The opinion of the court was delivered by: CAHN
This case presents the question of whether a varsity football player on an athletic scholarship at a state higher educational institution, who attacks and injures a referee during a game, acts under color of state law for purposes of 42 U.S.C.A. § 1983 (West 1994 & Supp. 1997). The court finds that the answer is no and dismisses this case, without prejudice, for lack of subject matter jurisdiction.
On October 26, 1996, an NCAA Division II football game pitting Cheyney University of Pennsylvania ("Cheyney") against East Stroudsburg University of Pennsylvania was held at East Stroudsburg. (Compl. P 6; Aff. P 2.) Late in the third quarter, during a running play with Cheyney in possession, a foul for "illegal use of the hands" was called on Defendant Kip Patton, Cheyney player number sixty-seven. (Aff. P 3.) Defendant began to approach the umpire who called the foul. (Id.) In the meantime, Plaintiff Anthony M. Indorato, a NCAA-certified football official serving as head linesman at the game, (Id. PP 1-2), got between the umpire and Defendant and prepared to mark off the appropriate loss of yardage, (Id. P 3). Upon hearing obscenities hurled by Defendant at the umpire, Plaintiff called a second foul against Defendant, this time for "unsportsmanlike conduct." (Id.) Now apparently enraged, Defendant removed his helmet, committing yet another foul, which the back judge called. (Id.) Defendant then struck Plaintiff in the face with his helmet, knocking Plaintiff to the ground and rendering him temporarily unconscious.
Plaintiff sustained injuries to his face as a result of Defendant's conduct. These injuries required surgery on three occasions, (Id. P 5), and left a scar near Plaintiff's left ear, (Id. P 8). Plaintiff also was restricted to a liquid diet for approximately four months, which resulted in weight loss of over thirty-five pounds. (Id. P 6.) Plaintiff continues to suffer from, inter alia, partial hearing loss in his left ear, and partial loss of sensation on the left side of his face. (Id. P 9.)
Cheyney punished Defendant for his actions. It appears that within one month of the incident, Cheyney suspended Defendant from the football team, withdrew his financial aid package, and expelled him. (Br. Ex. A; Aff. P 11(J).)
Plaintiff filed this case on April 9, 1997, asserting three causes of action. Claiming that Defendant was a state actor and had "violated . . . Plaintiff's constitutional right to bodily security protected by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution," (Compl. P 12(b)), Plaintiff sought recovery pursuant to 42 U.S.C. § 1983. Plaintiff also alleged that Defendant was a state actor and had committed willful misconduct. (Id. PP 19, 21.) Finally, and evidently arguing in the alternative, Plaintiff alleged that Defendant was not a state actor and had been negligent. (Id. PP 24-25.) To date, Defendant has not responded in this case.
By order dated June 4, 1997, the court directed Plaintiff's counsel to brief the issue of whether Defendant is a state actor
for purposes of his federal claims. Plaintiff filed a Brief in Support of Federal Subject Matter Jurisdiction on July 3, 1997. Attached as Exhibit B to the brief is Plaintiff's unsigned Affidavit in Response to Order of June 4, 1997. Paragraph 11 of the affidavit contains several factual statements that Plaintiff claims will be supported by the record in this case. These statements include Plaintiff's contentions that: (1) Cheyney is a member of the Pennsylvania State Athletic Conference ("PSAC"), which is subsidized by the Commonwealth; (2) Defendant was a member of Cheyney's varsity football team under the supervision of his coach, a paid Cheyney employee; (3) Defendant attended Cheyney on an athletic scholarship, and received liability insurance coverage for participating on the football team; (4) Defendant was chosen to play in, and was depicted in the program for, the Cheyney-East Stroudsburg game on October 26, 1996; (5) spectators paid admission to watch the game, which was held on state-owned realty; and (6) at the time of the incident, Defendant wore a uniform identifying him as a member of the Cheyney football team.
A. Standards for Determining Action "Under Color of State Law" for Purposes of 42 U.S.C. § 1983
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the ...