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Fuller v. Carilion Clinic

United States District Court, W.D. Virginia, Roanoke Division

May 21, 2019

ROGER S. FULLER, JR., Plaintiff,
v.
CARILION CLINIC, CARILION CHIEF OF POLICE STEVE LUGAR, and CARILION POLICE CAPT. RON DONELSON, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         This civil action arises out of an alleged seizure of an employee by his employer's private police department. The plaintiff, Roger S. Fuller, Jr. (“Fuller”), filed a complaint in the United States District Court for the Western District of Virginia, Roanoke Division, on December 20, 2017. ECF No. 1. The complaint alleged claims arising under 42 U.S.C. § 1983 and pendent state claims under 28 U.S.C. § 1367. ECF No. 1. The defendant, Carilion Clinic, filed a motion to dismiss the complaint (ECF No. 3), and the plaintiff then filed an amended complaint. ECF No. 10.

         In his second amended complaint, plaintiff Fuller asserted that he was employed by Carilion Clinic as a janitor and that he was at work when he found three burned, wooden stick matches and a signed piece of paper near the Carilion Clinic dentistry lab. ECF No. 38 at 4. Further, plaintiff Fuller indicated that he then notified the receptionist of the wooden stick matches and the signed piece of paper, and that Carilion Clinic police then arrived to investigate the incident. Id. Carilion Clinic Police and Security Services Department is a private police department maintained by Carilion Clinic and authorized by the Virginia General Assembly. Id. at 3.

         In his second amended complaint, plaintiff Fuller alleged that Carilion Clinic police came to plaintiff's residence the following morning and staged a “surround and call out, ” a swat-style arrest tactic, before entering the plaintiff's home and taking him to the Carilion Clinic police station for questioning. Id. at 5-6. Next, plaintiff Fuller asserted that Carilion Clinic police coerced the plaintiff into confessing to lighting the matches. Id. at 6-7. Lastly, plaintiff Fuller alleged that the plaintiff was terminated from his employment at Carilion Clinic after he refused to meet with Carilion Clinic police without counsel present. Id. at 8. Counts I and II of the amended complaint are claims based on the alleged unreasonable seizure of the plaintiff's person by Carilion Clinic police. Id. at 8-11. Count III is a claim for false imprisonment. Id. at 14-17. Count IV is a claim for intentional infliction of emotional distress. Id. at 18-21.

         Defendant Carilion Clinic then filed a motion to dismiss the amended complaint for failure to state a claim. ECF No. 12. The plaintiff filed a response in opposition to the defendant's motion to dismiss the amended complaint (ECF No. 16), and the defendant then filed a reply to the plaintiff's response in opposition (ECF No. 17). This Court then entered a memorandum opinion and order finding that: (1) any actions by Carilion Clinic police outside of the real property owned, leased, or controlled by Carilion Clinic were not authorized by Virginia Code § 9.1-101, and does not constitute as state action; and (2) assuming without deciding that Carilion Clinic police is a state actor, the plaintiff presented enough evidence that Carilion Clinic may be liable under § 1983. ECF No. 23 at 8-17.

         The plaintiff then filed a motion to join additional defendants, Carilion Chief of Police Steve Lugar (“Chief Lugar”) and Carilion Police Captain Ron Donelson (“Captain Donelson”). ECF No. 33. This Court granted that motion. ECF No. 37.

         After completion of discovery, the defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. ECF No. 49. In their memorandum in support of summary judgment (ECF No. 50), defendants contended that “there is no evidence that the Chief of Carilion's police department ‘made a decision to arrest, interrogate, and imprison the plaintiff and that such a decision amounted to a constitutional deprivation'.” Id. at 8. Defendants asserted that summary judgment is appropriate under the Pembaur “single decision” exception to respondeat superior liability. Id. Defendants further stated that plaintiff Fuller was never placed under arrest and the tactics used during the interview were not coercive, referencing their retained law enforcement expert, Carl Wyche. Id. at 9. Defendants indicated that without a custodial arrest or circumstances involving coercive interrogation, defendants did not perform a “public function” giving rise to liability under § 1983. Id. Similarly, defendants contended that since no arrest was made and since plaintiff was never falsely imprisoned, plaintiff's state law claims should be dismissed as a matter of law. Id.

         Plaintiff Fuller filed a response in opposition to the defendants' motion for summary judgment. ECF No. 51. Plaintiff Fuller stated that Captain Donelson was acting in performance of his official duties, outside of Carilion Clinic's jurisdiction, when going to plaintiff Fuller's home at the direction of Chief Lugar. ECF No. 52 at 7. In response to defendants' argument that Carilion Clinic police did not perform a “public function, ” plaintiff Fuller stated that the public function test is not specific as to what duties or jobs the individual officers performed, but whether they are exclusively authorized to act in the first place. Id. at 10. According to plaintiff Fuller, Captain Donelson was dispatched by Chief Lugar to plaintiff's home in furtherance of an investigation, which was consistent with the officer's authority granted by the Virginia General Assembly to deter and prevent crime, and to safeguard life and property. Id. at 11. Moreover, plaintiff Fuller explained that plaintiff believed that he was under arrest and did not feel free to refuse to accompany the Carilion Clinic officers to the police station, reciting facts regarding the time, place, and purpose of the encounter by Carilion Clinic police, words used, general tone and demeanor, the presence of multiple officers, and display of a firearm. Id. at 11-15. Lastly, plaintiff Fuller asserted that the following decisions, and omissions, by Chief Lugar, or his alleged delegee, Captain Donelson, as policymakers imputed § 1983 liability to Carilion Clinic: (1) authorization of plaintiff Fuller's arrest and transport outside of Carilion Clinic's jurisdiction; (2) failure to supervise the police interrogation of plaintiff Fuller, resulting in a deprivation of plaintiff's civil rights; and (3) a policy of regulating perceived employee misconduct under the guise of police investigation of potential or possible criminal activity.[1] Id. at 15-25.

         Defendants filed a reply to plaintiff Fuller's response in opposition to their motion for summary judgment. ECF No. 54. The defendants first stated that the Court should decline plaintiff Fuller's attempt to revisit this Court's prior ruling that as a private police force, Carilion Clinic police cannot be acting under color of state law off premises. Id. at 1-2. Second, defendants contended that plaintiff Fuller cannot establish a policy on the part of Chief Lugar, or Captain Donelson, to treat plaintiff in an unconstitutional manner, eliminating respondeat superior liability on behalf of Carilion Clinic. Id. at 2-3. Third, defendants contended that Carilion Clinic police were not performing a public function when at plaintiff Fuller's home, because this Court has ruled that § 1983 liability cannot apply to Carilion Clinic's off campus activities. Id. at 3. Defendants explained that plaintiff Fuller was told that he was not under arrest and they contended that a reasonable person would not have believed that the setting was custodial. Id. at 3-4. Lastly, defendants stated that there is no policy at Carilion Clinic to use law enforcement in employment matters. Id. at 4-5.

         II. Applicable Law

         Under Federal Rule of Civil Procedure 56, this Court must grant a party's motion for summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Id. If the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ” summary judgment must be granted against the plaintiff. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex, 477 U.S. at 322-23. “The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact.” Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992). However, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         III. Discussion

         Following this Court's review of the fully briefed motions, memoranda, and exhibits submitted by the parties, this Court finds that, for the reasons set forth below, the defendants' motion for summary judgment must be denied in part and granted in part.

         A. Carilion Clinic, Chief Lugar, and Captain Donelson are state actors under 42 U.S.C. § 1983 for actions taken both on and off premises.

         To obtain relief under § 1983, a plaintiff must prove the following elements: (1) the defendant acted under color of state law; and (2) while acting under color of state law, the defendant deprived the plaintiff of a federal constitutional or statutory right. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (emphasis added).

         “An important inquiry in a § 1983 suit against a private party is whether there is an allegation of wrongful conduct that can be attributed to the [s]tate.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 948, 102 S.Ct. 2744, 73 L.Ed. 482 (1982) (internal quotation marks omitted). Conduct satisfying the state action requirement of the Fourteenth Amendment satisfies § 1983's requirement of action under color of state law. Id. at 929. “Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)) (internal quotation marks omitted). “[L]iability attaches only to those wrongdoers who carry a badge of authority of a [s]tate and represent it in some capacity, whether they act in accordance with their authority or misuse it.” National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988) (citing Monroe v. Pape, 363 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961)) (internal quotation marks omitted). “The traditional definition of acting under color of state law requires 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 v. Adkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)) (internal quotation marks omitted).

         In a typical case involving a state action issue, a private party has taken a decisive step that caused harm to the plaintiff, and the question is whether the state was sufficiently involved to treat that conduct as state action, or in other words, whether the state provided a mantle of authority that enhanced power of the harm-causing actors. The United States Supreme Court has created at least seven distinct tests to assist lower courts in dealing with state action issues. See Julie K. Brown, Less is More: Decluttering the State Action Doctrine, 73 Mo. L. Rev. 561, 565 (2008).

         Among the various categories is what is often called the “public function test.” Under this test, the government confers “core, sovereign power - a power, in other words, that is traditionally the exclusive prerogative of the [s]tate.” United States v. Day, 591 F.3d 679, 686 (4th Cir. 2010). “In order to find state power, the function served by the private group must be that which is traditionally and exclusively reserved to the state; the mere fact that the public is benefitted by a private action is insufficient. The Supreme Court has found exclusive state power to be a very narrow category.” Brown, Less is More: Decluttering the State Action Doctrine, 73 Mo. L. Rev. 561, 565 (2008).

         The Supreme Court has expressly left open the question of whether and under what circumstances private police officers may be said to perform a public function for purposes of § 1983. See Flagg Bros., 436 U.S. at 163. Moreover, the United States Court of Appeals for the Fourth Circuit has not directly addressed the issue presented in this case. Although plaintiff Fuller cites Austin v. Paramount Parks, Inc., 195 F.3d 715 (4th Cir. 1999), the Fourth Circuit expressly stated that the question as to whether the defendant, an amusement park special police officer, was a state actor was “a thorny one, but one which [the Court] need not decide here because [plaintiff's] clear failure to show that an official policy or custom of [defendant] was the moving force behind [plaintiff's] [ ] arrest.” Id. at 727. For purposes of deciding that case, the Court assumed without holding that defendant was a state actor, since the Court concluded that defendant did not have an official policy or custom. Id.

         However, the Fourth Circuit has addressed whether private security guards could be liable as state actors in Day. In Day, the defendants were armed private security guards of an apartment complex, with the power of arrest pursuant to Virginia Code § 9.1-138, et seq. Day, 591 F.3d at 681. Ultimately, the Court found that the private security guards were not state actors. Id. at 684. In that case, the Court first addressed whether there was an agency relationship between the government and the officers.[2] Id. at 684-85. First, the Court addressed the district court's view that because Virginia regulates armed security officers and because they have the power to make certain arrests, Virginia affirmatively encouraged the challenged conduct of the defendants. Id. The Fourth Circuit, contrary to the district court's finding, found that, with respect to the first factor, the regulatory scheme merely permitted the officers to arrest the defendant, and did not require or encourage an arrest or any other complained-of action. Id. Because the first factor to establish an agency relationship was not met, the Fourth Circuit stated that the defendant's private action would not be considered public action. Id. The Fourth Circuit also addressed the public function test and whether Virginia's conferral of arrest powers on the officers was enough to render them de facto police. Id. Specifically, the Court stated:

even [if] plenary arrest authority alone could transform a private individual into a state actor, [the defendants] did not possess the same power to make warrantless arrests afforded to Virginia police officers . . . Virginia authorizes an armed security officer ‘to effect an arrest for an offense occurring . . . in his presence.' Va. Code. Ann. § 9.1-146 (emphasis added). The Commonwealth empowers police officers, by contrast, to ‘arrest, without a warrant, any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence.' Id. § 19.2-81 (emphasis added). Indeed, not only is the arrest power of armed security officers more circumscribed than that of police officers, but it is also essentially the same as that of any private citizen.

Day, 591 F.3d at 688-89. The Court assumed without deciding whether plenary arrest authority would be sufficient to transform a private individual into a state actor. Id. at 688. Moreover, the Court distinguishes Day from Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 354-55 (4th Cir. 2003), where the Court had previously found a private plant security official could be held liable for his conduct as a state actor. The Court, stated that “the private party was operating in his official role as an auxillary deputy sheriff, served under the direction of and in concert with the Sheriff's Department, and was invested with the full panoply of powers afforded to full-time deputies, including, but not limited to, the power to arrest.” Day, 591 F.3d at 688 (internal quotation marks omitted).

         Importantly, the Sixth and Seventh Circuit Court of Appeals have addressed factual circumstances that are analogous to the facts presented in this civil action. The Seventh Circuit held that private police officers licensed to make arrests could be state actors under the public function test. Payton v. Rush-Presbyterian, 184623, 627-30 (7th Cir. 1999). The Court found that the defendants' status as on-duty special police officers, licensed by the City of Chicago, enjoyed “virtually the same power as public police officers.” Id. at 629. The defendants in Payton operated under an ordinance which provided that licensed special police officers “shall possess the powers of the regular police patrol at the places for which they are respectively appointed or in the line of duty for which they are engaged.” Id. at 625 (quoting Chicago City Code § 4-340-100 (1993)).

         This broad delegation of power distinguished Payton from an earlier case, Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir. 1996), in which the Seventh Circuit had held that a private security guard endowed with more limited police-type powers was not a state actor. In Wade, the defendant was permitted to carry a handgun and use deadly force in self-defense, but could arrest someone only for “trespass pending the arrival of the police” and could exercise these powers only in the lobbies of the properties where he worked. Id. at 906. The defendant was held not to be a state actor because “none of the these powers had been exclusively reserved to the police - citizen's arrests and the rights to carry handguns and use them in self-defense are available to individuals outside of the law enforcement community.” Payton, 184 F.3d at 629 (citing Wade, 83 F.3d at 906).

         Similarly, the Sixth Circuit held that a private police officer licensed to make arrests could be a state actor as a matter of law. Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 640 (6th Cir. 2005). The Court found that the officer's capacity as an on-duty and state licensed private security police officer, including arrest power, made him liable as a state actor. Id. The defendant in Romanski operated under a statute which vested private security officers with full arrest authority on the entirety of their employer's premises. Id. at 639.

         The Sixth Circuit found that the facts in Romanski were analogous to the facts in Payton. The Romanski court explained:

it is undisputed that [the defendant] (and some of her colleagues) were private security police officers licensed under M.C.L. § 338.1079. This means that [the defendant's] qualifications for being so licensed were vetted by Michigan's department of state police, [ ] and that [the defendant] was subject to certain statutes administered by that department . . . [The defendant] ‘ha[d] the authority to arrest a person without a warrant as set forth for public peace officers . . .' M.C.L. § 338.1080. One consequence of [the defendant's] possession of this authority . . . at all times relevant to this case, [is that the defendant] was a state actor as a matter of law.

Id. at 638.

         Both cases highlight the distinction between private actors exercising powers traditionally, but not exclusively reserved to the state, and cases in which a private actor exercises a power exclusively reserved to the state, such as police power. See Day, 591 F.3d at 687 (“Where private security guards are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test.”) (quoting Romanski, 428 F.3d at 637). “[W]hen the state delegates a power traditionally reserved to it alone - the police power - to private actors in order that they may provide police services to institutions that need it, a plaintiff's ability to claim relief under § 1983 [for abuses of that power] should be unaffected.” Romanski, 428 F.3d at 635 (internal quotation marks omitted).

         This Court finds that this case falls on the Payton/Rodriguez side of the line for the following reasons:

         Virginia Code § 9.1-101 defines a “private police department, ” such as the one at Carilion Clinic as:

any police department, other than a department that employs police agents under the provisions of § 56-353, that employs private police officers operated by an entity authorized by statute or an act of assembly to establish a private police department or such entity's successor in interest, provided it complies with the requirements set forth herein. No. entity is authorized to operate a private police department or represent that it is a private police department unless such entity has been authorized by statute or an act of assembly or such entity is the successor in interest of an entity that has been authorized pursuant to this section, provided it complies with the requirements set forth herein. The authority of a private police department shall be limited to real property owned, leased, or controlled by the entity and, if approved by the local chief of police or sheriff, any contiguous property; such authority shall not supersede the authority, duties, or jurisdiction vested by law with the local police department or sheriff's office including as provided in §§ 15.2-1609 and 15.2-1704. The chief of police or sheriff who is the chief local law-enforcement officer shall enter into a memorandum of understanding with the private police department that addresses the duties and responsibilities of the private police department and the chief law-enforcement officer in the conduct of criminal investigations. Private police departments and private police officers shall be subject to and comply with the Constitution of the United States; the Constitution of Virginia; the laws governing municipal police departments, including the provisions of §§ 9.1-600 [(pertaining to civilian protection in cases of police misconduct and setting forth minimum standards)], 15.2-1705 [(listing the minimum qualifications for the chief of police and all police officers of any locality, all deputy sheriffs and jail officers, and all law enforcement officers, and waiver requirements)][, 15.2-1706 (pertaining to required certification through training for all law-enforcement officers, and waiver of requirements), 15.2-1707 (explaining decertification of law enforcement officers), ] 15.2-1708 [(pertaining to notice of decertification)], 15.2-1719 [(describing disposal of unclaimed property in possession of sheriff or police)], 15.2-1721 [(explicating disposal of unclaimed firearms or other weapons in possession of sheriff or police)], and 15.2-1722 [(delineating certain records to be kept by sheriffs and chiefs of police)]; and any regulations adopted by the Board that the Department designates as applicable to private police departments. Any person employed as a private police officer pursuant to this section shall meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers pursuant to this chapter. A private police officer is not entitled to benefits under the Line of Duty Act (§ 9.1-400 et seq.) or under the Virginia Retirement System, is not a “qualified law enforcement officer” or “qualified retired law enforcement officer” within the meaning of the federal Law Enforcement Officers Safety Act, 18 U.S.C. § 926B et seq., and shall not be deemed an employee of the Commonwealth or any locality. An authorized private police department may use the word “police” to describe its sworn officers and may join a regional criminal justice academy created pursuant to Article 5 (§ 15.2-1747 et seq.) of Chapter 17 of Title 15.2. Any private police department in existence on January 1, 2013, that was not otherwise established by statute or an act of assembly and whose status as a private police department was recognized by the Department at that time is hereby validated and may continue to operate as a private police department as may such entity's successor in interest, provided it complies with the requirements set forth herein.

Va. Code Ann. § 9.1-101 (West 2018).

         Carilion Clinic Personnel Directive 3.01 explains:

The authority vested in sworn personnel comes from § 15.2-1704[3] of the Code of Virginia and is made applicable under § 19.2-12 et seq. of the Code of Virginia. Police officers shall have the authority to:
a. Prevent and detect crime.
b. Apprehend criminals.
c. Safeguard life and property.
d. Preserve peace and the enforcement of state and local laws, regulations, and ordinances.
e. Execut[e] [ ] temporary detention orders and emergency custody orders and any other powers granted to law enforcement offices in § 37.1-808 and § 37.2 809 of the Code of Virginia.
f. Serve orders of protection.
g. Execute all warrants or summons as may be placed in his hands by any magistrate for the locality and to make due return thereof.

ECF No. 52-12 at 2-3.

         This directive, as well as the Virginia Code, separately address security officers and the relevant provisions that guide their duties.[4]

         Moreover, in the Memorandum of Understanding, the Roanoke Police Department and the Carilion Clinic Police and Security Services Department agreed that Carilion Clinic police may use:

Police Department personnel, equipment and materials when needed in the investigation of any felony criminal sexual assault enumerated in § 18.2-67.5:2 subsection B an § 18.2-67.5:3 subsection B, Code of Virginia 1950 as amended, medically unattended death occurring on property owned or controlled by the institution of higher education or any death occurring on property owned or controlled by the institution of higher education or any death resulting from an incident occurring on such property. All other investigations will be conducted by the [Carilion Clinic police] who will function as the primary investigative entity on all other investigations occurring on property owned, leased, or controlled by Carilion Clinic.

ECF No. 52-10 at 1 (emphasis added).

         The power that is granted to Carilion Clinic police, including full arrest power on the premises of Carilion Clinic, is a power traditionally reserved to the state alone. Screws v. United States, 325 U.S. 91, 109-10, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (holding that defendants who were officers of the law and who had the power to arrest under state law were acting “under color of” state law). There are no real constraints on defendants' use of that power, so long as they remain on authorized premises, and so long as their authority does “not supersede the authority, duties, or jurisdiction vested by law with the local police department or sheriff's office including as provided in §§ 15.2-1609 and 15.2-1704.” Va. Code Ann. § 9.1-101. In light of these provisions, and considering the fact that defendants Chief Lugar and Captain Donelson were on-duty during all times relevant to this action, this Court finds that defendants are state actors for purposes of § 1983.

         In drawing this conclusion, this Court has focused on the specific powers that defendants have in their capacities as on-duty private police, especially the power to arrest, which does not appear to have the limitations that private security are subjected to, as explained in Day. The power to arrest is “traditionally the exclusive prerogative of the state.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

         Moreover, the fact that defendants did not always remain on premises at all times relevant to this case does not change the outcome of whether or not defendants may be liable as state actors. As indicated in Keller v. District of Columbia, 809 F.Supp. 432, 433 (E.D. Va. 1993), a person can act “under color of” state law even if the act violates state law. “The term under color of state law includes not only legitimate exercises of power, but also [m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . .” Id. (internal quotation marks omitted). “It is clear that under ‘color' of law means under ‘pretense' of law . . . Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” Screws, 325 U.S. at 110. As in Keller, this case raises the issue of ...


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