Luce v. Town of Campbell

• Decision Date: 02 July 2015
• Docket Number: No. 14–cv–046–wmc.,14–cv–046–wmc.
• Citation: 116 F.Supp.3d 915
• Parties: Gregory LUCE and Nicholas Newman, Plaintiffs, v. TOWN OF CAMPBELL, WISCONSIN and Tim Kelemen, Defendants, and Community Insurance Corporation, Intervening Defendant, v. Town of Campbell, Wisconsin and Tim Kelemen, Third–Party Defendants.
• Court: U.S. District Court — Western District of Wisconsin

116 F.Supp.3d 915

Gregory LUCE and Nicholas Newman, Plaintiffs,

v.TOWN OF CAMPBELL, WISCONSIN and Tim Kelemen, Defendants,andCommunity Insurance Corporation, Intervening Defendant,

v.Town of Campbell, Wisconsin and Tim Kelemen, Third–Party Defendants.

No. 14–cv–046–wmc.

United States District Court, W.D. Wisconsin.

Signed July 2, 2015.

Bernardo Cueto, Wislawyer LLC, La Crosse, WI, Erin Kuenzig, Erin E. Mersino, Ann Arbor, MI, for Plaintiff.

Justin Harold Lessner, Lori Marie Lubinsky, Axley Brynelson, LLP, Madison, WI, for Defendant.

Michele Mary Ford, Crivello, Carlson & Mentkowski, S.C., Milwaukee, WI, for Intervening Defendant.

James George Birnbaum, Jessica Taylor Kirchner, Birnbaum, Seymour, Kirchner & Birnbaum, LLP, La Crosse, WI, Justin Harold Lessner, Lori Marie Lubinsky, Axley Brynelson, LLP, Madison, WI, Martin James De Vries, Sager, Colwin, Samuelsen & Associates, S.C., Fond Du Lac, WI, for Third–Party Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

In a prior opinion granting summary judgment in favor of defendants on all but one of plaintiff Gregory Luce's federal claims, the court also explained its inclination to grant summary judgment as to Luce's remaining First Amendment retaliation claim on the grounds that defendant Tim Kelemen did not appear to be acting under color of state law with respect to the events giving rise to that claim. (6/16/2015 Op. & Order (dkt. # 127) 23–28.) Before granting summary judgment, however, the court provided plaintiff an opportunity to respond as required by Federal Rule of Civil Procedure 56(f). (Id. at 27.) Having reviewed plaintiff's response (dkt. # 130), the court now finds as a matter of law that Kelemen was not acting under color of state law within the meaning of 42 U.S.C. § 1983. Therefore, the court will grant judgment to Kelemen as to Luce's First Amendment retaliation claim as well. Having disposed of plaintiffs' federal claims, the court will also decline to exercise its supplemental jurisdiction over Luce's two claims alleged against Kelemen under state law. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.1999).

OPINION

In his response, Luce asserts arguments that the court already considered and rejected. Only two merit additional comment.¹ First, Luce contends that Kelemen was acting under color of state law because he was "on duty" and "used police department computers and Internet access." (Pl.'s Rule 56(f) Resp. (dkt. # 130) 2.) As the Seventh Circuit has repeatedly instructed, however, the determination of whether an officer is acting under color of state law does not turn on whether he is on or off duty at the time of the alleged violation. "[A]cts committed by a police officer even while on duty and in uniform are not under color of state law unless they are in some way related to the performance of police duties." Gibson v. City of Chi., 910 F.2d 1510, 1516 (7th Cir.1990) (quoting Briscoe v. LaHue, 663 F.2d 713, 721 n. 4 (7th Cir.1981) (internal citation and quotation marks omitted)). That is why the alleged act of a fire chief in burning down the dilapidated, out-of-code house of a disgruntled citizen was found not to have been effectuated under the color of state law. See Honaker v. Smith,

256 F.3d 477, 484–85 (7th Cir.2001) (" ‘[N]ot every action by a state official or employee is deemed as occurring "under color" of state law’.... Acts by a state officer are not made under color of state law unless they are related in some way to the performance of the duties of the state office.") (quoting Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.1989) ).

In determining whether Kelemen was acting under color of state law, the court instead considers "the nature of the specific acts" performed. Latuszkin v. City of Chi., 250 F.3d 502, 505–06 (7th Cir.2001) ("The important consideration, however, in determining whether an officer is acting under color of state law is the nature of the specific acts performed."); see also Pickrel v. City of Springfield, Ill., 45 F.3d 1115, 1118 (7th Cir.1995) ("Deciding whether a police officer acted under color of state law should turn largely on the nature of the specific acts the police officer performed, rather than on merely whether he was actively assigned at the moment to the performance of police duties."). As the court previously explained—and to which plaintiff fails to offer any meaningful response—the evidence does not support a finding, or even an inference, that Kelemen used or displayed his police powers, or otherwise invoked his authority as sheriff, to carry out any of the alleged retaliatory acts. (See 6/16/15 Op. & Order (dkt. # 127) 25.) Quite to the contrary, Kelemen was actively hiding his identity. This included not using his authority or position in order to gather the necessary personal information to sign Luce up for websites or to comment on online forums without a trace back to the Town, Police Department or him. (Id. ) Of course, this does not mean that what Kelemen did was legal, simply that what he did is not actionable under § 1983.

Finally, Kelemen did not act under color of state law by use of a police department computer or internet access. As this court previously explained, courts that found the defendant acted under color of law by his or her use of public resources focused on access to information peculiar to the defendant's position. (Id. ) Absent a leveraging of one's public position, there is no state action. Indeed, the Haines case cited in the court's prior opinion and order provides an extreme example of use of police department resources for acts outside of the scope of § 1983. (Id. at 26 (citing Haines v. Fisher, 82 F.3d 1503, 1505–06 (10th Cir.1996) ).) Here, too, there is no dispute that Kelemen used the police department's computer and internet access to review publically-available information. However far he fell short of the expectations of a professional police officer, much less the standards of a supervising officer, he did not act under color of state law.

Second, Luce contends that Kelemen was acting under color of state law because his retaliatory conduct "related in some way to the performance of a police duty." (Pl.'s Rule 56(f) Resp. (dkt. # 130) 4 (quoting Gibson, 910 F.2d at 1516–17 ).) Even inferring that Kelemen's motivation in engaging in the retaliatory acts was somehow job-related—in other words, he sought to distract Luce from his efforts to harass police officers or to rally opposition to the Ordinance, rather than a juvenile attempt at revenge—the court's focus in determining whether Kelemen acted under color of state law must be on the nature of Kelemen's actions, just as it was the focus of the Seventh Circuit in considering the actions of a fire chief who set fire to a house in Honaker.

That Kelemen may have believed he was acting in his employer's interest—misguided as that belief would have been—is not enough to find that his actions fall under the color of state law. See Ector v. Powell, No. IP–00–20–C–B/S, 2002 WL 356704, at *4 (S.D.Ind. Mar. 1, 2002) ("The color of law analysis does not turn on the desires or motivating factors, but on the means by which the constitutional injuries are carried out."); cf. Walker v. Taylorville Corr. Ctr., 129 F.3d 410, 414 (7th Cir.1997) (relying on the fact that defendant was able to take certain actions "solely because of the position of authority she enjoyed," and disregarding defendant's argument that actions were taken "in pursuit of her own interest"); Simmons v. City of Evanston, No. 89 C 9421, 1992 WL 25712, at *8 (N.D.Ill. Jan. 31, 1992)...