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Amisi v. Melick

United States District Court, D. South Dakota, Southern Division

May 8, 2017

HOLINESS AMISI, Plaintiff,
v.
TOM MELICK, in his individual and official capacity, SUTRAN, INC., a subsidiary of FIRST TRANSIT OF AMERICA, a Delaware Corporation, FIRST TRANSIT OF AMERICA, and THE CITY OF SIOUX FALLS, SOUTH DAKOTA, PLANNING DEPARTMENT, an agency of THE CITY OF SIOUX FALLS, SOUTH DAKOTA, Defendants,

          MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR JUDGMENT ON THE PLEADINGS

          Lawrence L. Piersol United States District Judge

         Pending 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[1] ("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 granted.

         I. FACTUAL BACKGROUND

         The following facts are undisputed or viewed in the light most favorable to the Plaintiff, the non-moving party:

         The 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.

         Melick 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."[2] In January of 2014, Melick was stationed at the bus stop on 120 E. 11* Street, Sioux Falls, South Dakota (the "bus stop").

         On 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.

         While 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.

         When 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.

         On 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 claims.[3]

         II. LEGAL STANDARD-SUMMARY JUDGMENT

         Pursuant 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)).

         The 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).

         "For 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)).

         III. DISCUSSION

         Amisi 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.

         A. Amisi's § 1983 claims against Melick-Counts I and II

         Amisi 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.

         Section 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 the laws.

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 redress ....

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.

         1. State action

         In 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.

         Case 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 deprivation ...

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