Howerton v. Gabica

Citation708 F.2d 380
Decision Date10 May 1983
Docket NumberNo. 81-3619,81-3619
PartiesRobert Allen HOWERTON, Plaintiff, and Roxanna Howerton, Plaintiff-Appellant, v. Jess GABICA and Marjorie Gabica, Defendant-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jonathan Ellison, Lewiston, Idaho, for plaintiff-appellant.

Ned A. Cannon, Smith & Steiner, Lewiston, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before KILKENNY, CHOY and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

The Howertons appeal the dismissal after trial of their section 1983 claim. It was dismissed on the ground that sufficient state action had not been shown. We have jurisdiction under 28 U.S.C. Sec. 1291 (1976). We reverse and remand.

I

In March 1977, the Howerton family leased from the Gabicas a trailerhouse, one of the few available rentals in the small town of Kooskia. The Howertons had financial difficulties and were unable to pay their August rent. A few days after Mrs. Howerton returned from the hospital following the birth of a fourth child, Mrs. Gabica went to the trailer to request that the Howertons look for a new residence. Mr. Howerton threatened to harm Mrs. Gabica, an older woman, should she return to the trailer. Mrs. Gabica then prepared a three-day eviction notice to serve on the Howertons; according to the Howertons this notice did not conform to the requirements of Idaho state law. 1 Fearing harm from Mr. Howerton, Mrs. Gabica requested a uniformed police officer of the Kooskia Police Department to serve the eviction notice. Although there was contradictory testimony as to who actually served the notice, it is undisputed that an officer was present at the time the notice was served.

The following day, August 23, the Howertons received an emergency grant from the Idaho City welfare department and tendered a check for August rent to Mrs. Gabica. Mrs. Gabica accepted the rent only through August 25 and told the Howertons they must still vacate by that date. On August 29, the Gabicas went to the Howerton premises and warned them that their water and power services would be disconnected if the Howertons did not leave immediately. They were accompanied by Randy Baldwin, a police officer, who was another tenant of the Gabicas. He was in uniform and on duty.

Sometime later, Officer Baldwin returned alone to the Howerton residence. According to the Howertons, he informed them that the Gabicas were using proper eviction procedures and advised them to quit the premises. He told them of other available rental units. The Howertons allege, however, that contrary to the police officer's assertion, the Gabicas had not complied with Idaho's unlawful detainer statute that requires a court order before a landlord can lawfully force a tenant to vacate. See Idaho Code Secs. 6-301--6-323; 55-211 (1979); Schlegel v. Hansen, 98 Idaho 614, 616, 570 P.2d 292, 294 (1977) (citing King v. Firm, 3 Utah 2d 419, 425-26, 285 P.2d 1114, 1118 (1955)).

On September 1, Officer Baldwin, on duty and in a police car, accompanied the Gabicas when they disconnected the power services running to the trailerhouse. Mrs. Howerton testified that the police presence prevented them from objecting to the termination of their utilities, because "you don't argue with the police." Because of the lack of utilities, the Howertons were forced to stay with friends and neighbors, but occasionally returned at night to sleep at the trailerhouse. On one occasion the three policemen in Kooskia came to the trailer in response to Mrs. Gabica's call reporting a family disturbance. The Howertons testified that at that time Officer Baldwin asked if they were still looking for a new rental.

On September 11, on the advice of their attorney, the Gabicas padlocked the door of the trailer with the Howertons' possessions within. The following day the Howertons commenced this action in district court. The Howertons subsequently settled with the Kooskia Police Department and its members. The police agreed to injunctive relief 2 and were dismissed from the action with prejudice. After a trial on August 4, 1981, the district court judge found (1) that Mr. Howerton had threatened violence to Mrs. Gabica; (2) that the police presence during the Gabica's actions was for the purpose of keeping the peace; and (3) that the police officers took no affirmative action to assist the Gabicas in evicting the Howertons but simply stood by to keep the peace. The district court therefore dismissed the action against the Gabicas as not involving sufficient state action to constitute action under color of state law for section 1983 purposes. The Howertons brought this timely appeal.

II

In order to state a claim under 42 U.S.C. Sec. 1983, the Howertons must show two essential elements: (1) that the defendants acted under color of state law; and (2) that the defendants caused them to be deprived of a right secured by the constitution and laws of the United States. 3 Lugar v. Edmonson Oil Co. Inc., --- U.S. ----, 102 S.Ct. 2744, 2751, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56 L.Ed.2d 185 (1978); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir.1981); Ouzts v. Maryland National Insurance Co., 505 F.2d 547, 550 (9th Cir.1974) (en banc), cert. denied, 421 U.S. 949, 95 S.Ct. 1681, 44 L.Ed.2d 103 (1975). The Howertons contend that they were denied their Fourteenth Amendment rights when the landlords, with police aid, used self-help to evict them without providing proper notice and a prior judicial hearing. The trial judge dismissed the Howertons' complaint because he found the landlords did not act "under color of state law." It is this element of the section 1983 claim that we address. 4

Action taken by private individuals may be "under color of state law" where there is "significant" state involvement in the action. See, e.g., Lugar, 102 S.Ct. at 2754; Melara v. Kennedy, 541 F.2d 802, 804 (9th Cir.1976); Scott v. Eversole Mortuary, 522 F.2d 1110, 1113 (9th Cir.1975), and cases cited therein at n. 6. 5 The Court has articulated a number of tests or factors to determine when state action is "significant." See Lugar, 102 S.Ct. at 2755. These include the governmental nexus test, see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-79, 92 S.Ct. 1965, 1970-74, 32 L.Ed.2d 627 (1972); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961), the joint action test, see Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966), the public function test, see Terry v. Adams, 345 U.S. 461, 484, 73 S.Ct. 809, 820, 97 L.Ed. 1152 (1953) (Clark, J., concurring); Marsh v. Alabama, 326 U.S. 501, 507-08, 66 S.Ct. 276, 279, 90 L.Ed. 265 (1946), and the state compulsion test, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970). One way the "joint action" test is satisfied is if a "conspiracy" is shown. See Adickes, 398 U.S. at 152, 90 S.Ct. at 1605 (quoting Price, 383 U.S. at 794, 86 S.Ct. at 1156). In Adickes and Price, the Court explained that this last test is met where "[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of [42 U.S.C. Sec. 1983] .... It is enough that [the private party] is a willful participant in joint activity with the State or its agents," Adickes' 398 U.S. at 152, 90 S.Ct. at 1605; Price, 383 U.S. at 794, 86 S.Ct. at 1156; Accord, Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980); Sykes v. California, 497 F.2d 197, 200 (9th Cir.1974). 6 While these factors are helpful in determining the significance of state involvement, "there is no specific formula for defining state action." Melara v. Kennedy, 541 F.2d 802, 805 (9th Cir.1976). The extent of state involvement remains a factual inquiry. "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). Accord, Life Insurance Co. of North America v. Reichardt, 591 F.2d 499, 501 (9th Cir.1979); Melara, 541 F.2d at 804.

At some point, as police involvement becomes increasingly important, repossession by private individuals assumes the character of state action. This is explained in Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th Cir.1981): 7

[T]here may be a deprivation within the meaning of Sec. 1983 not only when there has been an actual 'taking' of property by a police officer, but also when the officer assists in effectuating a repossession over the objection of a debtor or so intimidates a debtor as to cause him to refrain from exercising his legal right to resist a repossession. While mere acquiescence by the police to 'stand by in case of trouble' is insufficient to convert a repossession into state action, police intervention and aid in the repossession does constitute state action.

The point at which police involvement becomes significant state action was discussed by the Sixth Circuit in United States v. Coleman, 628 F.2d 961, 964 (6th Cir.1980). The court in that case found no state action where two police officers parked nearby while a creditor's agent repossessed a truck whose owner was absent. This was different, the court noted, from cases such as Harris in which police accompanied the repossessor to the debtor's residence, and together with the repossessor, confronted the debtor in order to effectuate a repossession. "The affirmative participation by the police sets those cases apart...

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