635 F.3d 606 (3rd Cir. 2011), 09-1170, Harvey v. Plains Tp. Police Dept.

Docket Nº:09-1170.
Citation:635 F.3d 606
Opinion Judge:FISHER, Circuit Judge.
Party Name:Elizabeth HARVEY, Appellant v. PLAINS TOWNSHIP POLICE DEPARTMENT; Edward J. Walsh; Ronald Dombroski; Plains Township Board; Joan A. Chukinas.
Attorney:Elizabeth Harvey, Wilkes Barre, PA, Pro Se Appellant. Alexander Bilus (Argued), Stephen J. McConnell, Dechert LLP, Philadelphia, PA, Court Appointed Amicus Curiae. C. Kent Price (Argued), Thomas, Thomas & Hafer, Harrisburg, PA, for Appellee, Ronald Dombroski.
Judge Panel:Before: AMBRO and FISHER, Circuit Judges, and S
Case Date:March 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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635 F.3d 606 (3rd Cir. 2011)

Elizabeth HARVEY, Appellant

v.

PLAINS TOWNSHIP POLICE DEPARTMENT; Edward J. Walsh; Ronald Dombroski; Plains Township Board; Joan A. Chukinas.

No. 09-1170.

United States Court of Appeals, Third Circuit.

March 28, 2011

Argued Jan. 5, 2011.

Page 607

Elizabeth Harvey, Wilkes Barre, PA, Pro Se Appellant.

Alexander Bilus (Argued), Stephen J. McConnell, Dechert LLP, Philadelphia, PA, Court Appointed Amicus Curiae.

C. Kent Price (Argued), Thomas, Thomas & Hafer, Harrisburg, PA, for Appellee, Ronald Dombroski.

Before: AMBRO and FISHER, Circuit Judges, and SÁNCHEZ,[*] District Judge.

OPINION

FISHER, Circuit Judge.

It is our second time hearing this case on appeal. Elizabeth Harvey originally brought a claim under 42 U.S. C. § 1983 against Officer Ronald Dombroski and other defendants for the allegedly unconstitutional search of her apartment in the context of her ex-boyfriend's repossession of property. Officer Dombroski was at the scene of the repossession serving to maintain

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the peace, and there was a question as to whether he took an active role in the repossession or remained neutral. The District Court initially ruled in favor of all the defendants on summary judgment, and we reversed with respect to Officer Dombroski in holding that there was a material factual dispute as to whether Dombroski acted under color of state law. Harvey v. Plains Twp. Police Dep't, 421 F.3d 185 (3d Cir.2005) (" Harvey I " ). On remand, the District Court conducted a jury trial and, at the conclusion of the two-day trial, provided a verdict form that limited the state action issue to a single factual question: whether Dombroski ordered Harvey's door to be opened. The jury found in the negative, and Harvey lost.

We find that the verdict form was in error. Action under color of state law must be addressed after considering the totality of the circumstances and cannot be limited to a single factual question. For the foregoing reasons, we will vacate and remand this case to the District Court for a new trial.

I.

At one point, Elizabeth Harvey and Edward Olowiany jointly leased an apartment from Joan Chukinas, their landlord. The relationship between Harvey and Olowiany ended, and Harvey received a protection from abuse order (" PFA" ), which granted her exclusive possession of the apartment and ordered Olowiany to retrieve all of his belongings immediately after entry of the PFA. Olowiany did just that, but later that month, Olowiany's lawyer mailed Harvey a letter seeking permission to return to retrieve additional items. Harvey ignored the letter. Two weeks later, a second letter was sent. Harvey claims that she was away from her apartment and did not receive the second letter. In the meantime, Olowiany attempted to repossess the additional property and sought police presence to maintain the peace.

Officer Dombroski was dispatched by the Plains Township Police Department and arrived at Harvey's apartment at 2:00 p.m. on a weekday. Olowiany and his friend Tina George arrived five minutes later, as did Chukinas with a key to the apartment. Harvey was not home. They waited for thirty minutes, at which point they began discussing ways to obtain access to Harvey's apartment. Dombroski testified that Chukinas asked him whether it would be permissible to open Harvey's door:

I said to her, based on what I had known from my supervisor and the letters I had seen [from Olowiany's lawyer] ... I can't see a problem with it, everyone got the letter and that was it. I never told her to open the door.... I told Joan [Chukinas] I could not see a problem with it because I believed everybody got the letter.

(App. at 243.) Chukinas testified that " the policeman okayed me to open the door" ( id. at 41-42) and that she " would have never opened the door if I didn't have permission from the policeman." ( Id. at 35-36.) After Chukinas opened Harvey's door, Dombroski and Olowiany entered the apartment. Olowiany left with several items, and Harvey arrived later that day to find her apartment " in shambles." ( Id. at 123-24.)

Harvey originally brought this action under 42 U.S. C. § 1983 against Officer Dombroski, Police Chief Edward Walsh, the Plains Township Police Department, the Plains Township Board, and Joan Chukinas for the unconstitutional search of her apartment. The District Court for the Middle District of Pennsylvania granted summary judgment in favor of all the defendants. On appeal, we reversed the District Court's grant of summary judgment

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in favor of Officer Dombroski and remanded the case. Harvey I, 421 F.3d at 187.

The District Court held a jury trial. At the conclusion of the trial, the Court instructed the jurors as to Harvey's § 1983 claim. It instructed that action under color of state law means " that the plaintiff must show that the defendant was using power that he possessed by virtue of state law." (App. at 302.) The Court went on to note that, " in order to determine if the ... plaintiff established her Section 1983 claim, you must answer only one factual question, and that is did the defendant order the landlady to open the door to the apartment." ( Id. ) The District Court also provided a verdict form with the first question reading as follows:

1) Did Defendant Ronald Dombroski act under color of state law with regard to the re-possession of personal property at Plaintiff Elizabeth Harvey's apartment on September 18, 1999? Only answer " Yes" if you find that Defendant Ronald Dombroski ordered the landlord to open the door of the apartment.

____ Yes ____ No

If you answered " No" please sign and date the verdict form and return to the courtroom. If you answered " Yes" proceed to question 2.

( Id. at 315.) Harvey failed to raise objections to the jury instructions or verdict form, and the jury answered " No" to the first question. Harvey now appeals with the assistance of amicus curiae for whom we thank for its service. 1

II.

Because Harvey failed to raise an objection to the jury instructions or verdict form, we conduct plain error analysis. Under Rule 51, we " may consider a plain error in the instructions that has not been preserved ... if the error affects substantial rights." Fed.R.Civ.P. 51(d)(2). We must therefore consider whether the District Court committed an error and, if it did, whether the error affected Harvey's substantial rights.

A.

To prevail on a § 1983 claim, Harvey had to show, first, that she was deprived of a constitutional right and, second, that the alleged deprivation was " committed by a person acting under color of state law." Harvey I, 421 F.3d at 189 (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). The first element was not in dispute. The case turned on whether Harvey could prove that Dombroski acted " under color of state law." 242 U.S. C. § 1983.

Action under color of state law " requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.1998) (internal quotation marks and citations omitted). We have considered state action in the context of private repossessions before. The test is whether the officer maintains

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neutrality or takes an active role in the repossession resulting in an unconstitutional deprivation. Id. at 147. " The mere presence of police at the scene of a private repossession does not, alone, constitute state action." Id. An officer's presence may be requested to maintain the peace, and the officer appropriately does so by remaining neutral. An officer abandons neutrality once he takes an active role and assists in the repossession.

The relevant inquiry, then, is whether an officer affirmatively aided a repossession such that he can be said to have caused the constitutional deprivation. Such aid may take the form of facilitation, encouragement, direction, compulsion, or other affirmative assistance in the repossession. 3 See Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir.2004). However, liability will only attach when an officer plays a " principal role" in the seizure. Abbott, 164 F.3d at 147. In short, an officer may be liable for causing a constitutional deprivation if he " aid[s] the repossessor in such a way that the repossession would not have occurred but for [his] assistance." Marcus, 394 F.3d at 819.

The distinction between maintaining neutrality and taking an active role is not to be answered in the abstract. There is no precise formula, and the distinction lies in the particular facts and circumstances of the case. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81...

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