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March 18, 1986


The opinion of the court was delivered by: ELFVIN


John T. Elfvin, U.S.D.J.

 This is an action arising under 42 U.S.C. § 1983 to recover money damages for injuries sustained as the result of an allegedly unconstitutional search of residential and business premises by agents of the New York State Organized Crime Task Force ("the Task Force"). Defendant Tuttle, against whom the case was dismissed upon his motion for a directed verdict, now moves for an award of attorney's fees, costs and disbursements.

 The facts in this case, having been substantially developed during a two-week jury trial, are not in dispute. Plaintiff Anthony Della Pietra and Tuttle were officers and shareholders of B-T Productions, Inc., a corporation which owned the Town and Country Dinner Theatre in East Rochester, N.Y. Various disputes arose between the two with Tuttle suspecting that Anthony Della Pietra was illegally removing funds from the corporation. Tuttle accordingly contacted the Monroe County (N.Y.) District Attorney's Office and was referred to the Task Force, with which defendants Herbert J. Lewis and John Mansour were then employed and which then began an investigation into Tuttle's allegations. *fn1"

 Pursuant to this investigation the Task Force sought and obtained from Monroe County (N.Y.) Judge Culver K. Barr search warrants to search the business premises of B-T Productions, Inc. and the residential premises of plaintiff Kennedy. On August 11, 1976 approximately twenty agents of the Task Force entered said business's premises, conducted an eight-hour search and seized various business records. The plaintiffs immediately challenged the validity of the search, and it was subsequently determined that the Task Force had exceeded its authority in seeking the search warrants in the circumstances extant. Accordingly, the search warrants were vacated and the records seized were ordered returned to the plaintiffs. See B.T. Productions, Inc. v. Barr, 54 A.D.2d 315, 388 N.Y.S.2d 483 (4th Dept. 1976), aff'd, 44 N.Y.2d 226, 405 N.Y.S.2d 9, 376 N.E.2d 171 (1978).

 This suit then was instituted against the Task Force, Lewis, Mansour and Tuttle seeking to recover damages for injuries allegedly sustained as the result of the illegal searches and seizures. The Amended Complaint alleged that the defendants had acted under color of state law to deprive the plaintiffs of their rights to be free from unreasonable searches and seizures. Accordingly, the claim as to Tuttle hinged on their ability to demonstrate that he had been acting under color of state law. The validity of the claims as to Lewis and Monsour in turn depended upon those defendants being able to show that, although acting under color of state law when applying for the invalid search warrants, they so acted in good faith as to be accorded immunity from liability under section 1983. *fn2"

 Prior to trial Mansour and Lewis moved for summary judgment alleging that, notwithstanding the invalidity of the search warrant, the searches of the corporate premises had been consented to by Tuttle in his capacity as its Vice-President, Secretary and fifty-percent shareholder. They argued that, because Tuttle voluntarily signed an explicit consent to search the premises, their actions were not subject to constitutional challenge. In the alternative they contended that they were entitled to qualified immunity as a matter of law. Because of the numerous questions of fact which remained as to the consent of Tuttle and the good faith alleged by Mansour and Lewis, the motions for summary judgment were denied. Tuttle, who had not previously moved to dismiss the claims, did not move for summary judgment.

 At the close of the plaintiffs' evidence at the subsequent jury trial, Tuttle, Mansour and Lewis moved to dismiss the Complaint. The basis for the motions by Mansour and Lewis was that sufficient consent by Tuttle had been demonstrated and that good faith had been shown as a result of the uncertainty of New York law in August 1976 concerning the search warrants. Such motion was denied, but their alternative motions to dismiss the plaintiffs' claims for punitive damages were granted due to the failure of plaintiffs to have shown the existence of any requisite malice on the part of Mansour or Lewis.

 The basis of Tuttle's motion for a directed verdict was that the plaintiffs had failed to demonstrate that Tuttle had been acting under color of state law in contacting the Task Force about the corporation's activities and in subsequently aiding its investigation. Because the evidence submitted on behalf of Kennedy, plaintiff Eugene Della Pietra and Anthony Della Pietra failed to demonstrate that Tuttle had been acting under color of state law, Tuttle's motion to dismiss was granted. *fn3" Tuttle has now moved for an award of attorney's fees, costs and disbursements pursuant to 42 U.S.C. §§ 1983 and 1988, alleging that the plaintiffs had had no basis for a claim against him and that the case was meritless and had been instituted solely to harass him as the result of personal disputes between himself and Anthony Della Pietra.

 The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that "the court, in its discretion, may allow the prevailing party, other then the United States, a reasonable attorney's fee as part of the costs" in federal civil rights actions. A prevailing defendant may recover under section 1988, but only when the lawsuit was vexatious or frivolous or brought to harass or embarrass such defendant. See H.R.Rep. No. 94-1558, 94th Cong., 2d Sess. p.7 (1976); Hensley v. Eckerhart, 461 U.S.424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Hughes v. Rowe, 449 U.S. 5, 14, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). As noted by the Court in the latter case, "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation," id. at 421, or that "the plaintiff continued to litigate after it clearly became so," id. at 422, even though not brought in subjective bad faith. *fn4" See Hensley v. Eckerhart, supra, at fn.2; Harbulak v. County of Suffolk, 654 F.2d 194, 196 (2d Cir. 1981). The Court also opined that "the term 'meritless' is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term 'vexatious' in no way implies that plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him." 434 U.S., at 421. Accordingly, unlike successful plaintiffs who normally recover attorney's fees under section 1988 unless special circumstances would render such award unjust, defendants are seldom awarded such fees. Carrion v. Yeshiva University, 535 F.2d 722, 727 (2d Cir. 1976); Turner v. Lynch, 534 F. Supp. 686, 689 (S.D.N.Y. 1982).

 Without question, Tuttle was a prevailing defendant in this action within the meaning of section 1988. The mere fact that the plaintiffs failed to sustain their claims as to Tuttle, however, does not automatically mean that Tuttle is entitled to an award of attorney's fees. Carrion v. Yeshiva University, supra. The action must be examined from its commencement to its termination to determine whether it was vexatious, frivolous, unreasonable or without foundation or whether the plaintiffs continued to prosecute their claim after it had become clear that it was meritless.

 At the outset it must be noted that the plaintiffs' claims, overall, allege a very serious deprivation of an established constitutional right -- the right to be free from unreasonable searches and seizures. In order to establish a right to recovery under section 1983 the plaintiffs were required to demonstrate that they had been deprived of a right secured by the Constitution and laws of the United States and that the defendants had deprived them of those rights while acting under color of state law. Coggins v. Carpenter, 468 F. Supp. 270, 282 (E.D.Pa. 1979). Their claim as to Tuttle particularly hinged on their ability to demonstrate that Tuttle had been acting under color of state law.

 The record adduced at trial establishes that Tuttle was not then and never had been an "employee" or "agent" of New York State or of the Task Force and that he was a private individual. It is well established, however, that a private person who willfully participates in joint activity or in a conspiracy with a state agent may be deemed to have acted under color of state law for purposes of section 1983. Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975); Cerbone v. Westchester, 508 F. Supp. 780, 784 (S.D.N.Y. 1981). Accordingly, the determination whether the plaintiffs' cause of action as to Tuttle was frivolous, unreasonable or without foundation or whether they continued to litigate such action after it became so revolves around Tuttle's relationship with the Task Force.

 The Amended Complaint asserts that Tuttle, "upon information and belief, has identified himself publicly as an employee or agent of [the Task Force], and purportedly acted under that authority." Amended Complaint, P5. It is therein asserted that the Task Force investigated B-T Productions, Inc. and the dinner theatre based upon information furnished by Tuttle and that Tuttle, together with Lewis and Mansour and others, prepared the application for the search warrants. Id., ...

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