Chavez et al v. Longwood Security Services, Inc.

Filing 66

Magistrate Judge Judith G. Dein: ORDER RE Plaintiff's Claims Pursuant to 42 U.S.C. § 1983 entered. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BRIAN CHAVEZ,
Plaintiff,
v.
SPECIAL OFFICER ZACHOWSKI
and LONGWOOD SECURITY
SERVICES, INC.,
Defendants.

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CIVIL ACTION
NO. 12-10251-JGD

ORDER REGARDING PLAINTIFF’S
CLAIMS PURSUANT TO 42 U.S.C. § 1983
During the Final Pretrial Conference, this court directed the parties to address the
issue whether the plaintiff may pursue his claims brought pursuant to 42 U.S.C. § 1983
(“Section 1983”) in light of the fact that Special Officer Zachowski (“Zachowski”) was
acting as a private security guard employed by a private security company at the time of
the incident giving rise to this case. It also directed the parties to address whether the
defendants would be entitled to pursue an affirmative defense of qualified immunity in
the event Section 1983 applies. The parties have addressed these issues in supplemental
filings with the court (See Docket Nos. 52, 56 and 60). After consideration of the parties’
submissions, it is hereby ORDERED as follows:
A.

Whether Zachowski Was Acting Under Color of State Law

In order to prevail on a claim under Section 1983, the plaintiff must establish “(1)
that the conduct complained of has been committed under color of state law, and (ii) that

this conduct worked a denial of rights secured by the Constitution or laws of the United
States.” Grant v. John Hancock Life Ins. Co., 183 F. Supp. 2d 344, 355 (D. Mass. 2002)
(quoting Martinez v. Colon, 54 F. 3d 980, 984 (1st Cir. 1995)). This court understands
that the plaintiff is seeking to establish that Zachowski’s conduct was performed under
color of state law based on two separate tests: the “public function test” and the “nexus”
test. (See Docket No. 60). “Under the public function test, a private party is deemed a
state actor if he or she exercised powers traditionally reserved exclusively to the state.”
Chapman v. Higbee Co., 319 F. 3d 825, 833 (6th Cir. 2005). See also Perkins v.
Londonderry Basketball Club, 196 F.3d 13, 19 (1st Cir. 1999) (“In order to prevail on [a
public function] theory, a plaintiff must show more than the mere performance of a public
function by a private entity; she must show that the function is one exclusively reserved to
the State”). “In order to prevail under the [nexus] test for state action, a plaintiff must
show ‘a close nexus between the State and the challenged action of the [private] entity so
that the action of the latter may be fairly treated as that of the State itself.’” Perkins, 196
F. 3d at 19 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42
L. Ed. 2d 477 (1974)).
Although it appears that the First Circuit has yet to address the precise issue,
courts in other jurisdictions have found that under certain circumstances, the actions of a
private security officer may be sufficient to satisfy one or both of these tests. See, e.g.,
Romanski v. Detroit Entm’t, LLC, 428 F. 3d 629, 638 (6th Cir. 2005) (finding that
private security officer was a state actor under the public function test where undisputed
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facts showed that officer was licensed as a private security police officer under state law,
was subject to certain statutes administered by department of state police, and had “the
authority to make arrests at [his] discretion and for any offenses” at all times relevant to
the case); Chapman, 319 F. 3d at 834-35 (concluding that a reasonable jury could find
that store security officer’s conduct in stopping and initiating strip search of plaintiff
could fairly be attributable to the state under the nexus test where officer was an “offduty sheriff’s deputy, wearing his official sheriff’s uniform, badge, and sidearm” during
the incident in question, and officer was mandated by the store’s policies and regulations
to seek “police intervention in strip search situations”); Payton v. Rush-Presbyterian– St.
Luke’s Med. Ctr., 184 F. 3d 623, 630 (7th Cir. 1999) (finding that private security
personnel who were licensed by the city as special police officers could be deemed state
actors based on allegations showing that “no legal difference exists between the privately
employed special officer with full powers and a regular Chicago police officer”).
Significantly, however, the question whether a private security officer was acting under
color of state law must be evaluated in light of the specific facts of the case. See
Chapman, 319 F. 3d at 834 (“[t]he inquiry is fact-specific, and the presence of state
action is determined on a case-by-case basis”); Grant, 183 F. Supp. 2d at 335 (resolving
whether special police officer was acting under color of state law during the incident in
question “requires an assessment of the totality of the circumstances” (quotations and
citations omitted)). Moreover, while the general scope of the security officer’s authority
is relevant to the analysis, the critical issue for purposes of determining whether a
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defendant was acting under color of state law “is whether the actor, at the time in
question, purposes to act in an official capacity or to exercise official responsibilities
pursuant to state law.” Grant, 183 F. 2d at 356 (quoting Parrilla-Burgos v. HernandezRivera, 108 F.3d 445, 449 (1st Cir. 1997)) (additional quotations and citation omitted).
Therefore, the question whether Zachowski’s actions are subject to scrutiny under
Section 1983 requires full development of the facts concerning his authority as a special
officer, and his use of that authority, at the time of the incident in question.
In light of the fact-intensive nature of the analysis, it would not be appropriate for
this court to resolve as a matter of law the question whether Zachowski was acting under
color of state law at the time of the events at issue. Therefore, the matter will be
submitted to the jury for resolution following the parties’ presentation of the evidence.
The parties may supplement their proposed jury instructions accordingly.
B.

Qualified Immunity

The parties also dispute whether the defendants’ status as a private security guard
and a private security agency precludes them from asserting a qualified immunity defense
to Section 1983 liability. The plaintiff argues, based on the Supreme Court’s decision in
Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997) and
the First Circuit’s decision in Downs v. Sawtelle, 574 F.2d 1 (1978), that the defendants
are precluded from pursuing such a defense. The defendants argue that the immunity
question in Richardson was answered narrowly, in the specific context in which it arose,
and that it does not support the plaintiff’s position that qualified immunity is unavailable
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in this case. The defendants further argue that Zachowski is entitled to qualified
immunity because “he had probable cause to arrest the Plaintiff for Disorderly Conduct”
and because his actions “in stopping and arresting the Plaintiff were reasonable.”
(Docket No. 56 at 5-7).
The question whether a qualified immunity defense is available in this case is not
clear cut. In Richardson, the case upon which the plaintiff primarily relies, the Supreme
Court held that private prison guards employed by a private firm that had been engaged
by Tennessee to manage its prisons were not entitled to claim qualified immunity from
suit by prisoners seeking to hold them liable under Section 1983. Richardson, 521 U.S. at
401, 117 S. Ct. at 2102. However, the Court issued a “caveat” in connection with its
opinion in which it observed that it had “answered the immunity question narrowly, in the
context in which it arose.” Id. at 413, 117 S. Ct. at 2108. That context was “one in
which a private firm, systematically organized to assume a major lengthy administrative
task (managing an institution) with limited direct supervision by the government,
undertakes that task for profit and potentially in competition with other firms.” Id. Thus,
the Court did not foreclose the possibility that qualified immunity might apply to private
individuals acting under a different set of circumstances. See id. (noting that the case did
not “involve a private individual briefly associated with a government body, serving as an
adjunct to government in an essential government activity, or acting under close official
supervision”).
In Downs v. Sawtelle, the other case on which the plaintiff relies, the First Circuit
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determined that “a private individual shown to have acted in concert with state officials”
could not rely on a defense of qualified immunity. Downs, 574 F.2d at 15-16. However,
as the First Circuit subsequently explained, “Downs pre-dated Lugar[v. Edmondson Oil
Co., Inc., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982)] in which the Supreme
Court at least suggested that qualified immunity is available to private individuals in
certain situations[.]” Rodriques v. Furtado, 950 F.2d 805, 814 n.11 (1st Cir. 1991).
Moreover, the First Circuit has held, in certain cases, that private individuals faced with
claims under Section 1983 may assert a defense of qualified immunity. See id. at 815
(finding that private physician was entitled to defense of qualified immunity where “he
was pressed into service by the State”); Frazier v. Bailey, 957 F.2d 920, 928 (1st Cir.
1992) (finding that private individuals were entitled to raise a qualified immunity defense
where the individuals, through their employers, “were under contract to perform duties
statutorily required of the state”). Therefore, the relevant case law indicates that the
question whether private defendants are entitled to rely on a qualified immunity defense
is complex and should be evaluated in light of the particular relationship between those
defendants and the state.
In light of the fact that no evidence has yet been presented in this case, and given
the fact that the question whether Zachowski was acting under color of state law will be
submitted to the jury, this court will defer ruling on the issue as to whether the defendants
are entitled to pursue a defense of qualified immunity. To the extent the jury determines
that Zachowski was not acting under color of state law, or is not otherwise liable under
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Section 1983, the issue of qualified immunity will become moot. Should the immunity
issue remain open, this court will have an opportunity to evaluate it based on a fully
developed factual record.
To the extent the defendants are seeking a ruling on the merits on their qualified
immunity defense, their request is premature. Because the parties have yet to present any
evidence in this case, it is not possible to determine whether the defendant had probable
cause to arrest the plaintiff or whether his actions were reasonable.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

November 15, 2013

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