Harvey v. Plains Twp Pol Dept

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

8-30-2005

Harvey v. Plains Twp Pol Dept

Precedential or Non-Precedential: Precedential

Docket No. 04-1148

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-1148

ELIZABETH HARVEY

Appellant

v.

PLAINS TOWNSHIP POLICE DEPARTMENT; EDWARD J.

WALSH; RONALD DOMBROSKI; PLAINS TOWNSHIP

BOARD; JOAN A. CHUKINAS

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 01-cv-01768)

District Judge: Honorable A. Richard Caputo

Argued April 18, 2005

Before: ROTH, FUENTES, and BECKER, Circuit Judges.

(Filed: August 30, 2005)

JAMES A. SWETZ (ARGUED)

Cramer, Swetz & McManus, P.C.

711 Sarah St.

Stroudsburg, PA 18360

Attorney for Appellant

C. KENT PRICE (ARGUED)

Shawn E. Smith

Thomas, Thomas & Hafer, LLP

305 N. Front St.

P.O. Box 999

Harrisburg, PA 17108-0999

Attorneys for Appellees Plains Township Police

Department, Edward J. Walsh, Ronald Dombroski, and

Plains Township Board

ROBERT T. PANOWICZ (ARGUED)

11 West Market St., Suite 1122

Wilkes-Barre, PA 18701

Attorney for Appellee Joan A. Chukinas

____

OPINION OF THE COURT

FUENTES, Circuit Judge.

This appeal raises questions regarding the liability of a

police officer and a landlord involved in an ex parte private

repossession by a former boyfriend of the plaintiff. We hold that

a police officer actively involved in such a repossession may be

engaged in state action in violation the Fourth Amendment. We

will reverse the grant of summary judgment in favor of the officer

because the District Court improperly resolved a material factual

dispute in favor of the police officer on this issue. We also hold

that the landlord, who, according to the plaintiff, participated in

the repossession by opening the door to the plaintiff’s apartment at

the direction of the police officer, was not engaged in state action.

We will therefore affirm summary judgment in the landlord’s

favor. We will also affirm summary judgment in favor of the

Police Department, the Police Chief, and the Township Board

because the plaintiff did not show any evidence of deliberate

indifference.

I. Facts & Procedural Posture

This case centers around a private repossession of property

2

by an ex-boyfriend from his former residence.1 In 1998,

Plaintiff/Appellant Elizabeth Harvey and her then-boyfriend

Edward Olowiany jointly leased an apartment in the township of

Plains, Pennsylvania. After the relationship deteriorated, Harvey

obtained a Protection from Abuse Order (“PFA”) against

Olowiany, which granted Harvey the exclusive right of possession

of the apartment, and ordered Olowiany to retrieve all of his

belongings immediately after entry of the PFA. At the PFA

hearing, Olowiany requested that he be allowed to return to the

apartment, in order to pick up furnishings and other things that

would be difficult to remove during his first trip. His request was

denied, although he claims that the judge noted that he could return

if he made arrangements with Harvey.

Olowiany’s attorney sent a letter to Harvey asking her to set

a time for Olowiany to retrieve his remaining property. The letter

also contained an itemized list of that property. Harvey did not to

respond to the letter. The attorney sent a second letter, stating that

on September 18, 1999 at 2:00 p.m., Olowiany would arrive to

retrieve his belongings accompanied by a Plains Township police

officer. He sent a copy of this letter to the Plains Township Police

Department (“Police Department”) and to Harvey’s landlord, Joan

Chukinas. Because she was residing elsewhere at the time, Harvey

claims she never received the second letter.

On September 18, Officer Ronald Dombroski was sent to

the Harvey residence by a supervisor in order to keep the peace at

the repossession. Dombroski was given a copy of the list of items

to be retrieved, as described in Olowiany’s attorney’s first letter.

At the agreed-upon time, Olowiany, Dombroski, and Chukinas

arrived at the apartment. Harvey, apparently unaware that her

apartment was to be entered, was not present. Dombroski directed

Chukinas to unlock the door, so that Olowiany could retrieve his

1

Because this is an appeal from the grant of summary

judgment to all defendants, our stated facts reflect those presented

by the plaintiff below.

3

property.2 After entry, Olowiany removed items from the

apartment. While Dombroski claims that he attempted to verify

that only listed items were taken, upon returning to the apartment,

Harvey found that it was in disarray and that many items were

missing, including several that were not included in the list

accompanying the first letter.

Harvey brought suit under 42 U.S.C. § 1983 against

Dombroski, Chukinas, Police Chief Edward Walsh, the Plains

Township Police Department, and the Plains Township Board.3

The essence of her complaint is that the actions of Dombroski and

Chukinas were in violation of the Fourth Amendment, and that

Walsh, the Police Department, and the Township failed to

adequately train Dombroski. The defendants moved for summary

judgment, and the District Court found for all of them. It held that

Dombroski was protected by qualified immunity, because, although

he violated Harvey’s clearly established Fourth Amendment rights,

he acted reasonably. Chukinas prevailed because, in the District

Court’s view, she was not acting under color of law or in concert

with Dombroski. The failure to train claim against the remaining

defendants failed because Harvey did not set forth any evidence of

deliberate indifference or identify an appropriate alternative

training program. Harvey appeals from the District Court’s grant

of summary judgment to the defendants.4

II. Officer Dombroski

2

The District Court in its recitation of the facts and

subsequent analysis found that Dombroski merely assented to

Chukinas’s opening of the door, after she asked him whether she

could open it. This is a highly contested issue, as discussed later.

3

Perhaps curiously, Olowiany was apparently not included

as a defendant.

4

The District Court had federal question jurisdiction over the

civil rights action under 28 U.S.C. §§ 1331 and 1343. We have

jurisdiction over the District Court’s final order disposing of all

claim under 28 U.S.C. § 1291.

4

To prevail on this appeal with respect to Officer Dombroski,

Harvey must show: (1) that Dombroski took part in state action; (2)

that the state action violated her asserted constitutional rights; and

(3) that Dombroski is not entitled to qualified immunity with

respect to the constitutional violation. We address these issues in

that order.

A. State Action

“To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). To satisfy the state action

requirement, the defendant must have used authority derived from

the state in causing the alleged harm. See Abbott v. Latshaw, 164

F.3d 141, 146 (3d Cir. 1998).

In Abbott, we considered the state action question under

facts somewhat similar to those in this case. 164 F.3d 141. Mark

Abbott and Laurie Latshaw were a divorced couple. During their

marriage, Latshaw’s father purchased a van for the couple and

eventually sold any interest that he may have had in it to Abbott in

exchange for Abbott’s promise to pay off the loan, which Abbott

fulfilled. However, Abbott never received the title from Latshaw’s

father, and after the divorce, the father transferred the title to his

daughter, rather than Abbott. She then sought repossession of the

van by enlisting Albert Diehl, a county constable, notifying him of

these facts and paying him to help her retrieve the vehicle. To

prove that she owned the van, Latshaw showed the constable the

title and a temporary registration. Diehl asked Abbott for the keys

to the van, but Abbott refused, arguing that he paid for the van and

he owned it. Diehl then summoned the police, and, in response,

three officers arrived: Officer Sarsfield, Officer Stafford, and

Lieutenant George. At about the same time, Abbott’s attorney

arrived at the scene and boxed in the van, just as a locksmith had

completed a duplicate key for Latshaw. Lieutenant George ordered

the attorney to unblock the van, and arrested the attorney after he

refused to do so. In the meantime, Latshaw got into the van and

managed to get around the attorney’s car and drive away. Abbott

5

filed a § 1983 action against his ex-wife Latshaw, Constable Diehl,

Officers Sarsfield and Stafford, and Lieutenant George, alleging

that they deprived him of his property–the van–without due process

in violation of the Fourteenth Amendment. The District Court

dismissed all of the claims based on qualified immunity or lack of

state action. On appeal, we considered whether state action could

be found with respect to the various actors.

We found that Diehl’s actions could be considered state

action:

The constable played a principal role in the seizure.

Latshaw enlisted him, and paid for his help because

she believed that she could not take the van from

Abbott without it. According to Abbott, “Mr. Diehl

walked into my office and identified himself as a

constable and told me that he was [there to] take my

vehicle,” and that “we’re going [to] take the vehicle

one way or another.” The constable threatened to

arrest Abbott for driving “her vehicle” if he tried to

drive the van home. Viewing the record in the light

most favorable to Abbott, we find that a reasonable

jury could conclude that Diehl used his public

authority to help Latshaw take possession of the van,

and as such was obligated to notify Abbott of the

seizure in advance and to provide him with a

meaningful opportunity to be heard.

Id. at 147. As to the police officers, we found that the mere

presence of Sarsfield and Stafford at the repossession did not

constitute state action:

The Greensburg police officers were called to the

scene to check Latshaw’s documentation, which they

did. There is no evidence that two of the

officers–Sarsfield and Stafford–did any more than

this. The mere presence of police at the scene of a

private repossession does not, alone, constitute state

action causing a deprivation of a protected property

interest. . . . Officers Sarsfield and Stafford confined

6

their conduct to the routine police procedures of

checking the vehicle registration, and cannot be said

to have used state action to deprive Abbott of his due

process rights.

Id. at 147. We, however, did find George’s actions to qualify as

state action (at least for summary judgment purposes):

Lieutenant George did not remain neutral, but

advised Latshaw that she had a right to immediate

possession of the van. Lt. George also ignored

[Abbott’s attorney’s] ardent protest of the seizure,

and threatened to arrest [the attorney] if he did not

move his car to make way for Latshaw. Although he

was not the instigator, a jury could find that Lt.

George, by his conduct, joined forces with Diehl in

the unconstitutional deprivation, going beyond the

permissible conduct outlined in Menchaca.

Id. As to Latshaw, we first noted that, “[a]lthough not an agent of

the state, a private party who willfully participates in a joint

conspiracy with state officials to deprive a person of a

constitutional right acts ‘under color of state law’ for purposes of

§ 1983.” Id. at 147-48. We reinstated the claim against Latshaw,

finding that state action was sufficiently alleged, as “Abbott had

alleged in his complaint that Diehl acted ‘at the instance and

request of Defendant Latshaw’ and . . . the complaint depicted joint

action by Latshaw and Diehl in effectuating the recovery of the

van,” and that the allegations had at least some support in the facts.

Id. at 148.

Here, Dombroski argues that his action does not constitute

state action, because he merely was present at a private

repossession–likening his conduct to Officers Sarsfield and

Stafford in Abbott. We reject this argument. In an answer to an

interrogatory, Chukinas, the landlord, states that she opened the

door “at the direction and with the permission of the Plains

7

Township Police.” 5 App. 501; see also App. 368-69 (confirming

that Dombroski “ordered [her] to open the apartment”). Thus, for

purposes of summary judgment, we must accept for a fact that

Dombroski directed Chukinas to open the door. Moreover,

Chukinas stated, in her deposition, that “I would never have opened

the door if I didn’t have permission from the policeman.” App.

365-66. Like in Abbott, viewing the facts in this manner, it

appears that Dombroski “played a principal role in the seizure” and

a reasonable jury could conclude that Dombroski used his public

authority to help the ex-boyfriend gain entry to and seize property

from Harvey’s apartment. The record supports a finding that he

was not a mere spectator, but in fact a but-for cause of the seizure.

Dombroski relies on cases that allegedly suggest that the

plaintiff’s presence, here Harvey’s presence, was necessary for

state action to have taken place. See, e.g., Barrett v. Harwood, 189

F.3d 297, 302-03 (2d Cir. 1999); Breiner v. Litwhiler, 245 F. Supp.

2d 614, 626 (M.D. Pa. 2003). While the presence of the plaintiff

at the alleged constitutional violation was important in these cases,

it was important not in itself but as an indicator of the role that the

defendant likely played. In Barrett, the Second Circuit found that

an officer’s warning to the plaintiff against “start[ing] any trouble”

was a reasonable peacekeeping response to the plaintiff’s violent

opposition to the repossession. 189 F.3d at 303. The court stated

that the “crucial question” was whether or not the officer was

“taking an active role that either affirmatively assisted in the

repossession over the debtor’s objection or intentionally

intimidated the debtor so as to prevent him from exercising his

legal right to object to the repossession.” Id. at 302-03. However,

we believe that the implication that the plaintiff must be present

was in response to the factual situation presented. This is made

clear by the court’s earlier more general formulation of the issue:

5

Interrogatories are part of the summary judgment record:

Summary judgment is only proper if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c) (emphasis added).

8

“When an officer begins to take a more active hand in the

repossession, and as such involvement becomes increasingly

critical, a point may be reached at which police assistance at the

scene of a private repossession may cause the repossession to take

on the character of state action.” Id. at 302. Thus, we do not read

Barrett as embracing a rule that requires the plaintiff’s presence in

order to find state action.

In Breiner, the district court assigned significance to the

plaintiff’s absence at the scene because it showed that she was not

intimidated by the police presence–intimidation being one method

by which an officer might help effectuate a constitutional violation.

Id. at 626. However, as in Barrett, what was ultimately important

was whether the injury to the plaintiff was aided by the use of state-

derived authority, not whether the alleged state action was

immediately directed at the plaintiff. Here, the record supports a

finding that the officer used his authority to compel Chukinas to

open the door. Thus, the use of state-derived

authority–Dombroski’s order to open the door–was critical to the

repossession, satisfying the state-action test discussed above.6

B. Constitutional Violation

The District Court found that “[t]he law was unquestionably

6

It is a much different question whether state action could be

found if Chukinas asked Dombroski if she could open the door and

he assented (such that there was no official order to open the door).

The cases above suggest that Dombroski’s mere assent to opening

the door, provided that the choice to open the door remained with

Chukinas, would not qualify as state action. See Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) (“Action taken by

private entities with the mere approval or acquiescence of the State

is not state action.” (emphasis added)). Although this is the

situation that Dombroski and Chukinas now present, Chukinas’s

earlier statements create a factual dispute that must be resolved in

Harvey’s favor, rendering this issue irrelevant at this point in the

case, with respect to the characterization of Dombroski’s action as

state action.

9

clear in September, 1999, that the Fourth Amendment prohibited

unreasonable searches and seizures of a person’s home by the

police without a warrant.” App. 8 (citing Payton v. New York, 445

U.S. 573, 583-85 (1980)). In arguing that the District Court should

be affirmed, the defendants (including Dombroski) do not appear

to deny this contention.7 Instead, Dombroski focuses on state

action, as discussed above, and on the argument that he was at a

private repossession merely to keep the peace and did not go

beyond performing that function. Accordingly, we will not disturb

the District Court’s finding that Dombroski’s actions violated the

Fourth Amendment.

In addition to the Fourth Amendment violation, Harvey

notes in her reply brief that she “also claims that her right to due

process was violated.” Reply Br. of Appellant at 4. It is unclear

whether a due process claim was properly raised in her complaint

or explicitly made before the District Court, as the finding by the

District Court that Dombroski violated the Fourth Amendment

allowed it to move to the reasonableness prong of qualified

immunity without having to consider other constitutional claims.

Of course, that claim could have provided a ground to deny

qualified immunity, but we need not dwell on this issue. As

Harvey neglected to raise this argument in her opening brief, we

find it waived.8 United States v. Pelullo, 399 F.3d 197, 222 (3d

Cir. 2005) (“It is well settled that an appellant’s failure to identify

or argue an issue in his opening brief constitutes waiver of that

issue on appeal.”) (citing In re Surrick, 338 F.3d 224, 237 (3d Cir.

2003)).

7

They do not argue that there was no search or seizure or

that his actions were in the nature of “community caretaking.” See

United States v. McGough, No. 04-12077, 2004 WL 3389374, at

*4 (11th Cir. June 15, 2005). We have not had the occasion to

consider such an exception and need not do so at this time.

8

We note in passing that our discussion of due process

claims for random and unauthorized official conduct in Brown v.

Muhlenberg Township casts doubt on the viability of a due process

claim here. 269 F.3d 205, 213-14 (3d Cir. 2001) (citing Hudson v.

Palmer, 468 U.S. 517, 533 (1984)).

10

C. Qualified Immunity

“Qualified immunity shields public officials performing

discretionary functions from § 1983 and Fourteenth Amendment

liability ‘insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.’” Abbott, 164 F.3d at 148 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Our qualified

immunity inquiry is a two step process. First, we must determine

whether the defendants violated “clearly established” rights. Id.

This entails a finding of a constitutional or statutory violation as

well as a finding that the violated right was clearly established at

the time of the violation. Second, we determine whether a

reasonable officer would have believed that his or her conduct

deprived the plaintiff of his or her constitutional rights. Id.

The Fourth Amendment right violated here was clearly

established at the time that the events that gave rise to this case

took place. As the District Court noted, Payton made clear in 1980

that warrantless searches are not permissible absent an exception;

no such exception is implicated here.

The main issue here is whether Dombroski’s belief that he

was acting lawfully was reasonable. The District Court found that

Dombroski’s conduct was reasonable, because he was ordered by

his superior to keep the peace during the repossession, was given

the letters sent by Olowiany’s attorney, and believed that Harvey

and Chukinas had received the letter detailing the time of the

repossession and the items to be removed (this latter belief was

deemed reasonable because the letter indicated that it was sent to

those parties). Thus, the District Court reasoned, “as far as

Dombroski knew, the necessary arrangements had been made for

Olowiany to retrieve his belongings, and his role was simply to

keep the peace.” App. 10. Accordingly, “Dombroski reasonably

believed that by allowing Chukinas to unlock the door, and his

entering the apartment, he was acting to keep the peace.” The

District Court found that “Dombroski was acting under a belief that

the owner of the property was retrieving possessions with

permission from the possessor.” Id.

11

The essence of the District Court’s analysis appears to be

that it was reasonable for Dombroski to conclude that Harvey

consented to the repossession. This belief was based on the fact

that the letter detailing the time of the repossession was sent to

Harvey. We believe that it is unreasonable to conclude, on the

basis of a letter that the ex-boyfriend’s attorney sent Harvey, to

which she did not respond, that Harvey consented to the

repossession.9 Officer Dombroski had no reason to believe that

Harvey had received the letter or, more importantly, that she had

consented to the repossession. Especially with knowledge of the

existence of a domestic violence order, a reasonable officer should

have determined whether consent was given by Harvey for the

repossession. A reasonable officer at least would have refused to

assist with opening the door until he was satisfied that consent was

given. See Payton, 445 U.S. at 585 (reiterating that “‘physical

entry of the home is the chief evil against which the wording of the

Fourth Amendment is directed’”) (quoting United States v. U.S.

District Court, 407 U.S. 297, 313 (1972)). That he was ordered to

keep the peace should be irrelevant, as Officer Dombroski’s actions

went well beyond merely keeping the peace. Dombroski’s

supervisor simply ordered him to keep the peace, not to have the

door opened in order for the ex-boyfriend to remove property.

App. 446 (“I was to go down there and to keep the peace down

there, because there was a PFA in effect, and [Olowiany] was

going to be removing some of his items from the residence.”).10

9

The letter read, in relevant part:

Be advised that my client, Edward Olowiany,

accompanied by the Plains Township Police

Department, will present themselves at your

residence to recover items from the apartment Mr.

Olowiany previously shared with you on Saturday,

September 18, 1999, at 2:00 P.M.

App. 94. The letter also stated that a copy was sent to Chukinas.

10

Although Dombroski has stated that he was also instructed

“to make sure that [Olowiany] adheres to the list,” App. 458, this

instruction did not require him to order the door to be opened, but

rather simply involved passive observation of the repossession.

12

Our dissenting colleague argues that our conclusion runs

afoul of Anderson v. Creighton, 483 U.S. 635 (1987), because

Dombroski “could have believed that his conduct was lawful in

light of the information in his possession.” We certainly agree, as

we must, that Creighton requires a particularized inquiry, involving

consideration of both the law as clearly established at the time of

the conduct in question and the information within the officer’s

possession at that time. However, we part ways when considering

whether the information in Dombroski’s possession could

reasonably have supported the belief that his actions were

constitutional. As an initial note, there is no need to “particularize”

the Fourth Amendment right implicated here beyond “the basic

rule, well established by [Supreme Court] cases, that, absent

consent or exigency, a warrantless search of the home is

presumptively unconstitutional.” Groh v. Ramirez, 540 U.S. 551,

564 (2004) (citing Payton, 445 U.S. at 586-88) (discussing

qualified immunity and noting that “[n]o reasonable officer could

claim to be unaware” of this rule). As in Groh, there was no

exigency here, and the Groh Court rejected, over a dissent, the

notion that “ample room” must be made for mistaken judgments of

law or fact in cases in which no exigency exists. Id. at 565 n.9.

Thus, the simple question we are faced with is whether it was

reasonable for Dombroski to infer consent from the knowledge in

his possession. Our dissenting colleague notes that “there is a

presumption that a properly mailed item is received by the

addressee.” However, we do not see how Dombroski could

reasonably infer from the presumption of mailing that Harvey

consented to anybody entering her apartment.11 Our colleague

11

Our colleague also points to language in the PFA stating

that Olowiany was “to pick up personal belongings,” but notes the

possible tension between that provision and another provision

“grant[ing] exclusive possession of the residence.” App. 91. As

an initial note, while the record suggests that the Sergeant who

dispatched Dombroski had a copy of the PFA when explaining the

situation to Dombroski, it is unclear whether Officer Dombroski

actually read the PFA. App. 447. Accordingly, Dombroski’s

familiarity with the PFA appears to be an unresolved historical

issue within the province of the jury, and we should make the

13

seems to question what Dombroski should have done “at what he

understood to be a long prearranged appointment.” He should have

done exactly what he was dispatched to do–keep the peace–and not

affirmatively aid in the removal of property from Harvey’s

apartment. We stress that, at this stage, we must take for a fact that

the officer ordered the landlord to open the door. This, and only

this, is the action we find to be unreasonable, and clearly so.

Because we find Officer Dombroski’s conduct to be

unreasonable given the facts presented, we will reverse the District

Court’s grant of summary judgment on qualified immunity grounds

to Dombroski.12

III. Joan Chukinas

The District Court, as regards to the culpability of the

favorable inference for Harvey that Dombroski was not familiar

with the PFA. In addition, one could understand the PFA as

mandating that Harvey make reasonable efforts to accommodate

Olowiany’s efforts to retain his belongings. However, there is no

evidence that she was being unreasonable, and the PFA does not

appear to grant a general right of entry to Olowiany.

12

The parties appear to be in disagreement over the proper

role of the jury in qualified immunity determinations. Although the

courts of appeals are not unanimous on this issue, this Court has

held that “qualified immunity is an objective question to be decided

by the court as a matter of law.” Carswell v. Borough of

Homestead, 381 F.3d 235, 242 (3d Cir. 2004) (citing Doe v.

Groody, 361 F.3d 232, 238 (3d Cir. 2004)). “The jury, however,

determines disputed historical facts material to the qualified

immunity question.” Id.; see also Curley v. Klem, 298 F.3d 271,

278 (3d Cir. 2002). “A judge may use special jury interrogatories,

for instance, to permit the jury to resolve the disputed facts upon

which the court can then determine, as a matter of law, the ultimate

question of qualified immunity.” Curley, 298 F.3d at 279. At this

stage, however, the summary judgment standard requires the Court

to resolve all factual disputes in Harvey’s favor and grant her all

reasonable inferences, obviating any need to look to a jury.

14

landlord, found that, as a matter of law, “Chukinas’s conduct [did]

not rise to the level of a constitutional violation” because she

“neither acted under color of law, nor did she act in concert with

Dombroski.” App. 12. It found that she did not assert any state

authority in opening the door and that there are no facts alleged that

support a finding that Chukinas and Dombroski acted in concert.

Our discussion of the law regarding state action and of the alleged

constitutional violations provides the relevant background.

Harvey argues that, because the door was unlocked through

some sort of interaction between Dombroski and Chukinas, they,

by definition, acted jointly, satisfying the test from United States v.

Price, 383 U.S. 787, 794 (1966) (“Private persons, jointly engaged

with state officials in the prohibited action, are acting ‘under color’

of law for purposes of [§ 1983].”), for private party state action.

However, the Price test requires more than joint action, but rather

requires that the private actor at least be “a willful participant in

joint activity with the State or its agents.” 383 U.S. at 794

(emphasis added). Thus, compelled participation by a private actor

may fall outside of the contours of state action.

As we are considering Chukinas’s motion for summary

judgment here, we construe the facts in the most favorable light to

Harvey. The record supports three possible scenarios with respect

to Chukinas: (1) she acted on her own in opening the door for

Olowiany; (2) she acted with Dombroski’s permission in opening

the door, but the choice of whether or not to open it was hers; or (3)

she acted at Dombroski’s direction in opening the door. If, under

any of these scenarios, Chukinas could be considered to have

engaged in state action, we must reject the District Court’s finding

that Chukinas did not engage in such action.

Under the first scenario, in which Chukinas acted without

any input from Dombroski, Dombroski would merely have been

present at the scene and would not have used any of the state’s

coercive powers. Accordingly, there would be no state action by

Dombroski, and Chukinas could not have acted jointly in state

action (as there was none). Therefore this scenario is of no help to

Harvey. The second scenario–in which Chukinas chose to act with

the permission of Dombroski–is not materially different from the

15

first, as the action is not coerced. See supra note 6.

This leaves the last scenario, under which Dombroski

ordered Chukinas to open the door. Chukinas argues that, unlike

in cases in which private parties have been found to have acted

jointly with state actors, she did not direct Dombroski to do

anything nor did she request his assistance with anything.

Moreover, she argues, she had no personal interest in getting the

door opened, unlike, for example, Latshaw’s use of the constable

in Abbott.

The Supreme Court’s language requiring joint action or

action in concert suggests that some sort of common purpose or

intent must be shown. See Lugar v. Edmondson Oil Co., Inc., 457

U.S. 922, 942 (1982) (finding that “[t]he Court of Appeals erred in

holding that in this context ‘joint participation’ required something

more than invoking the aid of state officials to take advantage of

state-created attachment procedures” (emphasis added)). Although

the facts of this situation appear to render Chukinas a “participant,”

they do not suggest that she was a willful participant. Price

requires willful participation; a private citizen acting at the orders

of a police officer is not generally acting in a willful manner,

especially when that citizen has no self-interest in taking the action.

See Black’s Law Dictionary 1593 (defining “willful” as

“[v]oluntary and intentional, but not necessarily malicious”); see

also United States v. Cheape, 889 F.2d 477, 478 (3d Cir. 1989)

(noting that the jury found that the defendant’s “actions were

wilful, and not the product of coercion or duress”). For the reasons

just discussed, we believe that the willful participation required

under Price means voluntary, uncoerced participation. See Sutton

v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir.

1999) (“[W]e would expect that the private defendant is not

responsible for the government’s compulsion.”). Chukinas would

therefore not be liable here because she had not willfully

participated in the state action, as compulsion by the state negates

the presence of willfulness.13

13

We stress that by stating that a private actor is not engaged

in state action simply because she is compelled to take an action by

16

Harvey points out that, in Reitz v. County of Bucks, we

noted that “[o]ther courts have recognized that conduct as

seemingly benign as towing a vehicle at the direction of a police

officer can result in § 1983 liability for a private defendant.” 125

F.3d 139, 148 (3d Cir. 1997) (citing Goichman v. Rheuban Motors,

Inc., 682 F.2d 1320, 1322 (9th Cir. 1982)). The situation described

in Goichman, however, arose within a detailed statutory scheme

empowering the towing companies that was created by the state to

accomplish its own prerogatives with respect to traffic regulation.

Also, Goichman concerned whether the towing could be considered

state action, not whether suit could be brought against the private

trucking companies.14 See supra note 11. Accordingly, under no

possible factual scenario presented here could we conclude that

Chukinas engaged in state action. We will therefore affirm the

grant of summary judgment in her favor.

IV. The Township and Chief of Police

Harvey makes failure to train claims against the Township

a state actor, we are not suggesting that the action itself may not be

attributed to the state. Indeed, it seems entirely proper to find that

the state actor engaged in state action, including whatever actions

the private party was compelled to undertake. See Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296

(2001) (“We have, for example, held that a challenged activity may

be state action when it results from the State’s exercise of ‘coercive

power’ . . . .”). For example, in this case, although Chukinas in

fact unlocked the door, that action is imputed upon Dombroski

because he used his state authority to cause that action.

14

We note also that when private parties enter into symbiotic

relationships with the government that “confer[] on each an

incidental variety of mutual benefits,” their conduct may become

so inextricably intertwined with the state action that the private

conduct may result in § 1983 liability. Burton v. Wilmington

Parking Auth., 365 U.S. 715, 724-25 (1961). Here, however,

Chukinas was not in a symbiotic relationship with Dombroski, as

there was no relationship between her and Dombroski that

conferred benefits upon either of them.

17

and the Chief of Police. The District Court dismissed both claims

on summary judgment, finding, among other things, that Harvey

failed to offer any evidence of deliberate indifference on the part

of either the Township or the Police Chief. See Muhlenberg, 269

F.3d at 215 (“A municipality’s failure to train its police officers can

subject it to liability, however, ‘only where [it] reflects a

“deliberate” or “conscious” choice by [the] municipality–a “policy”

as defined’ in Supreme Court cases.”) (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)); id. at 216 (“[T]he plaintiff must

identify specific acts or omissions of the supervisor that evidence

deliberate indifference and persuade the court that there is a

‘relationship between the “identified deficiency” and the “ultimate

injury.”’”) (quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d

Cir. 1989)). After carefully considering Harvey’s arguments and

reviewing the record, we find no reason to overturn the District

Court’s judgment as to the Township and the Chief of Police.

VI.

For the reasons discussed above, we will affirm the District

Court’s grant of summary judgment in favor of Chukinas, Plains

Township, and Chief Walsh. However, we will reverse the grant

in favor of Officer Dombroski and remand for proceedings

consistent with this opinion.

BECKER, Circuit Judge, concurring in part and dissenting in

part.

I join in Parts I, II.A and II.B, III, and IV of the majority

opinion.15 However, I dissent from Part II.C because I believe

1

I join in Part II.A and B with considerable misgivings. Although

there is some evidence in the record that Dombroski “ordered”

Chukinas to open the door, the great weight of the testimony, from

both Chukinas and Dombroski, is that Dombroski did not give an

“order” but merely told Chukinas that “she could open the door.” I

strongly suspect that a jury will find that there was no “order,” and, if

there was not, there was likely no state action, as the majority notes in

footnote 6 of its opinion. At all events, this case is a far cry from

Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998), on which the majority

18

that Officer Dombroski was entitled to qualified immunity.

At the summary judgment stage, we must begin the

qualified immunity analysis by determining whether, viewing

the evidence in the light most favorable to the plaintiff, “the

officer’s conduct violated a constitutional right.” Saucier v.

Katz, 533 U.S. 194, 201 (2001). If such facts establish a

violation, then, under the second step of the analysis, we must

ask whether the “right was clearly established.” Id.

It is undisputed that “the Fourth Amendment prohibited

unreasonable searches and seizures of a person’s home by the

police without a warrant.” Maj. Op. at 10-11; see also Payton v.

New York, 445 U.S. 573, 585 (1980) (“‘[T]he chief evil against

which the . . . Fourth Amendment is directed’” is warrantless

entry and search of home”). While this general proposition, on

which the majority relies, may be enough for the first step of the

qualified immunity analysis, the majority’s characterization of

the “right” in question is framed with insufficient particularity to

determine whether it was “clearly established” under the second

step. Saucier, 533 U.S. at 201-02. Rather, to find that a right

was “clearly established,” “the right allegedly violated must be

defined at the appropriate level of specificity.” Wilson v. Layne,

526 U.S. 603, 615 (1999). In a fact-bound Fourth Amendment

situation, “the right the official is alleged to have violated must

have been ‘clearly established’ in a more particularized, and

hence more relevant, sense: The contours of the right must be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987) (emphasis added). In other words, we

must inquire “whether a reasonable officer could have believed

[that his or her conduct] was lawful, in light of clearly

established law and the information the [officer] possessed.”

Id. at 641 (emphasis added).

The majority misapplies the Anderson standard. Instead,

it simply concludes it was not reasonable for Dombroski to

believe that Harvey consented or that the PFA was sufficient

authorization for him to allow (or direct) entry into the

apartment. Anderson, however, posits a more forgiving inquiry

so heavily relies, where the action of the police officer was

significantly more aggressive and heavy-handed.

19

even at the summary judgment stage.

In my view, Officer Dombroski certainly could have

believed that his conduct was lawful in light of the information

in his possession. Dombroski was aware that Olowiany’s

attorney had written two letters to Harvey, the first asking her to

set a time for Olowiany to retrieve his remaining property (and

enclosing an itemized list of that property), and the second

stating that on September 18, 1999, at 2:00 p.m., Olowiany

would arrive to retrieve his belongings accompanied by a Plains

Township police officer. The letters were copied to the Police

Department and Chukinas. Although Harvey claimed in her

deposition that she was residing elsewhere at the time and that

she never received the second letter, Dombroski had no reason

to know that, and this post hoc representation rings hollow in

view of the fact that her possessions were still in the apartment

(including the ones that she claims that Olowiany “trashed” or

purloined). Moreover, under Third Circuit law there is a

presumption that a properly mailed item was received by the

addressee, see In re Cendant Corp. PRIDES Litig., 311 F.3d

298, 304 (3d Cir. 2002), and I do not see why Dombroski could

not rely on that presumption.

The majority states that Dombroski had no reason to

believe that Harvey had received the letter or consented to the

repossession, and even goes on to say that a reasonable officer

should have determined whether consent was given by Harvey

for the repossession and refused to assist in the opening of the

door until he was satisfied that consent was given. Pray tell how

this local police officer sent on short notice to keep the peace at

what he understood to be a long prearranged appointment could

satisfy the majority’s prescriptions? Cf. Illinois v. Rodriguez,

497 U.S. 177, 185-86 (1990) (“It is apparent that in order to

satisfy the ‘reasonableness’ requirement of the Fourth

Amendment, what is generally demanded of the many factual

determinations that must regularly be made by agents of the

government . . . is not that they always be correct, but that they

always be reasonable . . . We see no reason to depart from this

general rule with respect to facts bearing upon the authority to

consent to a search.”).

Additionally, Dombroski knew that the PFA, which

granted Harvey exclusive possession of the apartment, also

20

permitted Olowiany to pick up his personal belongings from the

apartment. The PFA could be interpreted as obviating the need

for Harvey’s consent.16 There has been sharp disagreement

among the Courts of Appeals as to whether it was clearly

established, as of 1999, that an officer may not rely on a writ of

replevin, writ of assistance, or other similar order to enter private

property. Compare Specht v. Jensen, 832 F.2d 1516, 1525 (10th

Cir. 1987) (finding no qualified immunity where the officers

relied on a writ of assistance) and Audio Odyssey, Ltd. v.

Brenton First Nat’l Bank, 245 F.3d 721 (8th Cir. 2001) judgment

vacated and then reinstated in full by 286 F.3d 498 (8th Cir.

2002) (en banc), with In re Foust, 310 F.3d 849, 859 (5th Cir.

2002) (holding it was not clearly established, as of 1998, that

officers could not occupy the entire premises in order to retrieve

property located inside the premises) and Salzer v. Dellinger,

1995 WL 283986 (7th Cir. April 21, 1995) (unpublished

opinion) (holding that it was not clearly established as of 1989

that an order of possession was not a substitute for a warrant).

The PFA presents an even stronger case for permitting entry than

a writ of replevin, assistance, or an order of possession, because

the property in question was formerly leased to both Olowiany

and Harvey, and the PFA served the dual purpose of allocating

the right of possession to Harvey and of permitting Olowiany to

retrieve his personalty. In light of the disagreement among the

circuits and the contradictory prescriptions in the PFA, I do not

believe it was clearly established that Dombroski could not

reasonably rely on the PFA to enter Harvey’s apartment without

a warrant or Harvey’s consent.

Finally, Dombroski was acting on the orders of his

sergeant. While it is typically no defense for an officer to claim

he was simply “following orders,” Villanueva v. George, 659

F.2d 851, 855 (8th Cir. 1981) (en banc), “[p]lausible

instructions from a superior or fellow officer” can “support

qualified immunity where, viewed objectively in light of the

2

The contradictory commands in the PFA appear to me to have been the true origin

of the problems in this case. The alleged intrusion into Harvey’s apartment and this

ensuing litigation might have been avoided if the Common Pleas judge had made

clear exactly how and when Olowiany was to retrieve his property from Harvey’s

apartment.

21

surrounding circumstances, they could lead a reasonable officer

to conclude that the necessary legal justification for his actions

exists.” Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.

2000); see also Lauro v. Charles, 219 F.3d 202, 216 n.10 (2d

Cir. 2000). The sergeant’s order in this case could have given

Dombroski an additional basis for believing that the necessary

arrangements were made for proper entry into Harvey’s

apartment

In sum, relying on the two letters from Olowiany’s

attorney, the PFA, and the orders from his supervisor,

Dombroski could have reasonably believed either that Harvey

consented to the entry or that the PFA authorized it. Under

these circumstances, I believe that Dombroski’s willingness to

tell Chukinas that she could open the door was reasonable, and

that he should be granted qualified immunity.

22