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March 12, 1981

James P. WEISMAN, Plaintiff,
Lawrence A. SHERRY, Defendant

The opinion of the court was delivered by: NEALON



 This case concerns the scope of the state action requirement in 42 U.S.C. § 1983. *fn1" On June 6, 1978, Lawrence Sherry accused James P. Weisman of theft in a private criminal complaint filed before District Justice Ronald W. Swank of Mountaintop, Pennsylvania. In the current litigation, Weisman claims that his constitutional rights were violated, because Sherry lacked probable cause to make such an allegation. The defendant has moved to dismiss the pleadings for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Accordingly, the court must accept all of the plaintiff's averments as true. Hochman v. Board of Education of the City of Newark, 534 F.2d 1094, 1097 n.1 (3d Cir. 1976). Nevertheless, the defendant's motion will be granted inasmuch as the plaintiff has not alleged sufficient state action as required under § 1983. *fn2"

 In initiating his criminal action before District Justice Swank, Sherry contended the following:

(Weisman) recovered a refrigerator (GE), washer and a dryer from the residence at 460 South Mountain Boulevard, Mountaintop, Pa. (Weisman) did so knowing (these items) did not belong to him and with intent to deprive the lawful owner thereof.

 It must be assumed that Sherry made this accusation in bad faith and without probable cause. The District Attorney approved the defendant's complaint, and District Justice Swank authorized the issuance of process. *fn3"

 On October 21, 1979, two constables arrested Weisman while he was dining with friends at the Encore Restaurant in Pittsburgh, Pennsylvania. These officers took the plaintiff to a police station and incarcerated him for a total of three and one-half hours. During that time, Weisman was photographed, fingerprinted, and booked. He was not released on bail until midnight. *fn4" Ten days later, District Justice Swank held a preliminary hearing on the matter in Mountaintop. Sherry, however, did not appear and, in the absence of any inculpatory evidence, the charges against Weisman collapsed. As a result of the aborted prosecution, the plaintiff incurred a variety of injuries including legal expenses, loss of reputation, and mental distress.


 To state a valid claim under § 1983, a complaint must allege that the defendant violated a constitutional right of the plaintiff while acting under color of state law. Adickes v. S. H. Kress & Company, 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970). The validity of the current action hinges on one question, viz., the existence of "state action." A prosecution initiated without probable cause or conducted for an improper purpose may deprive the victim of procedural due process. Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977); Dellums v. Powell, 490 F. Supp. 70, 72 (D.D.C.1980). See also Pierson v. Ray, 386 U.S. 547, 555-558, 87 S. Ct. 1213, 1218-1219, 18 L. Ed. 2d 288 (1967). Yet since the latter liberty springs from the Fourteenth Amendment, relief is inappropriate unless the complainant can demonstrate that the transgression occurred through state action. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). Likewise, Weisman must prove that Sherry was "clothed with the authority" of Pennsylvania in order to satisfy the "color of state law" component in § 1983. Jennings v. Schuman, 567 F.2d at 1219-30. Thus, the present suit must be dismissed unless the defendant's alleged misdoing can be properly attributed to the Commonwealth.

  The propriety of finding "state action" in private conduct depends upon the facts of a particular situation. In certain circumstances, for example, judicial enforcement of contracts and other private arrangements is illegal as an official endorsement of invidious discrimination. See United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134 at 143-146 (3d Cir. 1981). State action may also be implied when an individual conspires with governmental officers *fn5" or when the private and official conduct are so closely intertwined that they form a "symbiotic relationship" or "close nexus." *fn6" In the instant case, however, even the plaintiff admits that the Commonwealth was not actively involved in the supposed wrongdoing. Rather, Weisman's state action theory rests on the proposition that Sherry's filing of the complaint constituted a "public function."

 The Supreme Court has recognized on a number of occasions that certain activities are so inherently governmental that their exercise remains official conduct even if implemented under private auspices. Flagg Brothers, Inc. v. Brooks offers valuable guidance in this area. That suit concerned the liability of a warehouseman who, pursuant to a New York statute, had threatened to sell certain stored property in order to satisfy the owners' debts. The plaintiffs sought an injunction on the ground that the confiscation would violate their rights to due process and equal protection. The defendant maintained that no claim had been asserted under § 1983, because the requisite state action was lacking. In response to this argument, the complainants attempted to convince the Court that the statute authorizing the sale delegated a "traditional function of civil government" to warehousemen, viz., "resolution of private disputes." 436 U.S. at 157, 98 S. Ct. at 1734. This rationale was not accepted.

 On behalf of the majority, Justice Rehnquist explained that the scope of the public function doctrine is narrow. To qualify for application of the principle, an action must by tradition be an exclusive function of government. Relatively few forms of conduct fit this description. Justice Rehnquist noted that previous Supreme Court decisions had recognized two such activities: the holding of elections and the maintenance of a municipality. The Flagg Brothers majority suggested other "functions" that might fall within the scope of the doctrine, e.g., "education, fire and police protection, and tax collection." Id. at 163-64, 98 S. Ct. at 1737. The Court, nevertheless, held that the "field of private commercial transactions" did not offer an adequate basis for construing individual conduct as state action. Id. at 159-64, 98 S. Ct. at 1735-1737. *fn7"

 Cases following the Flagg Brothers holding have done so on an ad hoc basis. Courts have had to look to the nature of a particular activity in order to determine if the public function doctrine should apply. *fn8" The instant case demands a similar assessment. In essence, it is necessary to determine if Sherry's execution of ...

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