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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 the criminal complaint amounted to an action which traditionally is performed by the Commonwealth.


 In proceeding against Weisman, the defendant invoked Pennsylvania Rule of Criminal Procedure 133(B), which states:


1. When the affiant is not a police officer as defined in Rule 51(C) and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to the attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.




3. If the attorney for the Commonwealth


(i) approved the complaint, he shall indicate his decision on the complaint form and transmit it to the issuing authority.


(ii) disapproved the complaint, he shall state his reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a court of common pleas for approval or disapproval.


(iii) does not approve or disapprove within a reasonable period of time, the affiant may file the complaint on a separate form with the issuing authority, noting thereon that a complaint is pending before the attorney for the Commonwealth. The issuing authority shall determine whether a reasonable period has elapsed, and, when appropriate, shall defer action to allow the attorney for the Commonwealth an additional period of time to respond.

 According to Weisman, Sherry followed subsection (3)(i) of this provision in that the District Attorney "approved" the criminal complaint before the arrest was made. The question is whether use of this procedure triggered state action.

 Courts have considered the applicability of the public function doctrine to private criminal complaints in a variety of contexts. See Annot., 44 ALR Fed 225 (1979). According to these authorities, the controlling question is whether or not the state has delegated a portion of its traditional power to arrest and prosecute alleged criminals. Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315 (D.N.J.1978) offers a good illustration of this principle. The case concerned a criminal complaint filed by a hotel against two former patrons who supposedly had failed to pay their bills. The Voytko plaintiffs were originally charged with felony-level offenses. *fn9" Pursuant to New Jersey law, arrest warrants were issued immediately. Like Weisman, the former patrons were detained, fingerprinted, and required to post bail. When the grand jury refused to return indictments, the private complainant filed new actions alleging misdemeanor-level violations. At the trial, an attorney retained by the hotel actually represented the state. *fn10" The New Jersey court, however, directed an acquittal at the close of the prosecution's case, and the patrons subsequently brought a suit for damages under § 1983.

 In sustaining a civil rights complaint, Judge Gerry found that the plaintiffs had alleged the requisite degree of state action. This decision, however, turned on the extraordinary powers the hotel had been allowed to exercise. The Voytko opinion explained:


In sum, the innkeeper exercises a prosecutorial privilege at criminal law which derives from the sovereign. The criminal statutory scheme inherently deters nonpayment and its threatened use in a specific case may induce payment; this places the hotel into a functional position toward debtors not unlike the tax collector who has criminal remedies at his disposal to induce payment. The innkeeper's power to act as if it were the state is even further enhanced by the state custom allowing the hotel's own retained attorney to act as criminal prosecutor on behalf of the state ...

 Id. at 322 (emphasis added). Judge Gerry ruled that the prerogatives given the hotel under the New Jersey scheme constituted a "delegation of sovereign power" which provided state action under § 1983. Id. See also Mendoza v. K-Mart, Inc., 587 F.2d 1052, 1056-57 (10th Cir. 1978).

 Other precedents concur in this rationale. In Henderson v. Fisher, 631 F.2d 1115, 1118-19 (3d Cir. 1980), our Court of Appeals ruled that a Pennsylvania statute which endowed the University of Pittsburgh Campus Police with the same powers enjoyed by municipal police forces delegated a "public function" and, thus, gave rise to state action. *fn11" Section 1983 liability may also be appropriate in situations where the authorities arrange, by a preconceived plan, to arrest suspects detained by private parties without an independent determination of probable cause. Smith v. Brookshire Brothers, Inc., 519 F.2d 93, 94-95 (5th Cir. 1975). See also El Fundi v. DeRoche, 625 F.2d 195, 196 (8th Cir. 1980); White v. Scrivner Corporation, 594 F.2d 140, 143 (5th Cir. 1979); Duriso v. K-Mart No. 4195, 559 F.2d 1274, 1277-78 (5th Cir. 1977).

 The cases, however, clearly hold that state action will not arise through statutes which merely enable citizens to bring alleged crimes to the attention of the authorities. Jennings v. Schuman, for example, involved a suit by a person who accused a district attorney, a special prosecutor, and a police officer with cooperating in the initiation of a prosecution that lacked probable cause. The Court of Appeals had no problem finding state action with regard to the first two defendants, since they were officers of the Commonwealth. 567 F.2d at 1220. Close consideration was required in the third situation. The plaintiff accused the policeman of "making false statements which provided the basis for the criminal process." The Jennings panel explained that, standing alone, this action would not have established state action, because such misconduct "could have been performed by a private citizen." Indeed, the Court of Appeals sustained the complaint against the policeman only after an alternative ground for jurisdiction had been alleged, i. e., an allegation of conspiracy between the officer and the other two defendants, both of whom were attorneys of the Commonwealth. Id.

 Jennings stands for the proposition that "making false statements which (provide) a basis for the criminal process... (may be) performed by a private citizen." Id. Accordingly, the precedent also indicates that such conduct is not a "public function" traditionally reserved to the state. Many other cases have ruled that a private citizen does not perform state action by simply furnishing the authorities with allegations later used in a prosecution. Howard v. Lemmons, 547 F.2d 290 (5th Cir. 1977); Grow v. Fisher, 523 F.2d 875, 879 (7th Cir. 1975); Sykes v. State of California (Department of Motor Vehicles) 497 F.2d 197, 202 n.3 (9th Cir. 1974); Barnes v. Dorsey, 480 F.2d 1057, 1061 (8th Cir. 1973). Likewise, § 1983 does not provide a remedy against a person who, in bad faith, initiates litigation that leads to civil commitment of a relative. Dahl v. Akin, 630 F.2d 277, 280-82 (5th Cir. 1980).

 The instant case more clearly resembles Jennings than Voytko. Sherry did not arrest Weisman or conduct the prosecution on behalf of the state. By invoking Rule 133(B), the defendant merely called "the attention of the attorney for the Commonwealth to an alleged violation of the law." Piscanio Appeal, 235 Pa.Super. 490, 495-96 & n.5, 344 A.2d 658 (1975). The "decision to prosecute," moreover, remained "initially in the hands of the district attorney." Commonwealth v. Walter, 240 Pa.Super. 433, 438-39 & n.4, 367 A.2d 1113 (1976). In short, Sherry acted as a private individual, not as an agent of Pennsylvania. His conduct may have been tortious, but that fact alone does not activate § 1983. The essential state action is lacking. Accordingly, Weisman's civil rights action must be dismissed. *fn12"


 The plaintiff's state claim must be assessed from two perspectives. First, the court has already noted that the complaint contains some allegations suggesting that there may be a basis for asserting diversity of citizenship. See n.2, supra. The pleadings must be judged in their totality, and an action should not be conclusively dismissed if an unasserted alternative ground for jurisdiction is evident. See Vukonich v. Civil Service Commission, 589 F.2d 494, 496 (10th Cir. 1978); Fleming v. Apollo Motor Homes, Inc., 87 F.R.D. 408, 410-11 (M.D.N.C.1980); Wright & Miller, Civil Practice & Procedures : § 1206 at 77-78 (1969). In the current situation, however, counsel for the plaintiff has never discussed diversity in his brief or in any of the pretrial conferences. The court would be reluctant at this stage of the proceedings to infer an intention to proceed according to 28 U.S.C. § 1332, especially since the plaintiff's reasons for not asserting the statute are unknown. Accordingly, the state claim will be dismissed without prejudice. Weisman may refile the malicious prosecution cause of action in the event he feels that diversity jurisdiction is appropriate.

 Second, the court must rule on the validity of pendent jurisdiction over the state claim. The relevant policies concern "commonsense"; the overall goal is "the conservation of judicial energy and the avoidance of multiplicity of litigation." Rosado v. Wyman, 397 U.S. 397, 405, 90 S. Ct. 1207, 1214, 25 L. Ed. 2d 442 (1970). At times, these considerations authorize a district court to consider state theories even if the underlying federal claim is relatively weak. Shands v. Tull, 602 F.2d 1156, 1158-60 (3d Cir. 1979). In the instant litigation, however, the civil rights contention has been dismissed at the pleading stage. Retention of the malicious prosecution claim would simply lead to a needless adjudication of Pennsylvania law by a federal court. Such a result would be improper. United Mine Workers v. Gibbs, 383 U.S. 715 at 719, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966). The court, therefore, shall refuse to exercise pendent jurisdiction. Rogin v. Bensalem Township, 616 F.2d 680, 697 (3d Cir. 1980).

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