Ginsberg v. Healey Car & Truck Leasing

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-9504
• Citation: 189 F.3d 268
• Parties: (2nd Cir. 1999) STEWART GINSBERG, Plaintiff-Appellant, v. HEALEY CAR & TRUCK LEASING, INC. and MICHAEL P. HEALEY, Defendants-Appellees, JOHN FITZGERALD, Defendant
• Court: U.S. Court of Appeals — Second Circuit

Page 268

189 F.3d 268 (2nd Cir. 1999)

STEWART GINSBERG, Plaintiff-Appellant, v. HEALEY CAR & TRUCK LEASING, INC. and MICHAEL P. HEALEY, Defendants-Appellees, JOHN FITZGERALD, Defendant.

Docket No. 98-9504

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued June 10, 1999

Decided Aug. 18, 1999

Appeal from an order of the United States District Court for the District of Connecticut (Dominic J. Squatrito, Judge) granting summary judgment to appellees on a claim that they violated appellant's right to due process. We hold that the evidence proffered is insufficient to support a finding that the appellees acted under color of state law by seeking the assistance of a police officer in quelling a disturbance and not interfering with the officer's efforts to collect a debt. We therefore affirm.

JOANNE S. FAULKNER, New Haven, Connecticut, for Plaintiff-Appellant.

JAMES V. SOMERS, Halloran & Sage LLP, Hartford, Connecticut (William J. McGrath, of counsel), for Defendants-Appellees.

Before: WINTER, Chief Judge, SACK, Circuit Judge, and SPRIZZO, District Judge.^*.

WINTER, Chief Judge:

Stewart Ginsberg appeals from Judge Squatrito's grant of summary judgment to Healey Car & Truck Leasing, Inc. and Michael P. Healey (collectively "Healey"). Appellant claims, inter alia, that Healey violated 42 U.S.C. § 1983 by depriving him of a property interest without due process of law. The district court held that there was no triable issue as to whether Healey acted under color of law because there was no evidence that it acted jointly with a public official to deprive Ginsberg of his property. We affirm.

BACKGROUND

This case arises out of a contract dispute between Ginsberg and Healey. The various submissions disclose the following events. On June 12, 1996, Ginsberg rented a truck from Healey. According to Ginsberg, Healey agreed that Ginsberg's automobile insurer would pay the rental fee. However, when Ginsberg returned the truck approximately one month later, the insurer had not paid the fee, and Healey insisted that Ginsberg tender payment. According to Healey, Ginsberg had agreed that he, not his insurer, would pay for the rental. Ginsberg refused to pay, and a heated argument ensued between Ginsberg and Healey's manager, Gary Listorti. Eventually, Michael Healey asked Ginsberg to leave the showroom because his vulgar language and hostile behavior were disrupting Healey's business and disturbing its customers. Ginsberg left and went to a nearby gas station to make a telephone call. Meanwhile, Listorti called the Ansonia Police Department to report the disturbance in the showroom and to request that the Police Department send someone to the showroom in case Ginsberg returned.

Officer John Fitzgerald responded to the call. He met with Listorti, who described Ginsberg's obstreperous behavior and the payment dispute. Fitzgerald then left Healey's showroom and went to the gas station where he found Ginsberg. He asked Ginsberg to return to the showroom to "straighten out the matter." Ginsberg complied, and, upon arriving, resumed his argument with Listorti. Fitzgerald intervened and opined that Ginsberg "owe[d] Healey . . . the money for the rental" and that, if Ginsberg did not pay, he could be arrested for larceny. Moreover, when Ginsberg persisted to argue in a loud voice, Fitzgerald threatened to arrest him for breach of the peace.

Ginsberg finally wrote a check to Healey for $1,780.77 and left Healey's showroom without being arrested. Later, however, he ordered his bank to stop payment on the check. To date, Ginsberg has not made any payment to Healey for the rental.

On March 20, 1997, appellant filed the instant action claiming that Healey and Fitzgerald deprived appellant of his property without due process of law in violation of 42 U.S.C. § 1983 and disclosed appellant's debt to third persons in violation of Conn. Gen. Stat. § 36a-645. Appellant's claims against Fitzgerald were later ordered dismissed pursuant to a settlement agreement. Judge Squatrito granted Healey's motion for summary judgment on the Section 1983 claim and dismissed the state-law claim against Healey without prejudice pursuant to 28 U.S.C. § 1367(c)(3). See Ginsberg v. Healey Car & Truck Leasing, Inc., No. 3:97-503(DJS) (D. Conn. Sept. 30, 1998). This appeal followed.

DISCUSSION

We review the grant of summary judgment de novo. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir. 1995). A moving party is entitled to summary judgment when, after reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact. See Fed. R. Civ. P. 56(c); Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998). The moving party bears the burden of production, i.e., the initial burden to demonstrate the absence of a genuine issue of material fact. See Federal Deposit Insurance Co. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is not "genuine" unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, where, as here, the non-movant bears the burden of proof at trial, the movant can satisfy its burden of production by pointing out an absence of evidence to support an essential element of the non-movant's case. See Celotex, 477 U.S. at 323-24; Tops Mkts., 142 F.3d at 95.

Of course, the substantive law identifies which facts are material. See Liberty Lobby 477 U.S. at 248. Section 1983 imposes civil liability upon a party who "under color [of law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . ." 42 U.S.C. § 1983. Thus, for purposes of this proceeding, appellant had to proffer evidence in response to the motion sufficient to permit a trier of fact to find that Healey deprived him of a right secured by the "'Constitution and laws' of the United States" and acted "'under color of law'" in depriving him of this right. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970) (quoting Section 1983); see also Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).

We may assume for present purposes that Healey deprived Ginsberg of his property without due process of law. Appellant also had to proffer evidence that Healey was a state actor. See Adickes, 398 U.S. at 152. We have previously noted that state action under the Fourteenth Amendment is tantamount to action under color of law for purposes of Section 1983. See Annunziato v. Gan, Inc., 744 F.2d 244, 249 (2d Cir. 1984) ("[T]he 'under color' of law requirement has consistently been viewed in the same manner as the 'state action' requirement under the Fourteenth Amendment."); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 930-31, 935 (1982). Healey is a private party but can nonetheless have acted under color of law for purposes of Section 1983 if it acted "jointly" with Fitzgerald to deprive Ginsberg of his property. The Supreme Court has stated:

Private persons, jointly engaged with state officials in the prohibited action are acting 'under color' of law for purposes of [Section 1983]. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.

United States v. Price, 383 U.S. 787, 794 (1966); accord Adickes, 398 U.S. at 152; see also Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Annunziato, 744 F.2d at 250.

Ginsberg's complaint alleged that the Ansonia Police Department has a "custom, practice or policy" of dispatching officers to Healey's premises when its customers are dissatisfied with their service. Although this allegation, if true, would support a finding of state action, see, e.g., Alexis v. McDonald's Restaurants, 67 F.3d 341, 351 (1st Cir. 1995), appellant failed to provide any evidence of such a custom, practice, or policy. Moreover, in its submission in support of the summary judgment motion, Healey presented evidence that police officers have come to its showroom only twice in the past thirty-two years in connection with customer-related disturbances, including the incident in question.¹

The only evidence proffered by appellant to show that Healey acted under color of law was Fitzgerald's active participation in the payment dispute with Ginsberg. Fitzgerald's conduct is not alone sufficient to create a genuine dispute of material fact on this issue, however. The record shows only that Healey's manager, Gary Listorti, called the Ansonia Police Department because Ginsberg was "causing a scene in the showroom" and that Michael Healey wanted a police officer there to quell a disturbance "[j]ust in case" Ginsberg returned. Appellant has not offered any evidence rebutting the deposition testimony of Listorti and Michael Healey that the dispute with Ginsberg was contentious or that Healey called the police in order to prevent further disruption of the business. Specifically, there is no evidence that Healey sought the assistance of the Ansonia Police Department to resolve the payment dispute rather than to prevent further disturbance in the showroom.

To be sure, in explaining the history of the incident to Officer Fitzgerald, Listorti described the payment issue to him. But Healey's provision of background information to a police officer does not by itself make Healey a joint participant in state action under Section 1983. See Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) ("The mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under §[] 1983 . . . ."); Butler v. Goldblatt Bros., Inc., 589 F.2d 323, 327 (7th Cir. 1978) (granting summary judgment to...