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DIROCCO v. ANDERSON

October 20, 1986

JOHN A. DIROCCO, et al.
v.
RODNEY D. ANDERSON, et al.



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This is a § 1983 action in which plaintiffs allege that the defendants violated plaintiffs' constitutional rights. Presently before the Court is defendant James Valentino's motion to dismiss the claims of plaintiff Susan Dussell against Valentino for failure to state a claim upon which relief can be granted.

 The relevant claims are set forth in counts six and seven of the complaint. Plaintiffs DiRocco and Dussell allege the following facts. At all relevant times defendant Rodney Anderson, a Pennsylvania State Police Trooper, was acting under color of state law. On May 5, 1986, while the plaintiffs were riding a motorcycle, defendant Anderson rammed his patrol car into plaintiffs' motorcycle. Plaintiffs were thrown from the motorcycle. Anderson's conduct caused serious injuries to plaintiffs. Immediately after the plaintiffs were thrown from the motorcycle, defendant Anderson physically beat both plaintiffs. At the time of the incident defendant Valentino was a passerby. Complaint, para. 48. Anderson then "commanded" Valentino "to physically restrain" Dussell. "Valentino forcibly pinned [Dussell's] outstretched hands to the ground and knocked her head into the ground several times." Valentino "acted at the request of and as an agent of defendant Rodney Anderson 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); *fn1" 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:

 Id. at 937. Conduct which satisfies the state action requirement of the Fourteenth Amendment also satisfies the § 1983 requirement that the action be under the color of state law. Id. at 930, 934 n. 18.

 Noting that the case is presently before the the Court in the context of a 12(b)(6) motion, I believe plaintiff has satisfied the Lugar test. First, plaintiff alleges that Valentino was acting at the request of, and as the agent of, Officer Anderson. The alleged deprivations committed by Valentino came about because Valentino was acting as Anderson's agent and because of Anderson's request. Since Valentino was acting as Anderson's agent or pursuant to Anderson's request it can be said that Valentino was a person for whom the state was responsible for. Second, the allegations indicated that both Valentino and Officer Anderson were present at the scene of the incident and both physically restrained and beat plaintiff Dussell. It is clear that Valentino was acting together with Anderson a state official. Therefore, plaintiffs' complaint has satisfied the two part Lugar test and also has stated a cause of action upon which relief can be based. Lugar, 457 U.S. at 930, 934 n. 18.

 The conclusion that plaintiff properly has set forth a cause of action is supported by reference to the Price-Adickes line of cases noted above. In the present case, plaintiffs' complaint indicates that after Dussell was thrown from the motorcycle, both Valentino and Anderson restrained and beat Susan Dussell. It is clear that both defendants acted together to restrain Dussell. Since both Officer Anderson and Valentino acted jointly to restrain Dussell, ...


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