Holland v. Sebunya

DANA, J.,

with whom, ALEXANDER, J., joins, dissenting.

[¶ 24] Although I concur with sections II and III of the Court’s opinion, I do not agree with section I because I believe the trial court erred in granting a summary judgment on Holland’s claim against Se-bunya brought pursuant to 42 U.S.C.A. § 1983 alleging a deprivation of his First Amendment right to free expression. Holland has generated a genuine issue of material fact regarding whether Sebunya’s act of preventing him from speaking at the *214Executive Committee meeting constituted state action.

[¶ 25] This Court has stated that a summary judgment is a remedy that courts should invoke with caution, see Chadwick-BaRoss, Inc. v. T. Buck Constr., Inc., 627 A.2d 532, 534 (Me.1993), and, “[a]s an extreme remedy, a summary judgment should be granted in favor of the defendant ‘only when the facts before the court so conclusively preclude recovery by the plaintiff that a judgment in favor of the defendant is the only possible result as a matter of law,’” Glynn v. Atlantic Seaboard Corp., 1999 ME 53, ¶ 8, 728 A.2d 117, 119 (quoting Binette v. Dyer Library Ass’n, 688 A.2d 898, 901 (Me.1996)) (emphasis added). Furthermore, when reviewing a summary judgment, this Court views the evidence in the light most favorable to the non-moving party “and accord[s] that party the full benefit of all favorable inferences that may be drawn from the evidence,” Hughes v. Beta Upsilon Bldg. Ass’n, 619 A.2d 525, 526 (Me.1993). I believe Holland’s claim against Sebunya individually withstands summary judgment analysis.

[¶ 26] As the Court’s opinion correctly notes, whether the President of the Portland Chapter of the NAACP has the authority pursuant to Robert’s Rules of Order to remove a member of the general public from a meeting of the Executive Committee does not resolve whether, as a matter of law, Holland has a valid section 1983 claim against Sebunya. Whether a private individual may otherwise legally remove a person from private property, or engage in similar private conduct, does not alter the fact that the individual may nevertheless be hable pursuant to section 1983 if he or she conspires with the state to do so in order to deprive the person of a constitutional right. See, e.g., Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (“Private persons, jointly engaged with state officials in the challenged action, are actig ‘under color’ of law for purposes of § 1983 actions.”); Adickes v. S.H. Kress & Co., 398 U.S. 144, 151, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (holding that plaintiff in that case would be entitled to relief from a private actor pursuant to section 1983 if she could demonstrate that the actor and a policeman “somehow reached an understanding” to discriminate against her on the basis of her race or the race of her companions), cited supra. Additionally, if Sebunya, acting in his capacity as an employee of the Portland Police Department, contrived to prevent Holland from speaking at the meeting about the Wright police brutality matter, Holland would have a valid claim pursuant to section 1983.11 See West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (noting that state employment is generally sufficient to render a defendant a state actor and that a defendant acts under color of state law for purposes of section 1983 when the state employee “abuses the position given to him by the State” so as to deprive an individual of a constitutional right); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.”) (citations omitted).

[¶ 27] Holland brought a complaint against Sebunya, among others, in which he alleged, “Defendant Sebunya was at all times relevant to this Complaint an employee of the City of Portland, Maine, Police Department as its cultural affairs *215coordinator. Defendant was at all times relevant to this Complaint acting under color of state law.” (Plaintiffs Complaint 4) [hereinafter PL C. — ]. He then later alleges that Sebunya prevented him from presenting a matter of concern to the Executive Committee. (PI. C. 8.) The complaint goes on to specifically allege the following in “Count I” with respect to his claims against the various defendants:

28. Defendants, acting under color of state law, deprived Plaintiff of the rights, privileges and immunities secured to him by the Constitution and laws of the United States. More specifically, the facts set forth in Paragraphs 4 through 27 above constitute a denial to Plaintiff of his rights secured under the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution.
29. Plaintiff alleges that in the doing of the acts and things complained of above, Defendants were conspirators who acted willfully and wantonly and who were engaged in a scheme designed and intended to deprive Plaintiff of his rights guaranteed to him under the Constitution of the United States and under 42 U.S.C. §§ 1343[sic], 1983, 1985, 1986, and entitling Plaintiff to an award of attorneys’ fees under 4[2] U.S.C. § 1988.
30. Plaintiff alleges that as a direct and proximate result of Defendants’ acts complained of above Plaintiff was denied his right to freedom of speech and freedom of association, deprived of his liberty, and deprived of his right to due process and equal protection of the laws.

(PI. C, 9-10.)

[¶ 28] Viewing the facts found in the parties’ Rule 7(d) statements that are supported by citations to the record in the light most favorable to Holland, the record establishes the following in support of his section 1983 claim against Sebunya for a deprivation of his right to free speech: An elderly black woman named Candy Wright felt that she had been the victim of police brutality. (Plaintiffs Rule 7(d) Statement 1) [hereinafter PI. 7(d) — ]. Holland, although not a member of the Portland Branch of the NAACP, served as court liaison for the group and had been asked to look into the matter on behalf of the Portland Branch. (P1.7(d) 1-2.) Sebunya at the time was both employed by the Portland Police Department and served as the President of the Portland Branch of the NAACP. (P1.7(d) 2.)

[¶ 29] Shortly before the Executive Committee meeting in question, Holland confronted Sebunya about his failure t advocate on behalf of Wright and about allegations that Sebunya had been directed by the Chief of the Portland Police to keep the Wright matter quiet. (P1.7(d) 2.) Se-bunya responded that he was not going to contradict the orders of the Chief or put his position with the police department in jeopardy. (P1.7(d) 2.) He told Holland he should take his complaints to the Executive Committee. (P1.7(d) 3.) Holland indicated that he would attend the next meeting if that was what was necessary. (P1.7(d) 3.)

[¶ 30] Meetings of the Executive Committee have historically been open to members of the public and members of the general public have been invited to participate in such meetings on occasion. (P1.7(d) 3-4.) At the invitation of Gerald Talbot, a member of the Executive Committee, Holland attended the Committee meeting on February 13, 1995. (P1.7(d) 3-4.) Holland was not disruptive or disorderly when he appeared at the meeting. (P1.7(d) 4.)

[¶ 31] Before the meeting had been called to order, Sebunya ordered Holland to leave the meeting and threatened to call the police if he did not.12 (P1.7(d) 4.) He *216did so in order to prevent Holland from addressing the Executive Committee and bringing the issues in the Wright matter, including Sebunya’s compliance with the Chief of Police’s order to keep the matter quiet, to its attention. (P1.7(d) 4.) When Holland did not leave, Sebunya called the police to come and remove Holland from the meeting. (P1.7(d) 4.) When the officers arrived, they told Holland that if he did not leave, he would be arrested. (Defendants’ Rule 7(d) Statement 4) [hereinafter D. 7(d) — ]. The officers subsequently arrested Holland. (D.7(d) 4.)

[¶ 32] Sebunya has failed to demonstrate that there is no genuine issue of material fact. See Cyr v. Adamar Associates Ltd. Partnership, 2000 ME 110, ¶ 4, 752 A.2d 603, 604 (‘We will affirm the grant of a summary-judgment if, upon an independent review of the record, the evidence manifests that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.”). Furthermore, a factfinder, without exceeding the bounds of reasonableness, could conclude from the above facts that Holland was deprived of his First Amendment right to free speech by virtue either of Sebunya’s acts in his capacity as a police department employee or in conspiracy with a member of the Portland Police Department.13 Cf. Thibodeau v. Cole, 1999 ME 150, ¶ 6, 740 A.2d 40, 42 (when non-moving party bears the burden of proof at trial, party must produce enough evidence to withstand a motion for a directed verdict in order to avoid summary judgment); Jones v. Route 4 Truck & Auto Repair, 634 A.2d 1306, 1309 (Me.1993) (a directed verdict is appropriate where no reasonable view of the evidence could sustain a contrary verdict).

[¶ 33] More specifically, a factfinder could reasonably conclude from the facts and the inferences to be drawn from them that, until Sebunya ordered him to leave the Executive Committee meeting, Holland was at a meeting of a private organization that he was otherwise permitted to attend and at which he was permitted to speak, as long as he adhered to the organization’s procedures for doing so. Sebunya ordered Holland to leave the meeting, not because he was disorderly or otherwise violating the organization’s rules of procedure, but because Sebunya sought to prevent him from expressing views and conveying information about a police brutality matter. Sebunya was doing so at the behest of the Chief of Police who told him to suppress discussion of the matter. Cf. Adickes, 398 U.S. at 151, 90 S.Ct. 1598 (“The involvement of a state official in such a *217conspiracy plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized or lawful.”); see also Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir.1997) (stating in context of section 1983 action against private individuals, “[bjecause the Plaintiffs are required to establish state action for purposes of their constitutional claims, we treat the color-of-state-law requirement and the state-action requirement as equivalent”); George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir.1996) (“In § 1983 actions, ‘color of state law’ is synonymous with state action.”). When Holland refused to leave, Sebunya had him arrested and forcibly removed from the meeting.

[¶ 34] As for Sebunya’s act being motivated by a personal animosity toward Holland, Sebunya’s Rule 7(d) statement in no way refers to the personal relationship between Holland and Sebunya. Furthermore, the only reference to their relationship that appears in-Holland’ Rule 7(d) statement simply refers to Holland’s attitude toward Sebunya and makes no reference to Sebunya’s feelings toward Holland:

27. Mr. Sebunya had engaged in a casual sexual relationship with the woman who later became Mr. Holland’s wife and, once she became pregnant with Mr. Sebunya’s child, he failed to support her either emotionally or financially.
28. Mr. Holland had previously confronted Mr. Sebunya with his opinion that Mr. Sebunya was “a complete fraud and charlatan and that he was a dishonorable man” because Mr. Sebunya’s failure to perform responsibilities which Mr. Holland contended M. Sebunya owed to the woman who later became Mr. Holland’s wife.

Confining our review to the parties’ Rule 7(d) statements in fact reveals that Sebun-ya’s only explanation for his removal of Holland from the meeting is that Holland refused to respond to his questions about why he was there. Determining whether Sebunya’s explanation is more plausible, and necessarily whether Sebunya is credible, is for a factfinder and is not this Court’s proper function when simply reviewing a summary judgment.

[¶ 35] Viewing the facts in the light most favorable to Holland conjures just the sort of scenario that section 1983 actions seek to prevent: the government, through its agents or in conspiracy with private individuals, seeking to prevent or punish a citizen for otherwise lawful speech of which it disapproves. See, e.g., Helvey v. City of Maplewood, 154 F.3d 841 (8th Cir.1998) (holding that trial court erred by granting a summary judgment on a former bartender’s section 1983 claim against the police alleging that they conspired with her employer, a private party, to have her fired because of her testimony in a civil rights proceeding involving the officers, thereby depriving her of her First Amendment right to free speech). Because there is a genuine issue of material fact regarding why and in what capacity Sebunya ejected Holland from the Executive Committee meeting, I would vacate the summary judgment with respect to Holland’s section 1983 claim against Sebunya for depriving him of his First Amendment right to free speech.

. The Court’s opinion notes that Holland “does not dispute that, at the time of the expulsion, Sebunya was not acting in his capacity as an employee of the Portland Police Department and was therefore a private actor.” (Emphasis added.) The record, however, does not appear to clearly support this proposition as will be discussed in more detail below. As a general matter, the essence of Holland’s claim against Sebunya is that Sebunya prevented him from speaking at the Executive Committee meeting because of his position as an employee of the Portland Police Department.

. The defendants state in their Rule 7(d) statement of facts, "At no time on the evening *216of February 13, 1995 was Mr. Sebunya acting in his capacity as Cultural Affairs Coordinator.” (Defendants' Rule 7(d) Statement 4.) While this may be true (certainly trying to suppress discussion of a police brutality incident involving a minority would not fall within his duties as Cultural Affairs Coordinator), it isnot necessarily helpful in the analysis of whether Sebunya’s actions constituted acts under the color of state law for purposes of a § 1983 claim. Rather the necessary determination is whether he was acting as an agent of the state or in conspiracy with one of its agents. Nowhere in his Rule 7(d) statement does Sebunya state that he was not acting as an agent of the police department or in conspiracy with an agent of the police department.

. While merely being an employee of the state may not be enough to constitute action under color of state law, acting at the direction of a supervisor arguably is, cf. Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir.1996) (noting that, in assaulting and attempting to rob plaintiffs, police officer was not acting "pursuant to any government or police goal” and ultimately concluding he was not acting under color of state law) (emphasis added), and, as noted above, even private individuals may be liable pursuant to section 1983 for otherwise private conduct if they engage in it in the course of a conspiracy with a state actor to deprive an individual of a constitutionally protected right. Sebunya's Rule 7(d) statement does not address these issues at all. Furthermore, assuming Sebun-ya's act of removing Holland from the meeting was based purely on private motivation in order to conclude that he was not acting under color of state law for purposes of section 1983 is begging the question, for that is the very material fact that is in dispute.