Opinion
5:09-CV-1132 (NPM) (DEP).
December 10, 1992
LeChristian Steptoe, Plaintiff, pro se, Syracuse New York.
DECISION AND ORDER
I. BACKGROUND
The clerk has sent to the court for review an amended complaint submitted for filing by plaintiff LeChristian Steptoe. Dkt. No. 7. Accompanied by an application to proceed in forma pauperis, on October 8, 2009 plaintiff originally filed a pro se complaint pursuant to 42 U.S.C. § 1983, naming two defendants, the Genesee Grande Hotel ("Genesee Grande" or "Hotel") and the City of Syracuse, and alleging violations of his constitutional rights arising out of an incident that occurred on September 22, 2009 at the Hotel and his subsequent arrest for trespass. See Dkt. Nos. 1 and 2. After reviewing plaintiff's initial filings, though granting plaintiff's application to proceed in forma pauperis, the court dismissed the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), which requires that when a plaintiff seeks to proceed in forma pauperis, the court must dismiss the case if it determines, among other things, that the action is frivolous or malicious or fails to state a claim on which relief may be granted. See Decision and Order, dated Nov. 17, 2009 (Dkt. No. 6). In so doing, the court determined that plaintiff had failed to state a claim under section 1983 against the Genesee Grande because he had failed to allege any nexus between the State of New York and the challenged actions of the Hotel and, to the extent that he was trying to make a claim for conspiracy, he had failed to plead specific facts showing an agreement and concerted action between the Hotel and the City of Syracuse. With regard to the City of Syracuse, the court found the plaintiff's complaint insufficient insofar as his claims were premised solely upon a theory of respondeat superior. In deference to plaintiff's pro se status, however, the dismissal of the complaint was with leave to replead.
II. DISCUSSION
In addition to the City of Syracuse, the plaintiff's amended complaint now names two individual officers employed by the City of Syracuse Police Department, Pam Otis and Don Groth, alleging that both of those defendants were also employed by the Hotel and working as part-time security officers at the time of the alleged violations of his constitutional rights.
It is well-established that persons may not be held liable under section 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, 92-Civ-4288, 1992 WL 380914, *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). The courts frequently have been called upon to interpret the term "under color of law" in the context of off-duty police officers. Claudio v. Sawyer, No. 08 Civ. 8994, 2009 WL 4929260, at * 3 (S.D.N.Y. Dec. 23, 2009) (citing and quoting Pritchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)) (other citations omitted). The relevant inquiry is whether the officer "albeit off-duty, nonetheless invokes the real or apparent power of the police department [or] perform[s] duties generally prescribed for police officers." Pritchell, 13. F.3d at 548 (citations omitted). In making its analysis, the court must look to the totality of circumstances surrounding the officer's acts, including whether the officer identified himself or herself as a police officer; whether the plaintiff was aware that the defendants were police officers; whether the defendants detained or questioned the plaintiff in the scope of employment as police officers; and, if the defendants drew their firearms or arrested the plaintiff. Claudio, 2009 WL 4929260, at * 3; see also, Dean v. City of Buffalo, 579 F. Supp.2d 391, 406 (W.D.N.Y. 2008).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
The amended complaint alleges that while working for the Hotel defendants Otis and Groth, on separate occasions, wearing their official police uniforms, violated plaintiff's constitutional rights. Plaintiff alleges that the City of Syracuse allowed its police officers to engage in such secondary employment and that it failed to properly train and supervise the individual defendants. Liberally construing plaintiff's pro se complaint, as the court must at this juncture, Barnum v. Clark, 927 F.2d 698, 702 (2d Cir. 1991), the amended complaint can be interpreted to allege that at the time of the alleged constitutional violations Otis and Groth were acting pursuant to their authority as City of Syracuse Police officers in accordance with an official policy or custom, thereby sufficiently alleging claims against these defendants under section 1983.
With respect to the Genesee Grande, "a private employer may be held liable under § 1983 for the constitutional torts of its employees where the plaintiff proves that the employee acted pursuant to the employer's official policy of some nature." Martin v. Lociccero, 917 F. Supp. 178, 184 (W.D.N.Y. 1995) (citing Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408-09 (2d Cir. 1990)). A private employer may also be liable where it was jointly engaged with state officials in the alleged unconstitutional conduct. Martin, 917 F. Supp. at 184 (citing Lee v. Town of Estes Park, Colorado v. Sparks, 820 F.2d 1112, 1114 (10th Cir. 1987)); see also Bang v. Utopia Restaurant, 923 F. Supp. 46, 49 (S.D.N.Y. 1996) ("To establish joint action, a plaintiff must show that the private citizen and the state official shared a common unlawful goal; the true state actor and the jointly acting private party must agree to deprive the plaintiff the rights guaranteed by federal law."). The amended complaint alleges that the Hotel enlisted the state's assistance by hiring City of Syracuse police officers and that it instructed these individuals to violate plaintiff's constitutional rights. Broadly construed, plaintiff's allegations are sufficient to state a claim under section 1983 against the Genesee Grande.
III. CONCLUSION
After carefully reviewing plaintiff's amended complaint and the applicable law, without ruling on the merits of plaintiff's claims, the court concludes that plaintiff has sufficiently stated a claim against defendants to avoid dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).
WHEREFORE, it is hereby
ORDERED, that the clerk shall issue summonses and forward them, along with copies of the amended complaint and packets containing General Order 25, which sets forth the Civil Case Management Plan used by the Northern District of New York, to the United States Marshal for service upon the named defendants. The clerk shall forward a copy of the summons and amended complaint by mail to the Office of the Corporation Counsel for the City of Syracuse together with a copy of this decision and order; and it is further
ORDERED, that a formal response to plaintiff's amended complaint be filed by the defendants or their counsel as provided for in the Federal Rules of Civil Procedure subsequent to service of process on the defendants; and it is further
ORDERED, that the clerk is directed to schedule a Rule 16 conference; and it is further
ORDERED, that any paper sent by a party to the court or the clerk shall be accompanied by a certificate setting forth the date a true and correct copy of it was mailed to all opposing parties or their counsel. Any letter or other document received by the clerk or the court which does not include a certificate of service which clearly states that an identical copy was served upon all opposing parties or their attorneys is to be returned, without processing, by the clerk. Plaintiff shall also comply with any requests by the clerk's office for any documents that are necessary to maintain this action. All motions shall comply with the local rules of practice of the Northern District; and it is further
ORDERED, that the clerk serve a copy of this order and General Order 25 on plaintiff by regular mail.