charges after that revocation, and the decision to suspend plaintiffs' license. Plaintiffs also allege that Duffy and Cuomo knew that the charges were false, and that they, too, took part in the "public relations campaign" against plaintiffs. Plaintiffs further contend that Duffy and Cuomo refused to withdraw the denial of the permit application despite knowing that there was no sound basis for it.
With respect to Duffy's and Cuomo's decision to suspend plaintiffs' license, I find that they, like MacCallum, have absolute judicial immunity. In determining whether absolute quasi-judicial immunity should apply, the court must look at "the nature of the function performed [by the defendant], not the identity of the actor who performed it ..." Forrester v. White, 484 U.S. 219, 229, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). Duffy's and Cuomo's roles in deciding to suspend plaintiffs' license were essentially adjudicative, and were similar to a judge's imposition of a sentence in a criminal case.
This result is directly supported by the Seventh Circuit's decision in Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir. 1983). In Reed (which surprisingly has not even been cited by the State defendants in the instant case, despite being directly on point), the Court of Appeals held that a local liquor-control commissioner had absolute judicial immunity in an action arising out of his decisions to revoke, or not to renew, the plaintiffs' liquor licenses. The court stated that it was "clear ... that the commissioner is acting in a judicial capacity when he revokes a liquor license," since he could not do so without finding, after notice and a hearing, that the licensee had violated the law. Id. at 951.
The court stated that "the fact that a local liquor control commissioner is not a regular judge in a court of general jurisdiction can make no difference" in light of the Supreme Court's holding in Butz that it is the defendant's function, not his title, that is controlling. Id. at 952. The court noted that just as regular judges' decisions are appealable, the commissioner's wrongs could be remedied through state processes. Id. at 951. The court further observed that just as with regular judges, forcing liquor commissioners to stand trial on the complaint of a disappointed litigant would make it difficult for them to carry out their duties. Id.
In addition to Reed, numerous other cases have held that officials empowered to make judicial-like decisions regarding the issuance, denial, renewal and revocation of licenses, including liquor licenses, are entitled to absolute quasi-judicial immunity for such acts. See, e.g., Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 783 (1st Cir. 1990) (medical licensing board members); Chiz's Motel v. Mississippi State Tax Comm'n, 750 F.2d 1305, 1308 (5th Cir. 1985) (tax commission officials, whose rescission of plaintiff's resort-area classification prevented plaintiff from being allowed to serve alcoholic beverages); Burnett v. McNabb, 565 F.2d 398, 400 (6th Cir. 1977) (members of County Beer Board, who granted beer license to restaurant on condition that plaintiff, who had managed the restaurant, not work there); Brossette v. City of Baton Rouge, 837 F. Supp. 759, 763-64 (M.D.La. 1993) (members of Alcoholic Beverage Control Board, whose decision to suspend plaintiff's license had been reversed by state court), aff'd, 29 F.3d 623 (5th Cir.), cert. denied, 130 L. Ed. 2d 353, 115 S. Ct. 443 (1994); Rosenthal v. State of Nevada, 514 F. Supp. 907, 913-14 (D.Nev. 1981) (members of state Gaming Commission); Hamm v. Yeatts, 479 F. Supp. 267, 270-71 (W.D.Va. 1979) (members of state Alcoholic Beverage Control Commission); Brown v. DeBruhl, 468 F. Supp. 513, 519 (D.S.C. 1979) (members of state Beverage Control Commission).
In addition to deciding what penalty to impose on plaintiffs, Duffy and Cuomo also had a role in deciding to pursue the charges against plaintiffs. In that regard, however, their actions were akin to those of a prosecutor in deciding whether to bring charges against someone.
Under well-established case law, however, prosecutors are absolutely immune from liability for such actions. "In initiating a prosecution ..., the prosecutor is immune from a civil suit for damages under § 1983." Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). Without such immunity, the threat of § 1983 suits could easily undermine the prosecutor's performance of his duties, since the prosecutor would then be "constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages." Id. at 424-25. See also Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990); Schloss v. Bouse, 876 F.2d 287, 289 (2d Cir. 1989); Lawson v. Abrams, 863 F.2d 260, 262-63 (2d Cir. 1988); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981). Since Duffy's and Cuomo's actions in this regard were functionally equivalent to that of a prosecutor, they are absolutely immune in a suit for damages. Cf. Austin Mun. Securities, 757 F.2d at 689 (disciplinary officers of securities association were absolutely immune for prosecutorial acts in deciding which charges to bring against securities firm, and for judicial acts in adjudicating firm's guilt).
They are also entitled to absolute immunity for their decision not to proceed under the plea agreement. Like the decision to bring a prosecution, a "prosecutor's activities in the plea bargaining context merit the protection of absolute immunity." Taylor, 640 F.2d at 453.
As with the other defendants, I find no foundation for plaintiffs' allegations that Duffy and Cuomo engaged in a smear campaign to ruin plaintiffs' business, or that they conspired with each other or Paul to do so. These allegations are quite vague and lack factual support. Such claims of conspiracy cannot stand. Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993); Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993); Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990), cert. denied, 499 U.S. 937, 113 L. Ed. 2d 446, 111 S. Ct. 1389 (1991); Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977).
The only evidence that plaintiff offers for these allegations is the Board's issuance to the local police of a notice of suspension regarding the Lincoln after the Board had decided to suspend plaintiffs' license. As noted earlier, however, there is no evidence that this was anything other than a standard notice issued in the ordinary, normal course of events whenever the Board imposed a penalty of suspension upon a licensee. Plaintiffs' allegations that the Board, by issuing the notice, "caused" the police to spread word that the closing of the Lincoln was imminent also fails to state a claim. First, there is no showing that the Board "caused" the police to do anything. Furthermore, even if word of the suspension decision was disseminated, I fail to see any constitutional violation in that regard.
Finally, there is no evidence to support plaintiffs' claims that the State defendants conspired with Paul to damage plaintiffs' reputation or destroy plaintiffs' business. Although Paul was involved in some of the underlying events, and his complaints may have played a part in the SLA's investigation of plaintiffs, plaintiffs simply have not come forward with any evidence that Paul and the State defendants acted in concert. Rather, the record shows that the State defendants undertook their own independent investigation of these matters. Whatever rumors or accusations Paul may have spread through the community, there is no showing that the State defendants were involved.
V. Claims Against David Paul
Defendant Paul has not moved for summary judgment. However, in light of my decision regarding the State defendants, it is apparent that the claims against him must be dismissed as well. It is well settled that summary judgment may be rendered in favor of a non-moving party if the undisputed facts show that he is entitled to judgment as a matter of law. See Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir. 1983); Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir. 1975).
The only federal claim against Paul is the first cause of action under 42 U.S.C. § 1983, which alleges that Paul conspired with the State defendants to violate plaintiffs' rights. A private individual may be said to have acted "under color of state law," and thus may be held liable under § 1983, if he has conspired with state officials, that is, that he "somehow reached an understanding" with state officials, or was a "willing participant in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Absent evidence that such a conspiracy or joint activity took place, however, no § 1983 liability can attach to a private individual because the "under color of law" requirement is not satisfied. Id.
As already stated, however, there is no evidence that Paul conspired with the State defendants in any way. The mere fact that both he and they were involved in some of the events giving rise to this suit does not suffice to show that they acted pursuant to some son of agreement or understanding.
Paul's activities here are analogous to those of a citizen who reports someone to the police. It is uniformly recognized, however, that a private party does not conspire or jointly act with a state actor simply by complaining to the police. See, e.g., Collins v. Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir. 1987); Sims v. Jefferson Downs Racing Ass'n, 778 F.2d 1068, 1078-79 (5th Cir. 1985).
Even "providing false information to an arresting officer is not, by itself, sufficient to state a claim against that private party under § 1983." Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1352 (7th Cir. 1985). "There must be some evidence of some concerted effort or plan between the private party ... and the state official ...". Id. at 1352-53 (emphasis added). Similarly, private misuse of a state statute is not conduct that can be attributed to the state. Dahlberg v. Becker, 748 F.2d 85, 90 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985).
To establish § 1983 liability based upon an alleged conspiracy with a public official, then, there must be some evidence, circumstantial or direct, upon which the jury could infer that the private party and the state actor had a "meeting of the minds" and thus reached an understanding that the plaintiff should be deprived of some right. Adickes, 398 U.S. at 158. "The Supreme Court [has] stressed that the fact to be alleged and proved is that 'the [private and state actors] had a 'meeting of the minds' and thus reached an understanding " to deprive the plaintiff of his rights. Annunziato v. The Gan, Inc., 744 F.2d 244, 250 (2d Cir. 1984).
As stated, there is no evidence that such a meeting of the minds occurred between Paul and any of the State defendants. Paul's role as a complaining witness cannot be characterized as under color of state law, and nothing else in the record indicates that he and the State defendants were consciously acting in concert in pursuit of a common goal.
The only federal claim against Paul having been dismissed, I decline to exercise jurisdiction over the remaining state-law claim against him. 28 U.S.C. § 1367; see Town of West Hartford v. Operation Rescue, 915 F.2d 92, 104 (2d Cir. 1990). The dismissal of that claim is without prejudice to whatever remedies plaintiffs might have against Paul in state court.
Defendants' motion for summary judgment (Item 46) is granted, and the complaint is dismissed against all defendants.
IT IS SO ORDERED.
DAVID G. LARIMER
CHIEF JUDGE UNITED STATES DISTRICT COURT
Dated: Rochester, New York January 30, 1996.