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MARTIN v. LOCICCERO

June 16, 1995

KENNETH J. MARTIN and BILL MARTIN, Plaintiffs,
v.
MARK LOCICCERO, BISHON BASEBALL, INC. STADIUM SERVICES, INC., THE CITY OF BUFFALO, NEW YORK and JOHN DOE ("BUFFALO POLICE OFFICERS"), Defendants.



The opinion of the court was delivered by: HECKMAN

 Carol E. Heckman

 United States Magistrate Judge

 The parties have consented to have the undersigned conduct all further proceedings in this case, including trial and entry of judgment, pursuant to 28 U.S.C. § 636(c). Defendants City of Buffalo (the "City") and Bison Baseball, Inc. and Stadium Services, Inc. ("BBI/SSI") have moved for summary judgment (Items 17 and 34). Plaintiff has moved to amend the complaint to add third-party defendant Chase Investigations, Inc. ("Chase") as a direct defendant (Item 31). For the reasons that follow, the defendants' summary judgment motions are denied, and the plaintiff's motion is granted.

 BACKGROUND

 The complaint in this action was filed on May 14, 1993. It alleges that on the evening of May 14, 1992, plaintiffs were patrons at Pettibone's Grille, located at the ballpark formerly known as Pilot Field in downtown Buffalo, New York. At approximately 9:30 p.m., defendant LoCiccero and another unnamed individual (later identified as Brenda Callahan), "as part of their regular and official employment" as Buffalo Police officers, and "acting within the scope of their employment" as security officers at the ballpark (Item 1, P 18), responded to a call for assistance made by a Pettibone's bartender. Plaintiffs allege that the officers then physically and verbally assaulted them at Pettibone's, in a closed security room at the ballpark, and in the elevator and cell block at Buffalo Police headquarters. Plaintiffs allege that this conduct violated their constitutional rights under the fourth, fifth, sixth, eighth and fourteenth amendments, and supports this action for damages under 42 U.S.C. §§ 1983, 1985 and 1988 as well as common law tort.

 BBI/SSI filed a third-party action against Chase, the company that employed LoCiccero and other off-duty police officers as security officers at the downtown ballpark (Item 3).

 Upon completion of discovery, the City moved for summary judgment on the ground that, under state law, it cannot be held vicariously liable for the off-duty conduct of LoCiccero or any other Buffalo police officer involved in the incident. After briefing and argument of this motion, and after substitution of counsel, BBI/SSI moved for summary judgment to dismiss it from the case. Plaintiff subsequently moved to add Chase as a direct defendant. Each of these motions is discussed in turn below.

 DISCUSSION

 I. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. AnnTaylor, Inc., supra, 933 F.2d at 167.

 A. The City's Motion for Summary Judgment.

 1. § 1983.

 In order to maintain a § 1983 action, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law, and (2) the conduct complained of must have deprived a person of the rights, privileges or immunities secured by the federal constitution or laws. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). A person is acting under color of state law when his or her actions were "committed in the performance of any actual or pretended duty . . . ." Bonsignore v. City of New York, 683 F.2d 635, 639 (2d Cir. 1982). "Acts of police officers in the ambit of their personal, private pursuits" do not give rise to § 1983 liability. Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975)(citing Monroe v. Pape, 365 U.S. 167, 185, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961)), cert. dismissed, 429 U.S. 118, 97 S. Ct. 514, 50 L. Ed. 2d 269).

 However, in determining whether a police officer was acting under color of state law, "more is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994); see also United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1960, 118 L. Ed. 2d 562 (1992). Nor is "the lack of outward indicia--such as being on duty, wearing a uniform, or driving a patrol car . . ." determinative. Revene v. Charles County Commissioners, 882 F.2d 870, 872 (4th Cir. 1989). Rather, it is the nature of the officer's act that controls. Id.; Monroe v. Pape, supra, 365 U.S. at 184-87. Thus, § 1983 liability may be found where the ...


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