's position on the "state actor" issue is foreclosed by the Tenth Circuit case of Milonas v. Williams. 2

        Milonas was a class action suit brought against the Provo Canyon School ("Old Provo Canyon") in 1980. In Milonas, a district court in Utah found that Old Provo Canyon--an independent institution not then affiliated with New Provo Canyon or CMC in any way--was a state actor for the purposes of § 1983 and enjoined Old Provo Canyon from continuing specified practices. The Tenth Circuit affirmed. 3 In the instant litigation, which commenced after CMC formed New Provo Canyon to acquire the assets of Old Provo Canyon, Taylor asked the district court to take judicial notice of the state actor holdings in both the district and the appellate court decisions in Milonas to establish that New Provo Canyon is a state actor for purposes of the present suit. 4 The district court rejected Taylor's argument and granted New Provo Canyon's motion for partial summary judgment, dismissing Taylor's § 1983 claims only.

        The parties tried the remaining state court claims to a jury, which found that New Provo Canyon was 25% at fault for the damages Taylor suffered. 5 After the court determined that New Provo Canyon was liable to Taylor in the amount $7,500, Taylor timely filed a notice of appeal.

II.

ANALYSIS

A. Standard of Review

        We review the district court's grant of summary judgment de novo 6 and its refusal to take judicial notice for abuse of discretion. 7

B. Judicial Notice

        In his appellate brief, Taylor argues that, "as a matter of stare decisis, collateral estoppel, or judicial notice, the district court's decision in Milonas should inform the decision of the district court and the decision of this Court." Taylor's contentions are wholly without merit. We write primarily to address when, if ever, a court can take judicial notice of the factual findings of another court, and we turn to this issue first.

        Taylor argues that the district court erred in not taking judicial notice of the Milonas courts' determination that Old Provo Canyon was a state actor. Rule 201 of the Federal Rules of Evidence provides that a court may take judicial notice of an "adjudicative fact" if the fact is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." 8 Taylor asserts that the factual findings of the district court in Milonas--upheld on appeal--fall within this second category. We disagree.

        We have not previously addressed this precise issue, but the Second, 9 Eighth, 10 and

Page 830

Eleventh Circuits 11 have, holding that, even though a court may take judicial notice of a "document filed in another court ... to establish the fact of such litigation and related filings," 12 a court cannot take judicial notice of the factual findings of another court. This is so because (1) such findings do not constitute facts "not subject to reasonable dispute" within the meaning of Rule 201; 13 and (2) "were [it] permissible for a court to take judicial notice of a fact merely because it had been found to be true in some other action, the doctrine of collateral estoppel would be superfluous." 14

        In General Electric Capital Corporation v. Lease Resolution Corporation, 15 the Seventh Circuit adopted a rule similar, but not identical, to that of the Second and Eleventh Circuits. The court in General Electric held that the district court had erred in taking judicial notice of a finding that a settlement in a prior, unrelated proceeding was "fair, reasonable, and adequate." The Seventh Circuit held that these findings did not qualify as facts "not subject to reasonable dispute." 16 The court did not, however, adopt a per se rule against taking judicial notice of an adjudicative fact in a court record, stating:

We agree [with the Second and Eleventh Circuits] that courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these are disputable and usually are disputed. However, it is conceivable that a finding of fact may satisfy the indisputability requirement of Fed.R.Evid. 201(b). This requirement simply has not been satisfied in this case. 17

        It is not necessary at this point for us to determine whether courts in this circuit are never permitted to take notice of the factual findings of another court or are permitted to do so on rare occasion, subject to the Rule 201's indisputability requirement, because the Milonas courts' state actor determination cannot clear the rule's "indisputability" hurdle. 18 That Old Provo Canyon was a state actor for the purposes of the Milonas suit (let alone for the purposes of the present suit) was certainly open to dispute and was, in fact, disputed by the parties. That determination simply was not the type of "self-evident truth[ ] that no reasonable person could question, [a] truism[ ] that approach[es] platitude[ ] or banalit[y]," as required to be eligible for judicial notice under Rule 201. 19

        In addition, the Milonas courts' state actor determination is not an "adjudicative fact" within the meaning of Rule 201. Whether a private party is a state actor for the purposes of § 1983 is a mixed question of fact and law

Page 831

and is thus subject to our de novo review. 20 Rule 201 authorizes the court to take notice only of "adjudicative facts," not legal determinations. 21 Therefore, a court cannot take judicial notice of another court's legal determination that a party constituted a state actor for the purposes of § 1983: That determination is neither an adjudicative fact within the meaning of Rule 201 nor beyond "reasonable dispute."

        This result is wholly consistent with our precedent. In Colonial Leasing Co. of New England v. Logistics Control Group, 22 we addressed whether, in a creditor's subsequent suit against its debtor for fraudulent transfer of assets, the district court had improperly taken judicial notice of the existence of a prior judgment in favor of that creditor. 23 In holding that the district court did not abuse its discretion, we stated that "[t]he district court could properly take judicial notice, under Rule 201(b), of the judgment for the limited purpose of taking as true the action of the Oregon court in entering judgment for [the creditor] against [the debtor] .... The judicial act itself was not a fact 'subject to reasonable dispute'...." 24 This language suggests that a court cannot (at least as a general matter) take judicial notice of a judgment for other, broader purposes. We hold so expressly today.

        The sole relevant case Taylor cites in favor of his argument, Kinnett Dairies, Inc. v. J.C. Farrow, 25 lends him no succor. In Kinnett, the plaintiff requested that the district court "take judicial notice of the record in [a separate, but related case] and asked the clerk to bring it into the courtroom particularly the discovery depositions...." 26 The district court stated in its opinion that it had taken "judicial