Almand v. DeKalb County, Ga., 95-8866

• Citation: 103 F.3d 1510
• Decision Date: 24 January 1997
• Docket Number: No. 95-8866,95-8866
• Parties: , 97 FCDR 1136, 10 Fla. L. Weekly Fed. C 661 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.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1510

103 F.3d 1510

36 Fed.R.Serv.3d 970, 97 FCDR 1136,

10 Fla. L. Weekly Fed. C 661

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.

No. 95-8866.

United States Court of Appeals Eleventh Circuit.

Jan. 24, 1997.

Richard A. Carothers, Boyce, Ekonomou & Atkinson, Buford, GA, for defendant-appellant.

Steven Keith Leibel, Midtown Law Center, Atlanta, GA, for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

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. Facts ¹

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

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

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 action ⁷ 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 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...