United States Court of Appeals,
Eleventh Circuit.
No. 95-8866.
Mary Elizabeth ALMAND, Plaintiff-Appellee,
Joann Warren, Plaintiff-Appellee,
v.
DeKALB COUNTY, GEORGIA and DeKalb County Department of Public
Safety, et al., Defendants-Appellees,
Floyd Bryant, Detective in His Individual and Official Capacity,
Defendant-Appellant.
Jan. 24, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-1958-RCF), Richard C. Freeman,
Judge.
Before EDMONDSON, Circuit Judge, FAY, Senior Circuit Judge, and
ALDRICH*, Senior District Judge.
EDMONDSON, Circuit Judge:
This appeal on qualified immunity raises a question about when
a police officer is or is not acting under color of state law for
the purpose of 42 U.S.C. § 1983. We conclude that color of state
law has not been shown and reverse the denial of summary judgment
to the defendant.
I. Facts1
In July 1990, Plaintiff-Appellee Mary Almand (Almand)
*
Honorable Ann Aldrich, Senior U.S. District Judge for the
Northern District of Ohio, sitting by designation.
1
Most of the "facts" we recite are only assumed
facts—resolving disputes in Plaintiff's favor and giving
Plaintiff the benefit of all reasonable inferences—for the
purposes of reviewing a summary judgment decision. A trial might
show the actual facts to be different from some facts we set out
here. See generally Rodgers v. Horsley, 39 F.3d 308, 309 (11th
Cir.1994). Defendant-Appellant Bryant denies the wrongdoing.
discovered that her daughter, Monique, was missing from home.2
While posting and passing out fliers near a convenience store in
Atlanta, Georgia, Almand first met the defendant, Floyd Bryant
(Bryant), a police officer of the DeKalb County Police Department.3
Bryant, who was not in uniform, approached Almand in the parking
lot of the store and asked her why she was there. Almand told him
that she was looking for someone, and Bryant showed her his badge.
Almand then revealed that she was searching for her daughter.
Bryant offered his assistance as a police officer in finding
Almand's daughter on the condition that Almand go out on a date
with him. Almand refused the date, but asked nonetheless for his
help in finding her daughter. Bryant obtained Almand's phone
number so that he could contact her if information turned up about
Monique. Almand and Bryant later had several telephone
conversations about Almand's daughter.
Approximately one week after her disappearance, Monique
returned home with the help of the Atlanta Police Department. That
same day, Almand related to Bryant what her daughter had been
through. Bryant indicated that he had an idea of where Almand's
daughter had been held and who had raped her.
The Atlanta Police Department later told Almand that things
like those which happened to her daughter occur often in the area
2
Monique had apparently gone with a neighbor named Tree to
what Monique thought was an audition for a concert. According to
Almand, however, Tree took Monique to a hotel where she was held
against her will and raped by two men. After several days,
Monique was able to call her mother, tell her where she was, and
have her mother send the Atlanta police to pick her up.
3
Although a DeKalb County Police Officer at the time of the
events herein described, Floyd Bryant has since resigned.
and that nothing could probably be done to locate the persons
responsible for her daughter's rape. About one week after
Monique's return home, Bryant called Almand and offered to reveal
important information about the rape of her daughter, information
so sensitive it could cost him his job. Bryant conditioned the
disclosure on Almand's agreeing to have sex with him. Almand
agreed but declined to go through with it when Bryant arrived at
her apartment.
Despite Almand's rejection of his demand for sexual favors,
Bryant agreed to continue helping Almand investigate her daughter's
rape. This time, however, his offer was contingent upon Almand
agreeing to help Bryant expose a "dirty cop," a specific DeKalb
Officer. Bryant said he believed that this other police officer
was—among other things—connected with the persons who raped
Almand's daughter. Almand agreed to help Bryant, which she says
she did.
Later, in August 1990, Bryant showed up at Almand's apartment
breathing hard and sweating. He asked to come in to talk with her
on urgent matters about her daughter. Almand admitted Bryant.
Once inside the apartment, Bryant asked Almand why she was leading
him on; and he began making sexual advances. Almand asked Bryant
to leave; and although he declined at first, he eventually agreed
to leave. Bryant went out the door, and Almand closed it behind
him.
From outside, Bryant then forced open the closed door with
such shock that wood broke off the door. Having pushed open the
door, Bryant reentered Almand's apartment, physically struggled
with her, and forcibly raped her. No report was made to the police
at the time.
A few days later, Almand was arrested for drug trafficking. 4
The case against her was eventually nolle prossed because,
according to the Superior Court, "Investigative Officer [Bryant
was] found to have engaged in conduct which was inappropriate under
the circumstances and therefore compromised the State's ability to
prove its case against [Almand]."
II. Procedural Background
Almand filed her original complaint against Defendants Bryant,
DeKalb County and several other defendants in August 1992. Later,
Almand filed an amended complaint adding additional claims, an
additional defendant, and an additional plaintiff. As amended,
Almand's complaint, invoking 42 U.S.C. § 1983, covered about 44
pages and alleged the violation of constitutional rights protected
by the Fourth and Fourteenth amendments, the violation of state and
federal Racketeer Influenced Corrupt Organization statutes,5 and
various state tort law claims.
All defendants moved for summary judgment. The district court
denied summary judgment to Bryant. Bryant appealed the district
court's denial of his motion for summary judgment; the motion had
been based on qualified immunity. The substance of Almand's claim
before us is the rape at her apartment.
4
Almand contended that her arrest was for conduct she
undertook as part of her agreement to help Bryant expose the
other police officer. Bryant denied that Almand was working with
him.
5
The District Court dismissed all state and federal RICO
claims.
III. Discussion
Federalism is important to this case. Section 1983 creates
no substantive rights; it merely provides a remedy for
deprivations of federal statutory and constitutional rights.
Whiting v. Traylor, 85 F.3d 581, 583 (11th Cir.1996) (citations
omitted). As the Supreme Court has cautioned, the "constitutional
shoals that confront any attempt to derive from congressional civil
rights statutes a body of general federal tort law," demand that we
vigilantly safeguard against converting section 1983 into "a font
of tort law to be superimposed upon whatever systems may already be
administered by the States." Paul v. Davis, 424 U.S. 693, 701, 96
S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (internal citations
omitted), reh'g denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811
(1976). Thus, section 1983 must not supplant state tort law;
liability is appropriate solely for violations of federally
protected rights. Baker v. McCollan, 443 U.S. 137, 145-46, 99
S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).
A successful section 1983 action requires that the plaintiff
show she was deprived of a federal right by a person acting under
color of state law. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th
Cir.1992) (citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,
155-56, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978)). We accept
that, under certain circumstances, a rape of a person by a police
officer or other state actor could violate the Constitution. See
Parker v. Williams, 862 F.2d 1471 (11th Cir.1989) (involving rape
by uniformed deputy sheriff of woman in his custody because of his
representation that her bail had been revoked and that she would
have to return to jail with him); see also Dang Vang v. Vang Xiong
X. Toyed, 944 F.2d 476, 479-80 (9th Cir.1991) (upholding jury's
determination that defendant acted under color of state law when
he, as employee of Washington State Employment Security office,
raped women looking for employment when meeting with them under the
pretext of providing services pursuant to his state job). Here,
however, Bryant was not acting under color of state law at the
pertinent time. Almand, therefore, cannot make out the elements of
her section 1983 case, and summary judgment must be granted to
Bryant on the section 1983 claim.
A person acts under color of state law when he acts with
authority possessed by virtue of his employment with the state.
Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th
Cir.1995) (citing West v. Atkins, 487 U.S. 42, 48-50, 108 S.Ct.
2250, 2255, 101 L.Ed.2d 40 (1988)). Not all acts by state
employees are acts under color of law. Id. at 1523. "The
dispositive issue is whether the official was acting pursuant to
the power he/she possessed by state authority or acting only as a
private individual." Id. (citing Monroe v. Pape, 365 U.S. 167,
183-84, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), overruled on other
grounds by Monell v. Department of Social Servs., 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
Ms. Almand first argues that Officer Bryant admitted that he
was acting under color of state law in his answer to the complaint.
Paragraph 3 of Almand's complaint states in relevant part:6
6
In both her original and amended complaint, Almand includes
this exact paragraph. In her original complaint, this allegation
is denoted as Paragraph 3; in her amended complaint it is
3.
Defendant, FLOYD RICHARD BRYANT, was at all times herein a law
enforcement officer certified by the State of Georgia and
employed by the County of DeKalb, Georgia as a police officer
whose conduct described herein was taken under color of state
law ...
In Bryant's answer to Almand's complaint, he states, "This
defendant admits the allegations of paragraph 3." Bryant's
"admission," however, does not end our color-of-state-law inquiry.
Whether conduct constitutes state action7 is no simple
question of fact. See Blum v. Yaretsky, 457 U.S. 991, 996-98, 102
S.Ct. 2777, 2782, 73 L.Ed.2d 534 (1982) (describing the question of
whether there is state action as question of law); Cuyler v.
Sullivan, 446 U.S. 335, 342 n. 6, 100 S.Ct. 1708, 1715 n. 6, 64
L.Ed.2d 333 (1980) (determining if state action exists is
resolution of question of law); see also Duke v. Smith, 13 F.3d
388, 392 (11th Cir.1994) (reviewing de novo, as a mixed question of
law and fact, district court's determination that private actor was
not sufficiently intertwined with government entity to be engaged
Paragraph 4. Bryant answered each of Almand's complaints, and his
answer to this allegation was the same both times.
7
We have noted that the concepts of action under color of
state law and state action are coterminous. Burrell v. Board of
Trustees of GA. Military College, 970 F.2d 785, 790 n. 13 (11th
Cir.1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814, 123
L.Ed.2d 445 (1993). While the Supreme Court, in Lugar v.
Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 2752
n. 18, 73 L.Ed.2d 482 (1982), left open the theoretical
possibility that action under color of state law might not always
constitute state action, the example given by the Court of a
private person applying a state statute has no relevance to our
case. "[T]he Court pointed out that "it is clear that in a §
1983 action brought against a state official, [as in the present
case,] the statutory requirement of action under color of state
law and the state action requirement ... are identical.' "
Burrell, 970 F.2d at 790 n. 13 (quoting Lugar, 457 U.S. at 929,
102 S.Ct. at 2749).
in state action). As such, Plaintiff's pleading of the legal
conclusion on color of state law in the complaint and Defendant's
admission in the answer are of questionable importance. The answer
admits the facts alleged in Paragraph 3, but we wonder whether the
admission has effect for conclusions of law that are set out in the
complaint.
More important, construing Bryant's answer to Paragraph 3 of
Almand's complaint as a binding admission of the color-of-state-law
element would violate Fed.R.Civ.P. 8(f)'s mandate to construe all
pleadings in a way that does "substantial justice." In construing
Rule 8(f), the Supreme Court, in Maty v. Grasselli Chemical Co.,
303 U.S. 197, 199-201, 58 S.Ct. 507, 509, 82 L.Ed. 745 (1938),
wrote that "[p]leadings are intended to serve as a means of
arriving at fair and just settlements of controversies between the
litigants. They should not raise barriers which prevent the
achievement of that end."
Viewing Bryant's admission to Paragraph 3 of Almand's
complaint in the context of all of the pleadings,8 we are confident
that Almand was put on notice that the issue of state action was
disputed. For example, in his answer, Bryant expressly denied that
he was at Almand's residence on the pertinent date, that he broke
in her door, and that he raped her. He also expressly asserted in
his answer that the complaint stated no cause of action under the
laws or the Constitution of the United States. In addition, in
Bryant's brief filed with and in support of his motion to the
8
"A pleading ... if possible, will be construed to give
effect to all its averments." 5 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1286 (1990).
district court for summary judgment, Bryant stated that, if
Almand's complaint could be construed as alleging a constitutional
violation against him, "no action by him was taken under color of
state law, for purposes of § 1983 liability."
In the light of Bryant's denial of the central factual
components of Almand's case, the most he can justly be said to have
admitted is that when he did not go to Almand's house, did not
break down her door and did not rape her, he was acting under color
of state law. We believe Almand was neither mislead nor surprised
unfairly about whether color of state law was a question in dispute
when summary judgment was being sought by Bryant. We, therefore,
conclude that Bryant's answer to Almand's complaint does not settle
the state-action question.
Here, the assumed facts show that Bryant was acting as a
private person, not a state actor under color of state law, when he
forced his way into Almand's home and, overcoming her resistance by
force, raped her. On the day of the rape, Bryant initially gained
entry to Almand's apartment on the pretense of discussing police
business with her—the progress of the investigation into Almand's
daughter's rape. Bryant then made sexual comments and advances
toward Almand, and she demanded that he leave her apartment.
Bryant complied with Almand's request and left her home.
Almand fully closed the front door. Having been excluded from
Almand's apartment, Bryant then burst open the front door with such
force that the door was damaged;9 and he committed the rape inside
9
The extent of the force is not critical to us, but the fact
of an unconsented-to entry which was accomplished by some degree
of physical force against a barrier is important.
the apartment.
Bryant's initial entry into Almand's apartment probably was
conducted under color of state law: he gained access to Almand's
apartment because of his status as a police officer and his proffer
of information about Almand's daughter.10 But then, Almand excluded
Bryant from her apartment and closed the door completely.
When Bryant reentered the apartment by forcibly breaking in,
11
he was no different from any other ruffian. Bryant's act of
breaking into the apartment and, by force, raping Almand was a
private act not accomplished because of "power possessed by virtue
of state law and made possible only because the wrongdoer [was]
clothed with the authority of state law." West, 487 U.S. at 59,
108 S.Ct. at 2255 (quoting United States v. Classic, 313 U.S. 299,
326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), reh'g denied, 314
U.S. 707, 62 S.Ct. 51, 86 L.Ed. 565 (1941)); cf. Bennett v.
Pippin, 74 F.3d 578, 589 (5th Cir.1996) (concluding rape of
criminal suspect by sheriff was under color of state law when rape
victim knew sheriff was investigating her case and where sheriff
overcame her resistance by intimidation linked to his authority:
"I can do what I want, I'm the sheriff"), cert. denied, --- U.S. --
--, 117 S.Ct. 68, 136 L.Ed.2d 29 (1996); Dang Vang, 944 F.2d at
479 (holding that jury could have reasonably concluded, from expert
testimony showing plaintiffs—as Hmong refugees—were "in awe" of
10
We note, by the way, that Bryant was not in uniform and
was off-duty at the time of these events.
11
While not every grievous offense against morality is a
violation of the Federal Constitution, we believe the conduct
alleged about Bryant would amount to torts and crimes, including
burglary, under Georgia law.
government officials, that the "defendant used his government
position to exert influence and physical control" over the
plaintiffs). Considering that Bryant gained entry to the apartment
by forcibly breaking in, any thug or burglar could have committed
the same violent acts. Once Bryant resorted to sheer force to
break, to enter, and to rape, his status as a police officer had no
bearing on his wicked behavior.
Our color-of-state-law conclusion requires us to engage in
line drawing. But, in the words of Justice Holmes, "the great body
of the law consists in drawing such lines," Schlesinger v.
Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 262, 70 L.Ed. 557
(1926) (Holmes, J., dissenting); "[n]either are we troubled by the
question where to draw the line. That is the question in pretty
much everything worth arguing in the law. Day and night, youth and
age are only types." Irwin v. Gavit, 268 U.S. 161, 168, 45 S.Ct.
475, 476, 69 L.Ed. 897 (1925) (Holmes, J.). In the circumstances
of this case, we draw the line at the front door of Almand's
apartment. When Bryant, by physical force, broke into Almand's
residence, he was not then gaining entry by virtue of any authority
he might have been given by the state to act as a police officer.
We conclude that Bryant was not acting under color of state
law when he broke into Almand's apartment and raped her. His
conduct (if he did the things alleged) was the act of a private
citizen and did not violate the Constitution.12 So, Bryant is due
12
In qualified immunity cases, "[a] necessary concomitant to
the determination of whether the constitutional right asserted by
a plaintiff is "clearly established' at the time the defendant
acted [that is, the qualified immunity question] is the
determination of whether the plaintiff has asserted a violation
summary judgment. The district court's denial of summary judgment
to Bryant on this section 1983 count is reversed. The case is
remanded for further proceedings not inconsistent with this
judgment.
REVERSED and REMANDED.
ANN ALDRICH, Senior District Judge, dissenting:
I respectfully dissent. If Floyd Bryant raped Mary Almand, 1
there is at least a genuine issue as to whether he did so under
color of state law. Therefore, I would affirm the district court's
denial of Bryant's motion for summary judgment.
I.
In order to prevail in an action brought under 42 U.S.C. §
1983, a plaintiff must show that (1) a person acting under color of
state law (2) deprived her of a right secured by the United States
Constitution or other federal laws. Duke v. Smith, 13 F.3d 388,
392 (11th Cir.1994). The majority apparently concedes that, if
Bryant did rape Almand under color of state law, then he violated
her constitutional right to bodily integrity. See Albright v.
Oliver, 510 U.S. 266, 271-73, 114 S.Ct. 807, 812, 127 L.Ed.2d 114
(1994) (citations omitted); Doe v. Taylor Indep. School Dist., 15
F.3d 443, 450-52 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.
70, 130 L.Ed.2d 25 (1994); Stoneking v. Bradford Area School
of a constitutional right at all." Siegert v. Gilley, 500 U.S.
226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), reh'g
denied, 501 U.S. 1265, 111 S.Ct. 2920, 115 L.Ed.2d 1084 (1991).
1
As the majority correctly observes, for the purposes of our
review of the district court's denial of Bryant's motion for
summary judgment, we must assume that Bryant did, in fact, rape
Almand.
Dist., 882 F.2d 720, 726-27 (3rd Cir.1989), cert. denied, 493 U.S.
1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990); Parker v. Williams,
862 F.2d 1471, 1474 (11th Cir.1989). Because there is a genuine
issue as to the circumstances under which Bryant may have raped
Almand, there is a genuine issue as to whether he deprived her of
a constitutional right.
II.
Nevertheless, the majority concludes that Bryant is still
entitled to summary judgment because his actions in raping Almand
were not taken under color of state law. I respectfully disagree.
A defendant acts under color of state law when he exercises
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, 108 S.Ct. 2250, 2255, 101 L.Ed.2d
40 (1988) (quotation omitted). Hence, a defendant acts under color
of state law when he abuses a position given to him by the state.
Id. at 50, 108 S.Ct. at 2255-56; Morgan v. Tice, 862 F.2d 1495,
1499 (11th Cir.), cert. denied, 493 U.S. 813, 110 S.Ct. 61, 107
L.Ed.2d 28 (1989). Here, I believe that there is a genuine issue
of material fact as to this question.
Viewing the facts in a light most favorable to Almand, it
appears that Bryant was able to rape Almand only because of his
abuse of his position as a police officer. As the majority notes,
Bryant initially obtained access to Almand's home on the day of the
rape on the pretense of discussing police business with her.
Although the facts are not entirely clear on this point, it appears
from Almand's deposition that she unlocked her door for Bryant and
admitted him to her home. She testified that she had a
double-locked door which could only be opened with a key, and that
Bryant came through that door. She also testified that after
Bryant entered, she put the key on top of her stereo speaker. 2 A
reasonable finder of fact could infer that she unlocked the door
for Bryant. The majority concedes that if Bryant had raped Almand
at that point, his actions probably would have been taken under
color of state law.
Bryant did not rape Almand at that point, however. Instead,
he complied with her request to leave and walked out the door.
Almand shut the door behind him and turned to get the key to lock
the door. At this point, before Almand could lock the door, Bryant
slammed it open, entered, and raped her.
The majority holds that once Bryant left and then "forcibly"
broke in, he was no different than "any other ruffian." If Bryant
had broken through a locked door, I might accept this conclusion.
If that were the case, Bryant's position as a police officer would
have afforded him no advantage in his alleged rape of Almand.
There is evidence, however, that Bryant merely had to open an
unlocked door, which Almand had unlocked for him specifically
because he was a police officer.3 In other words, construing the
2
At another point, Almand testified that Bryant put the key
on her speaker. At this stage in the proceedings, however, we
must resolve all factual discrepancies in favor of Almand.
3
It is also possible, but not clear from Almand's testimony,
that Bryant opened the door with such force that it did not
matter that the door was not locked. If he did, then I would
agree that Bryant did not act under color of state law. That
fact is not clear, however, and we must resolve all factual
disputes in favor of Almand.
evidence in Almand's favor, a reasonable finder of fact could find
that Bryant's abuse of his position as a police officer induced
Almand to unlock the door so that he could rape her. Thus,
Bryant's abuse of his position as an officer of the state made his
rape of Almand possible, and he acted under color of state law.
This case is analogous to Dang Vang v. Vang Xiong X. Toyed,
944 F.2d 476 (9th Cir.1991). In Dang Vang, the defendant was a
state employee who was responsible for interviewing Hmong refugees
and finding employment for them. On the pretense of taking women
job-hunting, he lured them to a motel and raped them. Of course,
"any other ruffian" could have told the women he had a job for them
in order to lure them to a motel and rape them. As the Ninth
Circuit noted, however, the plaintiffs came into contact with the
defendant because of their need for employment, and the jury could
have reasonably concluded that "the defendant used his government
position ... in order to sexually assault them." Id. at 480.
Similarly, Almand came into contact with Bryant because of her need
for police help, and Bryant used his position to gain access to her
home in order to rape her. Again, "any other ruffian" could have
raped Almand, but Bryant's status as a police officer made it
possible for him to do so in a way that another could not.
III.
On the specific facts of this case, I conclude that, assuming
Bryant did rape Almand, there is at least a genuine factual issue
as to whether he did so under color of state law.4 Accordingly, I
4
Because I reach this conclusion, there is no need for me to
consider whether Bryant's admission that he acted under color of
state law is of any import.
would affirm the district court's denial of Bryant's motion for
summary judgment. I respectfully dissent.