Collins v. Womancare

Decision Date23 June 1989
Docket NumberNo. 88-5703,88-5703
Citation878 F.2d 1145
PartiesJames F. COLLINS, Jr.; Tammy Lee Collins; Kimberlee Huckaby; Joan S. Patton; Cheryl Sullenger, Plaintiffs-Appellees, v. WOMANCARE, a Feminist Woman's Health Center, a California nonprofit corporation; Deborah Fleming; Patricia O'Neil, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Mark E. Merin, Kanter, Merin, Dickstein & Kirk, Sacramento, Cal., for defendants-appellants.

Lloyd E. Tooks, San Diego, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE, CANBY and TROTT, Circuit Judges.

WALLACE, Circuit Judge:

The contentious public debate over the propriety of abortions forms the background of the appeal before us. As an outgrowth of a picketing episode, the district court entered a judgment awarding damages in favor of five plaintiffs in their action for false arrest and for deprivation of constitutional rights under 42 U.S.C. Sec. 1983 against Womancare, two of its employees, and its directors (Womancare). The district court had jurisdiction under 28 U.S.C. Secs. 1331, 1343(a)(3). We have jurisdiction of Womancare's timely appeal pursuant to 28 U.S.C. Sec. 1291. We reverse and remand.

I

Womancare is a nonprofit corporation organized under California law and located in San Diego, California. Womancare offers women various health services, including abortions. Deborah Fleming and Patricia O'Neil are Womancare's executive and associate directors, respectively. In recent years, Womancare's offices have been the scene of repeated protests and picketing by demonstrators opposed to abortion. To combat the disruption caused by these protests, Womancare brought suit in the California Superior Court in San Diego against various demonstrators: the Bible Missionary Fellowship; its pastor, Dorman Owens; the Independent Baptist Church; and two hundred Does. Womancare sought and obtained a preliminary injunction. The preliminary injunction, effective "pending the trial" in state court, was issued on October 5, 1984. It prohibited both parties' "agents, servants, officer[s], employees, representatives, and all persons acting in concert or participating with them" from "engaging in or performing, directly or indirectly" various enumerated acts, including "yelling, screaming, assaulting, disparaging or defaming each other or the clients of [Womancare]," and "conduct[ing] their picketing and/or preaching any closer than across the street from [Womancare's] property."

On October 1, 1985, Womancare was in the process of moving into new offices. A group of protesters demonstrated across the street. It is undisputed that some of these protesters were subject to the state court's preliminary injunction. Meanwhile, the five plaintiffs here--James Collins, Jr., Tammy Collins, Kimberlee Huckaby, Joan Patton, and Cheryl Sullenger (collectively Collins group)--began to picket on Womancare's side of the street. Womancare employees Fleming and O'Neil approached the picketers, attempted to serve them with the injunction, told them that their picketing on Womancare's side of the street violated the injunction, and asked them to move across the street. The Collins group refused. Fleming telephoned the San Diego police department. A police officer arrived and, after talking with the demonstrators, decided to take no action. He advised Fleming that she had the power to effect citizen's arrests, but cautioned her that this action could subject her to civil liability for false arrest. Fleming then telephoned Womancare's attorney, who advised her to perform citizen's arrests on people who were violating the injunction. Fleming and O'Neil placed the Collins group under citizen's arrest. The police detained the Collins group long enough to issue misdemeanor citations for violating the injunction. The Collins group then left. They were later prosecuted on the misdemeanor citations in San Diego Municipal Court, but the citations were dismissed prior to trial.

The Collins group then brought this action against Womancare alleging both a deprivation of constitutional rights under 42 U.S.C. Sec. 1983 and malicious prosecution. They moved for an interlocutory summary judgment on count one, the section 1983 claim. In granting summary judgment for the Collins group, the district court held that while they had produced evidence tending to show that the arrested demonstrators were not acting in concert with enjoined parties, Womancare had produced no evidence tending to negate this evidence. Thus, there was no genuine issue of fact whether the protesters were subject to, and therefore violating, the injunction. The court also held that Womancare and its officers acted under color of state law and abridged the Collins group's first amendment rights of free speech and assembly.

The parties proceeded to trial on the remaining claim. After the close of evidence, the district judge apparently granted an oral motion to conform the pleadings to the evidence, allowing the Collins group to state a claim for false arrest. The district judge then granted the Collins group's motion for a directed verdict on the false arrest claim. The court apparently relied in part on its prior summary judgment on the section 1983 claim, which in turn had depended upon a determination that the Collins group was not violating the injunction. Liability having been determined, the issue of damages then went to the jury. The jury awarded each plaintiff $1,800 in compensatory and $10,000 in punitive damages. Womancare unsuccessfully moved for a new trial, judgment notwithstanding the verdict, and relief from judgment.

Womancare raises numerous arguments in this appeal. It challenges the district court's entry of interlocutory summary judgment on the Collins group's section 1983 claim on the following grounds: (1) the picketing was not protected by the first amendment; (2) Womancare did not act under color of state law because it neither acted pursuant to a citizen's arrest statute nor exercised a traditional sovereign function; (3) there remained genuine issues of material fact regarding whether (a) Womancare acted jointly with the police, (b) probable cause to arrest existed, and (c) the arrested demonstrators were bound by the injunction; and (4) summary judgment was granted prematurely because Womancare had not had the opportunity to conduct significant discovery. Womancare challenges the district court's directed verdict in favor of the Collins group on the false imprisonment claim, arguing that there was substantial conflicting evidence regarding whether the arrested demonstrators were acting in concert with those subject to the injunction. Womancare further contends that the district court erred in giving the jury an instruction on punitive damages. Lastly, Womancare challenges the denial of various post-trial motions. Because we reverse the interlocutory summary judgment on the Collins group's section 1983 claim, upon which the determination of liability on the second count also depended, we need not reach the other issues in this case.

II

We first address the issues related to the summary judgment on the section 1983 claim. We review a summary judgment independently. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We apply the same standard used by the trial court under Fed.R.Civ.P. 56(c). Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

To prove a violation of section 1983, the Collins group must demonstrate that Womancare (1) deprived them of a right secured by the Constitution, and (2) acted under color of state law. 42 U.S.C. Sec. 1983; West v. Atkins, --- U.S. ----, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (West ). The Collins group alleged a deprivation of their first amendment rights to free speech and association. The fourteenth amendment, which incorporates the first amendment against the states, applies only against acts of a state, i.e., "state action." Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982) (Rendell-Baker ). The fourteenth amendment "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (footnote omitted). Thus, in order to demonstrate the alleged deprivation, the Collins group had to show "state action" under the fourteenth amendment. The second prong under section 1983 imposes an independent requirement of showing action "under color of" state law. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729 1732-33, 56 L.Ed.2d 185 (1978) (Flagg Brothers ).

Section 1983's under-color-of-state-law requirement and the fourteenth amendment's "state action" requirement are closely related. In fact, "until recently, th[e] Court did not distinguish between the two requirements at all." Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982) (Lugar ); see also United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966) (Price ) ("In cases under Sec. 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment."). Though describing the two requirements as "obviously related," Lugar, 457 U.S. at 928, 102 S.Ct. at 2749, the Court in Lugar declined to equate the two elements. The Court held that conduct which qualifies as "state action" under the fourteenth amendment also satisfies section 1983's under color of state law requirement....

To continue reading

Request your trial
348 cases
  • Villegas v. Gilroy Garlic Festival Ass'n
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 3, 2008
    ...action "exists where a private party is `a willful participant in joint action with the [s]tate or its agents.'" Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). The lynchpin of a finding of "joint action" is the existence of "a substantial degree of cooperative action." Id. Joint......
  • Berger v. Hanlon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 13, 1997
    ...----, 117 S.Ct. 746, 136 L.Ed.2d 684 (1997); Mathis v. Pacific Gas & Electric Co., 75 F.3d 498, 503 (9th Cir.1996); Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir.1989) ("Joint action therefore requires a substantial degree of cooperative action."). See also Gorenc v. Salt River Project......
  • Pasadena Republican Club v. W. Justice Ctr.
    • United States
    • U.S. District Court — Central District of California
    • December 30, 2019
    ......Fox , 312 F.3d 423, 445 (9th Cir. 2002) (quoting Collins v. Womancare , 878 F.2d 1145, 1148 (9th Cir. 1989) ). The Club argues that this case is controlled by Burton , which involved a restaurant – the ......
  • Ricotta v. State of California
    • United States
    • U.S. District Court — Southern District of California
    • April 15, 1998
    ...separate from the Fourteenth Amendment's state-action requirement, the two inquiries are closely related. Collins v. Womancare, 878 F.2d 1145, 1148 (9th Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). The Supreme Court has articulated four distinct tests for d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT