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GARDINER v. MERCYHURST COLLEGE

October 18, 1996

JOSEPH W. GARDINER, Plaintiff,
v.
MERCYHURST COLLEGE, RODGER J. GREGORICH, HELEN F. MULLEN, SHERI LANTZ, LARRY KOPKO, Defendants.



The opinion of the court was delivered by: COHILL

 COHILL, D.J.

 I. Background

 Before the Court are three summary judgment motions filed pursuant to Fed. R. Civ. P. 56(c) by (i) Mercyhurst College, Rodger J. Gregorich, and Helen Mullen (hereinafter "the Mercyhurst group"), (ii) Sheri Lantz, and (iii) Sheriff Larry Kopko. We note that the Mercyhurst group's motion is for partial summary judgment.

 On December 8, 1995, we issued an opinion and order dismissing the plaintiff's claims with respect to Sheri Lantz to the extent that they were based on the Rehabilitation Act and the Americans with Disabilities Act ("ADA"). We held that the plaintiff did not have a handicap or disability, as defined in those acts, and thus could not maintain claims thereunder. F. Supp. (W.D. Pa., 1995).

 That opinion sets forth the background of the action, and we will not revisit it here. Rather, we shall proceed directly to a discussion of the issues raised in the parties' briefs.

 II. Discussion

 (A)

 (i)

 We start with the Mercyhurst group. They first assert that because this Court has already held that the plaintiff is not handicapped or disabled within the meaning of the Rehabilitation Act, 29 U.S.C. § 706(8) (B), or the ADA, 42 U.S.C. § 12102(2), with respect to a different defendant, the "law of the case" dictates that actions cannot be maintained under these statutes against them. Hull v. Freeman, 991 F.2d 86, 90 (3d Cir. 1993). We agree, and shall accordingly enter judgment in favor of the Mercyhurst group on Counts I and V of the amended complaint asserted pursuant to the Rehabilitation Act and the ADA.

 (ii)

 The Mercyhurst group next asserts that it has not acted under color of state law, and that as such, judgment must be entered in its favor on all the plaintiff's claims under 42 U.S.C. § 1983. It is axiomatic that a defendant must be acting under color of state law for an action under § 1983 to be maintained. Howlett v. Rose, 496 U.S. 356, 357, 110 L. Ed. 2d 332, 110 S. Ct. 2430 (1990). Mercyhurst College is a private institution of higher learning. A private institution has acted under color of law if:

 
The State has so far insinuated itself into a position of interdependence with . . . [the private party in question] that it must be recognized as a joint participant in the challenged activity, which on that account cannot be considered to have been purely private as to fall without the scope of the Fourteenth Amendment.

 Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961).

 The Commonwealth of Pennsylvania has enacted a statute called the Municipal Police Officers' Education and Training Program ("Act 120"), which creates a framework for establishing training programs for police officers. 53 Pa. Stat. Ann. §§ 740 et seq. Pursuant to Act 120, colleges and universities may be certified to establish such a training program. Mercyhurst has established an Act 120 program, to train its campus police/security officers, and the plaintiff was a trainee in this program at the time of his dismissal. It is through this Act 120 program that the plaintiff asserts that the state has insinuated itself into a position of interdependence with the college. Specifically, he states that the "education and certification of police officers is a traditional government and public function of the Commonwealth of [sic] and its agencies . . . ." Pl.'s Br. (Doc. 63) at 2.

 The Mercyhurst group asserts that it receives no funding from the Commonwealth of Pennsylvania pursuant to Act 120. It points to Imperiale v. Hahnemann Univ., which states that "state regulation alone, even pervasive, extensive, and detailed regulation, will not render the actions of an institution attributable to the state . . . ." 776 F. Supp. 189, 195 (E.D. Pa. 1991) (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358-59, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974)). The Mercyhurst group concludes that the mere operation of an Act 120 training program does not satisfy the test articulated in Burton above.

 Neither party has cited a case which discusses whether the campus police force of a private college or university, or a training program therefore, act under color of law. This Court has found one opinion, unpublished, which discusses this issue. In Hargrove v. City of Philadelphia, No. CIV.A.93-5760, 1995 WL 584490 (E.D. Pa. 1995), the issue was whether Campus Police from the University of Pennsylvania acted under color of law. The Court stated that "although plaintiff argues in his . . . motion that these officers were acting pursuant to a state statute, that bare allegation is insufficient by itself to clothe the Campus Police Officers with the authority of the state." Id. at *2. The procedural posture of Hargrove was different from that of the instant action. In Hargrove, a trial had been conducted, and the jury had rendered a verdict in favor of the Campus Police Officers. The above opinion denied the plaintiff's motion for a new trial.

 Notwithstanding this difference in procedural posture, we find Hargrove to be informative. The instant record shows only that Mercyhurst College is certified to run, and does run, a program to train campus police. It further shows that Mercyhurst College does not receive state funds for this purpose. While it does appear that this training might help an individual qualify for a police officer's job beyond Mercyhurst's campus, this is not enough to establish that the Mercyhurst group acted under color of law. Accordingly, we shall enter judgment in favor of the Mercyhurst group on Counts II, III, IV, and VI of the amended complaint.

 We emphasize that our holding is based on the instant record. We do not foreclose the possibility that on a different record, campus police officers, or a training program therefore, could be found to have acted under color of law. Such a determination is fact specific. Groman v. Township of Manalapan, 47 F.3d 628, 638, 640-41 (3d Cir. 1995).

 Because we hold that the Mercyhurst group has not acted under color of law, we need not address their argument that their conduct, even as alleged by the plaintiff, does not ...


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