Skoric v. Killington Ski Resort
OPINION AND ORDER granting 1 Application for Leave to Proceed in forma pauperis and dismissing case under under 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by Judge Geoffrey W. Crawford on 9/28/2017. (esb)
U.S. OlSTRICT COURT
01sn;1cT OF VERMONT
F. 1~- -:·: CJ
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
KILLINGTON SKI RESORT,
2017 SEP 28 AH 11 : 59
Case No. 5:17-cv-183
OPINION AND ORDER
Plaintiff Ivo Skoric, proceeding prose, brings this action under 42 U.S.C. § 1983 against
his former employer Defendant Killington Ski Resort (Killington), alleging that Killington
violated his constitutional rights when it issued a notice of trespass against him on January 25,
2017. (Doc. 1-2 at 4.) He seeks rescission and withdrawal of the notice against trespass as well
as money damages. (Id.) Mr. Skoric has filed a motion to proceed in forma pauperis under
28 U.S.C. § 1915 (see Doc. 1), and has submitted an affidavit (Doc. 1-1) that makes the showing
required under§ 1915(a). Accordingly, the request to proceed informa pauperis (Doc. 1) is
GRANTED. However, for the reasons set forth below, the complaint is DISMISSED.
Under the informa pauperis statute, the court conducts an initial screening of the
complaint. See 28 U.S.C. § 1915(e)(2). The court is required to read a prose plaintiff's
complaint liberally and construe it to raise the strongest arguments it suggests. Harris v. Miller,
818 F.3d 49, 56 (2d Cir. 2016) (per curiam). However, the court must dismiss the complaint ifit
determines that the action fails to state a claim on which relief maybe granted. See 28 U.S.C.
Killington Did Not Act Under Color of State Law
The court concludes that Mr. Skoric has failed to state a§ 1983 claim. Under 42 U.S.C.
§ 1983, a claimant may bring suit against"[ e]very person who, under color of any statute ... of
any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and law .... " Wyatt v. Cole, 504 U.S.
158, 161 (1992) (alterations in original) (quoting 42 U.S.C. § 1983). "The purpose of§ 1983 is
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 deterrence fails." Id. "A
§ 1983 claim has two essential elements: (1) the defendant acted under color of state law; and
(2) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory
rights, or her constitutional rights or privileges." Annis v. Cty. of Westchester, 136 F.3d 239, 245
(2d Cir. 1998).
In this case, the first element is lacking. Here, nothing in Mr. Skoric's allegations
suggests that Killington was acting under color of state law when it issued the notice against
trespass. Killington is a private company; there is no sufficient allegation that Killington is a
The court rejects Mr. Skoric's contention that Killington should be considered a state
actor because it operates on leased public land. (See Doc. 1-2 at 4.) As this court has observed
in a separate case, a portion of the land upon which Killington operates is indeed leased from the
State of Vermont. See Post v. Killington, Ltd., No. 5:07-CV-252, 2010 WL 3323659, at *1
(D. Vt. May 17, 2010); see also Sherburne Corp. v. Town of Sherburne, 124 Vt. 481, 207 A.2d
125 (1965). That fact alone, however, does not bring this case within the ambit of the "symbiotic
relationship" test in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
In Burton, the owner of a private restaurant that leased space in a state-owned building
practiced racial discrimination. The Supreme Court held that the owner's discriminatory action
qualified as state action because "the state owned the building, paid the building's maintenance,
owned an adjacent parking lot and therefore had a direct financial interest in the restaurant's
success, and dedicated the building for public purposes, thereby conferring tax exempt status on
the building." Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1082 (2d Cir. 1990) (citing
Burton, 365 U.S. at 723-24).
But Burton "does not stand for the broad proposition ... that leasing property from a
government agency transforms a private actor into a state actor for purposes of section 1983
liability" in all cases. Lattibeaudiere v. AMR Servs. Corp., No. CV 95 5269 (RJD), 1996 WL
518076, at *3 (E.D.N.Y. Sept. 3, 1996). Rather, the outcome of the analysis depends on the facts
of each individual case. See Burton, 365 U.S. at 723 (multiple "factors" were relevant to
whether state action was present); see also Hadges, 918 F .2d at 1081 (the test in Burton does not
lend itself to "formulaic applications"; the court must instead "sift through and weigh the facts to
determine whether the alleged ties between the State and the private actor are sufficiently strong
to attribute the private actor's conduct to the state"); Int 'l Soc '.Y for Krishna Consciousness, Inc.
v. Air Canada, 727 F.2d 253, 255 (2d Cir. 1984) (per curiam) (each inquiry is "fact-intensive").
Here, the complaint alleges no facts regarding the details of the relationship between
Killington and the State of Vermont. But the relevant details do appear in state public records,
including the 1960 lease itself, 1 and Appendix A4 of the State Auditor's January 20, 2015 report
Available at http://auditor.vermont.gov/sites/auditor/files/files/reports/skileases/Killington-Mountain-Resort-Lease. pdf.
entitled State Land Leases Boost Ski Industry, but Are Dated and Inconsistent.2 The court may
take judicial notice of these documents. See Giraldo v. Kessler, 694 F .3d 161, 164 (2d Cir.
2012) (court may take judicial notice of "relevant matters of public record"); Moore US.A., Inc.
v. Standard Register Co., 139 F. Supp. 2d 348, 363 (W.D.N.Y. 2001) (courts considering matters
of public record on a rule 12(b)(6) motion may consider "published reports" and "records of
The arrangement in this case does not meet Burton's symbiotic-relationship test. The
State of Vermont does have an ownership interest in some of the land and structures at
Killington, but the court concludes that that is not by itself enough. Neither is the payment of
rent. Killington makes lease payments to the State of Vermont under the terms of the 100-year
lease. The rental payment depends on Killington's gross receipts, and in fiscal year 2014 it was
about $1.2 million. The court concludes that the lessor-lessee relationship is not sufficient by
itself to constitute the symbiotic relationship that was present in Burton. It is true that the State
gains greater tax revenues if Killington's gross receipts increase, but that link is insufficient to
forge a symbiotic relationship. Hadges, 918 F.2d at 1082.
The Burton Court also considered the tax advantages of the arrangement in that case:
"Should any improvements effected in the leasehold by Eagle [the restaurant] become part of the
realty, there is no possibility of increased taxes being passed on to it since the fee is held by a
tax-exempt government agency." Burton, 365 U.S. at 724. The arrangement in this case
similarly creates certain tax advantages for Killington, since the lift facilities are real estate and
are also deemed to be the property of the State. See Sherburne, 124 Vt. at 486, 207 A.2d at 128
(lift facilities at Killington (then called Sherburne) are real estate owned by the State of Vermont,
Available at http://auditor.vermont.gov/sites/auditor/files/files/reports/ski-leases/FinalSAO-Report-on-Ski-Resort-Leases.pdf.
and thus exempt from taxation). The court is not persuaded, however, that the tax advantage is
sufficient to qualify the relationship as symbiotic.
This case is distinguishable from Burton in key respects. Whereas in Burton the upkeep
and maintenance of the building was the responsibility of the governmental entity, the 1960 lease
in this case specifies that the lessee is generally responsible for maintenance of all lifts,
buildings, and structures. Perhaps most importantly, the Burton Court noted the "peculiar
relationship" of the restaurant to the parking facility in which the restaurant was located:
restaurant guests had a convenient place to park, and the convenient dining might drive
additional demand for the parking facility. Burton, 365 U.S. at 724. There is no such symbiotic
relationship in this case: nothing in Mr. Skoric's allegations or in the lease suggests that
Killington is operated as an integral part of a public building or other public enterprise. For these
reasons, the court concludes that the symbiotic-relationship test is not met, and that Mr. Skoric
has failed to allege that Killington acted under color of state law.
Leave to Amend
The Second Circuit has held that district courts should not dismiss the claim of a self-
represented party without granting leave to amend at least once "when a liberal reading of the
complaint gives any indication that a valid claim might be stated." Dolan v. Connolly, 794 F.3d
290, 295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)); see also
Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave [to amend] when justice so
requires."). However, leave to amend the complaint is not required where an amendment would
be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) ("The problem with
[plaintiffs] causes of action is substantive; better pleading will not cure it. Rep leading would
thus be futile. Such a futile request to replead should be denied."). The court finds that leave to
amend would be futile in this case because the details of Killington's relationship with the State
of Vermont are clear from the public record, and establish that the symbiotic-relationship test is
not met. 3
Plaintiffs Motion to Proceed Jn Forma Pauperis (Doc. 1) is GRANTED.
The case is DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii).
The court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith.
Dated at Rutland, in the District of Vermont, thi?"'_d of September, 201 7.
Geoffrey W. Crawford, Judge
United States District Court
The symbiotic-relationship test is not the only way in which a seemingly private action
may be deemed state action for the purposes of§ 1983. Mr. Skoric does not rely on any of the
other possible avenues, and the court concludes that none of them are applicable. Killington is
not performing a traditional state function. Cf Marsh v. Alabama, 326 U.S. 501, 506-07 (1946).
The state's link to the challenged action is insufficient to satisfy the close-nexus test.
Cf Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974). And Killington is not a "willful
participant in joint activity with the State or its agents." Lugar v. Edmondson Oil Co., 457 U.S.
922, 941 (1982).
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