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, Powe rs, Kapp and Martin, Cheyenne, Wyoming; and Lowell Fitch, Fitch Law Offices, Torrington, Wyoming, with him on the brief) of Sund ahl, Powers, Kapp and Martin, Cheyenne, Wyoming, for defendants- appellees Reeves and Fisher; Mark L. Carman of Williams, Porter, Dayand Neville, Casper, Wyoming, for defendant-appellee Town of Tor rington. Walter Urbigkit, Frontier Law Center, Cheyenne, Wyo ming, for plaintiff-appellant.

______ Before KELLY, BARRETT and JONES*, Circuit Judges.

______ BARRETT , Senior Circuit Judge.

______ *The Honorable Nathaniel R. Jones, Senior Judge, U nited States Circuit Court of Appeals for the Sixth Circuit, sit ting by designation.1 Prior to the incident, Haines had called the Torrin gton Police

Department and reported that he had observed some s uspicious vehicles in a parking lot across the street from the 7-Eleven. F isher responded to the call and thereafter told Haines that the vehicles were a ctually police department vehicles and that Haines need not be concerned. Ha ines argues that the staged robbery was in retaliation for his earlier call. ______ Douglas M. Haines (Haines) appeals from (a) an orde r of the district court granting summary judgment in favor o f 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 "t he individual defendants") on his § 1983 claims; (b) a judgment t hat he recover nothing from Fisher and Reeve; (c) an order and jud gment denying his motions for reconsideration and for default jud gment against Murphy; and (d) an order denying his motions for ne w 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 dispat cher on plaintiff [Haines] on February 18, 1994. Plaint iff was the local 7-Eleven clerk and was working the ni ght 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 dut y that night and while he was training Officer Gerrard howto conduct building searches with officer Michael Reev e, defendant Fisher concocted a plan to pull a practic al joke on plaintiff. 1 He shared his idea with on duty officers Reeve and Gerrard and dispatcher Kraig Murph y, who all agreed to participate in pulling the practi cal 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 Preventio n program, over the pants and shoes he had worn with his uniform that evening. He did not wear his police u niform shirt, but instead wore a turtleneck. Over his fac e, Reeve wore a balaclava mask that also belonged to t heTown. He carried the Town's M-16 automatic rifle, loaded

with blanks, under the trenchcoat. On the end of t he barrel of the M-16, the defendants had placed a lar ge 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 stor e. Murphy described for plaintiff a man who would lookas 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 whil e 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 engage d and the gun would not operate when he attempted to pull the trigger. Reeve then ordered plaintiff to get off t he telephone and to get on the floor. At some point t he M16 was discharged although there is a factual dispu te about when that happened. Plaintiff claims that Re eve pointed the M-16 at him and discharged the weapon w hen he was told to get on the ground -- before he recogniz ed that it was Officer Reeve in a robber costume. Def endants claim that the gun was not discharged until a fter plaintiff recognized Reeve before becoming prone onthe ground, when he rose up and threw a cleaning rag at Reeve and exclaimed, "Nice try, Mouse!" Defendants conte nd that the blanks were fired away from plaintiff afte r he recognized Reeve. Defendants contend that after th e event was over, everyone including plaintiff had a good hearty laugh over the practical joke among good fri ends.

(Appendix, Vol. III at 727-30) (footnote added). Rumors of the event circulated in and about Torring ton. Upon inquiry by Chief of Police Billy Janes, Fisher, Ree ve, Gerrard and Murphy confessed what they had done and signed writ ten statements regarding the incident. Following an investigationby 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 capaci ties, and Torrington seeking damages for violation of his civil rights pursuant to 42 U.S.C. § 1983, alleging that defendants had d enied him "of his rights to be free from unreasonable searches an d seizures protected by the Fourth Amendment and his due proce ss rights protected by the Fifth and Fourteenth Amendments," (Ap pendix, Vol. I at 004), and damages for state law claims of neglig ence and intentional infliction of emotional distress. Hain es also sought exemplary or punitive damages for the individual de fendants' alleged wilful and wanton misconduct on the basis "th at the purpose behind one or more of the [individual] Defendants' conduct was to scare [him] so that he would be intimidated by themand lured into their lurid alternative live style. Plaintiff, a h eterosexual, had denied their advances." (Appendix, Vol. I at 006). Torrington moved for summary judgment and Fisher an d Reeve moved for partial summary judgment. The district c ourt granted Torrington summary judgment on all of Haines' claim s, 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 cl aims of negligence and intentional infliction of emotional distress against Fisher and Reeve. Before submitting the case to th e jury, the district court withdrew the issue of negligence fro m the jury's consideration. (Appendix, Vol. X at 4463). The jury returned a special verdict finding that: H aines 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; Ha ines suffered $0.00 in total damages; and the conduct of Fisher a nd Reeve did notamount to willful and wanton misconduct.

Thereafter, the court denied Haines' motion for rec onsideration of the partial summary judgment granted in fav or of Murphy and granted Haines judgment against Murphy but orde red that Haines recover nothing from Murphy. The court also deniedHaines' motion for a new trial and his motion for judgment notwith standing the verdict. On appeal, Haines contends that the district court erred when it: (1) granted summary judgment to Torrington on a ll claims and to the individual defendants on the § 1983 claims; (2) refused to instruct on negligence; (3) submitted the issue of as sault to the jury; and (4) failed to award damages against Murph y.

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 jud gment 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 ge nuine issue as to any material fact and the moving party is entitl ed to judgment as a matter of law. Hagelin for President Committe e 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 g ranted2 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 d efense of the officer's life, the defense of the life of another, and when necess ary to effect the arrest, capture or prevent the escape of someone for whom t he officer has reasonable cause to believe has committed a life threatening f elony and whom the officer believes is a serious threat to the officer or othe rs. (Appendix, Vol. II at 403 and 421). summary judgment in favor of Torrington on his § 19 83 claims. Haines states that municipal liability attaches und er § 1983 "where a definite and deliberate choice to follow a course of action is made from among various alternatives for th e official or officials responsible for establishing final policy ." (Appellant's Brief at 33). Haines also maintains that Torringto n had delegated decision making authority to the Chief of Police wh o had, in turn, delegated that responsibility to the on-shift super visor, Fisher. He reasons that because Fisher had planned and dire cted the incident in question, there was a question of fact as to municipal liability for jury determination. Torrington responds that the district court did no t err in granting it summary judgment on Haines' § 1983 clai ms, inasmuch as it did not have any policy, custom, or practice ado pting 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 municipali ties are among the "persons" to which § 1983 applies, held that a municipality is liable under § 1983 when "the action that is allege d to be unconstitutional implements or executes a policy stat ement, ordinance, regulation, or decision officially adopted a nd promulgated." The Court observed that the official policy must be the moving force for the constitutional violation in order to establish theliability 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 ju dgment on Haines' § 1983 claims. Haines failed to establish that the staged robbery in any way implemented or executed a "polic y statement, ordinance, regulation, or decision officially adopt ed and promulgated" or that the official policy was the moving f orce behind the alleged constitutional violation. Torrington, on t he other hand, introduced standard operating procedures which proh ibit the type of activity surrounding the challenged conduct.
b. Haines contends that the district court erred in gr anting summary judgment in favor of Fisher, Reeve, and Mur phy on his § 1983 claims. Haines states that while the "'acts of officers in the gambit of their personal pursuits are not under color of s tate law and do not impose liability.' . . . [i]t is also true that 'acts of officers who undertake to perform their official duti es are included whether they hew to the line of authority or overst ep it.' Screws v. United States , 325 U.S. 91, 111 (1945)." (Appellant's Brief at 28). The question then, according to Haines, is wh ether the retaliation of the officers in response to his earl ier call was a "personal pursuit" or an "overstep" in the exercise of legitimate authority. Haines reasons that the individual defendants overs tepped their legitimate authority when each was on duty an d being paid by Torrington at the time the plan was developed and e ffectuated. He states that they were able to stage the robbery onl y by the use ofTorrington's gun, coat and mask. Haines argues tha t 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 p roperly granted summary judgment in their favor on Haines' § 1983 claims because the evidence showed that they did not act u nder color of state law inasmuch as their actions were unrelated to the performance of their duties as police officers. Fi sher 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 officer s, 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 fro m 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 re medy to parties deprived of constitutional rights by a state offici al'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 § 19 83, a plaintiff must allege that the claimed deprivatio n 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 a nd made possible only because the wrongdoer is clothed with the auth ority of state
law.'" Id . at 49 (quoting United States v. Classic , 313 U.S. 299, 326 (1941)). Finally, "[s]ection 1983 imposes liab ility forviolations 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 th e individual defendants on Haines' § 1983 claims. This is not a case in which the defendants "exercised power 'possessed by virtu e 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 R eeve, were not using their badges of authority, i.e., their positi ons 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 t he gambit of their personal pursuits are not under color of s tate law and do not impose liability." Accordingly, if, as Haines alleged in his complaint, "the purpose behind one or more of the D efendants' conduct was to scare [him] so that he would be inti midated by them and lured into their lurid alternative life style," (Appendix, Vol. I at 006), the acts of the individual defendants wo uld 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 improperlygranted summary judgment in favor of Torrington on his stat e law claims. Haines reasons that it "appears" that the district court granted Torrington summary judgment on "the basis . . . that theofficers were not acting within the course of their employment, in

discussing, planning and participating in the incid ent." (Appellant's Brief at 35). Haines states that sinc e "[a]ll of the officers, except Reeve, were being paid by the Townat the normal place of work under the normal practice, using the town equipment," and "[t]hey were reacting to a call they received i n the normal scope of their employment as peace officers," genui ne issues of material fact made summary judgment inappropriate. Id . at 37. Although the determination of whether one is actingwithin the scope of employment is generally a question of fact , "the determination of the definition of [scope of employme nt] or the standard under which it is ascertained is a questio n 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 enti ty is liable for damages resulting from tortious conduct of peace of ficers while acting within the scope of their duties." Wyo. Sta t. § 1-39-103 (a)(v) defines "scope of duties" as "performing anyduties which a governmental entity requests, requires or authorize s a public employee to perform regardless of the time and plac e of performance." The acts of the individual defendants in planning a nd effectuating the staged robbery were not duties whichTorrington 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 th e district court did not err in granting summary judgment in favor o f Torrington on Haines' state law claims.

II. Haines maintains that the district court erred in r efusing toinstruct the jury on his negligence claim.

The grant or denial of an instruction is a matter o f procedure controlled by federal law. Gomez v. Martin Mariett a Corp. , 50 F.3d 1511, 1517 (10th Cir. 1995). We review the distric t 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 hi s claims for violation of his rights under § 1983, assault, extreme and outrageous conduct, and willful and wanton miscondu ct, that "[v]arious employees of the Town of Torrington, inc luding the Defendants and their supervisors, were aware of the a ctions of the Defendant and had a duty to intervene so as not to see the Plaintiff damaged. Defendants were negligent in failingto intervene which proximately caused Plaintiff damage." (Appen dix, Vol. I at 005). Prior to trial, the court granted Torrington summar y judgment on all of Haines' claims, and partial summary judgm ent in favor of the individual defendants on Haines' § 1983 claims. As structured, the case proceeded to trial on Haines' state law cl aims for negligence, assault, extreme and outrageous conduct, andwillful and wanton misconduct against Fisher and Reeve. At the close of the evidence, but prior to submitti ng the case to the jury, the court ruled that it would not subm it Haines' negligence claims. (Appendix, Vol. X at 4463). The c ourt instructed the jury on Haines' remaining state law claims. The jury returned a special verdict in which it fou nd that: Haines had not been assaulted, the defendants did n ot commit extreme and outrageous conduct on him, the actions of the defendants did not amount to willful and wanton mis conduct, andHaines had sustained $0.00 in damages.

On appeal, Haines contends, without challenging the court's instructions on assault, extreme and outrageous con duct, and willful and wanton misconduct, that the court erredin not additionally instructing on his claim that the defend ants 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 a nd outrageous conduct, and willful and wanton misconduct, were al so liable for damages for negligently failing to intervene and pr event those actions. Stated alternatively, Haines is arguing t hat Fisher and Reeve were negligent for not changing their minds o nce they embarked on the staged robbery. It is uncontested that Fisher and Reeve participate d in the staged robbery; they did exactly what they intendedto 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 th at the district court did not abuse its discretion by refusing to i nstruct on negligence, when, in Wyoming, "[i]ntent is not a fa ctor of negligence since negligence precludes intended cond uct." Kobos by and through Kobos v. Everts , 768 P.2d 534, 538 (Wyo. 1989).

III. Haines reasons that the district court erred in sub mitting the issue of assault for jury determination. Haines ac knowledges that the district court properly instructed that a plain tiff must provethe following to establish an assault:

1. The defendants acted with the intent of making a contact with the person of the plaintiff or with th e intent of putting the plaintiff in apprehension of such a contact; and 2. The plaintiff was placed in apprehension of an im

minent contact with his person by the conduct of th e defendants; and 3. Such contact appeared to be harmful or offensive. (Appendix, Vol. X at 812). Haines argues that because he established the eleme nts of assault by showing that the defendants had agreed to a plan which was intended to scare him and that he had been scared a nd 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. Fis her and Reeve respond that there was conflicting evidence as to w hether Haines was placed in immediate apprehension of bodily inju ry and whether the gun was discharged before or after Haines recog nized his long time friend, Reeve. We consider motions for directed verdict and judgme nt notwithstanding the verdict under the same standard. FDIC v. United
Pac. Ins. Co. , 20 F.3d 1070, 1079 (10th Cir. 1994). We review t he 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 on e 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 deny ing Haines' motions for a directed verdict and for judgment not withstanding the verdict. Fisher and Reeve presented evidence, obvi ously believedby the jury, that Haines was not placed in immediat e 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 f ailing to award him damages against Murphy when Murphy defaul ted without filing an answer to his complaint and did not dispu te the evidence regarding liability. Murphy did not file an appearance or respond. Prio r to trial, the district court granted partial judgment in favo r of all the individual defendants, including Murphy, on Haines' § 1983 claims. At the conclusion of the trial, the jury found, int er 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 Hain es' § 1983 claims and for default judgment against Murphy. Fo llowing a hearing, the district court entered an order that " judgment be entered forthwith against defendant Kraig Daniel Mu rphy, 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 sustain ed by [him] on the verdict . . . necessitated the finding of zero damages caused by Murphy," and that "[i]t is not logically require d to conclude that Murphy's violation of the plaintiff's rights w hich has been established by the default, caused [him] no damage. " (Appellants Brief at 46 and 50). We agree with the district co urt 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 actionagainst defendants Inter-Globe Energy, John Corrent e, and Forest N.

Simon, alleging that the defendants had engaged in common law fraud and various breaches of state and federal securitie s 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 th e Hunts for their investment of $30,000, interest, and attorneyfees. Further, the court awarded expenses, and punitive damages of $300,000. The Hunts proceeded against Simon. After trial, a juryawarded the Hunts $30,000 in actual damages against Simon but d id not award any punitive damages. Thereafter, Corrente filed a motion to vacate the d efault judgment entered against him. Corrente argued, int er alia , that the default judgment should not have been entered a gainst 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 instructio ns that the district court "reduce the default judgment to an a mount consistent with the application of liability and damages again st 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 fa iled to answer timely . . . . The district court subseq uently . . . 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 compl aint. On appeal, the Supreme Court reversed the default judgment against Frow, concluding that when multipl e defendants are alleged to be jointly liable and few er than all defendants default, the district court maynot render a liability determination as to the defaulti ng parties unless and until the remaining defendants a re found liable on the merits. . . . This result avoi ds inconsistent liability determinations among joint t ort-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 orderedthat 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. Monelldealt only with the concept of municipal liability for broad official policies or customs and was further refined by the case of Pembaur v. Cit y 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 spontejudgment 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 opi nion 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 c ourt did not err in granting summary judgment in favor of Of ficers Fisher and Reeve and Dispatcher Murphy on Haines' § 1983 c laims, finding that the defendants' actions were not under color o f state law. After applying the relevant law to the facts in thi s case, I have come to a different conclusion. The defendants' en terprise 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 o fficers in the gambit of their personal pursuits are not un der color ofNo. 95-8016 : Haines v. Fisher et al.

2

state law and thus are not grounds for liability, i t is equally incontrovertible that "[a]cts of officers who under take to perform their official duties are included whether they hew to the line of authority or overstep it." Screws v. UnitedStates , 325 U.S. 91, 111 (1945). Moreover, a defendant is said to be acting under color of state law when he exercises p ower "possessed by virtue of state law and [his actions are] made possible only because the wrongdoer is clothed withthe authority
of state law." West v. Atkins , 487 U.S. 42, 49 (1988) (quoting UnitedStates v. Classic , 313 U.S. 299, 326 (1941)). This case does not involve merely a situation where in Officer Reeve entered the 7-11 alone, disguised as a robber. If that were the only fact before the court, it is pos sible 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. Indee d, the defendants' prank was a complicitous scheme which c ould only be accomplished through the use of their public positi ons, while performing their official duties.No. 95-8016 : Haines v. Fisher et al.

2I do not imply that the defendants were acting under color of law solely because they were on-duty and in uniform. SeeLusby 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.); accordLayne 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.

3The 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 theprank 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 off icers were on-duty and in uniform 2 (excepting Reeve, who wore other clothes belonging to the police department): (1) t he 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, in cluding the M16 rifle, the blanks, the trench coat, the mask, th e police cars, the radio, and the dispatch telephone system; (3) t he 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 potentia l danger; (5) Sgt. Fisher, using the police radio, radioed Murphyto direct him to make the call, and Murphy called, using an unrec orded police line; (6) in order to control the situation and pro tect the public (a typical responsibility of officers actingin their official capacity), two uniformed officers and mark ed police cars were stationed outside the 7-11; and (7) Sgt. Fishe r, the highest ranking officer on-duty, masterminded the scheme an d "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 d ispatchers to make calls, and have police cruisers posted outside while uniformed men serve as lookouts to protect the male factors from discovery or the public from harm. Under these cir cumstances, the defendants certainly employed power possessed b y virtue of state law and their actions were made possible onlybecause they were clothed with the authority of the state. See Atkins , 487 U.S. at 49. Thus, regardless of the impropriety, p erversion and temerity of the defendants' scheme, as a matter of law their actions were taken under color of law.