Tompkins v. Cyr
| Decision Date | 17 February 1995 |
| Docket Number | No. 3:94-CV-973-R.,3:94-CV-973-R. |
| Parties | Norman T. TOMPKINS, M.D. and Carolyn Tompkins, Plaintiffs and Counter-Defendants, v. Thomas CYR, et al., Defendants and Counter-Plaintiffs. |
| Court | U.S. District Court — Northern District of Texas |
Tahira Khan Merritt, Law Offices of Windle Turley, P.C., Dallas, TX, for plaintiffs.
William C. Bundren, Dallas, TX, for defendants.
Now before this Court is the Notice of Appeal and Defendants' Objections to Findings and Recommendation of the United States Magistrate Judge. Defendants Thomas Cyr, et al. object to the Magistrate Judge's Findings and Recommendations filed on January 10, 1995 concerning Plaintiffs' Motion for Summary Judgment on the Defendants' Counterclaim brought under the Civil Rights Act, 42 U.S.C. § 1983.
A party is entitled to a de novo review of a magistrate's findings and recommendations if the party makes timely objections to those findings.* Having reviewed all of the documents connected with Plaintiffs' Motion for Summary Judgment that have been submitted to this Court, and having reviewed the applicable law, this Court AFFIRMS the Findings and Recommendations of the Magistrate Judge.
It is therefore ORDERED that Plaintiff's Motion for Summary Judgment is hereby GRANTED.
Plaintiffs have filed a motion for summary judgment on a counterclaim brought under the Civil Rights Act, 42 U.S.C. § 1983. The motion has been referred to United States Magistrate Judge Jeff Kaplan pursuant to 28 U.S.C. § 636(b) and Local Rule 1.3.1 The findings and recommendation of the magistrate judge are as follow:
BACKGROUND
Plaintiffs Norman T. Tompkins and Carolyn Tompkins have sued forty pro-life activists and organizations for intentional infliction of emotional distress, tortious interference with business relationships, invasion of privacy and related torts. Plaintiffs contend that the defendants have harassed them over the past three years because of their beliefs concerning abortion. These activities include: (1) conducting loud and disruptive protests at their home, work and church; (2) near constant surveillance of their daily activities; (3) stalking and following them in their personal and business pursuits; (4) interfering with their employment; (5) placing threatening and abusive phone calls; and (6) writing obscene and harassing letters. Plaintiffs seek monetary damages and injunctive relief.
This lawsuit was originally filed in state court on February 9, 1993. The defendants answered and filed a counterclaim for nominal damages under 42 U.S.C. § 1983. They allege that plaintiffs "have become state actors in concert with the court and officers of the court to seek to obtain injunctive relief which would infringe upon their constitutionally protected rights." The defendants agreed to a temporary restraining order pending a formal injunction hearing.
The trial court heard five days of testimony and issued a temporary injunction on April 29, 1993. This injunction limits the time, place and manner of demonstrations held outside of plaintiffs' home and church.2 The defendants perfected an interlocutory appeal. They challenged the temporary injunction on numerous constitutional and procedural grounds. Specifically, the defendants argued that the injunction violated their right to free speech under the state and federal constitutions. The court of appeals affirmed in an unpublished opinion. Cyr v. Tompkins, No. 05-93-00850-CV, 1994 WL 110719 (Tex.App. — Dallas, March 30, 1994). The defendants filed an application for writ of error in the Texas Supreme Court. This appeal was abated after the defendants removed the underlying case to federal court.3
Plaintiffs have filed a motion for summary judgment on the civil rights claims asserted by the defendants. Plaintiffs contend that they are not state actors and cannot be held liable under 42 U.S.C. § 1983. This motion was originally denied by the state court. Plaintiffs now reurge their summary judgment motion on the same grounds. The defendants have filed a response and the parties have been given an opportunity to fully brief the issues. This matter is now ripe for determination.
The standard for granting summary judgment mirrors the standard for a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex, 477 U.S. at 321-23, 106 S.Ct. at 2552; Anderson, 477 U.S. at 249-51, 106 S.Ct. at 2511; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita, 475 U.S. at 584-88, 106 S.Ct. at 1355-56; Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 136, 121 L.Ed.2d 89 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson, 477 U.S. at 247-49, 106 S.Ct. at 2510; Gleasman v. Jones, Day, Reavis & Pogue, 933 F.2d 1277, 1281 (5th Cir.1991).
Plaintiffs have moved for summary judgment on the grounds that they are not state actors under 42 U.S.C. § 1983. The defendants have the burden of proof on this issue at trial. Frazier v. Northwest Mississippi Regional Medical Center, 765 F.2d 1278, 1283 (5th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2252, 90 L.Ed.2d 697 (1986). In order to prevail on their motion, plaintiffs must point to the absence of any evidence on this essential element of the defendants' counterclaim. See Celotex, 477 U.S. at 325-27, 106 S.Ct. at 2554; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988). The burden then shifts to the defendants to show that summary judgment is not proper. See Thurman, 952 F.2d at 131; Russ v. International Paper Co., 943 F.2d 589, 591-92 (5th Cir.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1675, 118 L.Ed.2d 393 (1992). The defendants must go beyond the pleadings and designate specific facts in the record which show that there is a genuine issue for trial. See Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2553; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, ___ U.S. ____, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992).
Section 1983 provides a cause of action for the deprivation of a federally protected right by a person acting under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). The traditional definition of "state action" requires the defendant to exercise power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). However, more recent cases indicate that private conduct "fairly attributable to the state" may be actionable under section 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This determination requires a two-step analysis. First, the court must ascertain whether the alleged constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority. Lugar, 457 U.S. at 936-43, 102 S.Ct. at 2754-56. Second, the court must determine whether the private party could be fairly described as a state actor. Lugar 457 U.S. at 939-43, 102 S.Ct. at 2755-56.
Courts have applied different tests to analyze the relationship between private parties and state authorities. Lugar, 457 U.S. at 936-39, 102 S.Ct. at 2754; see also Flagg Brothers, 436 U.S. at 157-58, 98 S.Ct. at 1734 (joint action test); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (nexus test); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970) (state compulsion test); Marsh v. Alabama, 326 U.S. 501, 506, 66 S.Ct. 276, 278, 90 L.Ed. 265 (1946) (public function test). Most recently, the Supreme Court articulated three factors relevant to this determination: (1) the extent to which private parties rely on state assistance or benefits; (2) whether private parties are performing traditional governmental functions; and (3) whether the alleged injury has been aggravated in a unique way by the incidents of state authority. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 622, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660 (1991). Regardless of the label, "only by sifting facts and weighing circumstances can the nonobvious involvement of the state in private conduct be attributed its true significance." Lugar, 457 U.S. at 939, 102 S.Ct. at 2755, citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).
The sanctioned use of private remedies or procedures does not, by itself, rise to the level of state action. Edmonson, 500 U.S. at 620-24, 111 S.Ct. at 2083-84. A litigant does not "act under color of state law" by merely filing a lawsuit and seeking a temporary injunction. Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 555 (5th Cir.1988); Cobb v. Georgia Power Co., 757 F.2d 1248, 1251 (11th Cir.1985). Even the misuse or abuse of the judicial process does not constitute state action. Wyatt v. Cole, 994 F.2d 1113, 1117-18 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 470, 126 L.Ed.2d 421 (1993); Dahl v. Akin, 630 F.2d 277, 281 (5th Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1977...
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