Johnson, Pamela E. v. LaRabida Children's

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 03-2339
PAMELA JOHNSON,
Plaintiff-Appellant,
v.

LARABIDA CHILDREN’S HOSPITAL,
Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01-C-1047—Charles R. Norgle, Sr., Judge.
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ARGUED JANUARY 15, 2004—DECIDED JUNE 22, 2004
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Before COFFEY, KANNE, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. Plaintiff-appellant Pamela
Johnson brought suit against her former employer,
LaRabida Children’s hospital in Chicago, Illinois, alleging
that her civil rights had been violated, pursuant to 42
U.S.C. § 1983, when she was struck in the head by security
guard Tommy Stephens while attempting to gain access to
the facility. The district court granted LaRabida’s motion
for summary judgment under Fed. R. Civ. P. 56(c), finding
Johnson had failed to provide sufficient proof to demon-
strate that Stephens was a state actor within the meaning
of § 1983. We affirm.
2 No. 03-2339

I. BACKGROUND
On March 23, 1999, plaintiff-appellant Pamela Johnson
(“Johnson”) entered the lobby of her former employer, the
LaRabida Children’s Hospital (“Hospital”) to discuss a
negative recommendation a potential employer allegedly
received from LaRabida while she applying for a new job.
The stated purpose of her visit to the hospital that day was
to review her personnel file with the director of the human
resource department, Bill Koulias (“Koulias”). Upon arrival,
Johnson requested access to the human resources depart-
ment and Koulias, but her request was denied by the
Hospital’s receptionist, Willie Williams (“Williams”). At this
point, Johnson began to threaten Williams, allegedly
screaming “Call the police [explicative] because I am going
to kill you!” R.22, Williams Affidavit ¶ 1. This prompted
Williams to again deny Johnson’s requested audience with
Koulias and place a call to Hospital security. Prior to
security arriving Johnson continued her tirade, allegedly
threatening to beat and kill Williams and Koulias.
When security guard Tommy Stephens (“Stephens”) ar-
rived on the scene, in the midst of Johnson’s ranting, he
directed Williams to call 911. Stephens also told Johnson
that she would not be allowed to go up to the human re-
source department to see Koulias. Johnson responded by
asking whether Stephens had a gun. When Stephens told
her that he did not, Johnson warned Stephens that he
would need to find some people with guns to stop her.
According to Stephens and Williams, Johnson claimed to
have a gun. R.22, Williams Affidavit ¶ 1; R.22, Stephens
Affidavit ¶¶ 1, 2.
As Johnson became more enraged, she attempted to
walk around Stephens and proceed to the human resource
department. Stephens grabbed Johnson to impede her ad-
vance and was subsequently kicked in the leg. Stephens
responded by screaming out “that bitch kicked me.” Johnson
No. 03-2339 3

Affidavit ¶ 2. Then, in an attempt to prevent Johnson from
possibly doing harm to herself or others, Stephens, using a
downward motion, struck Johnson in the head with the
walkie-talkie he was holding in his left hand. It was only
after Stephens struck Johnson that her verbal and physical
barrage ceased and she left the Hospital’s lobby, where she
was met at the door by Chicago police called to the scene by
Williams. Police took Johnson to a local hospital where she
received 13 stitches for her wound. While neither Johnson
nor Stephens were arrested the day of the incident, Johnson
was issued a citation for assault, battery, and disorderly
conduct.
Although Johnson filed criminal battery charges against
Stephens, the State’s Attorney’s Office elected not to pursue
charges. Subsequently, Stephens, Koulias, and two other
Hospital employees prepared and signed misdemeanor
criminal complaints against Johnson alleging disorderly
conduct, telephone harassment, assault, and battery.1 The
assault and battery charges were dismissed on April 4, 2000
and never reinstated. In return for the dismissal of those
charges, Johnson pled guilty to the misdemeanor disorderly
conduct and telephone harassment charges. She was
sentenced to, and completed, one year of conditional
supervision. In her plea agreement, Johnson admitted
that she (1) acted in “an unreasonable manner”; (2)
“threat[ened] bodily harm” to persons at the Hospital; (3)
“provoke[d] a breach of the peace”; (4) “battered [Stephens]”;
and (5) “created dismay.”
On February 15, 2000, Johnson filed a civil complaint,
pursuant to 28 U.S.C. § 1983, against the Hospital and
Stephens alleging that they violated her civil rights because

1
After the incident, Johnson continued to threaten bodily harm
to various Hospital personnel in numerous recorded telephone
calls made to the Hospital.
4 No. 03-2339

Stephens used excessive force when he struck her in the
head. Johnson’s complaint also alleged a number of pendant
state law claims. On January 24, 2002, the defendants filed
a motion for summary judgment on Johnson’s Section 1983
claim. On September 27, 2002, the trial judge granted the
defendant’s motion, dismissing both Johnson’s federal and
pendant state law claims. Specifically, the district court
found that Stephens was not a “state actor” for purposes of
Section 1983. The judge’s Order also declined to retain
pendant jurisdiction over Johnson’s state law claims.
Johnson timely appealed the Order to this Court on October
16, 2002. We affirm.

II. ANALYSIS
“We review a district court’s grant of summary judgment
de novo, construing all facts and inferences in the light
most favorable to the non-moving party.” Williams v. Waste
Mgmt. of Ill., 361 F.3d 1021, 1028 (7th Cir. 2004). Summary
judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
42 U.S.C. § 1983 provides in pertinent part that “[e]very
person who, under color of any statute, ordinance, regu-
lation, custom, or usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law.” 42 U.S.C. § 1983. While
generally employed against government officers, the
language of § 1983 authorizes its use against private in-
dividuals who exercise government power; that is, those
individuals who act “under color of state law.” Payton v.
No. 03-2339 5

Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 628
(7th Cir. 1999). This Court held in Payton v. Rush-
Presbyterian-St. Luke’s Medical Center that a private party
will be deemed to have acted under “color of state law”
when the state either (1) “effectively directs or controls the
actions of the private party such that the state can be held
responsible for the private party’s decision”; or (2) “dele-
gates a public function to a private entity.” Id. Johnson
argues, in accord with the latter theory, that Stephens
should be considered a state actor due to his status as a
special policeman, duly appointed under Chicago Municipal
Code § 4-340-100.2
Chicago Municipal Code § 4-340-100 declares that “[s]pe-
cial policemen shall possess the powers of the regular police
patrol at the places for which they are respectively ap-
pointed.” Furthermore, “for purposes of determining
whether [an individual is a] state actor[ ] . . . , no legal
difference exists between a privately employed special
officer with full police powers and a regular Chicago police
officer. Payton, 184 F.3d at 630 (emphasis added). If, how-
ever, the privately employed special officers are “no sub-
stitute for the police” in that they are not “entrusted with
all powers possessed by the police,” then the special officer
is not considered a state actor. Id. (citations omitted).
When, for example, a special officer’s only recourse in a
given situation is to call the police for help, it is “a far cry
from delegating all of the powers of the regular police patrol
to the special officer.” Payton, 184 F.3d at 630.

2
While Chicago Municipal Code § 4-340-100 also requires
“[s]pecial policemen [to] report to the superintendent of police . . .
as . . . required by him,” and thus creates the potential for a claim
of state action under the “directs or controls” prong, Payton v.
Rush-Presbyterian-St. Luke’s Medical Center, 184 F.3d 623, 628
(7th Cir. 1999), Johnson does not offer that argument before this
Court.
6 No. 03-2339

In United States v. Hoffman, 498 F.2d 879 (7th Cir. 1974),
for example, we held that privately employed railroad
policemen, who were also Chicago special police officers,
were state actors when they brutally beat vagrant trespass-
ers. Id. at 881-82. Of particular importance was the fact
that the policemen were “authorized on a continuing and
full-time basis to search actively for criminals and . . . to
use the powers of the state when their search [was] success-
ful.” Id. at 881.
In Wade v. Byles, on the other hand, we held that a se-
curity guard working under contract with the Chicago
Housing Authority (“CHA”) was not a state actor when,
while on duty, the security guard got into an altercation
with an individual at a CHA security checkpoint, and shot
the man in the groin. 83 F.3d 902 (7th Cir. 1996). Like the
railroad policemen in Hoffman, the CHA had been officially
delegated police authority. Id. at 903. Unlike the situation
in Hoffman, however, we held that Wade was not a case
“where the state ha[d] delegated its entire police power to
a private police force.” Id. at 905 (Although contract with
CHA allowed guard to carry gun, it only permitted him to
detain individuals for trespass and only pending arrival of
police). For that reason, the guard in Wade was not a state
actor. Id. at 907.
Under this standard, the district court did not err in
finding that Stephens was not a state actor. Initially, it
should be noted that Stephens did not, and was not autho-
rized to, carry a firearm. Also, at the time of the incident,
Stephens was not expected or authorized to carry out the
functions of a police officer. Stephens was merely responsi-
ble for routine security duties only such as patrolling the
interior and exterior of the hospital, observing potential
safety hazards, manning an information desk, monitoring
the alarm system, and providing escorts for patients and
staff. In the event that a visitor to the hospital were to
No. 03-2339 7

become unruly or disruptive, as Johnson clearly did, it was
within Stephen’s discretion to ask that person to leave the
premises. However, per Hospital policy, when Johnson
began acting belligerent and hostile and refused to leave,
the only recourse Stephens had was “to call 911 for assis-
tance in having the individual removed.” Defendant’s
Motion for Summary Judgment, Ex. 11, at L00001. This is
“a far cry from delegating all of the powers of the regular
police patrol to . . . special officer [Stephens].”
Indeed, Stephens precisely followed this procedure on
March 23, 1999. For when Stephens arrived on the scene
(after responding to an assistance call from Williams) and
perceived the threat that Johnson posed, he immediately
directed Williams to dial 911. It was only after Stephens
had been physically assaulted by Johnson, and legitimately
feared for his safety and the safety of others present,3 that
he used force to subdue Johnson, striking her once in the
head with the only “weapon” he had, his walkie-talkie.
Much like Wade, therefore, this is not a case “where the
state ha[d] delegated its entire police power to a private
police force.” Id. at 905. Stephens was no substitute for the
police and, therefore, not a state actor. Payton, 184 F.3d at
630.
Nonetheless, assuming arguendo, that Stephens was a
state actor, Johnson would still need to establish that
Stephens deprived her of a constitutional right. 42 U.S.C.
§ 1983. She cannot do so. In her complaint, Johnson claims

3
As noted above, Johnson allegedly implied she was in possession
of a firearm. Stephens states in his affidavit that “I became very
concerned that Johnson would pull the gun she had been re-
peatedly threatening to use . . . [and] [d]etermined not to become
the latest victim of a disgruntled former employee’s shooting
spree, I instinctively reacted by striking Johnson in the
forehead . . . .”
8 No. 03-2339

that Stephens used excessive force in seeking to detain her
in violation of the Fourth Amendment. We disagree.
Stephens’ use of force was reasonable as a matter of
necessity and law.
“Determining whether the force used to effect a particular
seizure is ‘reasonable’ under the Fourth Amendment
requires a careful balancing of the nature and intrusion on
the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v.
M.S. Connor, 490 U.S. 386, 396 (1989). Furthermore, it is
clear that, under the Fourth Amendment, “the right to
make an arrest . . . necessarily carries with it the right to
use some degree of physical coercion.” Id. What is reason-
able depends upon the particulars of a given case, including
“the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether [s]he is actively resisting arrest or at-
tempting to evade arrest by flight.” Id. In addition, what is
reasonable “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id.
Under this standard, it is clear that Stephens exercised
reasonable force in attempting to detain Johnson. By her
own admission, Johnson (1) acted in “an unreasonable
manner”; (2) “threat[ened] bodily harm” to persons at the
Hospital; (3) “provoke[d] a breach of the peace”; (4) “bat-
tered [Stephens]”; and (5) “created dismay.” These ad-
missions alone demonstrate that Stephens had reason to
exercise physical coercion and that the single blow from his
walkie-talkie was reasonable force given the situation. Id.
As such, even if we were to hold that Stephens was a state
actor, he did not deprive Johnson of her Fourth Amendment
right to be free from excessive force.
No. 03-2339 9

III. Conclusion
The judgment of the district court is
AFFIRMED.
A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—6-22-04