Pitchell v. Callan

• Decision Date: 03 January 1994
• Docket Number: No. 591,D,591
• Citation: 13 F.3d 545
• Parties: John J. PITCHELL, Plaintiff-Appellant, v. James F. CALLAN, Gregory Sargis and City of Hartford, Defendants-Appellees. David J. Lesser and Steven Del Sole, Special Masters. ocket 93-7538.
• Court: U.S. Court of Appeals — Second Circuit

Page 545

13 F.3d 545

John J. PITCHELL, Plaintiff-Appellant, v. James F. CALLAN, Gregory Sargis and City of Hartford Defendants-Appellees David J. Lesser and Steven Del Sole, Special Masters.

No. 591, Docket 93-7538.

United States Court of Appeals Second Circuit.

Argued Oct. 25, 1993.

Decided Jan. 3, 1994.

John R. Williams, New Haven, CT (Williams & Wise, of counsel), for plaintiff-appellant.

Stephen P. Fogerty, Hartford, CT (Mark A. Newcity, Halloran & Sage, of counsel), for defendant-appellee City of Hartford.

Frank H. Santoro, Hartford, CT (Danaher, Tedford, Lagnese & Neal, of counsel), for defendant-appellee Callan.

Henry C. Ide, Avon, CT, for defendant-appellee Sargis.

Before: VAN GRAAFEILAND and WINTER, Circuit Judges, and POLLACK, District Judge. ^*

VAN GRAAFEILAND, Circuit Judge:

John Pitchell appeals from summary judgments of the United States District Court for the District of Connecticut (Covello, J.) the first of which dismissed Pitchell's 42 U.S.C. Sec. 1983 claim and pendent state-law claim against the City of Hartford on the merits, and the second of which dismissed Pitchell's section 1983 claims against James Callan and Gregory Sargis on the merits and his pendent state-law claims against these two defendants by declining to retain pendent jurisdiction over the state-law claims. We affirm.

Most of the facts giving rise to plaintiff's action are not in dispute. On the night of June 18, 1987, Callan and Sargis, Hartford police officers, were on duty and in uniform. When their shifts ended at approximately midnight, they went to a local bar where they met plaintiff, John Pitchell, and a fourth individual, Fred Rodriguez. The men began drinking at the bar and, after the bar closed, went to Callan's apartment to continue drinking. Pitchell and Sargis were friends; however, Pitchell and Callan had met for the first time that evening.

While drinking at Callan's apartment, the men discussed a variety of topics including Vietnam, former President Kennedy, and the movie "Platoon". At approximately 3 a.m., Callan went into another room and emerged with a gun. He showed the gun to Sargis and Rodriguez, asking both men to confirm that the gun was loaded with real bullets, which they did. Callan then pointed the gun at Pitchell and, after stating "Now what did you say about Kennedy?", shot him, causing him permanent injury.

Although the gun Callan used was his own and was not authorized by the Hartford Police Department, the bullets were issued by the Department. Officer Sargis wore most of his uniform the entire evening, including his service revolver. Callan was in partial uniform at the bar but changed into civilian clothes when he reached his apartment.

The rules and regulations of the Hartford Police Department provide in pertinent part:

Courage and alertness will be required of every member of the police force at all times whether on or off duty. When serious crimes are threatened, such as murders or attacks upon women, it is the duty of the policeman to go to the assistance of the victim for the purpose of preventing crime. If help from other police can be called without involving delay this should be done; under no circumstances should the officer wait for such help irrespective of the personal danger involved.

Callan was arrested and pled guilty to assault in the first degree. He was given a five-year suspended sentence and five years of probation. Pitchell thereafter filed suit against Callan, Sargis and the City of Hartford alleging: (1) a section 1983 violation by Callan and Sargis on the ground that both men, acting under color of law, deprived Pitchell of rights secured to him by the Fourth, Fifth and Fourteenth Amendments, the claim against Callan being based on the shooting, the claim against Sargis being based on his failure to attempt to prevent the shooting; (2) state-law negligence and willful misconduct on the part of both Callan and Sargis predicated on the same behavior; (3) a section 1983 violation by the City of Hartford on the ground that the municipality was consciously indifferent to the safety of its citizens in its screening, training and supervision of the officers; and (4) a state-law claim against the City on the ground it was liable for the torts of its two officers.

In April 1992, the City moved for summary judgment, asserting that it had no record of any inappropriate behavior by Callan or citizens' complaints against him, and that the officers were off-duty at the time of the incident. To refute the contention that Sargis and Callan were off-duty, Pitchell proffered evidence of the above-quoted police regulation and the affidavit of a former Chief of the Hartford Police Department stating it was his opinion, based on the rules and regulations of the Hartford Police Department, that, from the moment Callan picked up the gun, he was acting as a police officer and from the moment Callan began brandishing the gun, Sargis had all the duties and responsibilities of a police officer.

The district court granted the City's motion for summary judgment, holding that both Callan and Sargis were engaged in purely private pursuits at the time of the incident and therefore were not acting under color of law. In addition, the court held that Pitchell had failed to make a sufficient showing of deliberate indifference on the part of the City of Hartford. The court also granted summary judgment to the City on the state-law negligence claim, holding that "Callan had shown no abnormalities or personality traits incompatible with the duties of a police officer" and that his "acts were in no way related to his duties" as a Hartford police officer.

In early March of 1993, shortly before trial was to begin in the suit against the officers, they also moved for summary judgment. Pitchell submitted the same evidence in opposition. Once again the court granted summary judgment on the section 1983 claims, concluding as it previously had that neither officer had acted under color of law. The court then declined to exercise its pendent jurisdiction over the state-law claims and stated, citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988), that: "It is axiomatic that when all federal claims are eliminated prior to trial, a court should decline to exercise jurisdiction over any remaining pendent state claims."

Pitchell contends that the district court erred in granting summary judgment in favor of both the City and its officers and that it abused its discretion in dismissing the pendent state claims on the "eve of trial." We reject these contentions.

On the appeal of a grant of summary judgment, this Court must conduct a de novo review of the record applying the same standard as did the district court. Litton Industries, Inc. v. Lehman Brothers Kuhn Loeb Inc., 967 F.2d 742, 746 (2d Cir.1992). The appropriate inquiry for determining whether a grant of summary judgment is proper is whether there is a need for a trial. In other words, are there any genuine factual issues that properly can be resolved only by a finder of fact because they may be reasonably resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

In order to maintain a section 1983 action, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Courts have had frequent occasion to interpret the term "color of law" for the purposes of section 1983 actions, and it is by now axiomatic that "under 'color' of law means under 'pretense' of law" and that "acts of officers in the ambit of their personal pursuits are plainly excluded." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945). However, while it is clear that "personal pursuits" of police officers do not give rise to section 1983 liability, there is no bright line test for distinguishing "personal pursuits" from activities taken under color of law.

More is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred. See Rivera v. La Porte, 896 F.2d 691, 695-96 (2d Cir.1990). For example, liability may be found where a police officer, albeit off-duty, nonetheless invokes the real or apparent power of the police department. See id.; United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1960, 118 L.Ed.2d 562 (1992); Traver v. Meshriy, 627 F.2d 934, 937-38 (9th Cir.1980). Liability also may exist where off-duty police officers perform duties prescribed generally for police officers. See Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.1975). In short, courts look to the nature of the officer's act, not simply his duty status. See Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989).

In the instant case, neither Sargis nor Callan was acting under color of law. When Callan pointed his gun at Pitchell, he was not acting in accordance with a police regulation, as was the off-duty officer in Stengel, supra, nor was he invoking the authority of the police department as in the pretense of law cases. Callan was an off-duty cop, who while drunk in his own home, used his own personal weapon to shoot a guest. Although Callan violated the law, he did so as a private citizen, not as a state actor.

This Court addressed a...