United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER ON DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR JUDGMENT ON THE
Lawrence L. Piersol United States District Judge
before the Court is Defendant Tom Melick ("Melick")
and The City of Sioux Falls, South Dakota, Planning
Department's ("the City") motion for partial
summary judgment pursuant to Federal Rule of Civil Procedure
56 on claims arising under 42 U.S.C. § 1983, and
Defendant First Transit of America's ("First
Transit") motion for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c) dismissing all
claims. The Court has considered all filings on record and
for the following reasons, Melick and the City's motion
for partial summary judgment is granted, and First
Transit's motion for judgment on the pleadings is also
following facts are undisputed or viewed in the light most
favorable to the Plaintiff, the non-moving party:
City contracts with First Transit to manage and operate the
public transit system in Sioux Falls, South Dakota. Pursuant
to that contract, SuTran, Inc. ("SuTran"), a
wholly-owned subsidiary of First Transit, employs all
personnel necessary for the operation of the transit system.
SuTran assumes the employment, labor, and other contractual
obligations necessary for the operation of the transit
system, which includes, but is not limited to, managing
safety and security.
is trained, employed, and supervised by SuTran as a Road
Supervisor. SuTran developed and defined Melick's duties,
roles, and responsibilities. Melick does not hold any special
license or other authorization from the City or the State as
it relates to his job responsibilities. As a Road Supervisor,
Melick is responsible for "[s]upervis[ing] the internal
aspects of the delivery of public transportation services
including, accident reporting, attendance tracking and
customer service, in order to ensure safe and efficient
operations, schedule reliability, and service
quality." In January of 2014, Melick was stationed
at the bus stop on 120 E. 11* Street, Sioux Falls, South
Dakota (the "bus stop").
January 15, 2014, Plaintiff Holiness Amisi
("Amisi") was at the bus stop. At approximately
3:42 p.m., while in the lobby of the bus stop, Amisi became
involved in a physical altercation with another female
patron. The altercation continued until about 3:44 p.m., when
Melick intervened and told the two women to stop fighting and
leave the lobby. Both women complied. Amisi then reentered
the lobby to retrieve her backpack and coat. Melick again
asked her to leave, which she did.
outside, a second physical altercation ensued between Amisi
and the female patron. During this altercation, Amisi's
hair was pulled and she was punched in the face causing her
to fall to the ground. After regaining her balance, Amisi
removed her coat and backpack, approached the other female,
and threw a punch. Immediately thereafter, Melick grabbed
Amisi, threw her to the ground, and called her a "black
bitch." Melick restrained her on the ground for
approximately forty seconds. While restrained, Amisi
continuously resisted Melick by kicking her legs and flailing
her arms. Once off the ground, Amisi quickly separated
herself from Melick and walked away.
questioned about the incident, Melick explained that he broke
up the fight "for the safety of [Amisi], the other
person in the fight, and the people around ... the bus
stop." Other than providing safe and secure public
transportation, neither SuTran nor the City had specific
policies, rules, or regulations detailing how to handle a
physical altercation or authorizing Melick to use force while
performing his job responsibilities. Prior to this incident,
there was not a continuing, widespread, or persistent pattern
of excessive force used by SuTran employees.
April 22, 2015, Amisi filed an eight-count Complaint against
Defendants alleging violations of her constitutional rights,
assault and battery, negligent infliction of emotional
distress, and negligent supervision. On February 10, 2017,
Defendants' moved for partial summary judgment on claims
arising under 42 U.S.C. § 1983, and Defendant First
Transit moved for judgment on the pleadings dismissing all
LEGAL STANDARD-SUMMARY JUDGMENT
to Rule 56(a) of the Federal Rule of Civil Procedure, summary
judgment is proper 'if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). "A party asserting that a fact cannot be . . .
disputed must support the assertion" either by
"citing to particular parts of materials in the
record," or by "showing that the materials cited do
not establish the . . . presence of a genuine
dispute[.]" Fed. R. Civ. P. 56(c)(1)(A)-(B). "The
movant can also establish the absence of a disputed material
fact by showing 'that an adverse party cannot produce
admissible evidence to support the fact."'
Jensen v. Hy-Vee Corp., 2011 WL 1832997, at *1
(D.S.D. May 13, 2011) (quoting Fed. R.Civ. P. 56(c)(1)(B)).
moving party bears the initial burden of establishing the
absence of a genuine issue of material fact. Celotex
Corp. v. Calrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted). Once this burden is met, the burden then
shifts to the non-moving party. The non- moving must
demonstrate "'that a fact ... is genuinely
disputed" either by “citing to particular parts of
materials in the record," or by "showing that the
materials cited do not establish the absence ... of a genuine
dispute." Fed. R. Civ. P. 56(c)(1)(A)-(B). The
non-moving party may not rest on "mere allegations or
denials-----" Mosky v. City of Northwoods, Mo.,
415 F.3d 908, 910 (8th Cir. 2005).
purposes of summary judgment, the facts, and inferences drawn
from those facts, are 'viewed in the light most favorable
to the party opposing the motion."' Jensen,
2011 WL 1832997, at *2 (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
alleges 42 U.S.C. § 1983 claims against Melick (Counts I
and II) and the City (Count III). The Court will take up
these claims in order.
Amisi's § 1983 claims against Melick-Counts I and
asserts that Melick violated her constitutional rights under
42 U.S.C. § 1983 when he used force to throw her to the
ground and restrain her at the bus stop.
1 of the Fourteenth Amendment to the United States
Constitution provides, in part,
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of
U.S. Const, amend. XIV, § 1. Because the Fourteenth
Amendment is applicable to the States, it can be violated
only by conduct that is characterized as "state
action." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 923-24 (1982). In order to enforce the
Fourteenth Amendment, Congress enacted Title 42 U.S.C. §
1983, which prohibits interference with federal rights under
color of state law. Section 1983 provides, in part,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, 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 party injured in an action
at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. "In cases under § 1983,
'under color' of law has consistently been treated as
the same thing as the "state action' required under
the Fourteenth Amendment." United States v.
Price, 383 U.S. 787, 794 n.7 (1966); see also
Lugar, 457 U.S. at 929 (finding that "it is clear
that in a § 1983 action ... the statutory requirement of
action 'under color of state law' and the 'state
action' requirement of the Fourteenth Amendment are
identical."). To prevail under § 1983, a plaintiff
must show that they have been deprived of a constitutional
right by a "state actor" or a person acting
"under color of state law." Roe v. Humke,
128 F.3d 1213, 1215 (8th Cir. 1997). The Court will first
analyze the "state action" requirement.
determining whether there was state action or the defendant
was acting "under color of state law" for purpose
of § 1983, the defendant must exercise power
"'possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.'" Roe, 128 F.3d at 1215 (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)).
Thus, "'a public employee acts under color of state
law while acting in his official capacity or while exercising
his responsibilities pursuant to state law.'"
Roe, 128 F.3d at 1215 (quoting West, 487
U.S. at 49-50). Here, it is undisputed that Melick is
trained, employed, and supervised by SuTran, a private
corporation. Thus, Melick is a private employee, not a public
employee or state actor. This is not the end of the
Court's inquiry, however.
law demonstrates that a private individual or entity may be
regarded as a state actor or acting "under color of
state law" under proper circumstances. See
Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th
Cir. 2007) ("The Supreme Court has recognized a number
of circumstances in which a private party may be
characterized as a state actor[.]"); see also Roche
v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253-54
(1st Cir. 1996) ("[P]rivate actors may align themselves
so closely with either state action or state actors that the
undertow pulls them inexorably into the grasp of §
1983."); but see Carlson v. Roetzel &
Andress, 552 F.3d 648, 650 (8th Cir. 2008) (quoting
Americans United for Separation of Church and State v.
Prison Fellowship Ministries, Inc., 509 F.3d 406, 421
(8th Cir.2007)) (finding that '"merely private
conduct, no matter how discriminatory or
wrongful[,]'" is still excluded under § 1983).
To determine this, the Court must analyze whether the alleged
infringement was "fairly attributable to the
State." Wickersham, 481 F.3d at 597 (quoting
Lugar, 457 U.S. at 937). Case law reflects a
two-prong approach to "fair attribution."
Lugar, 457 U.S. at 937.
First the deprivation must be caused by the exercise of some
right or privilege created by the State or by a rule of
conduct imposed by the state or by a person for whom the
State is responsible .... Second, the party charged with the