PUBLISH
UNITED STATES COURT OF APPEALS
Filed 4/29/96
TENTH CIRCUIT
________
DOUGLAS M. HAINES, )
)
Plaintiff-appellant, )
)
v. ) No. 95-8016
)
ANTHONY L. FISHER, individually, and )
in his official capacity as )
Torrington Police Department Sergeant; )
MIKE ALAN REEVE, individually, and in )
his official capacity as Torrington )
Police Department Patrolman; KRAIG )
DANIEL MURPHY, individually, and in )
his official capacity as Torrington )
Police Department Dispatcher; TOWN OF )
TORRINGTON, )
)
Defendant-appellees. )
______
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 94-CV-99)
______
John A. Coppede (Raymond W. Martin of Sundahl, Powers, Kapp and
Martin, Cheyenne, Wyoming; and Lowell Fitch, Fitch Law Offices,
Torrington, Wyoming, with him on the brief) of Sundahl, Powers,
Kapp and Martin, Cheyenne, Wyoming, for defendants-appellees Reeves
and Fisher; Mark L. Carman of Williams, Porter, Day and Neville,
Casper, Wyoming, for defendant-appellee Town of Torrington.
Walter Urbigkit, Frontier Law Center, Cheyenne, Wyoming, for
plaintiff-appellant.
______
Before KELLY, BARRETT and JONES*, Circuit Judges.
______
BARRETT, Senior Circuit Judge.
______
*The Honorable Nathaniel R. Jones, Senior Judge, United States
Circuit Court of Appeals for the Sixth Circuit, sitting by desig-
nation.
______
Douglas M. Haines (Haines) appeals from (a) an order of the
district court granting summary judgment in favor of the Town of
Torrington, Wyoming (Torrington) on his 42 U.S.C. § 1983 and state
law claims, and in favor of Anthony Fisher (Fisher), Alan Reeve
(Reeve), and Kraig Murphy (Murphy) (collectively "the individual
defendants") on his § 1983 claims; (b) a judgment that he recover
nothing from Fisher and Reeve; (c) an order and judgment denying
his motions for reconsideration and for default judgment against
Murphy; and (d) an order denying his motions for new trial and
judgment notwithstanding the verdict and for a new trial.
The relevant facts of this case were concisely set forth in
the district court's Order of November 22, 1994:
This case arises out of a practical joke or prank
played by three police officers and a police dispatcher
on plaintiff [Haines] on February 18, 1994. Plaintiff
was the local 7-Eleven clerk and was working the night
shift alone on the night of the incident at issue. The
three police officers and police dispatcher were employed
by the Town of Torrington, Wyoming.
The shift supervisor that evening was Sergeant Tony
Fisher, one of the defendants. While he was on duty that
night and while he was training Officer Gerrard how to
conduct building searches with officer Michael Reeve,
defendant Fisher concocted a plan to pull a practical
joke on plaintiff.1 He shared his idea with on duty of-
ficers Reeve and Gerrard and dispatcher Kraig Murphy,
who all agreed to participate in pulling the practical
joke on plaintiff.
The plan called for Reeve to disguise himself as a
robber who would hold up the 7-Eleven store during the
plaintiff's shift. He wore a trenchcoat belonging to the
Town, which was used in its McGruff Crime Prevention
program, over the pants and shoes he had worn with his
uniform that evening. He did not wear his police uniform
shirt, but instead wore a turtleneck. Over his face,
Reeve wore a balaclava mask that also belonged to the
1
Prior to the incident, Haines had called the Torrington Police
Department and reported that he had observed some suspicious vehicles in a
parking lot across the street from the 7-Eleven. Fisher responded to the call
and thereafter told Haines that the vehicles were actually police department
vehicles and that Haines need not be concerned. Haines argues that the staged
robbery was in retaliation for his earlier call.
Town. He carried the Town's M-16 automatic rifle, loaded
with blanks, under the trenchcoat. On the end of the
barrel of the M-16, the defendants had placed a large
plastic garbage bag, intended to catch any residue that
might result when the blanks were fired.
Murphy, the dispatcher, put the plan into action by
telephoning plaintiff at the 7-Eleven and advising him
that he should be on the lookout for an individual who
was possibly armed in the area of the 7-Eleven store.
Murphy described for plaintiff a man who would look as
Reeve would look in his robber regalia.
Reeve had been driven by Fisher to the 7-Eleven in
a police car belonging to the Town. Gerrard drove an-
other Town police car to a location several blocks away
from the scene. Gerrard and Fisher kept watch while
Reeve was inside the store to be sure no member of the
public saw what was going on and that no one would be
hurt by the commission of their prank.
When he entered the store, Reeve was supposed to
shoot off the M-16 shortly after entering the store.
However, he forgot that the gun's safety was engaged and
the gun would not operate when he attempted to pull the
trigger. Reeve then ordered plaintiff to get off the
telephone and to get on the floor. At some point the M-
16 was discharged although there is a factual dispute
about when that happened. Plaintiff claims that Reeve
pointed the M-16 at him and discharged the weapon when he
was told to get on the ground -- before he recognized
that it was Officer Reeve in a robber costume. Defen-
dants claim that the gun was not discharged until after
plaintiff recognized Reeve before becoming prone on the
ground, when he rose up and threw a cleaning rag at Reeve
and exclaimed, "Nice try, Mouse!" Defendants contend
that the blanks were fired away from plaintiff after he
recognized Reeve. Defendants contend that after the
event was over, everyone including plaintiff had a good
hearty laugh over the practical joke among good friends.
(Appendix, Vol. III at 727-30) (footnote added).
Rumors of the event circulated in and about Torrington. Upon
inquiry by Chief of Police Billy Janes, Fisher, Reeve, Gerrard and
Murphy confessed what they had done and signed written statements
regarding the incident. Following an investigation by the Wyoming
Division of Criminal of Investigation (DCI), Fisher and Reeve were
terminated.
Thereafter, Haines filed this action against Fisher, Reeve,
and Murphy, in their individual and official capacities, and Tor-
rington seeking damages for violation of his civil rights pursuant
to 42 U.S.C. § 1983, alleging that defendants had denied him "of
his rights to be free from unreasonable searches and seizures
protected by the Fourth Amendment and his due process rights pro-
tected by the Fifth and Fourteenth Amendments," (Appendix, Vol. I
at 004), and damages for state law claims of negligence and
intentional infliction of emotional distress. Haines also sought
exemplary or punitive damages for the individual defendants' al-
leged wilful and wanton misconduct on the basis "that the purpose
behind one or more of the [individual] Defendants' conduct was to
scare [him] so that he would be intimidated by them and lured into
their lurid alternative live style. Plaintiff, a heterosexual, had
denied their advances." (Appendix, Vol. I at 006).
Torrington moved for summary judgment and Fisher and Reeve
moved for partial summary judgment. The district court granted
Torrington summary judgment on all of Haines' claims, and granted
Fisher and Reeve summary judgment on Haines' § 1983 claims. Al-
though Murphy did not appear or respond, the court entered judgment
in his favor on Haines' § 1983 claims.
The case proceeded to trial on Haines' state law claims of
negligence and intentional infliction of emotional distress against
Fisher and Reeve. Before submitting the case to the jury, the
district court withdrew the issue of negligence from the jury's
consideration. (Appendix, Vol. X at 4463).
The jury returned a special verdict finding that: Haines had
failed to prove by a preponderance of the evidence that Fisher
and/or Reeve had assaulted him; Fisher and/or Reeve had not com-
mitted extreme and outrageous conduct on Haines; Haines suffered
$0.00 in total damages; and the conduct of Fisher and Reeve did not
amount to willful and wanton misconduct.
Thereafter, the court denied Haines' motion for reconsidera-
tion of the partial summary judgment granted in favor of Murphy
and granted Haines judgment against Murphy but ordered that Haines
recover nothing from Murphy. The court also denied Haines' motion
for a new trial and his motion for judgment notwithstanding the
verdict.
On appeal, Haines contends that the district court erred when
it: (1) granted summary judgment to Torrington on all claims and to
the individual defendants on the § 1983 claims; (2) refused to in-
struct on negligence; (3) submitted the issue of assault to the
jury; and (4) failed to award damages against Murphy.
I.
Haines states that the district court erred when it granted
summary judgment in favor of (a) Torrington on his § 1983 claims;
(b) the individual defendants on his § 1983 claims; and (c) Tor-
rington on his state law claims.
We review the district court's grant of summary judgment de
novo, applying the same legal standards employed by the district
court. Gehl Group v. Koby, 63 F.3d 1528, 1533 (10th Cir. 1995).
Summary judgment is appropriate when there is no genuine issue as
to any material fact and the moving party is entitled to judgment
as a matter of law. Hagelin for President Committee of Kan. v.
Graves, 25 F.3d 956, 959 (10th Cir. 1994), cert. denied, ___ U.S.
___ (1995).
a.
Haines reasons that the district court improperly granted
summary judgment in favor of Torrington on his § 1983 claims.
Haines states that municipal liability attaches under § 1983
"where a definite and deliberate choice to follow a course of ac-
tion is made from among various alternatives for the official or
officials responsible for establishing final policy." (Appellant's
Brief at 33). Haines also maintains that Torrington had delegated
decision making authority to the Chief of Police who had, in turn,
delegated that responsibility to the on-shift supervisor, Fisher.
He reasons that because Fisher had planned and directed the
incident in question, there was a question of fact as to municipal
liability for jury determination.
Torrington responds that the district court did not err in
granting it summary judgment on Haines' § 1983 claims, inasmuch as
it did not have any policy, custom, or practice adopting or ap-
proving the activity surrounding the staged robbery, and because
its Police Department Standard Operating Procedures absolutely
prohibits the conduct in question.2 We agree.
In Monell v. Department of Social Servs., 436 U.S. 658, 690
(1978), the Court, after concluding that municipalities are among
the "persons" to which § 1983 applies, held that a municipality is
liable under § 1983 when "the action that is alleged to be un-
constitutional implements or executes a policy statement, ordi-
nance, regulation, or decision officially adopted and promulgated."
The Court observed that the official policy must be the moving
force for the constitutional violation in order to establish the
2
Torrington's Standard Operating Procedures prohibit, inter alia:
commission of any felony or misdemeanor; any type of misconduct that reflects
discredit upon the members as a police officer . . . or upon the department he
serves; the discharge of a firearm except for the defense of the officer's life,
the defense of the life of another, and when necessary to effect the arrest,
capture or prevent the escape of someone for whom the officer has reasonable
cause to believe has committed a life threatening felony and whom the officer
believes is a serious threat to the officer or others. (Appendix, Vol. II at 403
and 421).
liability of a government body under § 1983. Id. at 694. See Polk
County v. Dodson, 454 U.S. 312, 326 (1981).
Applying Monell to the facts herein, we hold that the district
court did not err in granting Torrington summary judgment on
Haines' § 1983 claims. Haines failed to establish that the staged
robbery in any way implemented or executed a "policy statement,
ordinance, regulation, or decision officially adopted and promul-
gated" or that the official policy was the moving force behind the
alleged constitutional violation. Torrington, on the other hand,
introduced standard operating procedures which prohibit the type of
activity surrounding the challenged conduct.
b.
Haines contends that the district court erred in granting
summary judgment in favor of Fisher, Reeve, and Murphy on his §
1983 claims.
Haines states that while the "'acts of officers in the gambit
of their personal pursuits are not under color of state law and do
not impose liability.' . . . [i]t is also true that 'acts of of-
ficers who undertake to perform their official duties are included
whether they hew to the line of authority or overstep it.' Screws
v. United States, 325 U.S. 91, 111 (1945)." (Appellant's Brief at
28). The question then, according to Haines, is whether the
retaliation of the officers in response to his earlier call was a
"personal pursuit" or an "overstep" in the exercise of legitimate
authority.
Haines reasons that the individual defendants overstepped
their legitimate authority when each was on duty and being paid by
Torrington at the time the plan was developed and effectuated. He
states that they were able to stage the robbery only by the use of
Torrington's gun, coat and mask. Haines argues that this retali-
ation, at the very least, raised genuine issues of material fact as
to whether the officers were acting under color of state law.
Fisher and Reeve respond that the district court properly
granted summary judgment in their favor on Haines' § 1983 claims
because the evidence showed that they did not act under color of
state law inasmuch as their actions were unrelated to the
performance of their duties as police officers. Fisher and Reeve
cite Barna v. City of Perth Amboy, 42 F.3d 809 (3rd Cir. 1994), and
Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir. 1990), for the
proposition that the private acts of police officers, even while in
uniform, are not under color of law unless the acts are related to
the performance of police duties.
Section 1983 was enacted "to deter state actors from using the
badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such deter-
rence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). "The
obvious purpose of . . . § 1983 was to provide a remedy to parties
deprived of constitutional rights by a state official's abuse of
his position while acting under color of state law." D.T. by M.T.
v. Independent Sch. Dist. No. 16, 894 F.2d 1176, 1187 (10th Cir.),
cert. denied, 498 U.S. 879 (1990). To state a claim under § 1983,
a plaintiff must allege that the claimed deprivation was committed
by a person acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988). "The traditional definition of acting under
color of state law requires that the defendant in a § 1983 action
exercised power 'possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state
law.'" Id. at 49 (quoting United States v. Classic, 313 U.S. 299,
326 (1941)). Finally, "[s]ection 1983 imposes liability for
violations of rights protected by the Constitution, not for viola-
tions of duties of care arising out of tort law." Baker v. McCo-
llan, 443 U.S. 142, 146 (1979).
Applying these standards, we hold that the district court did
not err in granting summary judgment in favor of the individual
defendants on Haines' § 1983 claims. This is not a case in which
the defendants "exercised power 'possessed by virtue of state law
and made possible only because the wrongdoer [was] clothed with the
authority of state law.'" Atkins, 487 U.S. at 49 (quoting Classic,
313 U.S. at 326). We agree with the district court that "[i]n this
case, the defendants, and in particular Defendant Reeve, were not
using their badges of authority, i.e., their positions as a
policemen for the Town of Torrington to accomplish the 7-Eleven
prank in which plaintiff [Haines] was the intended victim." (Ap-
pendix, Vol. III at 737).
Haines acknowledges that the "acts of officers in the gambit
of their personal pursuits are not under color of state law and do
not impose liability." Accordingly, if, as Haines alleged in his
complaint, "the purpose behind one or more of the Defendants'
conduct was to scare [him] so that he would be intimidated by them
and lured into their lurid alternative life style," (Appendix, Vol.
I at 006), the acts of the individual defendants would clearly fall
within "the gambit of their personal pursuits" and could not be
considered acts under color of state law.
c.
Haines maintains that the district court improperly granted
summary judgment in favor of Torrington on his state law claims.
Haines reasons that it "appears" that the district court
granted Torrington summary judgment on "the basis . . . that the
officers were not acting within the course of their employment, in
discussing, planning and participating in the incident."
(Appellant's Brief at 35). Haines states that since "[a]ll of the
officers, except Reeve, were being paid by the Town at the normal
place of work under the normal practice, using the town equipment,"
and "[t]hey were reacting to a call they received in the normal
scope of their employment as peace officers," genuine issues of
material fact made summary judgment inappropriate. Id. at 37.
Although the determination of whether one is acting within the
scope of employment is generally a question of fact, "the de-
termination of the definition of [scope of employment] or the
standard under which it is ascertained is a question of law for the
court." Miller v. Reiman-Wuerth Co., 598 P.2d 20, 23 (Wyo. 1979).
Under Wyo. Stat. § 1-39-112, "[a] governmental entity is liable for
damages resulting from tortious conduct of peace officers while
acting within the scope of their duties." Wyo. Stat. § 1-39-103
(a)(v) defines "scope of duties" as "performing any duties which a
governmental entity requests, requires or authorizes a public
employee to perform regardless of the time and place of
performance."
The acts of the individual defendants in planning and ef-
fectuating the staged robbery were not duties which Torrington had
requested, required, or authorized the performance of. Hence the
acts did not fall within the individual defendants' scope of
duties. Under these circumstances, we hold that the district court
did not err in granting summary judgment in favor of Torrington on
Haines' state law claims.
II.
Haines maintains that the district court erred in refusing to
instruct the jury on his negligence claim.
The grant or denial of an instruction is a matter of procedure
controlled by federal law. Gomez v. Martin Marietta Corp., 50 F.3d
1511, 1517 (10th Cir. 1995). We review the district court's
refusal to submit a proffered instruction for abuse of discretion.
Wilson v. Union Pac. R.R., 56 F.3d 1226, 1230 (10th Cir. 1995).
In his complaint, Haines alleged, in addition to his claims
for violation of his rights under § 1983, assault, extreme and
outrageous conduct, and willful and wanton misconduct, that
"[v]arious employees of the Town of Torrington, including the De-
fendants and their supervisors, were aware of the actions of the
Defendant and had a duty to intervene so as not to see the Plain-
tiff damaged. Defendants were negligent in failing to intervene
which proximately caused Plaintiff damage." (Appendix, Vol. I at
005).
Prior to trial, the court granted Torrington summary judgment
on all of Haines' claims, and partial summary judgment in favor of
the individual defendants on Haines' § 1983 claims. As structured,
the case proceeded to trial on Haines' state law claims for negli-
gence, assault, extreme and outrageous conduct, and willful and
wanton misconduct against Fisher and Reeve.
At the close of the evidence, but prior to submitting the case
to the jury, the court ruled that it would not submit Haines' neg-
ligence claims. (Appendix, Vol. X at 4463). The court instructed
the jury on Haines' remaining state law claims.
The jury returned a special verdict in which it found that:
Haines had not been assaulted, the defendants did not commit
extreme and outrageous conduct on him, the actions of the
defendants did not amount to willful and wanton misconduct, and
Haines had sustained $0.00 in damages.
On appeal, Haines contends, without challenging the court's
instructions on assault, extreme and outrageous conduct, and
willful and wanton misconduct, that the court erred in not ad-
ditionally instructing on his claim that the defendants were
negligent, i.e., in that the defendants "were aware of the actions
of the Defendant[s] and had a duty to intervene . . . ."
(Appendix, Vol. I at 005). Essentially, Haines is representing
that Fisher and Reeve, in addition to being liable for damages for
intentionally assaulting him, engaging in extreme and outrageous
conduct, and willful and wanton misconduct, were also liable for
damages for negligently failing to intervene and prevent those
actions. Stated alternatively, Haines is arguing that Fisher and
Reeve were negligent for not changing their minds once they
embarked on the staged robbery.
It is uncontested that Fisher and Reeve participated in the
staged robbery; they did exactly what they intended to do. The
jury obviously believed that they did so as part of a prank or
practical joke inasmuch as it found in their favor on Haines'
claims of assault, extreme and outrageous conduct, and willful and
wanton misconduct. That being the case, we hold that the district
court did not abuse its discretion by refusing to instruct on
negligence, when, in Wyoming, "[i]ntent is not a factor of
negligence since negligence precludes intended conduct." Kobos by
and through Kobos v. Everts, 768 P.2d 534, 538 (Wyo. 1989).
III.
Haines reasons that the district court erred in submitting the
issue of assault for jury determination. Haines acknowledges that
the district court properly instructed that a plaintiff must prove
the following to establish an assault:
1. The defendants acted with the intent of making a
contact with the person of the plaintiff or with the
intent of putting the plaintiff in apprehension of such
a contact; and
2. The plaintiff was placed in apprehension of an im-
minent contact with his person by the conduct of the
defendants; and
3. Such contact appeared to be harmful or offensive.
(Appendix, Vol. X at 812).
Haines argues that because he established the elements of as-
sault by showing that the defendants had agreed to a plan which was
intended to scare him and that he had been scared and believed he
had been shot when the gun discharged, the district court erred in
denying his motions for a directed verdict and for judgment not-
withstanding the verdict on his assault claim. Fisher and Reeve
respond that there was conflicting evidence as to whether Haines
was placed in immediate apprehension of bodily injury and whether
the gun was discharged before or after Haines recognized his long
time friend, Reeve.
We consider motions for directed verdict and judgment not-
withstanding the verdict under the same standard. FDIC v. United
Pac. Ins. Co., 20 F.3d 1070, 1079 (10th Cir. 1994). We review the
district court's denial of these motions de novo. Sheets v. Salt
Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, ___ U.S.
___ (1995). Under this standard, we may find error in the denial
of such a motion only if the evidence points but one way and is
susceptible to no reasonable inferences supporting the party
opposing the motion. United Pac. Ins. Co., 20 F.3d at 1079.
We hold that the district court did not err in denying Haines'
motions for a directed verdict and for judgment notwithstanding the
verdict. Fisher and Reeve presented evidence, obviously believed
by the jury, that Haines was not placed in immediate apprehension
of bodily injury and that he recognized that one of the pranksters
was his friend Reeve.
IV.
Haines maintains that the district court erred in failing to
award him damages against Murphy when Murphy defaulted without
filing an answer to his complaint and did not dispute the evidence
regarding liability.
Murphy did not file an appearance or respond. Prior to trial,
the district court granted partial judgment in favor of all the
individual defendants, including Murphy, on Haines' § 1983 claims.
At the conclusion of the trial, the jury found, inter alia, that
Haines had suffered $0.00 in damages.
Thereafter, Haines moved for reconsideration of the district
court's partial judgment in favor of Murphy on Haines' § 1983
claims and for default judgment against Murphy. Following a
hearing, the district court entered an order that "judgment be
entered forthwith against defendant Kraig Daniel Murphy, but that
plaintiff recover nothing of him." (Appendix, Vol. III at 896).
On appeal, Haines contends that the district court erred in
determining "that the entry of zero damages sustained by [him] on
the verdict . . . necessitated the finding of zero damages caused
by Murphy," and that "[i]t is not logically required to conclude
that Murphy's violation of the plaintiff's rights which has been
established by the default, caused [him] no damage." (Appellants
Brief at 46 and 50). We agree with the district court that this
issue is controlled by Hunt v. Inter-Globe Energy, Inc., 770 F.2d
145 (10th Cir. 1985).
In Hunt, H.B. and Lola Hunt (the Hunts) filed an action
against defendants Inter-Globe Energy, John Corrente, and Forest N.
Simon, alleging that the defendants had engaged in common law fraud
and various breaches of state and federal securities laws in
selling fractional working interests in oil and gas leases.
When Corrente failed to plead or otherwise defend, the court
entered default judgment against him in favor of the Hunts for
their investment of $30,000, interest, and attorney fees. Further,
the court awarded expenses, and punitive damages of $300,000. The
Hunts proceeded against Simon. After trial, a jury awarded the
Hunts $30,000 in actual damages against Simon but did not award any
punitive damages.
Thereafter, Corrente filed a motion to vacate the default
judgment entered against him. Corrente argued, inter alia, that
the default judgment should not have been entered against him until
the matter had been adjudicated with regard to all defendants. The
district court denied Corrente's motion.
On appeal, we reversed and remanded with instructions that the
district court "reduce the default judgment to an amount consistent
with the application of liability and damages against defendant
Simon." Hunt, 770 F.2d at 148. In so doing, we relied on Frow v.
De La Vega, 82 U.S. 552 (1872):
In Frow, the plaintiff brought an action against
Frow and thirteen other defendants . . . . Frow failed
to answer timely . . . . The district court subsequently
. . . award[ed] a permanent injunction against Frow. Af-
ter the entry of the final decree against Frow, the court
proceeded to try the case and decided the merits of the
case adversely to plaintiff and dismissed the complaint.
On appeal, the Supreme Court reversed the default
judgment against Frow, concluding that when multiple
defendants are alleged to be jointly liable and fewer
than all defendants default, the district court may not
render a liability determination as to the defaulting
parties unless and until the remaining defendants are
found liable on the merits. . . . This result avoids
inconsistent liability determinations among joint tort-
feasors.
Hunt, 770 F.2d at 147 (emphasis added).
We hold that the district court did not err when it entered
judgment against Murphy, and simultaneously ordered that Haines
recover nothing from him.
AFFIRMED.
No. 95-8016: Haines v. Fisher et al.
Nathaniel R. Jones, Senior Circuit Judge,
Concurring in part and Dissenting in part.
I fully concur in Parts I(c), III and IV of the opinion and
in the result reached in Parts I(a) and II.1 I respectfully
dissent, however, from Part I(b).
In Part I(b) the majority holds that the district court did
not err in granting summary judgment in favor of Officers Fisher
and Reeve and Dispatcher Murphy on Haines' § 1983 claims, finding
that the defendants' actions were not under color of state law.
After applying the relevant law to the facts in this case, I have
come to a different conclusion. The defendants' enterprise was
performed under color of state law; hence, summary judgment to
the defendants on that issue was inappropriate.
While it is a standard principle that the acts of officers
in the gambit of their personal pursuits are not under color of
1
In Part I(a) the majority finds that the Town of Torrington did not have a policy, custom, or
practice adopting or approving the activity surrounding the staged robbery. I agree. The
majority, however, applied the case of Monell v. Department of Social Services, 436 U.S. 658
(1978), to reach its conclusion. Monell dealt only with the concept of municipal liability for
broad official policies or customs and was further refined by the case of Pembaur v. City of
Cincinnati, 475 U.S. 469, 106 S.Ct. 1292 (1986). In Pembaur, the Court held that a single
incident may be evidence of a policy when the conduct represents a decision of authorized policy
makers. In this case, Haines alleged that Sgt. Fisher was an authorized policy maker and his
decision to conduct the prank established a policy. As the facts do not support such a conclusion,
I find that under Pembaur, summary judgment was proper for the Town of Torrington.
In Part II the majority finds that the district court did not abuse its discretion by refusing
to instruct on negligence. Because I view the district court's approach to the issue of negligence
as a sua sponte judgment as a matter of law, I believe the propriety of instructing the jury on
plaintiff's negligence claim should be reviewed de novo. Nonetheless, I have concluded, for the
same reasons discussed by the majority, that the issue was properly withheld and there was no
error.
No. 95-8016: Haines v. Fisher et al.
state law and thus are not grounds for liability, it is equally
incontrovertible that "[a]cts of officers who undertake to
perform their official duties are included whether they hew to
the line of authority or overstep it." Screws v. United States,
325 U.S. 91, 111 (1945). Moreover, a defendant is said to be
acting under color of state law when he exercises power
"possessed by virtue of state law and [his actions are] 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)).
This case does not involve merely a situation wherein
Officer Reeve entered the 7-11 alone, disguised as a robber. If
that were the only fact before the court, it is possible that
such an action would not be considered taken under color of law.
The defendants in this case, however, conspired to deprive Haines
of his constitutional rights and effectuated their strategy by
abusing the power they held under state law. Indeed, the
defendants' prank was a complicitous scheme which could only be
accomplished through the use of their public positions, while
performing their official duties.
2
No. 95-8016: Haines v. Fisher et al.
In addition to the fact that the dispatcher and officers
were on-duty and in uniform2 (excepting Reeve, who wore other
clothes belonging to the police department): (1) the defendants
concocted the prank in response to Haines' earlier call to report
suspicious vehicles;3 (2) all material used to effectuate the
prank was Torrington Police Department property, including the M-
16 rifle, the blanks, the trench coat, the mask, the police cars,
the radio, and the dispatch telephone system; (3) the plan was
created and agreed to by all officers while in the police station
working on training exercises; (4) the dispatcher, Murphy, called
in his official capacity to warn Haines of potential danger; (5)
Sgt. Fisher, using the police radio, radioed Murphy to direct him
to make the call, and Murphy called, using an unrecorded police
line; (6) in order to control the situation and protect the
public (a typical responsibility of officers acting in their
official capacity), two uniformed officers and marked police cars
were stationed outside the 7-11; and (7) Sgt. Fisher, the highest
ranking officer on-duty, masterminded the scheme and "gave
orders" to subordinates on how to carry it out.
2
I do not imply that the defendants were acting under color of law solely because they were
on-duty and in uniform. See Lusby v. T.G. & Y Stores, Inc., 749 F.2d 1429 (10th Cir. 1984)
(concluding that an officers on or off-duty status is not dispositive of whether he is acting under
color of law.); accord Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980). A defendant's duty status
and attire is relevant in determining whether actions were taken under color of law only when
considered alongside the defendant's conduct.
3
The majority suggests that the prank was conceived to intimidate and lure Haines into an
alternative lifestyle. I fail to see how such a prank could accomplish that end, but, more
importantly, Haines has alleged also that the prank was initiated as retaliation, in response to his
earlier call. See Maj Op [2, fn1]. As we must draw all reasonable inferences in favor of a non-
moving party when reviewing the grant of summary judgment, these two "reasons" for the prank
should, at a minimum, be considered consistent co-existing motivations, or in the alternative, the
more plausible should be inferred. Notwithstanding, other factors exist which also lead me to
conclude that the defendants' actions were under color of law.
3
No. 95-8016: Haines v. Fisher et al.
It is true that almost anybody can stage a robbery; but,
only police officers can use police radios, order dispatchers to
make calls, and have police cruisers posted outside while
uniformed men serve as lookouts to protect the malefactors from
discovery or the public from harm. Under these circumstances,
the defendants certainly employed power possessed by virtue of
state law and their actions were made possible only because they
were clothed with the authority of the state. See Atkins, 487
U.S. at 49. Thus, regardless of the impropriety, perversion and
temerity of the defendants' scheme, as a matter of law their
actions were taken under color of law.
4