Gorman v. Twnshp Manalapan

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

2-16-1995

Gorman vs. Twnshp Manalapan
Precedential or Non-Precedential:

Docket 94-5200

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 94-5200
___________

ALPHONSE W. GROMAN; JANE M. GROMAN,
Appellants

v.

TOWNSHIP OF MANALAPAN;
CHIEF JIMMIE R. POTTS; HELEN K. KIRKLAND;
THOMAS WHITE; MATTHEW TREMBOW; PETER VANDERWEIL;
JOHN DOE, RICHARD ROE, Police Officers of the
Township of Manalapan, the identity and number
of whom is presently unknown to the plaintiffs;
ENGLISHTOWN-MANALAPAN FIRST AID SQUAD;
EDWARD T. MORIARTY; TRACIE ZACHARY;
JANE A. DOE, JOHN A. DOE, JOHN B. DOE, JOHN C. DOE,
JANE B. DOE, and JANE C. DOE, fictitious defendants
(representing unlimited fictitious defendants);
ABC CO., and XYZ COMPANY, a fictitious entity
(representing unlimited fictitious defendants)

_______________________________________________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 92-cv-00708)
___________________

Argued September 27, 1994

Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

(Filed February 16, 1995)

CHARLES F. WETHERELL, ESQUIRE (Argued)
Meinders & Wetherell
555 Madison Avenue
P.O. Box 900
Lakewood, New Jersey 08701
Attorney for Appellants
DAVID F. LUVARA, ESQUIRE (Argued)
Slimm & Goldberg
216 Haddon Avenue
P.O. Box 2222
Westmont, New Jersey 08108

Attorney for Appellees
Township of Manalapan, Chief Jimmie R. Potts,
Helen K. Kirkland, Thomas White, Matthew Trembow,
Peter Vanderweil, Thomas Wallace, Evelyn Schade,
Mary Caccamo, Officer Ascough, Officer Visconi,
Officer Bruno, Officer McCormick, Officer Rumolo
and Officer Cochran

MARK T. STOPA, ESQUIRE
Lushan, McCarthy, Goonan & Stopa
284 Harvard Street
P.O. Box 1604
Brookline, Massachusetts 02146

Attorney for Appellee
Chief Jimmie R. Potts

STEVEN B. PORTNOFF, ESQUIRE
Law Office of Steven B. Portnoff
26 Plaza Nine
Manalapan, New Jersey 07726

Attorney for Appellee
Thomas White

GEORGE WILGUS, III, ESQUIRE (Argued)
Lenox, Socey, Wilgus, Formidoni & Casey
3131 Princeton Pike
Trenton, New Jersey 08648

Attorney for Appellees
Englishtown-Manalapan First Aid Squad,
Edward T. Moriarty, Tracie Zachary,
James Paulser and Joseph Bokenko
 __________________

OPINION OF THE COURT
__________________

SCIRICA, Circuit Judge.

Plaintiffs Alphonse W. Groman and Jane M. Groman appeal

the district court's grant of summary judgment on their civil

rights claims to defendants Township of Manalapan, the

Englishtown-Manalapan First Aid Squad, members of the first aid

squad and Manalapan Police Department, and several unknown

defendants.

The dispute arises out of the arrest of Mr. Groman at

his residence on February 17, 1990. Plaintiffs brought this

civil rights action under 42 U.S.C. § 1983 (1988), alleging

certain constitutional violations based on: use of excessive

force, false arrest, false imprisonment, failure to provide

necessary medical treatment, unlawful search and seizure,

conspiracy to violate constitutional rights, and denial of right

to counsel.1

The district court granted summary judgment to all

defendants on all constitutional claims and declined to exercise

supplemental jurisdiction on the state law claims. We will

affirm on all counts except the claim of excessive force against

police officers Helen K. Kirkland, Matthew Trembow, and Peter
1
. Plaintiffs also alleged the following state law claims:
trespassing, intentional and negligent infliction of emotional
distress, assault, battery, loss of consortium, invasion of
privacy, injury to good name and reputation, slander, libel,
negligent hiring, and failure properly to train and supervise.
Vanderweil, and the claims of false arrest and false imprisonment

against police officer Kirkland.

I.

On February 17, 1990, Alphonse W. Groman and his wife,

Jane M. Groman, were in their home in Manalapan, New Jersey, when

Mr. Groman, age seventy-five, allegedly suffered a minor stroke.

Mrs. Groman telephoned her neighbor, James W. Thomson, who came

over with his son, James E. Thomson, and then called the police

for first aid. Officer Helen K. Kirkland of the Township of

Manalapan Police Department was the first to respond.

When Kirkland arrived at the Groman residence, James W.

Thomson and Mrs. Groman were attempting to place Mr. Groman into

a chair. Kirkland entered the room and proceeded toward Mr.

Groman, who resisted her contact and demanded to go outside. Mr.

Groman admitted to consuming one alcoholic drink sometime

earlier.

Exactly what happened next is hotly contested.

Plaintiffs contend Mr. Groman was standing still, arms to his

side, when Kirkland struck him in the mouth. This blow,

plaintiffs maintain, was an unprovoked assault against a small

elderly man, who, while uncooperative, did not deserve to be

struck.2 Defendants assert Kirkland put a hand on Groman's

2
. Mrs. Groman's testimony at deposition included the following
exchange:

Q: And what happened after you got the chair
out?
shoulder in an effort to get him to sit down. Immediately

thereafter Groman punched Kirkland in the face, cutting and

bruising her cheek, and began using abusive language. As he

prepared to hit her again, Kirkland responded out of fear for her

own safety and hit Groman. She observed that Groman was

combative and that he smelled of alcohol.3 According to
(..continued)
A: I was watching [Mr. Groman] all this time.
As I say, I backed away, and Officer Kirkland
looked at [Mr. Groman] and said to him, Do
you know you hit an officer?

Q: Okay.

A: This is when I came forward with--I guess
my mouth must have been opened ready to say
he didn't touch you, because [Mr. Groman] was
just standing there, his head down a bit, his
arms to his side, he didn't move an inch, and
there was no way in hell that he could have
hit her.

Jane Groman Dep., Plaintiffs' App. at 375.
3
. Kirkland testified at Groman's state trial to the following:

Q: What happened after [Mr. Groman] hit you?

A: Well, it seemed that we were going to--he
was going to hit me again. I hit the subject
back and then I grabbed both his hands with
mine and locked them, and he got up, and he
was--it was like he was going to fight me
again. So I held his hands just like--almost
like a kid, up in the air, and he was trying
to bend my hands back . . . .

Kirkland Test., Plaintiffs' App. at 120. Kirkland also
testified:

Q: Did Mr. Groman do anything beyond his
striking you that you testified to, ma'am, to
put you in such fear of your safety?

. . . .
plaintiffs, Groman was a stroke victim, disoriented and a bit

aggressive, who was assaulted by a police officer dispatched to

assist him. Defendants portray Groman as a violent drunk and

claim Kirkland's response was the appropriate reaction to a

dangerous situation.

Kirkland called the Manalapan Police Department for

backup. Officer Matthew Trembow soon arrived to aid Kirkland and

the local first aid squad arrived shortly thereafter, followed by

Lieutenant Peter Vanderweil. Members of the first aid squad

attempted to provide medical assistance to Groman but he rebuffed

them. Groman continued to be belligerent and to curse at the

police and first aid squad. The first aid squad members left

without treating him.

The police officers proceeded to arrest Groman, but he

was not cooperative. After a brief struggle which plaintiffs

attribute to Groman's limited mobility in his right arm and

defendants to Groman's attempt to resist arrest, the officers

placed Groman in handcuffs. As the police took Groman out to the

police car, he allegedly sustained an injury to his face and lost

his dentures.

Upon arrival at the police station, the officers

removed Groman from the car. Here again the parties vigorously

dispute what occurred. Plaintiffs maintain, based on Groman's
(..continued)

A: At this time he had started to stand up,
and he had had his fist cocked back again.

Kirkland Dep., Plaintiffs' App. at 752.
hazy recollection, that the police officers dragged Groman out of

the car feet first causing his head to hit the pavement. After

picking him up, the officers stomped on his toe, allowed him to

fall again, and then one of the officers jumped on him.

Defendant police officers say that as they moved Groman from the

police car to the station he fell, knocking his head against the

ground, and that Kirkland lost her balance trying to hold Groman

up and fell with him. Once inside the police station, plaintiffs

contend the officers left Groman handcuffed for some time. The

first aid squad was called again, but Groman again refused

treatment. Groman's daughter asserts his pants were doused in

alcohol when she picked him up from the police station.

Plaintiffs maintain that during the course of these events Groman

sustained black eyes and minor cuts and bruises to the face and

hands. The police charged Groman with aggravated assault,

disorderly conduct, and resisting arrest. He was acquitted on

all counts after a bench trial in the Manalapan Township

Municipal Court.

II.

We exercise plenary review over the grant of a motion

for summary judgment. Oritani Sav. & Loan Ass'n v. Fidelity &

Deposit Co., 989 F.2d 635, 637 (3d Cir. 1993). We apply the same

test required of the district court, viewing the facts from the

evidence submitted in the light most favorable to the non-moving

party, and taking the non-movant's allegations as true. Goodman
v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert.
denied, 429 U.S. 1038 (1977). We have jurisdiction over this

appeal under 28 U.S.C. § 1291 (1988).

Summary judgment is appropriate when "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). After one party has filed a properly supported summary

judgment motion, the party opposing it must present sufficient

evidence for a reasonable jury to find in its favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The party

contesting the motion must demonstrate a dispute over facts that

might affect the outcome of the suit. Id. at 248. Plaintiffs

contend they have presented sufficient evidence to survive

summary judgment.
 III.

Section 1983 of 42 U.S.C.4 does not create substantive

rights, but provides a remedy for the violation of rights created

by federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 816

(1985). A prima facie case under § 1983 requires a plaintiff to

demonstrate: (1) a person deprived him of a federal right; and

(2) the person who deprived him of that right acted under color

of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640

(1980).

A. Claims Against the Police

An excessive force claim under § 1983 arising out of

law enforcement conduct is based on the Fourth Amendment's

protection from unreasonable seizures of the person. Graham v.

Connor, 490 U.S. 386, 394-95 (1989). A cause of action exists

under § 1983 when a law enforcement officer uses force so

excessive that it violates the Fourth and Fourteenth Amendments

to the United States Constitution. Brown v. Borough of

4
. The text of 42 U.S.C. § 1983 provides, in part:

§ 1983. Civil action for deprivation of
rights
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States or other person within the
jurisdiction thereof 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,
suit in equity, or other proper proceeding
for redress. . . .
Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990). Police officers

are privileged to commit a battery pursuant to a lawful arrest,

but the privilege is negated by the use of excessive force.

Edwards v. City of Phila., 860 F.2d 568, 572 (3d Cir. 1988).

When a police officer uses force to effectuate an

arrest that force must be reasonable. Graham, 490 U.S. at 396.

The reasonableness of the officer's use of force is measured by

"careful attention to the facts and circumstances of each

particular 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 he is actively resisting

arrest or attempting to evade arrest by flight." Id. The

reasonableness inquiry is objective, but should give appropriate

scope to the circumstances of the police action, which are often

"tense, uncertain, and rapidly evolving." Id. at 397.

In this case, summary judgment is appropriate if, as a

matter of law, the evidence would not support a reasonable jury

finding that the police officers' actions were objectively

unreasonable. Without commenting on the weight of the evidence,

we believe it could support a finding that Kirkland hit Groman

when Groman was suffering from a minor stroke, and that Groman's

obstreperous behavior did not warrant Kirkland's reaction. We

conclude there are material issues of disputed fact, and that a

jury could decide that Kirkland and the other officers acted

unreasonably and used excessive force. Further, a jury could

find the officers used excessive force in transporting Groman to

the police station.
 Should a jury decide Groman did not hit Kirkland, then

he could have committed only the crimes of disorderly conduct and

resisting arrest. In evaluating the Graham factors under the

facts of this case, we conclude that neither offense is

particularly severe, and that a jury could determine Groman did

not present a serious threat to Kirkland. Cf. Frohmader v.

Wayne, 958 F.2d 1024, 1025-26 (10th Cir. 1992) (holding summary

judgment on excessive force claim inappropriate when plaintiff's

sworn account differed from police officer's regarding events

after plaintiff's arrest); Wing v. Britton, 748 F.2d 494, 495-96

(8th Cir. 1984) (jury decided excessive force claim when disputed

fact was whether plaintiff punched police officer to provoke

officer's response).

In sum, we hold only that there are material issues of

disputed fact and credibility determinations that cannot be

decided on a motion for summary judgment.5 We will reverse the

district court's grant of summary judgment on plaintiffs'

excessive force claim against officers Helen K. Kirkland, Matthew

Trembow, and Peter Vanderweil.6
5
. This case is distinct from Brown v. Borough of Chambersburg,
903 F.2d 274, 278 (3d Cir. 1990), in which we affirmed the
district court's holding that plaintiff's claim was frivolous
because it was based on plaintiff's bare assertion of police
excessive force, was completely uncorroborated by other evidence,
and plaintiff's recollection was dimmed by alcohol. Here, there
is some corroboration from Mrs. Groman on the initial altercation
and from others on the injuries sustained.
6
. Of course, the fact that we reverse as to officers Trembow
and Vanderweil does not put them in the same posture as Kirkland
on remand. Plaintiffs do not allege Trembow and Vanderweil were
involved in the initial scrap where Kirkland hit Groman in the
house. Thus, plaintiffs will have to prove that Trembow and
 Our holding on the excessive force claim does not

automatically compel reversal of the grant of summary judgment on

plaintiffs' other claims against the police. To prevail on their

false arrest claim, plaintiffs would have to demonstrate at trial

that the police lacked probable cause to arrest Groman. "The

proper inquiry in a section 1983 claim based on false arrest

. . . is not whether the person arrested in fact committed the

offense but whether the arresting officers had probable cause to

believe the person arrested had committed the offense." Dowling

v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988). Groman was

charged with aggravated assault,7 disorderly conduct,8 and
(..continued)
Vanderweil violated Groman's Fourth Amendment rights by using
excessive force during his transport to the police station.
7
. The New Jersey statute provides in part:

2C:12-1. Assault

a. Simple Assault. A person is guilty of
assault if he:

(1) Attempts to cause or purposely, knowingly
or recklessly causes bodily injury to
another;

. . . .

b. Aggravated Assault. A person is guilty of
aggravated assault if he:

. . . .

(5) Commits a simple assault as defined in
subsection a. (1) . . . of this section upon

(a) Any law enforcement officer acting
in the performance of his duties while
in uniform or exhibiting evidence of his
authority . . . .
resisting arrest.9 Generally, the existence of probable cause is
(..continued)

N.J. Stat. Ann. § 2C:12-1(a), (b)(5)(a) (West 1982 & Supp. 1994).
8
. The New Jersey statute provides:

2C:33-2. Disorderly conduct

a. Improper behavior. A person is
guilty of a petty disorderly persons offense,
if with purpose to cause public
inconvenience, annoyance or alarm, or
recklessly creating a risk thereof he

(1) Engages in fighting or threatening,
or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically
dangerous condition by any act which serves
no legitimate purpose of the actor.

b. Offensive language. A person is
guilty of a petty disorderly persons offense
if, in a public place, and with purpose to
offend the sensibilities of a hearer or in
reckless disregard of the probability of so
doing, he addresses unreasonably loud and
offensively coarse or abusive language, given
the circumstances of the person present and
the setting of the utterance, to any person
present.

"Public" means affecting or likely to
affect persons in a place to which the public
or a substantial group has access; among the
places included are highways, transport
facilities, schools, prisons, apartment
houses, places of business or amusement, or
any neighborhood.

Id. § 2C:33-2.
9
. The New Jersey statute provides in part:

2C:29-2. Resisting arrest; eluding officer

a. A person is guilty of a disorderly
persons offense if he purposely prevents a
a factual issue. Deary v. Three Un-Named Police Officers, 746

F.2d 185, 191 (3d Cir. 1984). Summary judgment can be granted in

an appropriate case on probable cause, id. at 192, but it is not

proper here. Because we find that a reasonable jury could find

that the police did not have probable cause to arrest Groman, we

reverse on this count as to police officer Helen K. Kirkland.

In order for the police to have properly arrested

Groman, they must have had probable cause on the aggravated

assault or disorderly conduct charges. This is because the

resisting arrest charge could not have provided probable cause

for the arrest ab initio. Additionally, should a jury decide

that Groman did not hit Kirkland, it could determine that

Kirkland lacked probable cause to arrest him on the aggravated

assault charge.10 We are then left to consider the disorderly

conduct charge.

A disorderly conduct charge under § 2C:33-2 requires

that the behavior have been in "public." N.J. Stat. Ann. §

2C:33-2 (West 1982 & Supp. 1994). In seeking to determine

whether that element could be met here, we turn to New Jersey

(..continued)
law enforcement officer from effecting a
lawful arrest . . . .

Id. § 2C:29-2.
10
. This reasoning does not apply to officers Trembow and
Vanderweil. Summary judgment is appropriate as to them because
the uncontested evidence demonstrates that Kirkland told each of
them that Groman had punched her. This is sufficient for them to
have believed probable cause existed, and also insulates them
from plaintiffs' claim of false imprisonment, Baker v. McCollan,
443 U.S. 137, 143-44 (1979).
case law. In State v. Finate, 80 A.2d 341, 341 (N.J. Super. Ct.

Law Div. 1951), the police charged the first defendant with

uttering "certain loud and offensive or indecent language from

the [defendant's] yard," and the second defendant (his wife) with

doing the same from her porch. They were charged with violating

an earlier version of the statute under which Groman was

arrested.11 The court held the statute "indicates that a person

cannot be charged with an offense thereunder while on his own

property" and reversed the convictions. Id. at 342.

The opinion in Finate, in conjunction with the current

statutory text,12 leads us to conclude that Groman could not have

committed the offense of disorderly conduct in his own home.13

11
. The statute provided:

Loitering in public places or on private
property; offensive language therein or
thereon.
Any person who, being under the influence of
intoxicating liquor, shall loiter in any
public or quasi-public place, or in or upon
any private property not his own within this
state, or who, not being under the influence
of intoxicating liquor, shall there indulge
in and utter loud and offensive or indecent
language, shall be adjudged a disorderly
person.

N.J. Rev. Stat. § 2:202-8 (1937).
12
. See supra note 8.
13
. Although New Jersey case law is sparse, case law from other
jurisdictions supports this conclusion. In Commonwealth v.
Weiss, 490 A.2d 853 (Pa. Super. Ct. 1985), the court dealt with a
statute very similar to this one. The statute provided:

Disorderly conduct
The police could not, therefore, have had probable cause to

arrest him on that charge. Since it is a jury question whether

(..continued)
(a) Offense defined.--A person is guilty
of disorderly conduct if, with intent to
cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof,
he:
. . . .
(3) uses obscene language, or makes an
obscene gesture;
. . . .
(c) Definition.--As used in this section
the word "public" means affecting or likely
to affect persons in a place to which the
public or a substantial group has access;
among the places included are highways,
transport facilities, schools, prisons,
apartment houses, places of business or
amusement, any neighborhood, or any premises
which are open to the public.

(quoting 18 Pa. Cons. Stat. § 5503(a)(3)). In Weiss, the
defendant had screamed epithets at the police officer who broke
down her door to arrest her husband. Id. at 854. The court
reversed defendant's conviction because the requirement that the
conduct be in "public" was not satisfied. Id. at 855-57.

Likewise, in People v. Jerome, 168 N.Y.S.2d 452 (County
Ct. 1957), the court reversed defendant's conviction for cursing
at a police officer from inside a private residence, holding that
the private residence could not be a "public place" for purposes
of the New York disorderly conduct statute. Id. at 455. In
Whittington v. State, 634 N.E.2d 526 (Ind. Ct. App. 1994), the
defendant yelled at police officers who had gone to his house
because of a report of a domestic disturbance there. The
defendant had apparently punched his sister. Id. at 526. The
officers charged him with violating the disorderly conduct
statute because of his verbal attacks on the officers, and he was
convicted. The court, in reversing his conviction, stressed that
"[t]he forum employed by [defendant] was his own home. Thus, the
potential for invading the right of others to peace and quietude
was diminished." Id. at 527. Even though the statute did not
have the "public" element that the New Jersey law contains, the
court reversed his conviction on the basis that his behavior was
not sufficiently public. Id.
the police had probable cause to arrest Groman on the aggravated

assault charge, and since the other two charges could not have

provided probable cause for Groman's arrest, we will reverse the

district court's grant of summary judgment on the false arrest

claim as to police officer Kirkland.

A false imprisonment claim under 42 U.S.C. § 1983 is

based on the Fourteenth Amendment protection against deprivations

of liberty without due process of law. Baker v. McCollan, 443

U.S. 137, 142 (1979). The Court in Baker made it clear an arrest

based on probable cause could not become the source of a claim

for false imprisonment. Id. at 143-44. On the other hand, where

the police lack probable cause to make an arrest, the arrestee

has a claim under § 1983 for false imprisonment based on a

detention pursuant to that arrest. Thomas v. Kippermann, 846

F.2d 1009, 1011 (5th Cir. 1988). A false imprisonment claim

under § 1983 which is based on an arrest made without probable

cause is grounded in the Fourth Amendment's guarantee against

unreasonable seizures. Barna v. City of Perth Amboy, 42 F.3d

809, 820 (3d Cir. 1994); Guenther v. Holmgreen, 738 F.2d 879, 883

(7th Cir. 1984), cert. denied, 469 U.S. 1212 (1985); Weber v.
Village of Hanover Park, 768 F. Supp. 630, 634-36 (N.D. Ill.

1991). If the jury found in plaintiffs' favor on the false

arrest claim, it could also find that Groman suffered a violation

of his constitutional rights by virtue of his detention pursuant

to that arrest. See Pritchard v. Perry, 508 F.2d 423, 425 (4th

Cir. 1975) (holding "[t]hat an infringement of personal liberty

such as follows from an unconstitutional arrest has resulted in
but a short period of restraint . . . manifestly cannot . . .

abort an aggrieved plaintiff's right of action under Section

1983."). We will reverse the grant of summary judgment on the

false imprisonment claim as to police officer Kirkland.

Plaintiffs also assert a claim under § 1983 based upon

a failure to provide necessary medical treatment. Failure to

provide medical care to a person in custody can rise to the level

of a constitutional violation under § 1983 only if that failure

rises to the level of deliberate indifference to that person's

serious medical needs. Walmsley v. City of Phila., 872 F.2d 546,

551-52 (3d Cir.), cert. denied, 493 U.S. 955 (1989) (citing

Estelle v. Gamble, 429 U.S. 97 (1976)). The record clearly

establishes that the police offered Groman medical assistance

which he consistently and obstinately rejected. Defendants were

not deliberately indifferent to Groman's medical needs.

Plaintiffs' three other claims against the police under

§ 1983--unlawful search and seizure, conspiracy, and denial of

right to counsel--may be disposed of briefly. While plaintiffs

raised the first two claims in their complaint, the district

court properly observed that they have provided no factual basis

upon which a reasonable jury could find in their favor. Indeed,

plaintiffs present these claims in the form of conclusory

allegations, and a close review of the record reveals no factual

basis upon which they could be sustained. Accordingly, we will

affirm the district court on these claims. Finally, plaintiffs

have not appealed the grant of summary judgment on the claim of a

denial of the right to counsel.
B. Claim Against the Township of Manalapan

Plaintiffs urge us to sustain their cause of action

against the Township of Manalapan under § 1983 for negligent

supervision. Plaintiffs recognize the Supreme Court in Monell v.

Department of Social Services, 436 U.S. 658, 694-95 (1978), held

a plaintiff must prove the existence of a policy or custom that

has resulted in a constitutional violation in order to make a

municipality liable under § 1983. A municipality cannot be held

liable under § 1983 on a respondeat superior theory. Id. at 691.

The Court has also stated that liability for failure to train

subordinate officers will lie only where a constitutional

violation results from "deliberate indifference to the

constitutional rights of [the municipality's] inhabitants." City

of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). This

deliberate indifference standard applies to plaintiffs'

allegations of negligent supervision and failure to investigate.

Cf. San Filippo v. Bongiovanni, 30 F.3d 424, 445-46 (3d Cir.

1994) (holding deliberate indifference standard applies to

failure to investigate dismissal of an employee that may have

been in violation of that employee's First Amendment rights),

cert. denied, 115 S. Ct. 735 (1995). Further, in Oklahoma City

v. Tuttle, 471 U.S. 808, 823-24 (1985), the Court held that "a

single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be attributed

to a municipal policymaker." See also Colburn v. Upper Darby
Township, 838 F.2d 663, 672 (3d Cir. 1988), cert. denied, 489

U.S. 1065 (1989) (holding allegations of three similar incidents

enough to sustain a claim where a single incident presumably

would not be).

It is clear that plaintiffs' claim against the

municipality is unsubstantiated. Plaintiffs assert two bases for

their claim of liability based on municipal policy. First, they

make vague assertions about the police department's failure to

investigate other wrongdoings, and second, they point to the

incident in this case. Plaintiffs' allegations about the

Township's failure to investigate have virtually no evidentiary

support in the record, and this case standing alone does not

provide sufficient proof of a policy or custom to satisfy the

dictates of § 1983. Tuttle, 471 U.S. at 823-24. The record will

not support a reasonable jury finding of a municipal policy or

custom of "negligent supervision" which rises to the level of

deliberate indifference required for § 1983 liability.
C. Claims Against the Englishtown-Manalapan First Aid Squad

and its Members

We turn now to plaintiffs' claims against defendants

Englishtown-Manalapan First Aid Squad and squad members Edward T.

Moriarty, Tracie Zachary, James Paulser, and Joseph Bokenko14 for
14
. Plaintiffs also named paramedics from the Centra State
Medical Center as defendants in their second amended complaint.
Second Am. Compl. ¶ 1. But the evidence fails to show that the
Centra State paramedics had anything to do with the allegations
in this case. Further, as plaintiffs have failed to address the
grant of summary judgment to these defendants on appeal, their
claims are abandoned. Travitz v. Northeast Dept. ILGWU Health &
Welfare Fund, 13 F.3d 704, 711 (3d Cir.), cert. denied, 114 S.
Ct. 2165 (1994). See also Simmons v. City of Phila., 947 F.2d
conspiracy to violate constitutional rights and for failure to

provide necessary medical treatment. The first aid squad's

involvement in the alleged conduct forming the basis of these

claims was minimal.

The first aid squad attempted to treat Groman at his

house and later at the police station. Both times the police

caused the squad to be dispatched. It is uncontroverted that

Groman adamantly refused the squad members' medical attention,

although at the police station one squad member was able to take

Groman's blood pressure. Groman repeatedly and insistently

called the squad members incompetent and rejected their medical

attention at the police station even after they informed him he

could go to the hospital even though he had been arrested.

As we have noted, a suit under § 1983 requires the

wrongdoers to have violated federal rights of the plaintiff, and

that they did so while acting under color of state law. 42

U.S.C. § 1983. As the "under color of state law" requirement is

part of the prima facie case for § 1983, the plaintiff bears the

burden of proof on that issue. West v. Atkins, 487 U.S. 42, 48

(1988). The color of state law element is a threshold issue;

there is no liability under § 1983 for those not acting under

color of law. Versarge v. Township of Clinton, N.J., 984 F.2d
1359, 1363 (3d Cir. 1993).

(..continued)
1042, 1065-66 (3d Cir. 1991) (observing a mere passing reference
is insufficient to bring an issue before the court on appeal),
cert. denied, 112 S. Ct. 1671 (1992).
 Where the actors are not state or municipal officials,

but are private individuals or associations, we still must

address whether their activity can nevertheless be deemed to be

under color of law. The inquiry is fact-specific. Lugar v.

Edmondson Oil Co., 457 U.S. 922, 939 (1982); Krynicky v.

University of Pittsburgh, 742 F.2d 94, 97-98 (3d Cir. 1984),

cert. denied, 471 U.S. 1015 (1985). The first aid squad's

relationship to the Township therefore is crucial to our analysis

under § 1983. The first aid squad members here were not employed

by the Township. They were volunteers, and the squad itself was

a private organization. The first aid squad received at least

$25,000 annually from the Township, but it is not clear how much

of the squad's total budget this amount comprised, nor what, if

any, oversight the Township exercised over the squad's

operations. Defendants' unrebutted assertion is that the first

aid squad received no health benefits or insurance coverage from

either Manalapan or Englishtown and that the squad was not under

the formal direction or control of either municipality.
 The color of state law15 analysis can be difficult, but

is grounded in a basic and clear requirement, "that the defendant

in a § 1983 action have exercised power 'possessed by virtue of

state law and made possible only because the wrongdoer is clothed

with the authority of state law.'" West, 487 U.S. at 49 (quoting

United States v. Classic, 313 U.S. 299, 326 (1941)). A private

action is not converted into one under color of state law merely

by some tenuous connection to state action. The issue is not

whether the state was involved in some way in the relevant

events, but whether the action taken can be fairly attributed to

the state itself. Jackson v. Metropolitan Edison Co., 419 U.S.

345, 351 (1974). As the Supreme Court has stated: "we ask

whether the State provided a mantle of authority that enhanced

the power of the harm-causing individual actor." NCAA v.

Tarkanian, 488 U.S. 179, 192 (1988).

Supreme Court jurisprudence outlines several approaches

or discrete tests for detecting the presence of action under

color of state law.16 The tests have included the exclusive

15
. The "under color of state law" inquiry under 42 U.S.C. §
1983 and the "state action" requirement under the Fourteenth
Amendment to the United States Constitution are identical in most
contexts. Robison v. Canterbury Village, Inc., 848 F.2d 424, 427
n.3 (3d Cir. 1988). Conduct satisfying the state action
requirement under the Fourteenth Amendment will satisfy the §
1983 requirement as well, but the reverse is not necessarily
true. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982).
For convenience we will use the terms interchangeably.
16
. We note initially that, as one commentator has observed:

Imposing categories and labels on the
Court's different approaches to state action
issues is somewhat arbitrary and potentially
government function approach, see Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 157-58 (1978), the joint participation or symbiotic

relationship approach, see Rendell-Baker v. Kohn, 457 U.S. 830,

842 (1982); Blum v. Yaretsky, 457 U.S. 991, 1010-11 (1982), and

the nexus approach, see Jackson, 419 U.S. at 351.17
(..continued)
misleading. The Court seldom describes its
decisions as creating a structure of discrete
state action theories. Rather, the Court's
decisions follow the more traditional
judicial style of deciding each case based on
the facts of the case, guided by similarly
fact-specific decisions of the past. In
addition, the Court uses different phrases to
refer to the same or similar theories. . . .
Nonetheless, the Court's state action
decisions do create some clearly
distinguishable approaches to the state
action issue.

Henry C. Strickland, The State Action Doctrine and the Rehnquist
Court, 18 Hastings Const. L.Q. 587, 596-97 (1991) (citations
omitted). We also observe that lower courts have routinely
treated the state action inquiry as including several discrete
tests. See, e.g., McKeesport Hosp. v. Accreditation Council, 24
F.3d 519, 524 (3d Cir. 1994); Conner v. Donnelly, 42 F.3d 220,
223-24 (4th Cir. 1994); Sherman v. Consolidated Sch. Dist. 21, 8
F.3d 1160, 1168 (7th Cir. 1993), cert. denied, 114 S. Ct. 2109
(1994); Lopez v. Department of Health Serv., 939 F.2d 881, 883
(9th Cir. 1991) (per curiam); Yeager v. City of McGregor, 980
F.2d 337, 339 (5th Cir.), cert. denied, 114 S. Ct. 79 (1993).
17
. Although the Supreme Court's recent pronouncement on the
state action inquiry in Edmonson v. Leesville Concrete Co., 500
U.S. 614 (1991), does not explicitly restate these approaches, it
does refer approvingly to past state action jurisprudence and
cites favorably to its own precedent, including Lugar in which
the Court had observed:

[That] which would convert [a] private party
into a state actor might vary with the
circumstances of the case. . . . [T]he Court
has articulated a number of different factors
or tests in different contexts . . . .
Whether these different tests are actually
different in operation or simply different
(..continued)
ways of characterizing the necessarily fact-
bound inquiry that confronts the Court in
such a situation need not be resolved here.

Lugar, 457 U.S. at 939. After citing favorably to Lugar, the
Edmonson Court noted:

[O]ur cases disclose certain principles of
general application. Our precedents
establish that, in determining whether a
particular action or course of conduct is
governmental in character, it is relevant to
examine the following: the extent to which
the actor relies on governmental assistance
and benefits; whether the actor is performing
a traditional governmental function; and
whether the injury caused is aggravated in a
unique way by the incidents of governmental
authority. Based on our application of these
three principles to the circumstances here,
we hold that the exercise of peremptory
challenges by the defendant in the District
Court was pursuant to a course of state
action.

Edmonson, 500 U.S. at 621-22 (citations omitted). We and other
circuits have not read this passage as necessarily mandating one
specific method of performing the state action inquiry. See
McKeesport Hosp., 24 F.3d at 524; Connor, 42 F.3d at 223-24;
Sherman, 8 F.3d at 1168; Lopez, 939 F.2d at 883; Yeager, 980 F.2d
at 339. The opinion in Edmonson appears neither to restrict
courts to one specific approach nor to foreclose them from
employing various approaches as warranted by the particular
circumstances of the cases before them. The state action inquiry
is "necessarily fact-bound," Lugar, 457 U.S. at 939, and the
approach a court uses to conduct that inquiry should likewise be
tailored to the facts of the case before it.

But any approach a court uses must remain focused on
the heart of the state action inquiry, which, as we noted above,
is to discern if the defendant "exercised power 'possessed by
virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.'" West v. Atkins,
487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313
U.S. 299, 326 (1941)). Edmonson emphasized the importance of
this inquiry. 500 U.S. at 620.
 Plaintiffs assert the first aid squad was performing an

exclusive government function in its treatment of Groman. The

Supreme Court has made clear that the scope of exclusive

government functions is limited, reaching only those activities

that have been "traditionally the exclusive prerogative of the

State." Rendell-Baker, 457 U.S. at 842 (quoting Jackson, 419

U.S. at 353). See also Flagg Bros., 436 U.S. at 158 (stating

"[w]hile many functions have been traditionally performed by

governments, very few have been 'exclusively reserved to the

State'"); cf. Evans v. Newton, 382 U.S. 296, 299 (1966) (holding

"when private individuals or groups are endowed by the State with

powers or functions governmental in nature, they become agencies

or instrumentalities of the State and subject to its

constitutional limitations").18

18
. Although the Supreme Court in Edmonson framed the inquiry as
the "traditional government function" inquiry, 500 U.S. at 621,
rather than as the "exclusive government function" test, the
Court also held "[t]he selection of jurors represents a unique
governmental function . . . ." Id. at 627 (emphasis added). The
word "unique" in this context appears synonymous with
"exclusive," and thus it seems probable the Court did not intend
to alter the test for all purposes but rather to permit different
analyses depending on the circumstances. Most appellate cases
are in accord with this reading. We note especially the opinion
in UAW, Local 5285 v. Gaston Festivals, Inc., No. 94-1387, 1995
WL 7677, at *9 n.2 (4th Cir. Jan. 10, 1995), in which the court
declined to read the Edmonson Court's odd omission of the
"exclusivity" requirement as adopting a new test. The court
observed:

The Court in Edmonson seemed to ignore the
"exclusivity" requirement of the
"traditionally exclusive government function"
test, Edmonson, 500 U.S. at 621, 624-28, and
was criticized by the dissent for having
"misstated the law," see id. at 639
(O'Connor, J., dissenting). The Court's
 In the course of enunciating the contours of what

constitutes an exclusive government function, the Supreme Court

(..continued)
omission of this requirement raises a
question as to whether the standard still
includes such a requirement. See, e.g.,
McKeesport Hospital v. Accreditation Council,
24 F.3d 519, 528 (3d Cir. 1994) (Becker, J.,
concurring). However, we do not believe the
Supreme Court would have attempted to change
radically the government function standard
set forth in Jackson, 419 U.S. at 353, and
thereafter applied consistently in Flagg
Bros., 436 U.S. at 157-58, Rendell-Baker, 457
U.S. at 842, Blum v. Yaretsky, 457 U.S. 991,
1005, 1011-12 (1982), [San Francisco Arts &
Athletics, Inc. v. United States Olympic
Committee], 483 U.S. [522,] 544-45 (1987),
and NCAA v. Tarkanian, 488 U.S. 179, 197-98
n.18 (1988), through the transparent
puerilism of simple omission. If it had
intended to change the law in this respect,
we believe it would have said so explicitly.
Moreover, the ultimate reasoning of the Court
in Edmonson was that juror selection was
traditionally an exclusive governmental
function. See, e.g., Edmonson, 500 U.S. at
627 ("The selection of jurors represents a
unique governmental function delegated to
private litigants by the government and
attributable to the government . . . .").
Accordingly, we proceed on the understanding
that the "exclusivity" requirement must be
satisfied.

Gaston Festivals, 1995 WL 7677, at *9 n.2 (emphasis omitted); see
also McKeesport Hosp., 24 F.3d at 524; Black by Black v. Indiana
Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993); Andrews v.
Federal Home Loan Bank, 998 F.2d 214, 217 (4th Cir. 1993);
Yeager, 980 F.2d at 340. But cf. Sherman, 8 F.3d at 1169
(formulating the inquiry as one into the existence of a
"traditional state function," but also citing to Flagg Bros. Inc.
v. Brooks, 436 U.S. 149, 158 (1978), where the Supreme Court
stated: "While many functions have been traditionally performed
by governments, very few have been 'exclusively reserved to the
State'").
has held that receipt of public funds and the performance of a

function serving the public alone are not enough to make a

private entity a state actor. Rendell-Baker, 457 U.S. at 840,

842. Our decision in Black by Black v. Indiana Area School

District, 985 F.2d 707, 710-11 (3d Cir. 1993), follows Rendell-

Baker and holds a school bus driver is not performing an

exclusive government function even though paid by the state and

performing a service for the public. Plaintiffs' reliance then

on two factors--public funding and service to the public--is by

itself insufficient, and plaintiffs have presented no other

evidence which might persuade us that the first aid squad here

was performing an exclusive government function.

Plaintiffs also urge us to follow by analogy a decision

from the Court of Appeals for the Second Circuit that held a

volunteer fire company to be an exclusive government actor.

Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17 (2d

Cir. 1979). But Janusaitis predates the seminal cases Rendell-

Baker and Blum, and its holding is ambiguously grounded in both

the exclusive government function and the symbiotic relationship

tests. Janusaitis, 607 F.2d at 23. Recently, the Court of

Appeals for the Fifth Circuit reached a contrary result to

Janusaitis in Yeager v. City of McGregor, 980 F.2d 337, 343 (5th

Cir.), cert. denied, 114 S. Ct. 79 (1993). The Yeager court

found the volunteer fire company did not serve an exclusive

government function on two grounds: first, since Texas law

allowed but did not compel the city to establish a fire

department it could hardly be called an exclusive government
function; and second, it took "judicial notice of the fact that

there are a variety of private sector fire fighting alternatives;

and fire fighting is not generally an exclusive government

function." Id. at 340-41 (footnotes omitted). The court also

observed that the state action determination was important to the

extent it helps protect voluntary organizations from needless

lawsuits. Id. at 339.

While there are similarities between volunteer fire

departments and volunteer first aid squads, there are sufficient

differences that may counsel against adopting this analogy.

First aid squads perform different functions from fire

departments.19 To the extent we do find similarities, we find

the court's analysis in Yeager more persuasive than the court's

in Janusaitis and more consonant with controlling precedent,

19
. Among other differences, first aid squads usually render
assistance when they have a person's actual or implied consent.
First aid squad member Moriarty's testimony demonstrates that the
squad members were aware of that consensual relationship:

Q: Why did you elect not to treat Mr. Groman,
even over his objection, whether verbal or
physical?

A: Part of the treatment would be to
transport the patient; and if I were to
transport the patient without his consent, it
would be kidnaping.
We cannot force anybody to be treated.
We can recommend, for their good and welfare,
that they allow us to treat them, but we
cannot force them to allow us to treat them.
That's why I elected to obtain or attempted
to obtain a medical release.

Moriarty Dep., Defendant's App. at 51-52.
although we do not explicitly adopt the analysis in Yeager. We

must keep in mind the Supreme Court's admonition to pay close

attention to the facts of each case while conducting the state

action inquiry. Lugar, 457 U.S. at 939. Accordingly, we cannot

accept Groman's contention that a volunteer first aid squad would

be deemed to perform an exclusive government function merely

because a volunteer fire department had been held to perform one.

We find plaintiffs have failed to meet their burden of

demonstrating the first aid squad here was performing an

exclusive government function.

Plaintiffs' other theories to ground a finding of state

action can be analyzed under a general conceptual inquiry, in

which we seek to ascertain "the degree to which the state and the

[private] entity exist in a 'symbiotic relationship' or under

circumstances where the conduct of the private actor can be

fairly imputed as that of the state." Yeager, 980 F.2d at 342

(citing Jackson, 419 U.S. at 351; San Francisco Arts & Athletics,

Inc. v. United States Olympic Comm., 483 U.S. 522, 556 (1987)).

The Supreme Court has frequently discussed the boundaries of this

branch of the state action doctrine. In Rendell-Baker, the
Supreme Court held a private school which was carrying out a

state-sponsored program and which received at least ninety

percent of its funds from the state was nevertheless not a state

actor. 457 U.S. at 840-43. In Blum, the Court held private

nursing homes were not state actors even though they were

extensively funded and regulated by the state. 457 U.S. at 1011-

12. While the exact contours of this state action inquiry are
difficult to delineate, the interdependence between the state and

private actor must be pronounced before the law will transform

the private actor into a state actor. See id. at 1004; Boyle v.

Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71, 76

(3d Cir. 1991). The first aid squad, though financially assisted

by the Township and (we assume here) functioning as support to

the police, nevertheless did not have its professional decisions

dictated or guided by the state. There is no evidence that the

Township controlled the first aid squad's professional conduct.

See Polk County v. Dodson, 454 U.S. 312, 324-25 (1981).

Given the relationship between the first aid squad and

the Township here, we find no symbiotic relationship, joint

participation, or other connection sufficient to demonstrate the

first aid squad was acting under color of state law. Neither the

squad's receipt of public funds, nor the police's request for the

first aid squad, nor Groman's status as a person in custody at

the time of the squad's second response is enough to create state

action on the part of the first aid squad. Even if the events

created an affirmative obligation under the Due Process Clause

for the police to provide medical care, City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244-45 (1983), this

obligation did not transform the first aid squad into a state

actor. As we have held, the police fulfilled their

constitutional obligation by calling the first aid squad, and the

first aid squad's actions do not make them state actors for

purposes of § 1983.
 Accordingly, we will affirm the district court's grant

of summary judgment on plaintiffs' claims against the

Englishtown-Manalapan First Aid Squad, Edward T. Moriarty, Tracie

Zachary, James Paulser, and Joseph Bokenko. Although our

disposition of the color of state law requirement makes it

unnecessary for us to reach the issue of whether plaintiffs have

a colorable claim of a violation of federal rights by the first

aid squad and its members, we are compelled to note that the

record contains no evidence of a valid claim.

IV.

We will reverse the district court's grant of summary

judgment on plaintiffs' claim of excessive force under 42 U.S.C.

§ 1983 as to officers Kirkland, Trembow, and Vanderweil, and on

plaintiffs' false arrest and false imprisonment claims against

officer Kirkland. We will remand these claims to the district

court. We will affirm the district court's grant of summary

judgment on all other federal claims. The district court

declined to exercise supplemental jurisdiction over plaintiffs'

state law tort claims because it found no cognizable federal

claim. We will vacate that portion of the district court's order

so it can determine whether to hear the state claims along with

the federal claims.