drafted Local Law No. 1. Specifically, Omnipoint asserts that the company
in Marsh was engaged in a traditional public function, i.e., the issuance
of permits. Further, Omnipoint asserts the Defendants here were engaged in
a traditional public function, i.e., land use planning. However, unlike
the company in Marsh, the Defendants here do not own nor operate the
Town. Moreover, the facts here are easily distinguishable from Marsh,
where the company itself issued the permits. Here, Defendants may have
been actively involved in the legislative process, but in the end, it was
the Town that accepted Defendants' advice and enacted Local Law No. 1.
Therefore, Omnipoint's contention is rejected.
Second, the close-nexus and symbiotic relationship tests are very
similar and are thus, discussed together. The close-nexus test considers
whether there is a sufficiently close nexus between the state and the
challenged action so that the action of the private actor "may be fairly
treated as that of the state itself." Blum v. Yaretsky, 457 U.S. 991,
1004 (1982). The state must have exercised "coercive power" or "such
significant encouragement . . . that the choice must in law be deemed
that of the State." Id. The symbiotic relationship test considers
whether the state has "so far insinuated itself into a position of
interdependence with the private actor that there is a `symbiotic
relationship' between them." Moose Lodge No. 107 v. Irvis, 407 U.S. 163,
175 (1972) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 725
(1961)). The Supreme Court has limited this test "to cases involving
leases of public property," Island Online, 119 F. Supp.2d at 306 (citing
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974)), and thus,
it is not applicable here. Moreover, these tests usually examine the
conduct of the state, not the conduct of the private entity. See Blum,
457 U.S. at 1004.
Nonetheless, a private actor may be found to have acted under color of
state law where he or she "has operated as a willful participant in joint
activity with the state or its agents." See Gorman-Bakos v. Cornell
Co-op Extension of Schenectady County, 252 F.3d 545, 551-52 (2d Cir.
2001). Here, Omnipoint contends that Defendants acted under color of
state law when they drafted the language of Local Law No. 1. Defendants'
conduct, however, was mere advice. Where a private actor merely provides
professional advice, such advice cannot be considered state action for
purposes of section 1983. See, e.g., Goetz v. Windsor Cent. Sch. Dist.,
593 F. Supp. 526, 528-29 (N.D.N.Y. 1984). Furthermore, if this Court
were to adopt Omnipoint's contention, any private citizen that
recommended proposed legislation or drafted proposed legislation that was
subsequently declared unconstitutional would be subject to liability
under section 1983. While Defendants provided advice, it was ultimately
the Town's decision to accept that advice.
Therefore, Defendants were not acting under color of state law when
they recommended and drafted proposed legislation.
WHEREFORE, it is hereby
ORDERED that Omnipoint's motion for summary judgment is DENIED;
ORDERED that Defendants' motion for summary judgment is GRANTED; and it
ORDERED that the case is DISMISSED in its ENTIRETY.