and also individually." Id. at para. 10. Dussell claims that Valentino violated her rights secured under the Fourth and Fourteenth Amendments and committed an assault and battery.
Defendant bases his motion on three arguments. First, defendant claims that Dussell's § 1983 claim is inapplicable because that statute prohibits only "discriminatory" actions taken under the color of state law and defendant Valentino did not discriminate against Dussell. Defendant has misperceived the plain meaning of § 1983. Section 1983 provides a cause of action against "every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects . . . any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . ." 42 U.S.C. § 1983. Thus, § 1983 applies in the present case because plaintiff has alleged a deprivation of a constitutional right.
Defendant's second argument in support of the motion is that there are "no witnesses of fact to establish, as a matter of law, that . . . Valentino acted 'under color of law.'" This argument is also without merit. In considering a 12(b)(6) motion, the allegations in plaintiffs' complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980). Plaintiff has alleged with sufficient specificity that defendant Anderson was acting under color of state law and that defendant Valentino was acting pursuant to Anderson's commands, as a state police trooper.
Defendant's third argument is that plaintiff's claims "under the Fourth and Fourteenth Amendments are misplaced because those amendments regulate the conduct of the government only and as such they have no application to . . . Valentino, an individual." Defendant's Motion, para. 5.
A defendant in a § 1983 action need not be a state official. Private individuals may be liable under § 1983. Adickes v. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). It is enough that the defendant is a willful participant in joint activity with the State or its agent. United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966);
see Adickes, 398 U.S. at 152; Dennis v. Sparks, 449 U.S. 24, 27-8, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980); Mines v. Kahle, 557 F. Supp. 1030, 1037 (W.D. Pa. 1983).
Section 1983 actions have two elements. First, it must be shown must be shown that the defendant deprived the plaintiff of a right secured by the Constitution or the laws of the United States. Second, the plaintiff must prove that the defendant acted under color of state law. Adickes, 398 U.S. at 150.
Since the Fourteenth Amendment is directed at states, it can only be violated by conduct that may be characterized as state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), concerned a § 1983 action which alleged that that the defendant and the state acted jointly to deprive the plaintiff of Fourteenth Amendment rights. In Lugar the Supreme Court examined the relationship among the Fourteenth Amendment requirement of state action, the § 1983 requirement that the action in question be committed under color of state law, and the liability of private individuals. The Lugar opinion set forth a two part test to determine when the deprivation of a federal right is "fairly attributable" to the state:
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.