Almand v. DeKalb County, Georgia

United States Court of Appeals,

Eleventh Circuit.

No. 95-8866.

Mary Elizabeth ALMAND, Plaintiff-Appellee,

Joann Warren, Plaintiff-Appellee,

v.

DeKALB COUNTY, GEORGIA and DeKalb County Department of Public

Safety, et al., Defendants-Appellees,

Floyd Bryant, Detective in His Individual and Official Capacity,

Defendant-Appellant.

Jan. 24, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:92-CV-1958-RCF), Richard C. Freeman,

Judge.

Before EDMONDSON, Circuit Judge, FAY, Senior Circuit Judge, and

ALDRICH*, Senior District Judge.

EDMONDSON, Circuit Judge:

This appeal on qualified immunity raises a question about when

a police officer is or is not acting under color of state law for

the purpose of 42 U.S.C. § 1983. We conclude that color of state

law has not been shown and reverse the denial of summary judgment

to the defendant.

I. Facts1

In July 1990, Plaintiff-Appellee Mary Almand (Almand)

*

Honorable Ann Aldrich, Senior U.S. District Judge for the

Northern District of Ohio, sitting by designation.

1

Most of the "facts" we recite are only assumed

facts—resolving disputes in Plaintiff's favor and giving

Plaintiff the benefit of all reasonable inferences—for the

purposes of reviewing a summary judgment decision. A trial might

show the actual facts to be different from some facts we set out

here. See generally Rodgers v. Horsley, 39 F.3d 308, 309 (11th

Cir.1994). Defendant-Appellant Bryant denies the wrongdoing.

discovered that her daughter, Monique, was missing from home.2

While posting and passing out fliers near a convenience store in

Atlanta, Georgia, Almand first met the defendant, Floyd Bryant

(Bryant), a police officer of the DeKalb County Police Department.3

Bryant, who was not in uniform, approached Almand in the parking

lot of the store and asked her why she was there. Almand told him

that she was looking for someone, and Bryant showed her his badge.

Almand then revealed that she was searching for her daughter.

Bryant offered his assistance as a police officer in finding

Almand's daughter on the condition that Almand go out on a date

with him. Almand refused the date, but asked nonetheless for his

help in finding her daughter. Bryant obtained Almand's phone

number so that he could contact her if information turned up about

Monique. Almand and Bryant later had several telephone

conversations about Almand's daughter.

Approximately one week after her disappearance, Monique

returned home with the help of the Atlanta Police Department. That

same day, Almand related to Bryant what her daughter had been

through. Bryant indicated that he had an idea of where Almand's

daughter had been held and who had raped her.

The Atlanta Police Department later told Almand that things

like those which happened to her daughter occur often in the area

2

Monique had apparently gone with a neighbor named Tree to

what Monique thought was an audition for a concert. According to

Almand, however, Tree took Monique to a hotel where she was held

against her will and raped by two men. After several days,

Monique was able to call her mother, tell her where she was, and

have her mother send the Atlanta police to pick her up.

3

Although a DeKalb County Police Officer at the time of the

events herein described, Floyd Bryant has since resigned.

and that nothing could probably be done to locate the persons

responsible for her daughter's rape. About one week after

Monique's return home, Bryant called Almand and offered to reveal

important information about the rape of her daughter, information

so sensitive it could cost him his job. Bryant conditioned the

disclosure on Almand's agreeing to have sex with him. Almand

agreed but declined to go through with it when Bryant arrived at

her apartment.

Despite Almand's rejection of his demand for sexual favors,

Bryant agreed to continue helping Almand investigate her daughter's

rape. This time, however, his offer was contingent upon Almand

agreeing to help Bryant expose a "dirty cop," a specific DeKalb

Officer. Bryant said he believed that this other police officer

was—among other things—connected with the persons who raped

Almand's daughter. Almand agreed to help Bryant, which she says

she did.

Later, in August 1990, Bryant showed up at Almand's apartment

breathing hard and sweating. He asked to come in to talk with her

on urgent matters about her daughter. Almand admitted Bryant.

Once inside the apartment, Bryant asked Almand why she was leading

him on; and he began making sexual advances. Almand asked Bryant

to leave; and although he declined at first, he eventually agreed

to leave. Bryant went out the door, and Almand closed it behind

him.

From outside, Bryant then forced open the closed door with

such shock that wood broke off the door. Having pushed open the

door, Bryant reentered Almand's apartment, physically struggled

with her, and forcibly raped her. No report was made to the police

at the time.

A few days later, Almand was arrested for drug trafficking. 4

The case against her was eventually nolle prossed because,

according to the Superior Court, "Investigative Officer [Bryant

was] found to have engaged in conduct which was inappropriate under

the circumstances and therefore compromised the State's ability to

prove its case against [Almand]."

II. Procedural Background

Almand filed her original complaint against Defendants Bryant,

DeKalb County and several other defendants in August 1992. Later,

Almand filed an amended complaint adding additional claims, an

additional defendant, and an additional plaintiff. As amended,

Almand's complaint, invoking 42 U.S.C. § 1983, covered about 44

pages and alleged the violation of constitutional rights protected

by the Fourth and Fourteenth amendments, the violation of state and

federal Racketeer Influenced Corrupt Organization statutes,5 and

various state tort law claims.

All defendants moved for summary judgment. The district court

denied summary judgment to Bryant. Bryant appealed the district

court's denial of his motion for summary judgment; the motion had

been based on qualified immunity. The substance of Almand's claim

before us is the rape at her apartment.

4

Almand contended that her arrest was for conduct she

undertook as part of her agreement to help Bryant expose the

other police officer. Bryant denied that Almand was working with

him.

5

The District Court dismissed all state and federal RICO

claims.

III. Discussion

Federalism is important to this case. Section 1983 creates

no substantive rights; it merely provides a remedy for

deprivations of federal statutory and constitutional rights.

Whiting v. Traylor, 85 F.3d 581, 583 (11th Cir.1996) (citations

omitted). As the Supreme Court has cautioned, the "constitutional

shoals that confront any attempt to derive from congressional civil

rights statutes a body of general federal tort law," demand that we

vigilantly safeguard against converting section 1983 into "a font

of tort law to be superimposed upon whatever systems may already be

administered by the States." Paul v. Davis, 424 U.S. 693, 701, 96

S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (internal citations

omitted), reh'g denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811

(1976). Thus, section 1983 must not supplant state tort law;

liability is appropriate solely for violations of federally

protected rights. Baker v. McCollan, 443 U.S. 137, 145-46, 99

S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).

A successful section 1983 action requires that the plaintiff

show she was deprived of a federal right by a person acting under

color of state law. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th

Cir.1992) (citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,

155-56, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978)). We accept

that, under certain circumstances, a rape of a person by a police

officer or other state actor could violate the Constitution. See

Parker v. Williams, 862 F.2d 1471 (11th Cir.1989) (involving rape

by uniformed deputy sheriff of woman in his custody because of his

representation that her bail had been revoked and that she would

have to return to jail with him); see also Dang Vang v. Vang Xiong

X. Toyed, 944 F.2d 476, 479-80 (9th Cir.1991) (upholding jury's

determination that defendant acted under color of state law when

he, as employee of Washington State Employment Security office,

raped women looking for employment when meeting with them under the

pretext of providing services pursuant to his state job). Here,

however, Bryant was not acting under color of state law at the

pertinent time. Almand, therefore, cannot make out the elements of

her section 1983 case, and summary judgment must be granted to

Bryant on the section 1983 claim.

A person acts under color of state law when he acts with

authority possessed by virtue of his employment with the state.

Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th

Cir.1995) (citing West v. Atkins, 487 U.S. 42, 48-50, 108 S.Ct.

2250, 2255, 101 L.Ed.2d 40 (1988)). Not all acts by state

employees are acts under color of law. Id. at 1523. "The

dispositive issue is whether the official was acting pursuant to

the power he/she possessed by state authority or acting only as a

private individual." Id. (citing Monroe v. Pape, 365 U.S. 167,

183-84, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), overruled on other

grounds by Monell v. Department of Social Servs., 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

Ms. Almand first argues that Officer Bryant admitted that he

was acting under color of state law in his answer to the complaint.

Paragraph 3 of Almand's complaint states in relevant part:6

6

In both her original and amended complaint, Almand includes

this exact paragraph. In her original complaint, this allegation

is denoted as Paragraph 3; in her amended complaint it is

3.

Defendant, FLOYD RICHARD BRYANT, was at all times herein a law

enforcement officer certified by the State of Georgia and

employed by the County of DeKalb, Georgia as a police officer

whose conduct described herein was taken under color of state

law ...

In Bryant's answer to Almand's complaint, he states, "This

defendant admits the allegations of paragraph 3." Bryant's

"admission," however, does not end our color-of-state-law inquiry.

Whether conduct constitutes state action7 is no simple

question of fact. See Blum v. Yaretsky, 457 U.S. 991, 996-98, 102

S.Ct. 2777, 2782, 73 L.Ed.2d 534 (1982) (describing the question of

whether there is state action as question of law); Cuyler v.

Sullivan, 446 U.S. 335, 342 n. 6, 100 S.Ct. 1708, 1715 n. 6, 64

L.Ed.2d 333 (1980) (determining if state action exists is

resolution of question of law); see also Duke v. Smith, 13 F.3d

388, 392 (11th Cir.1994) (reviewing de novo, as a mixed question of

law and fact, district court's determination that private actor was

not sufficiently intertwined with government entity to be engaged

Paragraph 4. Bryant answered each of Almand's complaints, and his

answer to this allegation was the same both times.

7

We have noted that the concepts of action under color of

state law and state action are coterminous. Burrell v. Board of

Trustees of GA. Military College, 970 F.2d 785, 790 n. 13 (11th

Cir.1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814, 123

L.Ed.2d 445 (1993). While the Supreme Court, in Lugar v.

Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 2752

n. 18, 73 L.Ed.2d 482 (1982), left open the theoretical

possibility that action under color of state law might not always

constitute state action, the example given by the Court of a

private person applying a state statute has no relevance to our

case. "[T]he Court pointed out that "it is clear that in a §

1983 action brought against a state official, [as in the present

case,] the statutory requirement of action under color of state

law and the state action requirement ... are identical.' "

Burrell, 970 F.2d at 790 n. 13 (quoting Lugar, 457 U.S. at 929,

102 S.Ct. at 2749).

in state action). As such, Plaintiff's pleading of the legal

conclusion on color of state law in the complaint and Defendant's

admission in the answer are of questionable importance. The answer

admits the facts alleged in Paragraph 3, but we wonder whether the

admission has effect for conclusions of law that are set out in the

complaint.

More important, construing Bryant's answer to Paragraph 3 of

Almand's complaint as a binding admission of the color-of-state-law

element would violate Fed.R.Civ.P. 8(f)'s mandate to construe all

pleadings in a way that does "substantial justice." In construing

Rule 8(f), the Supreme Court, in Maty v. Grasselli Chemical Co.,

303 U.S. 197, 199-201, 58 S.Ct. 507, 509, 82 L.Ed. 745 (1938),

wrote that "[p]leadings are intended to serve as a means of

arriving at fair and just settlements of controversies between the

litigants. They should not raise barriers which prevent the

achievement of that end."

Viewing Bryant's admission to Paragraph 3 of Almand's

complaint in the context of all of the pleadings,8 we are confident

that Almand was put on notice that the issue of state action was

disputed. For example, in his answer, Bryant expressly denied that

he was at Almand's residence on the pertinent date, that he broke

in her door, and that he raped her. He also expressly asserted in

his answer that the complaint stated no cause of action under the

laws or the Constitution of the United States. In addition, in

Bryant's brief filed with and in support of his motion to the

8

"A pleading ... if possible, will be construed to give

effect to all its averments." 5 Charles A. Wright & Arthur R.

Miller, Federal Practice and Procedure § 1286 (1990).

district court for summary judgment, Bryant stated that, if

Almand's complaint could be construed as alleging a constitutional

violation against him, "no action by him was taken under color of

state law, for purposes of § 1983 liability."

In the light of Bryant's denial of the central factual

components of Almand's case, the most he can justly be said to have

admitted is that when he did not go to Almand's house, did not

break down her door and did not rape her, he was acting under color

of state law. We believe Almand was neither mislead nor surprised

unfairly about whether color of state law was a question in dispute

when summary judgment was being sought by Bryant. We, therefore,

conclude that Bryant's answer to Almand's complaint does not settle

the state-action question.

Here, the assumed facts show that Bryant was acting as a

private person, not a state actor under color of state law, when he

forced his way into Almand's home and, overcoming her resistance by

force, raped her. On the day of the rape, Bryant initially gained

entry to Almand's apartment on the pretense of discussing police

business with her—the progress of the investigation into Almand's

daughter's rape. Bryant then made sexual comments and advances

toward Almand, and she demanded that he leave her apartment.

Bryant complied with Almand's request and left her home.

Almand fully closed the front door. Having been excluded from

Almand's apartment, Bryant then burst open the front door with such

force that the door was damaged;9 and he committed the rape inside

9

The extent of the force is not critical to us, but the fact

of an unconsented-to entry which was accomplished by some degree

of physical force against a barrier is important.

the apartment.

Bryant's initial entry into Almand's apartment probably was

conducted under color of state law: he gained access to Almand's

apartment because of his status as a police officer and his proffer

of information about Almand's daughter.10 But then, Almand excluded

Bryant from her apartment and closed the door completely.

When Bryant reentered the apartment by forcibly breaking in,

11

he was no different from any other ruffian. Bryant's act of

breaking into the apartment and, by force, raping Almand was a

private act not accomplished because of "power possessed by virtue

of state law and made possible only because the wrongdoer [was]

clothed with the authority of state law." West, 487 U.S. at 59,

108 S.Ct. at 2255 (quoting United States v. Classic, 313 U.S. 299,

326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), reh'g denied, 314

U.S. 707, 62 S.Ct. 51, 86 L.Ed. 565 (1941)); cf. Bennett v.

Pippin, 74 F.3d 578, 589 (5th Cir.1996) (concluding rape of

criminal suspect by sheriff was under color of state law when rape

victim knew sheriff was investigating her case and where sheriff

overcame her resistance by intimidation linked to his authority:

"I can do what I want, I'm the sheriff"), cert. denied, --- U.S. --

--, 117 S.Ct. 68, 136 L.Ed.2d 29 (1996); Dang Vang, 944 F.2d at

479 (holding that jury could have reasonably concluded, from expert

testimony showing plaintiffs—as Hmong refugees—were "in awe" of

10

We note, by the way, that Bryant was not in uniform and

was off-duty at the time of these events.

11

While not every grievous offense against morality is a

violation of the Federal Constitution, we believe the conduct

alleged about Bryant would amount to torts and crimes, including

burglary, under Georgia law.

government officials, that the "defendant used his government

position to exert influence and physical control" over the

plaintiffs). Considering that Bryant gained entry to the apartment

by forcibly breaking in, any thug or burglar could have committed

the same violent acts. Once Bryant resorted to sheer force to

break, to enter, and to rape, his status as a police officer had no

bearing on his wicked behavior.

Our color-of-state-law conclusion requires us to engage in

line drawing. But, in the words of Justice Holmes, "the great body

of the law consists in drawing such lines," Schlesinger v.

Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 262, 70 L.Ed. 557

(1926) (Holmes, J., dissenting); "[n]either are we troubled by the

question where to draw the line. That is the question in pretty

much everything worth arguing in the law. Day and night, youth and

age are only types." Irwin v. Gavit, 268 U.S. 161, 168, 45 S.Ct.

475, 476, 69 L.Ed. 897 (1925) (Holmes, J.). In the circumstances

of this case, we draw the line at the front door of Almand's

apartment. When Bryant, by physical force, broke into Almand's

residence, he was not then gaining entry by virtue of any authority

he might have been given by the state to act as a police officer.

We conclude that Bryant was not acting under color of state

law when he broke into Almand's apartment and raped her. His

conduct (if he did the things alleged) was the act of a private

citizen and did not violate the Constitution.12 So, Bryant is due

12

In qualified immunity cases, "[a] necessary concomitant to

the determination of whether the constitutional right asserted by

a plaintiff is "clearly established' at the time the defendant

acted [that is, the qualified immunity question] is the

determination of whether the plaintiff has asserted a violation

summary judgment. The district court's denial of summary judgment

to Bryant on this section 1983 count is reversed. The case is

remanded for further proceedings not inconsistent with this

judgment.

REVERSED and REMANDED.

ANN ALDRICH, Senior District Judge, dissenting:

I respectfully dissent. If Floyd Bryant raped Mary Almand, 1

there is at least a genuine issue as to whether he did so under

color of state law. Therefore, I would affirm the district court's

denial of Bryant's motion for summary judgment.

I.

In order to prevail in an action brought under 42 U.S.C. §

1983, a plaintiff must show that (1) a person acting under color of

state law (2) deprived her of a right secured by the United States

Constitution or other federal laws. Duke v. Smith, 13 F.3d 388,

392 (11th Cir.1994). The majority apparently concedes that, if

Bryant did rape Almand under color of state law, then he violated

her constitutional right to bodily integrity. See Albright v.

Oliver, 510 U.S. 266, 271-73, 114 S.Ct. 807, 812, 127 L.Ed.2d 114

(1994) (citations omitted); Doe v. Taylor Indep. School Dist., 15

F.3d 443, 450-52 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.

70, 130 L.Ed.2d 25 (1994); Stoneking v. Bradford Area School

of a constitutional right at all." Siegert v. Gilley, 500 U.S.

226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), reh'g

denied, 501 U.S. 1265, 111 S.Ct. 2920, 115 L.Ed.2d 1084 (1991).

1

As the majority correctly observes, for the purposes of our

review of the district court's denial of Bryant's motion for

summary judgment, we must assume that Bryant did, in fact, rape

Almand.

Dist., 882 F.2d 720, 726-27 (3rd Cir.1989), cert. denied, 493 U.S.

1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990); Parker v. Williams,

862 F.2d 1471, 1474 (11th Cir.1989). Because there is a genuine

issue as to the circumstances under which Bryant may have raped

Almand, there is a genuine issue as to whether he deprived her of

a constitutional right.

II.

Nevertheless, the majority concludes that Bryant is still

entitled to summary judgment because his actions in raping Almand

were not taken under color of state law. I respectfully disagree.

A defendant acts under color of state law when he exercises

power "possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law."

West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d

40 (1988) (quotation omitted). Hence, a defendant acts under color

of state law when he abuses a position given to him by the state.

Id. at 50, 108 S.Ct. at 2255-56; Morgan v. Tice, 862 F.2d 1495,

1499 (11th Cir.), cert. denied, 493 U.S. 813, 110 S.Ct. 61, 107

L.Ed.2d 28 (1989). Here, I believe that there is a genuine issue

of material fact as to this question.

Viewing the facts in a light most favorable to Almand, it

appears that Bryant was able to rape Almand only because of his

abuse of his position as a police officer. As the majority notes,

Bryant initially obtained access to Almand's home on the day of the

rape on the pretense of discussing police business with her.

Although the facts are not entirely clear on this point, it appears

from Almand's deposition that she unlocked her door for Bryant and

admitted him to her home. She testified that she had a

double-locked door which could only be opened with a key, and that

Bryant came through that door. She also testified that after

Bryant entered, she put the key on top of her stereo speaker. 2 A

reasonable finder of fact could infer that she unlocked the door

for Bryant. The majority concedes that if Bryant had raped Almand

at that point, his actions probably would have been taken under

color of state law.

Bryant did not rape Almand at that point, however. Instead,

he complied with her request to leave and walked out the door.

Almand shut the door behind him and turned to get the key to lock

the door. At this point, before Almand could lock the door, Bryant

slammed it open, entered, and raped her.

The majority holds that once Bryant left and then "forcibly"

broke in, he was no different than "any other ruffian." If Bryant

had broken through a locked door, I might accept this conclusion.

If that were the case, Bryant's position as a police officer would

have afforded him no advantage in his alleged rape of Almand.

There is evidence, however, that Bryant merely had to open an

unlocked door, which Almand had unlocked for him specifically

because he was a police officer.3 In other words, construing the

2

At another point, Almand testified that Bryant put the key

on her speaker. At this stage in the proceedings, however, we

must resolve all factual discrepancies in favor of Almand.

3

It is also possible, but not clear from Almand's testimony,

that Bryant opened the door with such force that it did not

matter that the door was not locked. If he did, then I would

agree that Bryant did not act under color of state law. That

fact is not clear, however, and we must resolve all factual

disputes in favor of Almand.

evidence in Almand's favor, a reasonable finder of fact could find

that Bryant's abuse of his position as a police officer induced

Almand to unlock the door so that he could rape her. Thus,

Bryant's abuse of his position as an officer of the state made his

rape of Almand possible, and he acted under color of state law.

This case is analogous to Dang Vang v. Vang Xiong X. Toyed,

944 F.2d 476 (9th Cir.1991). In Dang Vang, the defendant was a

state employee who was responsible for interviewing Hmong refugees

and finding employment for them. On the pretense of taking women

job-hunting, he lured them to a motel and raped them. Of course,

"any other ruffian" could have told the women he had a job for them

in order to lure them to a motel and rape them. As the Ninth

Circuit noted, however, the plaintiffs came into contact with the

defendant because of their need for employment, and the jury could

have reasonably concluded that "the defendant used his government

position ... in order to sexually assault them." Id. at 480.

Similarly, Almand came into contact with Bryant because of her need

for police help, and Bryant used his position to gain access to her

home in order to rape her. Again, "any other ruffian" could have

raped Almand, but Bryant's status as a police officer made it

possible for him to do so in a way that another could not.

III.

On the specific facts of this case, I conclude that, assuming

Bryant did rape Almand, there is at least a genuine factual issue

as to whether he did so under color of state law.4 Accordingly, I

4

Because I reach this conclusion, there is no need for me to

consider whether Bryant's admission that he acted under color of

state law is of any import.

would affirm the district court's denial of Bryant's motion for

summary judgment. I respectfully dissent.