PUBLISH

UNITED STATES COURT OF APPEALS

Filed 4/29/96

TENTH CIRCUIT

________

DOUGLAS M. HAINES, )

)

Plaintiff-appellant, )

 )

v. ) No. 95-8016

)

ANTHONY L. FISHER, individually, and )

in his official capacity as )

Torrington Police Department Sergeant; )

MIKE ALAN REEVE, individually, and in )

his official capacity as Torrington )

Police Department Patrolman; KRAIG )

DANIEL MURPHY, individually, and in )

his official capacity as Torrington )

Police Department Dispatcher; TOWN OF )

TORRINGTON, )

)

Defendant-appellees. )

______

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. No. 94-CV-99)

______

John A. Coppede (Raymond W. Martin of Sundahl, Powers, Kapp and

Martin, Cheyenne, Wyoming; and Lowell Fitch, Fitch Law Offices,

Torrington, Wyoming, with him on the brief) of Sundahl, Powers,

Kapp and Martin, Cheyenne, Wyoming, for defendants-appellees Reeves

and Fisher; Mark L. Carman of Williams, Porter, Day and Neville,

Casper, Wyoming, for defendant-appellee Town of Torrington.

Walter Urbigkit, Frontier Law Center, Cheyenne, Wyoming, for

plaintiff-appellant.

______

Before KELLY, BARRETT and JONES*, Circuit Judges.

______

BARRETT, Senior Circuit Judge.

______

 *The Honorable Nathaniel R. Jones, Senior Judge, United States

Circuit Court of Appeals for the Sixth Circuit, sitting by designation.
 

1

Prior to the incident, Haines had called the Torrington Police

Department and reported that he had observed some suspicious vehicles in a

parking lot across the street from the 7-Eleven. Fisher responded to the call

and thereafter told Haines that the vehicles were actually police department

vehicles and that Haines need not be concerned. Haines argues that the staged

robbery was in retaliation for his earlier call.

______

Douglas M. Haines (Haines) appeals from (a) an order of the

district court granting summary judgment in favor of the Town of

Torrington, Wyoming (Torrington) on his 42 U.S.C. § 1983 and state

law claims, and in favor of Anthony Fisher (Fisher), Alan Reeve

(Reeve), and Kraig Murphy (Murphy) (collectively "the individual

defendants") on his § 1983 claims; (b) a judgment that he recover

nothing from Fisher and Reeve; (c) an order and judgment denying

his motions for reconsideration and for default judgment against

Murphy; and (d) an order denying his motions for new trial and

judgment notwithstanding the verdict and for a new trial.

The relevant facts of this case were concisely set forth in

the district court's Order of November 22, 1994:

This case arises out of a practical joke or prank

played by three police officers and a police dispatcher

on plaintiff [Haines] on February 18, 1994. Plaintiff

was the local 7-Eleven clerk and was working the night

shift alone on the night of the incident at issue. The

three police officers and police dispatcher were employed

by the Town of Torrington, Wyoming.

The shift supervisor that evening was Sergeant Tony

Fisher, one of the defendants. While he was on duty that

night and while he was training Officer Gerrard how to

conduct building searches with officer Michael Reeve,

defendant Fisher concocted a plan to pull a practical

joke on plaintiff.1 He shared his idea with on duty officers Reeve and Gerrard and dispatcher Kraig Murphy,

who all agreed to participate in pulling the practical

joke on plaintiff.

The plan called for Reeve to disguise himself as a

robber who would hold up the 7-Eleven store during the

plaintiff's shift. He wore a trenchcoat belonging to the

Town, which was used in its McGruff Crime Prevention

program, over the pants and shoes he had worn with his

uniform that evening. He did not wear his police uniform

shirt, but instead wore a turtleneck. Over his face,

Reeve wore a balaclava mask that also belonged to the
Town. He carried the Town's M-16 automatic rifle, loaded

with blanks, under the trenchcoat. On the end of the

barrel of the M-16, the defendants had placed a large

plastic garbage bag, intended to catch any residue that

might result when the blanks were fired. 

Murphy, the dispatcher, put the plan into action by

telephoning plaintiff at the 7-Eleven and advising him

that he should be on the lookout for an individual who

was possibly armed in the area of the 7-Eleven store.

Murphy described for plaintiff a man who would look as

Reeve would look in his robber regalia.

Reeve had been driven by Fisher to the 7-Eleven in

a police car belonging to the Town. Gerrard drove another Town police car to a location several blocks away

from the scene. Gerrard and Fisher kept watch while

Reeve was inside the store to be sure no member of the

public saw what was going on and that no one would be

hurt by the commission of their prank.

When he entered the store, Reeve was supposed to

shoot off the M-16 shortly after entering the store.

However, he forgot that the gun's safety was engaged and

the gun would not operate when he attempted to pull the

trigger. Reeve then ordered plaintiff to get off the

telephone and to get on the floor. At some point the M16 was discharged although there is a factual dispute

about when that happened. Plaintiff claims that Reeve

pointed the M-16 at him and discharged the weapon when he

was told to get on the ground -- before he recognized

that it was Officer Reeve in a robber costume. Defendants claim that the gun was not discharged until after

plaintiff recognized Reeve before becoming prone on the

ground, when he rose up and threw a cleaning rag at Reeve

and exclaimed, "Nice try, Mouse!" Defendants contend

that the blanks were fired away from plaintiff after he

recognized Reeve. Defendants contend that after the

event was over, everyone including plaintiff had a good

hearty laugh over the practical joke among good friends.

(Appendix, Vol. III at 727-30) (footnote added).

Rumors of the event circulated in and about Torrington. Upon

inquiry by Chief of Police Billy Janes, Fisher, Reeve, Gerrard and

Murphy confessed what they had done and signed written statements

regarding the incident. Following an investigation by the Wyoming

Division of Criminal of Investigation (DCI), Fisher and Reeve were

terminated.

Thereafter, Haines filed this action against Fisher, Reeve,
and Murphy, in their individual and official capacities, and Torrington seeking damages for violation of his civil rights pursuant

to 42 U.S.C. § 1983, alleging that defendants had denied him "of

his rights to be free from unreasonable searches and seizures

protected by the Fourth Amendment and his due process rights protected by the Fifth and Fourteenth Amendments," (Appendix, Vol. I

at 004), and damages for state law claims of negligence and

intentional infliction of emotional distress. Haines also sought

exemplary or punitive damages for the individual defendants' alleged wilful and wanton misconduct on the basis "that the purpose

behind one or more of the [individual] Defendants' conduct was to

scare [him] so that he would be intimidated by them and lured into

their lurid alternative live style. Plaintiff, a heterosexual, had

denied their advances." (Appendix, Vol. I at 006).

Torrington moved for summary judgment and Fisher and Reeve

moved for partial summary judgment. The district court granted

Torrington summary judgment on all of Haines' claims, and granted

Fisher and Reeve summary judgment on Haines' § 1983 claims. Although Murphy did not appear or respond, the court entered judgment

in his favor on Haines' § 1983 claims. 

The case proceeded to trial on Haines' state law claims of

negligence and intentional infliction of emotional distress against

Fisher and Reeve. Before submitting the case to the jury, the

district court withdrew the issue of negligence from the jury's

consideration. (Appendix, Vol. X at 4463). 

The jury returned a special verdict finding that: Haines had

failed to prove by a preponderance of the evidence that Fisher

and/or Reeve had assaulted him; Fisher and/or Reeve had not committed extreme and outrageous conduct on Haines; Haines suffered

$0.00 in total damages; and the conduct of Fisher and Reeve did not
amount to willful and wanton misconduct.

Thereafter, the court denied Haines' motion for reconsideration of the partial summary judgment granted in favor of Murphy

and granted Haines judgment against Murphy but ordered that Haines

recover nothing from Murphy. The court also denied Haines' motion

for a new trial and his motion for judgment notwithstanding the

verdict.

On appeal, Haines contends that the district court erred when

it: (1) granted summary judgment to Torrington on all claims and to

the individual defendants on the § 1983 claims; (2) refused to instruct on negligence; (3) submitted the issue of assault to the

jury; and (4) failed to award damages against Murphy.

I.

Haines states that the district court erred when it granted

summary judgment in favor of (a) Torrington on his § 1983 claims;

(b) the individual defendants on his § 1983 claims; and (c) Torrington on his state law claims. 

We review the district court's grant of summary judgment de

novo, applying the same legal standards employed by the district

court. Gehl Group v. Koby, 63 F.3d 1528, 1533 (10th Cir. 1995).

Summary judgment is appropriate when there is no genuine issue as

to any material fact and the moving party is entitled to judgment

as a matter of law. Hagelin for President Committee of Kan. v.

Graves, 25 F.3d 956, 959 (10th Cir. 1994), cert. denied, ___ U.S.

___ (1995).

a.

Haines reasons that the district court improperly granted
 

2

Torrington's Standard Operating Procedures prohibit, inter alia:

commission of any felony or misdemeanor; any type of misconduct that reflects

discredit upon the members as a police officer . . . or upon the department he

serves; the discharge of a firearm except for the defense of the officer's life,

the defense of the life of another, and when necessary to effect the arrest,

capture or prevent the escape of someone for whom the officer has reasonable

cause to believe has committed a life threatening felony and whom the officer

believes is a serious threat to the officer or others. (Appendix, Vol. II at 403

and 421).

summary judgment in favor of Torrington on his § 1983 claims. 

Haines states that municipal liability attaches under § 1983

"where a definite and deliberate choice to follow a course of action is made from among various alternatives for the official or

officials responsible for establishing final policy." (Appellant's

Brief at 33). Haines also maintains that Torrington had delegated

decision making authority to the Chief of Police who had, in turn,

delegated that responsibility to the on-shift supervisor, Fisher.

He reasons that because Fisher had planned and directed the

incident in question, there was a question of fact as to municipal

liability for jury determination.

 Torrington responds that the district court did not err in

granting it summary judgment on Haines' § 1983 claims, inasmuch as

it did not have any policy, custom, or practice adopting or approving the activity surrounding the staged robbery, and because

its Police Department Standard Operating Procedures absolutely

prohibits the conduct in question.2 We agree.

In Monell v. Department of Social Servs., 436 U.S. 658, 690

(1978), the Court, after concluding that municipalities are among

the "persons" to which § 1983 applies, held that a municipality is

liable under § 1983 when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated."

The Court observed that the official policy must be the moving

force for the constitutional violation in order to establish the
liability of a government body under § 1983. Id. at 694. See Polk

County v. Dodson, 454 U.S. 312, 326 (1981).

Applying Monell to the facts herein, we hold that the district

court did not err in granting Torrington summary judgment on

Haines' § 1983 claims. Haines failed to establish that the staged

robbery in any way implemented or executed a "policy statement,

ordinance, regulation, or decision officially adopted and promulgated" or that the official policy was the moving force behind the

alleged constitutional violation. Torrington, on the other hand,

introduced standard operating procedures which prohibit the type of

activity surrounding the challenged conduct.

b.

Haines contends that the district court erred in granting

summary judgment in favor of Fisher, Reeve, and Murphy on his §

1983 claims. 

Haines states that while the "'acts of officers in the gambit

of their personal pursuits are not under color of state law and do

not impose liability.' . . . [i]t is also true that 'acts of officers who undertake to perform their official duties are included

whether they hew to the line of authority or overstep it.' Screws

v. United States, 325 U.S. 91, 111 (1945)." (Appellant's Brief at

28). The question then, according to Haines, is whether the

retaliation of the officers in response to his earlier call was a

"personal pursuit" or an "overstep" in the exercise of legitimate

authority.

Haines reasons that the individual defendants overstepped

their legitimate authority when each was on duty and being paid by

Torrington at the time the plan was developed and effectuated. He

states that they were able to stage the robbery only by the use of
Torrington's gun, coat and mask. Haines argues that this retaliation, at the very least, raised genuine issues of material fact as

to whether the officers were acting under color of state law.

 Fisher and Reeve respond that the district court properly

granted summary judgment in their favor on Haines' § 1983 claims

because the evidence showed that they did not act under color of

state law inasmuch as their actions were unrelated to the

performance of their duties as police officers. Fisher and Reeve

cite Barna v. City of Perth Amboy, 42 F.3d 809 (3rd Cir. 1994), and

Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir. 1990), for the

proposition that the private acts of police officers, even while in

uniform, are not under color of law unless the acts are related to

the performance of police duties. 

Section 1983 was enacted "to deter state actors from using the

badge of their authority to deprive individuals of their federally

guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). "The

obvious purpose of . . . § 1983 was to provide a remedy to parties

deprived of constitutional rights by a state official's abuse of

his position while acting under color of state law." D.T. by M.T.

v. Independent Sch. Dist. No. 16, 894 F.2d 1176, 1187 (10th Cir.),

cert. denied, 498 U.S. 879 (1990). To state a claim under § 1983,

a plaintiff must allege that the claimed deprivation was committed

by a person acting under color of state law. West v. Atkins, 487

U.S. 42, 48 (1988). "The traditional definition of acting under

color of state law requires that the defendant in a § 1983 action

exercised power 'possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the authority of state

law.'" Id. at 49 (quoting United States v. Classic, 313 U.S. 299,

326 (1941)). Finally, "[s]ection 1983 imposes liability for
violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 142, 146 (1979).

Applying these standards, we hold that the district court did

not err in granting summary judgment in favor of the individual

defendants on Haines' § 1983 claims. This is not a case in which

the defendants "exercised power 'possessed by virtue of state law

and made possible only because the wrongdoer [was] clothed with the

authority of state law.'" Atkins, 487 U.S. at 49 (quoting Classic,

313 U.S. at 326). We agree with the district court that "[i]n this

case, the defendants, and in particular Defendant Reeve, were not

using their badges of authority, i.e., their positions as a

policemen for the Town of Torrington to accomplish the 7-Eleven

prank in which plaintiff [Haines] was the intended victim." (Appendix, Vol. III at 737).

Haines acknowledges that the "acts of officers in the gambit

of their personal pursuits are not under color of state law and do

not impose liability." Accordingly, if, as Haines alleged in his

complaint, "the purpose behind one or more of the Defendants'

conduct was to scare [him] so that he would be intimidated by them

and lured into their lurid alternative life style," (Appendix, Vol.

I at 006), the acts of the individual defendants would clearly fall

within "the gambit of their personal pursuits" and could not be

considered acts under color of state law.

c.

Haines maintains that the district court improperly granted

summary judgment in favor of Torrington on his state law claims. 

 Haines reasons that it "appears" that the district court

granted Torrington summary judgment on "the basis . . . that the
officers were not acting within the course of their employment, in

discussing, planning and participating in the incident."

(Appellant's Brief at 35). Haines states that since "[a]ll of the

officers, except Reeve, were being paid by the Town at the normal

place of work under the normal practice, using the town equipment,"

and "[t]hey were reacting to a call they received in the normal

scope of their employment as peace officers," genuine issues of

material fact made summary judgment inappropriate. Id. at 37. 

Although the determination of whether one is acting within the

scope of employment is generally a question of fact, "the determination of the definition of [scope of employment] or the

standard under which it is ascertained is a question of law for the

court." Miller v. Reiman-Wuerth Co., 598 P.2d 20, 23 (Wyo. 1979).

Under Wyo. Stat. § 1-39-112, "[a] governmental entity is liable for

damages resulting from tortious conduct of peace officers while

acting within the scope of their duties." Wyo. Stat. § 1-39-103

(a)(v) defines "scope of duties" as "performing any duties which a

governmental entity requests, requires or authorizes a public

employee to perform regardless of the time and place of

performance."

The acts of the individual defendants in planning and effectuating the staged robbery were not duties which Torrington had

requested, required, or authorized the performance of. Hence the

acts did not fall within the individual defendants' scope of

duties. Under these circumstances, we hold that the district court

did not err in granting summary judgment in favor of Torrington on

Haines' state law claims.

II.

Haines maintains that the district court erred in refusing to
instruct the jury on his negligence claim. 

The grant or denial of an instruction is a matter of procedure

controlled by federal law. Gomez v. Martin Marietta Corp., 50 F.3d

1511, 1517 (10th Cir. 1995). We review the district court's

refusal to submit a proffered instruction for abuse of discretion.

Wilson v. Union Pac. R.R., 56 F.3d 1226, 1230 (10th Cir. 1995).

In his complaint, Haines alleged, in addition to his claims

for violation of his rights under § 1983, assault, extreme and

outrageous conduct, and willful and wanton misconduct, that

"[v]arious employees of the Town of Torrington, including the Defendants and their supervisors, were aware of the actions of the

Defendant and had a duty to intervene so as not to see the Plaintiff damaged. Defendants were negligent in failing to intervene

which proximately caused Plaintiff damage." (Appendix, Vol. I at

005). 

Prior to trial, the court granted Torrington summary judgment

on all of Haines' claims, and partial summary judgment in favor of

the individual defendants on Haines' § 1983 claims. As structured,

the case proceeded to trial on Haines' state law claims for negligence, assault, extreme and outrageous conduct, and willful and

wanton misconduct against Fisher and Reeve. 

At the close of the evidence, but prior to submitting the case

to the jury, the court ruled that it would not submit Haines' negligence claims. (Appendix, Vol. X at 4463). The court instructed

the jury on Haines' remaining state law claims.

The jury returned a special verdict in which it found that:

Haines had not been assaulted, the defendants did not commit

extreme and outrageous conduct on him, the actions of the

defendants did not amount to willful and wanton misconduct, and
Haines had sustained $0.00 in damages.

On appeal, Haines contends, without challenging the court's

instructions on assault, extreme and outrageous conduct, and

willful and wanton misconduct, that the court erred in not additionally instructing on his claim that the defendants were

negligent, i.e., in that the defendants "were aware of the actions

of the Defendant[s] and had a duty to intervene . . . ."

(Appendix, Vol. I at 005). Essentially, Haines is representing

that Fisher and Reeve, in addition to being liable for damages for

intentionally assaulting him, engaging in extreme and outrageous

conduct, and willful and wanton misconduct, were also liable for

damages for negligently failing to intervene and prevent those

actions. Stated alternatively, Haines is arguing that Fisher and

Reeve were negligent for not changing their minds once they

embarked on the staged robbery.

It is uncontested that Fisher and Reeve participated in the

staged robbery; they did exactly what they intended to do. The

jury obviously believed that they did so as part of a prank or

practical joke inasmuch as it found in their favor on Haines'

claims of assault, extreme and outrageous conduct, and willful and

wanton misconduct. That being the case, we hold that the district

court did not abuse its discretion by refusing to instruct on

negligence, when, in Wyoming, "[i]ntent is not a factor of

negligence since negligence precludes intended conduct." Kobos by

and through Kobos v. Everts, 768 P.2d 534, 538 (Wyo. 1989). 

III.

Haines reasons that the district court erred in submitting the

issue of assault for jury determination. Haines acknowledges that

the district court properly instructed that a plaintiff must prove
the following to establish an assault:

1. The defendants acted with the intent of making a

contact with the person of the plaintiff or with the

intent of putting the plaintiff in apprehension of such

a contact; and

2. The plaintiff was placed in apprehension of an imminent contact with his person by the conduct of the

defendants; and

3. Such contact appeared to be harmful or offensive.

(Appendix, Vol. X at 812). 

Haines argues that because he established the elements of assault by showing that the defendants had agreed to a plan which was

intended to scare him and that he had been scared and believed he

had been shot when the gun discharged, the district court erred in

denying his motions for a directed verdict and for judgment notwithstanding the verdict on his assault claim. Fisher and Reeve

respond that there was conflicting evidence as to whether Haines

was placed in immediate apprehension of bodily injury and whether

the gun was discharged before or after Haines recognized his long

time friend, Reeve.

We consider motions for directed verdict and judgment notwithstanding the verdict under the same standard. FDIC v. United

Pac. Ins. Co., 20 F.3d 1070, 1079 (10th Cir. 1994). We review the

district court's denial of these motions de novo. Sheets v. Salt

Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, ___ U.S.

___ (1995). Under this standard, we may find error in the denial

of such a motion only if the evidence points but one way and is

susceptible to no reasonable inferences supporting the party

opposing the motion. United Pac. Ins. Co., 20 F.3d at 1079.

We hold that the district court did not err in denying Haines'

motions for a directed verdict and for judgment notwithstanding the

verdict. Fisher and Reeve presented evidence, obviously believed
by the jury, that Haines was not placed in immediate apprehension

of bodily injury and that he recognized that one of the pranksters

was his friend Reeve.

IV.

Haines maintains that the district court erred in failing to

award him damages against Murphy when Murphy defaulted without

filing an answer to his complaint and did not dispute the evidence

regarding liability.

Murphy did not file an appearance or respond. Prior to trial,

the district court granted partial judgment in favor of all the

individual defendants, including Murphy, on Haines' § 1983 claims.

At the conclusion of the trial, the jury found, inter alia, that

Haines had suffered $0.00 in damages. 

Thereafter, Haines moved for reconsideration of the district

court's partial judgment in favor of Murphy on Haines' § 1983

claims and for default judgment against Murphy. Following a

hearing, the district court entered an order that "judgment be

entered forthwith against defendant Kraig Daniel Murphy, but that

plaintiff recover nothing of him." (Appendix, Vol. III at 896). 

On appeal, Haines contends that the district court erred in

determining "that the entry of zero damages sustained by [him] on

the verdict . . . necessitated the finding of zero damages caused

by Murphy," and that "[i]t is not logically required to conclude

that Murphy's violation of the plaintiff's rights which has been

established by the default, caused [him] no damage." (Appellants

Brief at 46 and 50). We agree with the district court that this

issue is controlled by Hunt v. Inter-Globe Energy, Inc., 770 F.2d

145 (10th Cir. 1985).

In Hunt, H.B. and Lola Hunt (the Hunts) filed an action
against defendants Inter-Globe Energy, John Corrente, and Forest N.

Simon, alleging that the defendants had engaged in common law fraud

and various breaches of state and federal securities laws in

selling fractional working interests in oil and gas leases.

When Corrente failed to plead or otherwise defend, the court

entered default judgment against him in favor of the Hunts for

their investment of $30,000, interest, and attorney fees. Further,

the court awarded expenses, and punitive damages of $300,000. The

Hunts proceeded against Simon. After trial, a jury awarded the

Hunts $30,000 in actual damages against Simon but did not award any

punitive damages.

Thereafter, Corrente filed a motion to vacate the default

judgment entered against him. Corrente argued, inter alia, that

the default judgment should not have been entered against him until

the matter had been adjudicated with regard to all defendants. The

district court denied Corrente's motion.

On appeal, we reversed and remanded with instructions that the

district court "reduce the default judgment to an amount consistent

with the application of liability and damages against defendant

Simon." Hunt, 770 F.2d at 148. In so doing, we relied on Frow v.

De La Vega, 82 U.S. 552 (1872):

In Frow, the plaintiff brought an action against

Frow and thirteen other defendants . . . . Frow failed

to answer timely . . . . The district court subsequently

. . . award[ed] a permanent injunction against Frow. After the entry of the final decree against Frow, the court

proceeded to try the case and decided the merits of the

case adversely to plaintiff and dismissed the complaint.

On appeal, the Supreme Court reversed the default

judgment against Frow, concluding that when multiple

defendants are alleged to be jointly liable and fewer

than all defendants default, the district court may not

render a liability determination as to the defaulting

parties unless and until the remaining defendants are

found liable on the merits. . . . This result avoids

inconsistent liability determinations among joint tort-
feasors.

Hunt, 770 F.2d at 147 (emphasis added).

We hold that the district court did not err when it entered

judgment against Murphy, and simultaneously ordered that Haines

recover nothing from him. 

AFFIRMED.
 

1

 In Part I(a) the majority finds that the Town of Torrington did not have a policy, custom, or

practice adopting or approving the activity surrounding the staged robbery. I agree. The

majority, however, applied the case of Monell v. Department of Social Services, 436 U.S. 658

(1978), to reach its conclusion. Monell dealt only with the concept of municipal liability for

broad official policies or customs and was further refined by the case of Pembaur v. City of

Cincinnati, 475 U.S. 469, 106 S.Ct. 1292 (1986). In Pembaur, the Court held that a single

incident may be evidence of a policy when the conduct represents a decision of authorized policy

makers. In this case, Haines alleged that Sgt. Fisher was an authorized policy maker and his

decision to conduct the prank established a policy. As the facts do not support such a conclusion,

I find that under Pembaur, summary judgment was proper for the Town of Torrington.

In Part II the majority finds that the district court did not abuse its discretion by refusing

to instruct on negligence. Because I view the district court's approach to the issue of negligence

as a sua sponte judgment as a matter of law, I believe the propriety of instructing the jury on

plaintiff's negligence claim should be reviewed de novo. Nonetheless, I have concluded, for the

same reasons discussed by the majority, that the issue was properly withheld and there was no

error.

No. 95-8016: Haines v. Fisher et al.

Nathaniel R. Jones, Senior Circuit Judge,

 Concurring in part and Dissenting in part.

 

I fully concur in Parts I(c), III and IV of the opinion and

in the result reached in Parts I(a) and II.1 I respectfully

dissent, however, from Part I(b).

In Part I(b) the majority holds that the district court did

not err in granting summary judgment in favor of Officers Fisher

and Reeve and Dispatcher Murphy on Haines' § 1983 claims, finding

that the defendants' actions were not under color of state law. 

After applying the relevant law to the facts in this case, I have

come to a different conclusion. The defendants' enterprise was

performed under color of state law; hence, summary judgment to

the defendants on that issue was inappropriate.

While it is a standard principle that the acts of officers

in the gambit of their personal pursuits are not under color of
No. 95-8016: Haines v. Fisher et al.

2

state law and thus are not grounds for liability, it is equally

incontrovertible that "[a]cts of officers who undertake to

perform their official duties are included whether they hew to

the line of authority or overstep it." Screws v. United States,

325 U.S. 91, 111 (1945). Moreover, a defendant is said to be

acting under color of state law when he exercises power

"possessed by virtue of state law and [his actions are] made

possible only because the wrongdoer is clothed with the authority

of state law." West v. Atkins, 487 U.S. 42, 49 (1988) (quoting

United States v. Classic, 313 U.S. 299, 326 (1941)).

This case does not involve merely a situation wherein

Officer Reeve entered the 7-11 alone, disguised as a robber. If

that were the only fact before the court, it is possible that

such an action would not be considered taken under color of law. 

The defendants in this case, however, conspired to deprive Haines

of his constitutional rights and effectuated their strategy by

abusing the power they held under state law. Indeed, the

defendants' prank was a complicitous scheme which could only be

accomplished through the use of their public positions, while

performing their official duties.
No. 95-8016: Haines v. Fisher et al.

 

2

 I do not imply that the defendants were acting under color of law solely because they were

on-duty and in uniform. See Lusby v. T.G. & Y Stores, Inc., 749 F.2d 1429 (10th Cir. 1984)

(concluding that an officers on or off-duty status is not dispositive of whether he is acting under

color of law.); accord Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980). A defendant's duty status

and attire is relevant in determining whether actions were taken under color of law only when

considered alongside the defendant's conduct.

 

3

 The majority suggests that the prank was conceived to intimidate and lure Haines into an

alternative lifestyle. I fail to see how such a prank could accomplish that end, but, more

importantly, Haines has alleged also that the prank was initiated as retaliation, in response to his

earlier call. See Maj Op [2, fn1]. As we must draw all reasonable inferences in favor of a nonmoving party when reviewing the grant of summary judgment, these two "reasons" for the prank

should, at a minimum, be considered consistent co-existing motivations, or in the alternative, the

more plausible should be inferred. Notwithstanding, other factors exist which also lead me to

conclude that the defendants' actions were under color of law.

3

In addition to the fact that the dispatcher and officers

were on-duty and in uniform2 (excepting Reeve, who wore other

clothes belonging to the police department): (1) the defendants

concocted the prank in response to Haines' earlier call to report

suspicious vehicles;3 (2) all material used to effectuate the

prank was Torrington Police Department property, including the M16 rifle, the blanks, the trench coat, the mask, the police cars,

the radio, and the dispatch telephone system; (3) the plan was

created and agreed to by all officers while in the police station

working on training exercises; (4) the dispatcher, Murphy, called

in his official capacity to warn Haines of potential danger; (5)

Sgt. Fisher, using the police radio, radioed Murphy to direct him

to make the call, and Murphy called, using an unrecorded police

line; (6) in order to control the situation and protect the

public (a typical responsibility of officers acting in their

official capacity), two uniformed officers and marked police cars

were stationed outside the 7-11; and (7) Sgt. Fisher, the highest

ranking officer on-duty, masterminded the scheme and "gave

orders" to subordinates on how to carry it out.
No. 95-8016: Haines v. Fisher et al.

4

It is true that almost anybody can stage a robbery; but,

only police officers can use police radios, order dispatchers to

make calls, and have police cruisers posted outside while

uniformed men serve as lookouts to protect the malefactors from

discovery or the public from harm. Under these circumstances,

the defendants certainly employed power possessed by virtue of

state law and their actions were made possible only because they

were clothed with the authority of the state. See Atkins, 487

U.S. at 49. Thus, regardless of the impropriety, perversion and

temerity of the defendants' scheme, as a matter of law their

actions were taken under color of law.