Almand v. DeKalb County, Georgia

ALMAND, Mary Elizabeth

Plaintiff-Appellee, Warren, Plaintiff-Appellee, Joann COUNTY, and De- GEORGIA DeKALB County Department of Public Safe- Kalb al., Defendants-Appellees, ty, et Floyd Bryant, Detective in His Individual Capacity, Defendant-

and Official Appellant. No. 95-8866. Appeals, Court of United States Eleventh Circuit.

Jan.

15H EDMONDSON, Before Judge, Circuit FAY, Judge, Senior Circuit *, Judge. ALDRICH District Senior EDMONDSON, Judge: Circuit appeal qualified immunity This raises a question police about officer or is acting not under color of state law for the purpose of 42 U.S.C. 1983. We conclude that color of state law has not been shown summary reverse the denial judgment to the defendant.

I. Facts1 July Plaintiff-Appellee Mary Al- (Amand)

mand discovered that daugh- her ter, Monique, missing from home.2 posting While passing out fliers near a Atlanta, Georgia, convenience store A- defendant, mand first Floyd Bryant met the (Bryant), police officer of the DeKalb County Department.3 Bryant, Police who uniform, approached Almand in parking lot of the store and asked her why she was there. Amand told him that someone, looking she was for badge. showed her his Amand then re- searching vealed that daugh- she was for her ter. offered his assistance as a finding daughter officer in go condition that Almand out on a date with date, him. Almand refused the but asked help finding daugh- nonetheless for his her Carothers, Boyce, A. Richard Ekonomou & phone ter. obtained num- Atkinson, Buford, GA, defendant-appel- for ber so that he could contact her if informa- lant. tion up Mоnique. turned about Amand and Leibel, Center, Bryant Steven Keith Midtown telephone Law later had several conversa- Atlanta, GA, plaintiffs-appellees. daughter. tions about Amand’s * Aldrich, Monique apparently gone neighbor Honorable Ann Senior U.S. District had with a Ohio, Judge sitting for the Northern District of Monique thought named Tree to what was an by designation. Almand, According audition for a concert. however, Monique Tree to a took hotel where she only 1.Most of the "fаcts" we recite are assumed raped by was held her will and two men. resolving disputes in Plaintiff’s favor and facts — days, Monique After several was able to call her giving Plaintiff the benefit of all reasonable infer mother, was, tell her where she and have her purposes reviewing ences —for the pick up. mother send the Atlanta her might decision. A trial show the actu al facts to be different from some facts set out Although County DeKalb Police Officer generally Rodgers Horsley, here. See described, (11th Cir.1994). Floyd Defendant-Appellant time of the events herein wrongdoing. resigned. denies the has since phys- apartment, disap- Bryant reentered Almand’s one after her

Approximately week her, forcibly raped Monique ically struggled returned home pearance, That Department. police at report the Atlanta Police was made ‍​​​‌‌​​​​‌​​​‌‌​​​​​​​​​​‌​​​​​‌​​‌‌​‌‌​‌​​​‌​‌​‍to the help of her. No Bryant what day, Almand related time. same Bryant in- daughter through. had been later, arrested days Almand was few Al- he had of where that an idea dicated trafficking.4 against her drug The case had daughter had and who been held

mand’s because, eventually prossed according nolle raped her. Court, “Investigative Officer Superior to the told Department Police later The Atlanta engaged in con- [Bryant found to have was] hap- things that like those which Almand under the cir- inappropriate which was duct daughter in the area to her occur often pened compromised and the cumstances therefore nothing done to probably could be prove against ability [Al- to its case State’s daugh- for her persons responsible the locate mand].” Monique’s after rape. About one week ter’s home, Bryant and of- Background called Almand return II. Procedural important about reveal information fered to against original complaint Almand filed her so daughter, of her information the Bryant, County and sev- DeKalb Defendants job. Bryant it could sensitive cost him Later, August eral other defendants the disclosure on conditioned complaint adding an Almand filed amended have him. Almand agreeing to sex with claims, defendant, an additional additional it go through declined agreed but to amended, plaintiff. As Al- and an additional Bryant apartment. arrived at her 1983, complaint, invoking 42 mand’s U.S.C. Despite rejection of his demand alleged 44 pages аbout the viola- covered favors, Bryant agreed to continue rights protected for sexual tion of constitutional the daughter’s amendments, helping investigate Almand her the vio- Fourth and Fourteenth time, however, con- rape. This his offer was Racketeer Influ- lation of state federal help upon agreeing statutes,5 to tingent Organization Almand Corrupt enced specific De- Bryant expose “dirty cop,” state tort law claims. various said he believed Kalb Officer. summary judg- All defendants moved for among other this other officer was— The district denied ment. court persons who things with the —connected Bryant. Bryant appealed judgment the daughter. agreed raped Almand’s motion for sum- district court’s denial of his help Bryant, says which she did. she mary judgment; the motion had been based Later, August up showed immunity. of Al- qualified on The substance apartment breathing hard and at Almand’s claim before is the at her mand’s us sweating. He asked in to talk with to come apartment.- daughter. urgent about her matters III. Discussion Bryant. Almand admitted inside Once why she apartment, asked Almand important Federalism is this on; making leading began him and he no case. Section creates substantive Bryant to sexual advances. Almand asked merely remedy rights; provides it for de first, leave; although he declined statutory privations of federal and constitu out eventually agreed to went leave. rights. Whiting Traylor, 85 tional F.3d door, it him. and Almand closed behind (11th Cir.1996) (citations omitted). 581, 583 cautioned, outside, Bryant open Supreme Court has From then forced As any that confront at with such that wood broke “constitutional shoals closed door shock congressional civil Having tempt to derive from pushed the door. off all state and fed- was for con- District Court dismissed 4. Almand contended that her arrest The agreement part duct she undertook of her RICO claims. eral help Bryant expose officer. working denied that Almаnd was him. body general rights granted statutes a federal tort must be law,” vigilantly safeguard demand that we section 1983 claim. converting section 1983 into “a font person acts under color of state superimposed upon of tort law to be whatev law authority when he acts with possessed by systems may already er be administered virtue of employment with the state. Ed Davis,

the States.” Paul v. 424 U.S. wards v. Wallace Community College, 49 L.Ed.2d 405 Cir.1995) (citing West (1976) (internal omitted), reh’g citations de Atkins, 42, 48-50, nied, 48 L.Ed.2d (1988)). Not all аcts (1976). Thus, section 1983 must employees state are acts under color of law. law; supplant liability state tort appropri Id. at dispositive 1523. “The issue is wheth solely federally protected ate violations of er McCollan, acting pursuant the official was 137, rights. Baker v. 443 U.S. power 145-46, 2695, possessed by 2689, authority state 99 61 or he/she (1979). acting only (cit private as a individual.” Id. ing 167, 183-84, Monroe v. Pape, 365 U.S. 81 requires A successful action section 1983 473, 482, (1961), 5 492 L.Ed.2d over plaintiff deprived that the show she was of a grounds ruled on by Depart Monell v. right by person acting federal under color Servs., 658, ment Social 436 U.S. 98 S.Ct. of Harvey Harvey, of state law. v. 949 F.2d 2018, (1978)). 56 L.Ed.2d 611 (11th Cir.1992) 1127, (citing Flagg 1130 Brothers, Brooks, 149, Inc. v. 436 155— U.S. argues Ms. Almand first that Óffieer 56, 1729, 1733, 98 S.Ct. 56 L.Ed.2d 185 acting admitted that he was under (1978)). accept that, We under certain cir color of state law in his answer to the com cumstances, person by of a plaint. Paragraph complaint 3 of Almand’s officer or other state actor could violate the part:6 states in relevant Williams, Constitution. Parker v. See 862 (11th Cir.1989) (involving rape by F.2d 1471 3. deputy uniformed sheriff of woman in his custody representation because of his Defendant, BRYANT, FLOYD RICHARD her bail had been revoked and that she would was at all times herein a law enforcement him); jail have to return to with see also Georgia officer certified of State Dang Vang Vang Xiong Toyed, v. X. employed by County DeKalb, of 476, (9th Cir.1991) F.2d (upholding 479-80 Georgia as a officer whose conduct jury’s determination that defendant acted un described herein ‍​​​‌‌​​​​‌​​​‌‌​​​​​​​​​​‌​​​​​‌​​‌‌​‌‌​‌​​​‌​‌​‍was taken under of color he, der color of employee state law when as state law ... Washington Employment of Security State Bryant’s In complaint, answer to Almand’s office, raped looking employment women states, allega- “This defendant admits the meeting pretext when with them under the of “admission,” paragraph Bryant’s tions of 3.” providing pursuant job). services to his state however, not end our does color-of-state-law Here, however, Bryant acting was not inquiry. pertinent color of state law at the Al time. mand, therefore, cannot make out conduct the ele Whether constitutes state act case, of her summary simple question ments section 1983 ion7 is no of fact. See Cir.1992), 1018, original complaint, In both her and amended cert. 113 S.Ct. 1814, paragraph. (1993). Almand includes this exact In her 123 L.Ed.2d 445 While the Su original complaint, allegation Court, Co., preme Lugar this is denoted as in v. Edmondson Oil 3; Paragraph 18, complaint 922, 2744, 18, in her amended it is 935 n. 2752 n. Paragraph (1982), answered each of Almand’s 73 L.Ed.2d 482 left the theoretical complaints, allegation and his answer to this possibility was that action under color of state law action, the same both times. might always not constitute state the ex ample given by private person the Court of a concepts applying 7. We have noted of action state statute has relevance to our no pointed under color of state law and state action are case. Court "[T]he out that 'it is clear brought against § coterminous. v. Burrell Board Trustees GA. that in a 1983 action a state of of 785, (11th official, case,] Military College, present statutory 790 n. 13 in the [as 996-98, addition, in Yaretsky, the United States. Blum v. (de (1982) support L.Ed.2d filed and in of his brief motion summary judgment, scribing question of whether there court for district the. law); Cuyler that, question complaint action of if as stated Almand’s state Sullivan, alleging n. could be construed a constitution- (deter him, n. 64 L.Ed.2d 333 al violation “no action him of mining law, if action exists is resolution pur- state of was taken under color state Smith, law); also question see Duke liability.” poses of 1983 Cir.1994) (reviewing de light cen- In the denial of the fact, novo, question of law and mixed case, components tral factual private court’s ac determination that district justly can said most he be to have admitted sufficiently gov not tor was intertwined house, go is that when he did engaged entity in state ac ernment to be did not break down her door and did not tion). such, pleading As Plaintiffs of the her, acting color of state legal conclusion color of state law the law. We believe Almand was neither mislead in the complaint and Defendant’s admission surprised unfairly nor about whether color of The questionable importance. answer are of question dispute state law was a alleged Paragraph admits the facts answer sought being admission has but wonder whether the We, therefore, Bryant. conclude that out for conclusions of law that are set effect Bryant’s complaint to Almand’s does answer complaint. in the question. not settle the state-action important, construing Bryant’s an More Here, the assumed facts show that qf complaint Paragraph 3 Almand’s swer acting private person, was as a not a binding of as a admission the color-of-state- law, actor color of state state 8(f)’s law element would violate Fed.R.Civ.P. and, way forced his into Almand’s home over way pleadings in a mandate construe all force, coming by raped her resistance her. justice.” that does In constru “substantial day rape, initially On of 8(f), Court, Maty ing Supreme Rule entry gained apartment to Almand’s on the Co., 197, 199- Chemical 303 Grasselli U.S. pretense discussing police of with business 507, 509, (1938), 201, 58 82 745 S.Ct. L.Ed. progress investigation of the her —the into “[pjleadings are to serve wrote intended rаpe. Bryant Almand’s daughter’s then just arriving a means of at fair settle and made sexual comments and toward advances litigants. ments of controversies between the Almand, and she demanded that he leave her They prevent should not raise barriers which apartment. the achievement of that end.” Bryant complied request Almand’s Viewing Bryant’s to Para admission fully and left her home. Almand closed the complaint graph 3 of Almand’s in the context Having door. from Al- front excluded pleadings,8 all of the we of are confident apartment, Bryant mand’s then burst put was notice issue of that the the front door such that the door force disputed. example, action state was For damaged;9 and he committed the answer, Bryant expressly that he denied apartment. inside the pertinent at was Almand’s residence date, entry apart- that he in her and that he initial into Almand’s broke expressly probably her. in his raped He also asserted ment was conducted under color of complaint gained answer that the no cause of state law: he stated access Almand’s of apartment action the laws or Constitution because of status as a Miller, requirement Wright of action under of state law & Arthur R. Federal Practice and color (1990). requirement the state action .:. are.identi Procedure 1286 ” Burrell, (quoting cal.’ 970 F.2d at 790 n. . us, 2749) Lugar, 457 extent force is U.S. at 102 S.Ct. at 9. The of the not critical but entry of the fact unconsented-to which was an degree pleading possible, accomplished by physical 8. "A force ... if be construed some will give important. effect to A. all its averments.” 5 barrier is Charles proffer Holmes, ‍​​​‌‌​​​​‌​​​‌‌​​​​​​​​​​‌​​​​​‌​​‌‌​‌‌​‌​​​‌​‌​‍officer and Ms information about words of great body Justice “the then, daughter.10 But Almand ex- lines,” the law drawing consists m such apartment from her cluded Wisconsin, Schlesinger 230, 241, completely. closed the door 260, 262, (1926) 70 L.Ed. 557 (Holmes, J., dissenting); “[n]either are we apartment by reentered the When question troubled where to draw the in, forcibly breaking he was no different from question line. That is the in pretty much any breaking other ruffian.11 act of everything worth arguing in the and, Day law. force, apartment raping into the Al youth mght, age only types.” are private accomplished mand act not Gavit, 161, 168, Irwin v. “power possessed by S.Ct. because of virtue of 475, 476, J.). (Holmes, 69 L.Ed. 897 possible oMy state law and made because the case, wrongdoer the circumstances of authority clothed with the tMs [was] draw West, of state law.” the line at the front apart U.S. door of Almand’s Classic, (quoting at 2255 ment. Bryant, by physical force, United States v. When 299, 326, residence, U.S. 85 L.Ed. broke into Almand’s he was not (1941), reh’g gaining entry by then any authority virtue of (1941)); 86 L.Ed. 565 Bennett v. might given by have been the state to act cf. Cir.1996) (con Pippin, 74 F.3d officer. cluding rape suspect by of criminal sheriff We conclude that was not was under color of state law when vic acting under color of state investigating tim knew law when he sheriff was hеr case apartment broke into raped and where sheriff overcame her resistance (if her. His conduct authority: things intimidation linked to Ms “I can he did the al want, sheriff’), leged) do what I I’m private cert. de was the act of a citizen and did —nied, -, So, violate the Constitution.12 (1996); Dang Vang, 944 F.2d at summary judgment. due The district court’s (holding jury reasonably 479 that could have summary judgment demal of Bryant to on concluded, expert testimony showing from this section count is reversed. The case plaintiffs Hmong refugees “in is remanded for further proceedings not in —as —were officials, government awe” of that the “defen judgment. consistent with this government position dant used his to exert REVERSED and REMANDED. physical influence and control” over the plaintiffs). Considering Bryant gained that ALDRICH, Judge, ANN Senior District entry apartment by forcibly to the breaking dissenting: in, any thug burglar or could have committed Bryant the same violent acts. Once resorted respectfully Floyd I If Bryant dissent. break, enter, to rape, sheer force to to and to raped Mary Almand,1 there is at least a police Ms status a bearing as officer had no genuine issue toas whether he did so under on his wicked behavior. Therefore, color of state law. I would affirm Our color-of-state-law requires conclusion the district court’s denial of motion engage drawing. But, us to m summary line judgment. the note, by is, way, Bryant 10. We qualified the that immunity question] was not in acted the [that is off-duty uniform and was at the time of these рlaintiff the determination of whether the has events. right asserted a violation of a constitutional at Siegert Gilley, all.” v. 500 U.S. every grievous 11. While not offense mo- 1793, 1789, (1991), reh’g 114 L.Ed.2d 277 Constitution, rality is a violation of the Federal denied, 1265, 2920, alleged Biyant we believe the conduct about (1991). L.Ed.2d 1084 crimes, including would amount to torts and burglary, Georgia under law. observes, majority correctly pur- 1. As the for the cases, poses qualified immunity of our review of the district court's necessary denial “[a] summаry judgment, concomitant motion for to the determination the of whether did, fact, right plaintiff Biyant rape constitutional asserted a must assume that Al- 'clearly established’ at the time the defendant mand. genuine as is a of material fact to

I. there issue question. this brought to in an action prevail In order light a Viewing facts in most favorable the 1988, plaintiff a must show 42 U.S.C. under Almand, Bryant that appears to it able (1) person acting under of state color that only rape of his abuse of to Almand because deprived right of a the law her secured major- As the position officer. or federal States Constitution United notes, initially ity Bryant obtained access to Smith, v. 18 F.3d laws. Duke day rape on home Cir.1994). majority apparently The concedes discussing business with pretense that, Bryant if under color did Almand entirely facts Although her. are law, then he violated her constitu of state appears it point, clear on this from Almand’s Albright right bodily integrity. to tionаl See deposition that she unlocked her door for 271-73, 114 Oliver, Bryant him her home. She admitted (1994) (citations omit 127 L.Ed.2d door testified that she had double-locked Dist., ted); Taylor Indep. Doe v. School key, only opened could which be - (5th Cir.), denied, F.3d 450-52 ‍​​​‌‌​​​​‌​​​‌‌​​​​​​​​​​‌​​​​​‌​​‌‌​‌‌​‌​​​‌​‌​‍cert. through Bryant that door. that came She -, 130 L.Ed.2d entered, Bryant after also testified that she (1994); Area Stoneking v. School Bradford key speaker.2 put top of her stereo Dist., (3rd Cir.1989), 720, 726-27 fact that reasonable finder of could infer she 840, 107 cеrt. Bryant. majority unlocked the The door Williams, (1990); Parker raped had concedes that if (11th Cir.1989). Because point, probably would that his actions have genuine circum there is issue to the taken color of state law. under raped may have stances which point, did not Almand at that Almand, genuine there to wheth is a issue as Instead, complied with her re- however. right. deprived of a constitutional er quest leave and walked out door. him and Almand shut the door behind turned II. get key lock the door. At this Nevertheless, majority concludes point, lock the Almand could before is still entitled entered, open, raped it slammed raping Almand were because actions her. not taken color of state law. I re- majority The holds once left spectfully disagree. in, “forcibly” no and then broke he was dif- A under law defendant acts color of state “any than other ruffian.” If ferent “possessed by power when he vir exercises door, might thrоugh a I had broken locked possible only of state and made be tue law case, If accept this conclusion. that were the au wrongdoer cause the is clothed with the Bryant’s position police as a officer would Atkins, thority of state law.” v. West advantage him in his have afforded no al- 2255, 101 L.Ed.2d evidence, rape leged of Almand. There is omitted). Hence, (quotation however, a de merely that had to an of fendant acts under color state law when Almand had unlocked which unlocked position given by abuses a to him the state. specifically police him a for because he was 2255-56; words, Morgan construing Id. at v. officer.3 other the evi- (11th Tice, Cir.), favor, cert. in finder dence Almand’s reasonable fact could that abuse of of find (1989). Here, position that officer Almand L.Ed.2d I believe induced to point, 2. At another that such force that it did not matter that door testified did, put key speaker. stage agree on her At this in not then I would locked. If however, proceedings, we must resolve all factu- that did not act color of state law. discrepancies of al in favor Almand. clear, however, fact is and we must That disputes all resolve factual in favor Almand. possible, also It is but not clear from Almand’s testimony, Bryant opened the door with rape door so that he could her. unlock the

Thus, Bryant’s position abuse of his as an LOUGH, Plaintiff-Appellee, Steven G. rape officer of the state made of Almand possible, and he acted color of state

law. CORPORATION, BRUNSWICK d/b/a Mercury Marine, Defendant- analogous Dang Vang case is This Appellant. Vang Xiong Toyed, X. Cir.1991). 95-1266, 95-1302, Nos. Vang, In Dang 95-1314. defendant employee responsible a state who was for United Appeals, States Court of interviewing Hmong refugees finding Federal Circuit. pretense employment for them. On the taking job-hunting, women he lured them to Jan. course, raped “any motel them. Of ruffian” othеr could have told the women he job

had a for them in order to lure them to a rape motel and them. As the Ninth Circuit noted, however, plaintiffs came into con Ward Dahlgren E. and Richard R. Gar- tact with the defendant because of their need land, Gibbons, P.A., Sarasota, Dickinson & employment, jury for and the could have FL, petition rehearing submitted for reasonably concluded that “the defendant suggestion for rehearing in plaintiff- bane for government position used his ... order appellee. him petition With were sexually assault them.” Id. at 480. Similar Houser, Arnold B. Silverman and Kirk D. ly, Almand came contact with into Mellott, Eckert Seamans Cherin & Pitts- police help, because her need for and burgh, PA. position gain used his access George ‍​​​‌‌​​​​‌​​​‌‌​​​​​​​​​​‌​​​​​‌​​‌‌​‌‌​‌​​​‌​‌​‍H. Solveson and Edward R. Again, “any home order to her. Williams, Jr., Andrus, Seeales, & Starke Sa- Almand, raped ruffian” could have but wall, Milwaukee, WI, response submitted a status aas officer made it plaintiff-appеllee’s petition rehearing for possible him in way for to do so suggestion rehearing for in banc. another could not.

III. ORDER specific ease, On the facts of this I petition con- rehearing sug- combined that, assuming Bryant gestion clude did Al- rehearing having banc been mand, geriuine there is at APPELLEE, least a factual response issue filed and a as to whether he did so under color of state having thereto the court and invited Accordingly, law.4 APPELLANT, I would affirm the dis- petition filed and the trict court’s denial of motion rehearing having for been referred to and summary judgment. I respectfully dissent. upon panel ap- acted that heard the and, thereafter,

peal, suggestion for re- hearing having in banc and been response judges request referred to the authorized to poll banc, appeal whether to rehear the taken, poll having requested, and a failed, it is petition rehearing ORDERED that the be, is, DENIED, hereby the same it is further conclusion, 4. Because I reach this there is no sion that he acted trader color of state law is of any import. need for me to consider whether admis-

Case Details

Case Name: Almand v. DeKalb County, Georgia

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 24, 1997

Citation: 103 F.3d 1510

Docket Number: 95-8866

Court Abbreviation: 11th Cir.