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Harvey v. Plains Township Police Dep't

August 30, 2005


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.

The opinion of the court was delivered by: Fuentes, Circuit Judge.


Argued April 18, 2005

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


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 by an ex-boyfriend from his former residence.*fn1 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 property.*fn2 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.*fn3 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.*fn4

II. Officer Dombroski

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 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 ...

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