                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0152p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                       X
                                                        -
 BRENDA LINDSEY; HENRY HOBSON, JR.; SARAH
                                                        -
 GULLEY; ROGER GENTRY; BERTHA ARNOLD;
                                                        -
 DIONNE ECHOLS; WILLIAM SLATEN, JR.,
                               Plaintiffs-Appellants, -
                                                            No. 04-2424

                                                        ,
                                                         >
            v.                                          -
                                                        -
                                                        -
                                                        -
 DETROIT ENTERTAINMENT, LLC, d/b/a Motor City

                                Defendant-Appellee. -
 Casino, a Michigan Limited Liability Company,
                                                       N
                        Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit.
                      No. 03-71129—George C. Steeh, District Judge.
                                           Argued: March 13, 2007
                                     Decided and Filed: May 1, 2007
             Before: MARTIN and CLAY, Circuit Judges; POLSTER, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Amos E. Williams, Detroit, Michigan, for Appellants. Rosalind Rochkind, GARAN,
LUCOW & MILLER, Detroit, Michigan, for Appellee. ON BRIEF: Amos E. Williams, Detroit,
Michigan, for Appellants. Rosalind Rochkind, Robert F. MacAlpine, Megan K. Cavanagh,
GARAN, LUCOW & MILLER, Detroit, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        CLAY, Circuit Judge. Plaintiffs are seven unrelated individuals who were each detained by
employees of Defendant Detroit Entertainment, L.L.C., which owns and operates MotorCity Casino,
for picking up allegedly abandoned tokens or credits found in Defendant’s slot machines. Plaintiffs
brought this action under 42 U.S.C. § 1983, claiming that Defendant violated their constitutional
rights under color of state law when Defendant’s security personnel detained Plaintiffs. Plaintiffs
also sought to represent a class of similarly situated individuals. The district court denied class
certification, and granted summary judgment in favor of Defendant, holding that Plaintiffs could not

        *
          The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                         1
No. 04-2424               Lindsey, et al. v. Detroit Entertainment                                               Page 2


demonstrate that Defendant’s actions constituted “state action” for the purpose of § 1983. For the
reasons that follow, we AFFIRM the judgment of the district court.
                                                 BACKGROUND
        This case concerns a practice that Defendant refers to as “slot-walking.” “Slot-walking” is
the practice of picking up tokens found on or around slot machines which appear to have been
abandoned by the machine’s original user. Plaintiffs in this case are Brenda Lindsey, Henry
Hobson, Jr., Sarah Gulley, Roger Gentry, Bertha Arnold, Dionne Echols, and William Slaten, Jr.
Although the stories of the individual plaintiffs vary in their detail, for purposes of this appeal, the
specifics of Plaintiffs’ allegations are immaterial to the issues before the Court.1 Generally,
Plaintiffs in this case all allegedly shared a relatively similar experience. Each plaintiff was a
business invitee of Defendant, who entered Defendant’s casino for the purpose of recreational2
gaming between April 14, 2000 and March 22, 2001. Each plaintiff, with the exception of Hobson,
took possession of one or more tokens from one of Defendant’s slot machines. In each case, the
dollar value of tokens taken by Plaintiffs was small, ranging from the two dollars worth of tokens
that Plaintiff Echols recovered from the tray of a slot machine, to a single twenty-five cent credit that
Plaintiff Gulley found on an allegedly unattended slot machine. All Plaintiffs claim that the tokens
or credits of which they took possession had been abandoned by the original operator of the slot
machine on which the tokens or credits were found.
        After taking possession of the tokens or credits, each plaintiff was approached by
Defendant’s security personnel, and each plaintiff was forced to accompany Defendant’s security
personnel to a locked detention room. The length of Plaintiffs’ detentions varied; Plaintiff Slaten
was released within an hour, while several plaintiffs were allegedly detained for several hours. But
in any event, after being held in Defendant’s detention room for some period of time, each plaintiff
was told to leave the casino and was informed that he or she was not allowed to return to
Defendant’s casino.
         On March 21, 2003, Plaintiffs filed a complaint in the Eastern District of Michigan, alleging
that Defendant violated 42 U.S.C. § 1983, by depriving Plaintiffs of their rights secured by the First,
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The thrust of
Plaintiffs’ complaint, however, is their claim that Defendant’s actions constituted an unreasonable
seizure in violation of the Fourth and Fourteenth Amendments. Plaintiffs also sought to represent
a class of similarly situated individuals which, by Plaintiffs’ estimation, included approximately one-
hundred and fifty people, but not less than seventy-five or more than seven-hundred and fifty people.
Plaintiffs defined this class as:
         persons who found coins or tokens left unattended on floors, chairs, or similar lack
         of physical possession by the owner and/or those persons who found coins, tokens,
         or credits left in the return tray or on unattended and unused, at the time, gaming
         machines or who were given permission to take unused credits or tokens by the
         owner of the tokens or credits, without intent to defraud.
J.A. at 18.


         1
           Plaintiffs Lindsey, Gentry, and Arnold did not show up for their depositions despite a court order requiring
them to do so. However, since their claims were not dismissed by the district court as a result of their failure to comply
with discovery requests, and their failure to attend discovery does not affect the resolution of the issues on appeal, we
assume for purposes of this opinion that the allegations in their complaint are true.
         2
           Plaintiff Hobson became involved with Defendant’s security personnel when his companion, Miss Lula
Bryant, found a token in an empty slot machine.
No. 04-2424           Lindsey, et al. v. Detroit Entertainment                                      Page 3


        Defendant moved for summary judgment on July 1, 2003. Plaintiffs moved to certify the
class on the following day. On September 2, 2003, the district court denied Defendant’s motion for
summary judgment, without prejudice, pending discovery. On February 6, 2004, the district court
denied Plaintiffs’ motion for class certification, holding that Plaintiffs could not meet the necessary
requirements of Federal Rule of Civil Procedure 23. Plaintiffs moved this Court for permission to
bring an interlocutory appeal, and we denied permission on June 15, 2004.
        On August 2, 2004, Defendant renewed its motion for summary judgment. The district court
granted Defendant’s motion on October 14, 2004, and dismissed the case. The district court held
that summary judgment in favor of Defendant was appropriate because Plaintiffs could not
demonstrate that Defendant’s actions constituted state action. The district court considered
Plaintiffs’ argument that the district court decisions of Romanski v. Detroit Entertainment, L.L.C.,
265 F. Supp. 2d 835 (E.D. Mich. 2003) and Smith v. Detroit Entertainment, L.L.C., 338 F. Supp. 2d
775 (E.D. Mich. 2004) affected the outcome of the case, but concluded that, under the Sixth
Circuit’s en banc decision in Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003), Plaintiffs could
not demonstrate that Defendant’s security personnel were state actors. On November 5, 2004,
Plaintiffs filed a timely notice of appeal. Briefing for this appeal was held in abeyance pending the
Sixth Circuit’s disposition of Romanski v. Detroit Entertainment, L.L.C., which was decided on
October 28, 2005. 428 F.3d 629 (6th Cir. 2005).
                                           DISCUSSION
        Plaintiffs appeal from the district court’s order granting summary judgment in favor of
Defendants. “This Court reviews de novo a district court’s decision to grant summary judgment.”
Gage Prods. Co. v. Henkel Corp., 393 F.3d 629, 637 (6th Cir. 2004) (citing Cockrel v. Shelby
County School Dist., 270 F.3d 1036, 1048 (6th Cir. 2001)). Summary judgment is required if the
pleadings and evidence “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). “A dispute over
a material fact is only a ‘genuine issue’ if a reasonable jury could find for the nonmoving party on
that issue.” Gage Prods. Co., 393 F.3d at 637; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In determining whether summary judgment is appropriate, this Court must view all the facts
and the inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
       Plaintiffs brought their claims against Defendant pursuant to Title 42, United States Code,
§ 1983. Section 1983 states in relevant part:
       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United
       States . . . 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 . . . .
        In order to prevail on a § 1983 claim, Plaintiffs must demonstrate that Defendant deprived
them of their “rights, privileges, or immunities secured by the Constitution” under color of state law.
The issue in this appeal is whether Plaintiffs can demonstrate that Defendant acted “under color of
state law” by showing that Defendant’s conduct constituted state action. See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 942 (1982) (holding that state action for the purpose of the Fourteenth
Amendment constitutes action under color of state law for the purpose of § 1983). Section 1983
does not, as a general rule, prohibit the conduct of private parties acting in their individual
capacities. “As a matter of substantive constitutional law the state-action requirement reflects
judicial recognition of the fact that ‘most rights secured by the Constitution are protected only
against infringement by governments.’” Id. at 936 (quoting Flagg Bros, Inc. v. Brooks, 436 U.S.
No. 04-2424                Lindsey, et al. v. Detroit Entertainment                                               Page 4


149, 156 (1978)). Drawing a line between private and governmental conduct preserves an area of
individual freedom by limiting the reach of federal law, avoids the imposition of liability on a state
for actions outside its control, and assures that constitutional standards are invoked only when the
state is responsible for the conduct about which the plaintiff complains. Brentwood Acad. v. Tenn.
Secondary School Athletic Assoc., 531 U.S. 288, 295 (2001). However, “[a] private actor acts under
color of state law when its conduct is ‘fairly attributable to the state.’” Romanski, 428 F.3d at 636
(quoting Lugar, 457 U.S. at 937).
        “What [conduct] is fairly attributable [to the state] is a matter of normative judgment, and
the criteria lack rigid simplicity.” Brentwood Acad., 531 U.S. at 295. The Supreme Court and this
Court, however, have provided several significant milestones to guide our inquiry as to whether
Defendant’s conduct constitutes state action. As we recognized in Chapman, “[t]he Supreme Court
has developed three tests for determining the existence of state action in a particular case: (1) the3
public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.”
319 F.3d at 833 (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). Of these three tests,
the only one relevant to the instant case is the public function test. Under the public function test,
courts have found “state action present in the exercise by a private entity of powers traditionally
exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). The
Supreme Court has found this requirement satisfied where the state permitted a private entity to hold
elections, Terry v. Adams, 345 U.S. 461, 469-70 (1953), allowed a private company to own a town,
Marsh v. Alabama, 326 U.S. 501, 505-06 (1946), or established private ownership of a municipal
park. Evans v. Newton, 382 U.S. 296, 302 (1966). However, the Supreme Court has explicitly
declined to decide the question of “whether and under what circumstances private police officers
may be said to perform a public function for purposes of § 1983.” Romanski, 428 F.3d at 636 (citing
Flagg Bros., 436 U.S. at 163).4
         In Romanski, this Court directly addressed the question that the Supreme Court reserved in
Flagg Brothers. Romanski concerned the same defendant, Detroit Entertainment L.L.C., and similar
allegations. Stella Romanski patronized MotorCity Casino to gamble and enjoy the lunch buffet.
428 F.3d at 632. She found a five cent token lying in the tray of a slot machine, which she thought
was abandoned, and she took possession of the token. Id. Romanski was then approached by a
uniformed casino employee who required Romanski to accompanying him to the “security office,”
also known as the “interview room,” a small, windowless room located off the casino’s main floor.
Id. at 632-33. Once in the interview room, the casino’s security personnel accused Romanski of
stealing, removed one nickel from her winnings, photographed her, copied her drivers license and
social security card, and ejected her from the casino for a period of six months. Id. at 633.
Romanski brought suit under 42 U.S.C. § 1983. Id. at 634. The district court instructed the jury
that, as a matter of law, the casino and its defendant security personnel were acting under color of
state law at the time of the incident. Id. at 635. The jury returned a verdict in favor of Romanski

         3
            The Supreme Court has declined to determine whether or not the different “tests” are “actually different in
operation” or “simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such
a situation.” Lugar, 457 U.S. at 939.
         4
             The Court in Flagg Brothers stated:
         [W]e would be remiss if we did not note that there are a number of state and municipal functions not
         covered by our election cases or governed by the reasoning of [Marsh v. Alabama, 326 U.S. 501
         (1946)] which have been administered with a greater degree of exclusivity by States and municipalities
         than has the function of so-called “dispute resolution.” Among these are such functions as education,
         fire and police protection, and tax collection. We express no view as to the extent, if any, to which
         a city or State might be free to delegate to private parties the performance of such functions and
         thereby avoid the strictures of the Fourteenth Amendment.
436 U.S. at 163-64 (footnote omitted).
No. 04-2424                    Lindsey, et al. v. Detroit Entertainment                                               Page 5


and the casino appealed, arguing, inter alia, that the district court erred in holding the casino and
its employees to be state actors.
        Romanski affirmed the judgment of the district court on the question of state action. Id. at
632. Romanski held that “[w]here private security guards are endowed by law with plenary police
powers such that they are de facto police officers, they may qualify as state actors under the public
function test.” Id. at 637. Romanski reasoned that, because the casino’s security personnel were
licensed under § 29 of Michigan’s Private Security Business and Security Alarm Act, (codified at
Mich. Comp. Laws § 338.1079), their qualifications were vetted by the Michigan department of state
police, and they were subject to certain statutes administered by that department. Id. at 638 (citing
Mich. Comp. Laws §§ 338.1079, 338.1067, and 338.1069). And perhaps more importantly, being
licensed under § 339.1079 meant that the casino’s security personnel “ha[d] the authority to arrest
a person without a warrant as set forth for public peace officers.” Id. (quoting Mich. Comp. Laws
§ 338.1080). True, this authority was limited: The casino’s security personnel’s plenary powers of
arrest extended only to the employee’s hours of employment, it did not extend beyond the
boundaries of the employer’s property, and it was limited to situations where the employer’s security
personnel were in the full uniform of their employer. See Mich. Comp. Laws § 338.1080. But the
facts of Romanski made these limitations inapplicable, and the Romanski court held that the
possession of this statutory arrest authority made the casino’s security personnel state actors as a
matter of law. Romanski, 428 F.3d at 638.
        Plaintiffs argue that Romanski supports a finding that Defendant’s security personnel were
likewise state actors in this case. We disagree. Unlike Romanski, where it was undisputed that
Defendant’s security personnel were licensed under Mich. Comp. Laws § 338.1079, see id. at 633,
here, exactly the opposite appears to be the case. Plaintiffs’ complaint alleges that:
            At the time of the seizure and detention of all of the named Plaintiffs but Slaten, none
            of [Defendant’s] security guards were authorized to make misdemeanor arrests. In
            the last part of 2000, some of [Defendant’s] security personnel became authorized,
            by Michigan law, to make misdemeanor arrests but, to this date, Plaintiffs are
            informed and believe that not all of [Defendant’s] security personnel have
            misdemeanor arrest authority.
J.A. at 17.5 If Defendant’s security personnel had in fact been licensed pursuant to Mich. Comp.
Laws § 338.1079, they would have had misdemeanor arrest authority at the time that they seized and
detained Plaintiffs. Hence, Plaintiffs’ allegation that Defendant’s security personnel lacked such
authority is by implication an assertion that Defendant’s security personnel were not licensed under
§ 338.1079. Moreover, at oral argument, Plaintiffs were asked to point the Court to any information
in the record that suggested that Defendant’s security personnel were licensed pursuant to6
§ 338.1079 at the time of Plaintiffs’ arrests, and Plaintiffs could point to no such information.
Plaintiffs have therefore not carried their burden of demonstrating that any of Defendant’s security
guards were licensed under § 338.1079, and we must proceed under the assumption            that all of
Defendant’s security personnel who interfaced with Plaintiffs were not so licensed.7
            5
                There is no information in the record as to whether the security personnel who detained Plaintiff Slaten were
licensed.
            6
           Plaintiffs did direct this Court to the district court’s opinion denying Plaintiffs’ motion for class certification,
where the district court stated that “six of the seven named plaintiffs were admittedly not seized by licensed security
guards.” J.A. at 143. However, the district court was merely analyzing the language of Plaintiffs’ complaint excerpted
above, rather than affirmatively asserting that one plaintiff was detained by a licensed security guard.
            7
           While this assumption is somewhat troubling with respect to Plaintiff Slaten, it must ultimately govern his
case as well. The assumption is troubling because there is no information in the record pointing either towards or against
a finding that the security guards who arrested Slaten were licensed, and the information was at all times within the
No. 04-2424                Lindsey, et al. v. Detroit Entertainment                                                  Page 6


        The fact that Defendant’s security personnel were not licensed in this case means that, under
the facts of this case, Defendant’s conduct in detaining Plaintiffs was not “fairly attributable to the
state.” Lugar, 457 U.S. at 937. The relevance of the Michigan licensure statute can be seen by
comparing the outcomes of two Seventh Circuit cases, Wade v. Byles, 83 F.3d 902 (7th Cir. 1996)
and Payton v. Rush-Presbyterian-St. Luke’s Medical Center, 184 F.3d 623 (7th Cir. 1999), both of
which influenced this Court’s decision in Romanski. 428 F.3d at 637-38.
        Wade concerned Byles, a privately-employed security guard who protected a government
building, who seriously injured Wade. 83 F.3d at 903. The Seventh Circuit affirmed summary
judgment in favor of Byles on the ground that Wade could not demonstrate state action. Id. at 907.
The court reasoned that Byles had no greater power than other private security guards. Id. at 906.
Although his powers, which included carrying a handgun, arresting people for criminal trespass, and
using deadly force in self-defense, had “all . . . been traditionally exercised by the sovereign via the
police, none has been exclusively reserved to the police.” Id.
        Payton distinguished Wade and held that the defendants, who were security personnel
licensed as special policemen under a city ordinance, could be state actors for the purpose of a
§ 1983 claim. 184 F.3d at 630. The court reasoned that “if the state cloaks private individuals with
virtually the same power as public police officers, and the private actors allegedly abuse that power
to violate a plaintiff’s civil rights, that plaintiff’s ability to claim relief under § 1983 should be
unaffected.” Id. at 629. Noting that the defendant in Wade was limited to using his power in a
limited area of his place of employment, and that his arrest power was limited, Payton distinguished
Wade and held that the plaintiffs had stated a cause of action because “no legal difference exists
between a privately employed special officer with full police powers and a regular Chicago police
officer.” Id. at 630.
         Romanski analyzed the distinction between these cases, and concluded that:
         Payton illustrates a line that has been drawn in the case law. The line divides cases
         in which a private actor exercises a power traditionally reserved to the state, but not
         exclusively reserved to it, e.g., the common law shopkeeper’s privilege, from cases
         in which a private actor exercises a power exclusively reserved to the state, e.g., the
         police power.
Romanski, 428 F.3d at 637.
         This analysis demonstrates that the fact that Michigan delegated a part of the police power
to licensed private security guards, which it had traditionally and exclusively reserved for itself, was
the key fact that justified finding state action in Romanski. Although the police power that Michigan
bestowed upon licensed security guards pursuant to Mich. Comp. Laws § 338.1080 was limited in
certain respects, the plaintiff in Romanski could point to an identifiable police power–the power of
arrest–which was not possessed by the citizens of Michigan at large, but instead resided only in the
state, its agents, and those persons who the state empowered and regulated by statute. By contrast,
Plaintiffs here cannot point to any powers above and beyond those possessed by ordinary citizens

control of Defendant. Nevertheless, it is black-letter law that “[t]he party opposing the motion [for summary judgment]
may not rely solely on the pleadings . . . ; if the nonmoving party fails to make a sufficient showing on an essential
element of the case with respect to which the nonmovant has the burden, the moving party is entitled to summary
judgment as a matter of law.” Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003) (quoting Thompson
v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001)). It was, of course, Plaintiff Slaten’s burden, as the party who bears the
burden of demonstrating that Defendant acted under color of state law, to come forward with evidence that Defendant’s
security personnel were in fact licensed under Mich. Comp. Laws § 338.1079. Moreover, there is no allegation that
Defendant prevented Plaintiff Slaten’s discovery on this issue, or that the time in which the district court allowed Plaintiff
Slaten to conduct discovery was insufficient for him to procure this information. In short, Plaintiff Slaten has not carried
his burden, nor has he excused his failure to carry it.
No. 04-2424                Lindsey, et al. v. Detroit Entertainment                                                 Page 7


that the state of Michigan had delegated to Defendant’s unlicensed security personnel at the time
of Plaintiffs’ arrests. The instant case is thus squarely within the rule of Chapman, where this Court
held that a merchant exercising the “shopkeeper’s privilege” was not a state actor under the public
function test. 319 F.3d at 834. Because Plaintiffs cannot demonstrate that Defendant’s security
personnel were licensed under Mich. Comp.         Laws § 338.1079, they cannot show that Defendant
engaged in action attributable to the state.8 Plaintiffs therefore cannot demonstrate that Defendant
deprived them of their rights  secured by the Constitution by acting under color of state law, and their
§ 1983 claim must fail.9 We therefore affirm the judgment of the district court.10
                                                   CONCLUSION
        For the reasons stated above, we AFFIRM the district court’s grant of summary judgment
in favor of Defendant.




         8
           We note that we are not the first panel to conclude that Romanski does not apply to security guards that are
not licensed under Mich. Comp. Laws § 338.1079. See Boykin v. Van Buren Twp., 479 F.3d 444, 451-52 (6th Cir. 2007)
(distinguishing Romanski on the ground that the plaintiff had “not argued at any point in this litigation that [the defendant
security guards] were ‘private security police officers’ pursuant to [Mich. Comp. Laws] §§ 338.1079-338.1080”);
Durante v. Fairlane Town Ctr., No. 05-1113, 201 F. App’x 338, 342 (6th Cir. Oct. 18, 2006) (unpublished) (holding that
Romanski did not apply to the security guards of Fairlane Town Center because there was no evidence that the security
guards were licensed pursuant to Mich. Comp. Laws § 338.1079).
         9
           Additionally, Plaintiffs argue that the fact that casino gambling is a highly regulated business means that the
actions of Defendant’s security personnel can constitute state action for the purpose of § 1983. See, e.g., The Michigan
Gaming Control and Revenue Act, Mich. Comp. Laws §§ 432.201 to 432.256. Specifically, Plaintiffs rely on Rule 1003
of the Michigan Gaming Control Board, which establishes various procedures for detained or arrested persons. Plaintiffs
did not make this argument until oral argument, and they therefore have waived it. And in any event, we do not consider
the fact that the state pervasively regulates casinos in itself to be sufficient to transform the actions of Defendant’s
employees, including Defendant’s security personnel, into actions of the state.
         10
            Because we affirm the district court’s grant of summary judgment in favor of Defendant, we need not
consider Plaintiffs’ argument that the district court abused its discretion by failing to certify Plaintiffs’ class action.
