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September 4, 1996

LEWIS EGGERT, Plaintiff,

The opinion of the court was delivered by: BROWN

 BROWN, District Judge

 This matter comes before the Court on the plaintiff's and defendants' cross-motions for summary judgment pursuant to FED. R. CIV. P. 56. Plaintiff also moves for a continuance pending discovery as to defendants' motion for summary judgment, pursuant to FED. R. CIV. P. 56(f). For the reasons set forth in this Memorandum Opinion, the Court will grant in part and deny in part defendants' summary judgment motion, grant in part and deny in part plaintiff's summary judgment motion, and deny as moot plaintiff's motion for a continuance.


 Plaintiff filed this action on August 31, 1994, seeking relief pursuant to 42 U.S.C. § 1983 and the New Jersey Tort Claims Act against defendants Tuckerton Volunteer Fire Company No. 1 ("TVFC"), Thomas Hewitt (Chief of TVFC), Thomas McAndrew (Assistant Chief of TVFC), James Mathis (Captain of TVFC), Thomas Hooper (Lieutenant of TVFC) and John Constantine (President of TVFC). Plaintiff seeks to hold defendants Hewitt, McAndrew, Mathis, Hooper and Constantine liable in their official and individual capacities.

 The facts relevant to these motions are, for the most part, not in dispute. Plaintiff has been a member of the TVFC since March, 1973, and was its chief in 1980 and from 1985 to 1987. Affidavit of Lewis Eggert ("Eggert Aff.") PP2, 7. At a Tuckerton Borough Council Meeting in December, 1993, plaintiff complained that other TVFC members brought non-members in response to calls for assistance and that TVFC should not respond to out-of-town fires because other fire departments were closer. Id. P12.

 On January 2, 1994, TVFC (including plaintiff) responded to a call for assistance from a house in Mystic Island, New Jersey pursuant to an agreement between Tuckerton and Mystic Island. Id. P13. Two people were trapped inside the burning house, but TVFC could rescue only one of them. Id. Consequently, a three-year-old child died in the blaze. Id. See also Defendants' Brief in Support of Summary Judgment at 3.

 Shortly thereafter, plaintiff wrote a letter to the editor of the Tuckerton Beacon which apparently pointed to several shortcomings in the rescue efforts during the January 2, 1994 fire and asserted that a better response by TVFC might have saved the child's life. *fn1" Eggert Aff. P14; Complaint P9. The letter was published in the January 13, 1994 edition of the Tuckerton Beacon. Id.

 Plaintiff claims that on January 17, 1994, he learned that he had been banned from responding to fires. Id. P15. Plaintiff alleges that following a meeting on March 1, 1994 regarding allegations that plaintiff had been delinquent and had not attended meetings, and a discussion among the individual defendants, Chief Hewitt announced that plaintiff had been banned from responding to calls for assistance. Id. P17. Plaintiff also alleges that at a TVFC monthly meeting on July 5, 1994, he requested his fire gear, which he needed to attend fires and participate in drills, but was told that he had been banned from fires and drills. Id. P18. Although plaintiff's affidavit does not mention expulsion, the Complaint and plaintiff's brief in opposition to summary judgment allege that TVFC expelled him on July 4, 1995. Complaint P10; Plaintiff's Brief in Opposition to Summary Judgment at 5.

 Defendants do not deny banning plaintiff from responding to emergency calls and drills, but ever that he has not been expelled from TVFC. Certification of John Constantine ("Constantine Certif.") P7 ("Plaintiff has never been expelled from the [TVFC]. In fact, forwarded correspondence to Plaintiff's attorney dated May 27, 1994 indicating [sic] his client was not expelled and was a member of the Company. Moreover, Plaintiff was told orally that he was not expelled from the Company.").

 Plaintiff claims that the ban or expulsion violates his First Amendment rights to free speech and to peaceably assemble, his Fourteenth Amendment rights to due process and equal protection, and his right under the New Jersey Constitution to free expression. Eggert Aff. PP19-20. The Complaint sets forth five causes of action. Count I seeks relief pursuant to 42 U.S.C. § 1981, § 1983 and § 1985 for violations of plaintiff's right to free speech and due process. Complaint PP11-12. Count II alleges that TVFC has violated the First and Fourteenth Amendments by applying an unconstitutional custom or policy that fails to warn of what activity is prohibited and that, in any event, the policy pursuant to which they banned/expelled plaintiff is an unconstitutional prior restraint or means of censorship. Id. PP14-16. Count III alleges that defendants have deprived plaintiff of his rights to free expression, free assembly and due process under the New Jersey Constitution. Id. P18. Count IV complains that defendants conspired to deprive plaintiff of his constitutional rights, evidently seeking relief under state law rather than 42 U.S.C. § 1985. Id. P20. Count V seeks relief under state tort law, alleging that defendants' acts have caused plaintiff "mental and emotional distress and anguish, humiliation, embarrassment, shock and nervousness." Id. P22. Plaintiff seeks compensatory and punitive damages, a declaration that TVFC's policies or customs are unconstitutional, an injunction prohibiting defendants from enforcing those policies, and attorneys' fees.

 Defendants now move for summary judgment. They argue first that plaintiff cannot seek relief against them pursuant to 42 U.S.C. § 1983 because they are not state actors. *fn2" They also contend that plaintiff's state common law claim in Count V must be dismissed because plaintiff did not comply with the administrative provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., before filing suit. Plaintiff also moves for summary judgment as to two issues: (1) whether defendants were state actors; and (2) whether plaintiff was expelled from the TVFC. *fn3"



 Summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In a summary judgment motion, the non-moving party receives the benefit of all reasonable doubts and any inferences drawn from the underlying facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). If the non-moving party bears the burden of proof at trial as to a dispositive issue, Rule 56(e) requires him to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Issues of material fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).


 1. Whether Defendants May Be Considered State Actors

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

 42 U.S.C. § 1983.

 It is therefore clear that relief under § 1983 is unavailable in the absence of state action or action undertaken by an individual under color of state law. Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); The Civil Rights Cases, 109 U.S. 3, 27 L. Ed. 835, 3 S. Ct. 18 (1883). See also United States v. Price, 383 U.S. 787, 794 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966) ("In cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' requirement under the Fourteenth Amendment."). Thus, "at base, 'constitutional standards are invoked only when it can be said that the [government] is responsible for the specific conduct of which plaintiff complains.'" Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632, 114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982)) (emphasis in original). The applicable standard in discerning the existence of state action is whether "there is a sufficiently close nexus between the State and the challenged action of [TVFC and the individual defendants] so that the action of the latter may be fairly treated as that of the State itself." Blum, 457 U.S. at 1004 (internal citation omitted). See also Mark v. Borough of Hatboro, 51 F.3d 1137, 1141-42 (3d Cir. 1995). This question presents an issue of fact. Mark, 51 F.3d at 1144 (citations omitted).

 As the Third Circuit explained in Mark, the Supreme Court has employed three discrete tests to resolve this issue. Id. at 1142-44. The first standard asks whether "the private entity has exercised powers that are traditionally the exclusive prerogative of the state." Blum, 457 U.S. at 1004-05. Although earlier decisions applied this test somewhat liberally, see, e.g., Marsh v. Alabama, 326 U.S. 501, 507, 90 L. Ed. 265, 66 S. Ct. 276 (1946) (holding that town owned by private company performs public function and was state actor), the Supreme Court has more recently construed this test more narrowly by emphasizing the "exclusivity" aspect of the test. See Mark, 51 F.3d at 1142 (citing Rendell-Baker, 457 U.S. at 842 (holding that private entity engaged in educating maladjusted students did not perform exclusively public function because state's legislative policy choice to fund the school did not make the services "the exclusive province of the state")). See also Black v. Indiana Area School Dist., 985 F.2d 707, 710-11 (3d Cir. 1993) (finding no state action under exclusivity test where private contractor provided state school bus system).

 The second test inquires whether a private party received the assistance of a state actor or acted in concert with a state actor. See Mark, 51 F.3d at 1142 (citing McKeesport Hospital v. Accreditation Council for Graduate Medical Educ., 24 F.3d 519, 524 (3d Cir. 1994)). For example, the Supreme Court held in Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), that state action existed where a private party conspired with a state official to engage in unlawful discrimination. Id. at 152. See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) (holding that state action existed for purposes of § 1983 where private party relied upon state statute to obtain prejudgment writ of attachment against property of another private party).

  The third standard is the "symbiotic relationship" test. This test becomes relevant if "the State has so far insinuated itself into a position of interdependence with . . . [the actor] that it must be recognized as a joint participant in the challenged activity." *fn4" Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 98 (3d Cir. 1984) (quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961)), cert. denied, 471 U.S. 1015 (1985).

 In Burton, the Court held that a private restaurant's discriminatory act of refusing to serve a minority customer constituted state action because the restaurant was located in a building owned by the Wilmington Parking Authority. The restaurant paid an annual lease fee of $ 28,700.00 to the Wilmington Parking Authority, which was a state agency. Burton, 365 U.S. at 720. Noting the financial benefit to the Wilmington Parking Authority, the fact that the building and land containing the restaurant were publicly owned, the fact that the Authority funded maintenance of the building and land, and the fact that the restaurant guests had a favorable place to park which in turn might have increased use of the parking facilities, id. at 723-24, the Court held that the restaurant and Authority maintained a symbiotic relationship rendering the state potentially liable for the restaurant's discriminatory acts. Id. at 725. See also Krynicky, 742 F.2d at 102 (applying Burton to hold that universities' actions were committed under color of state law because the universities "receive present financial support [and] the state has committed itself to future financial aid and sets an annual appropriation policy and tuition rate").

 More recently, the Supreme Court refined the Lugar joint-participation test and articulated the approach undertaken by the Third Circuit in an action analogous to the instant case. Edmonson v. Leesville Concrete Co., 500 U.S. at 620-22; Mark, 51 F.3d at 1143. In Edmonson, the Court instructed that courts must determine "first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority; and second, whether the private party charged with the deprivation could be described in all fairness as a state actor." Edmonson, 500 U.S. at 620 (internal citations omitted).

 One commentator has noted that the first prong of this test "only asks whether the private actor who caused the harm to another person was acting in conformity with the law of the jurisdiction when he caused the harm," 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW § 16.1, at 527 (2d ed. 1992), or in other words, the authority pursuant to which the private person engaged in the allegedly unlawful acts. Mark, 51 F.3d at 1144.

 Seeming to synthesize certain elements of each of the three tests explained supra,5 the Court in Edmonson explained that ...

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