                                                 NOT PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-2219
                               _____________

                              JARRET FATE,

                                     Appellant

                                      v.

             NATHAN HARPER, Former Pittsburgh Police Chief;
                 FORMER CMDR. GEORGE TROSKY;
                      CITY OF PITTSBURGH
                         _____________


               On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                      District Court No. 2-12-cv-00459
               District Judge: The Honorable Arthur J. Schwab

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              March 4, 2014

        Before: RENDELL, SMITH, and HARDIMAN, Circuit Judges

                           (Filed: March 5, 2014)

                          _____________________

                                 OPINION
                          _____________________

SMITH, Circuit Judge.
                                          I.

      Appellant Jarret Fate (“Fate”) filed this civil rights action after he was

assaulted by an off-duty Pittsburgh police officer, Detective Bradley Walker

(“Detective Walker” or “Walker”). Fate named as defendants the City of

Pittsburgh (the “City”) and two of Detective Walker’s supervisors, Chief Nathan

Harper (“Chief Harper”) and Commander George Trosky (“Commander Trosky”).

Fate alleged that defendants deprived him of rights protected by the Constitution

because they failed to adequately address numerous prior complaints that Detective

Walker had engaged in excessively violent conduct, both during the performance

of his duties and while off-duty.

      The matter proceeded to trial, and at the close of Fate’s case-in-chief, the

District Court entered judgment as a matter of law in favor of Chief Harper and

Commander Trosky. The jury subsequently returned a verdict in favor of the City.

Fate now appeals the dismissal of his claims against Chief Harper and the verdict

in favor of the City.1 For the following reasons, we will affirm.

                                         II.

      On the morning of May 1, 2010, Fate and Detective Walker were involved

in a car collision just outside of Pittsburgh. At the time of the accident, Detective

Walker was off-duty, wearing plainclothes, and driving his private vehicle. After

1
      Fate does not appeal the dismissal of his claims against Commander Trosky.

                                          2
both cars pulled to the side of the road, Detective Walker walked over to Fate’s

vehicle, stuck his hands through the window, and grabbed Fate and began choking

him. Fate drove off, but was pursued by Detective Walker who eventually pulled

his car in front of Fate’s vehicle to block his escape. Walker then got out of his car,

drew his police-approved firearm, and approached Fate’s vehicle screaming

profanities and threatening to shoot. At no point did Detective Walker identify

himself as a police officer.

      Detective Walker instructed Fate to exit his vehicle and to produce his

license and registration, but Fate refused to move. At this point, Walker, acting in

what an observer described as an “extreme fit of rage,” punched and shattered

Fate’s windshield and driver’s side window, sending glass into Fate’s face.

Detective Walker then began to kick and punch the side of Fate’s vehicle,

declaring that he was “teaching [Fate] a lesson.”

      Eventually, Detective Walker forced open the driver’s side door and Fate

began to exit the car. As Fate was exiting the car, Walker began to notice a crowd

of people stopped in their cars and observing the incident. Still holding his weapon,

Detective Walker turned to the onlookers and screamed, “What the f--- are you

looking at?” Detective Walker then slammed his gun on the roof of the car and

once again demanded Fate’s license and registration. Fate complied with the



                                          3
request and Detective Walker scribbled down the information. He then threw the

documents back in the car, and left the scene.

      The City’s Office of Municipal Investigations later reviewed the incident

and brought charges against Detective Walker for conduct unbecoming of a police

officer. Those charges were sustained and Detective Walker was terminated.

Additionally, the Commonwealth of Pennsylvania brought criminal charges against

Detective Walker and, on April 12, 2011, he was convicted in state court of

assault, reckless endangerment, criminal mischief, and harassment. He was ordered

to pay restitution.

      A copy of Detective Walker’s disciplinary record reveals more than thirty

complaints of excessive force that predate the incident with Fate. After reviewing

the complaints, the Office of Municipal Investigations determined that most were

either unfounded or unsubstantiated. A few episodes, however, were more credible

and serious, including claims that Detective Walker choked and hit his own wife

and son, that he unnecessarily slammed a woman’s hand in a door five or six times,

and that he had used his police authority to threaten another driver following a

collision that occurred while he was off-duty. Despite the fact that several

complaints were sustained, Detective Walker received only minor discipline.

Indeed, he never received more than a one-day suspension.

      On April 10, 2012, Fate filed suit under 42 U.S.C. § 1983 in the United

                                         4
States District Court for the Western District of Pennsylvania against Chief Harper

and the City of Pittsburgh, alleging that, by failing to impose harsher discipline

and/or terminate Detective Walker based on the prior complaints, they were

deliberately indifferent to the risk that Detective Walker would continue engaging

in unnecessarily violent conduct. Further, Fate contended that the City’s policy of

failing to investigate or discipline officers like Detective Walker somehow caused

Detective Walker’s assault.

      A jury trial commenced on March 18, 2013. At the close of Fate’s case-in-

chief, the defendants moved for judgment as a matter of law as to all claims. After

hearing from the parties, the District Court granted judgment as a matter of law in

favor of Chief Harper, but denied the motion as to the City. In dismissing the

claims against Chief Harper, the Court pointed out that all complaints against

Detective Walker were, pursuant to department policy, first investigated by the

City’s Office of Municipal Investigations, and that Chief Harper was “confined by

the OMI process,” which only permitted him to take corrective action when a

complaint was sustained. App. 531, 534. Although numerous complaints were filed

against Detective Walker, the Court noted that only a handful were sustained, and

in those instances Chief Harper imposed discipline. The Court held that while

reasonable minds might disagree about whether Chief Harper should have imposed



                                         5
harsher discipline, “those judgment calls certainly do not rise to a level of

‘deliberate indifference.’”

      The claims against the City were then submitted to the jury. Fate argued that

the jury should only be instructed to determine whether defendants “caused”

Detective Walker’s assault. The District Court, however, rejected this argument,

and instructed the jury that “Plaintiff must prove . . . : First, [that] former Detective

Walker acted under color of law.” Because the jury concluded that Detective

Walker did not act under color of law, the District Court entered judgment in favor

of the City.

      Fate timely appeals.2

                                          III.

      Fate raises three separate issues on appeal. First, he contends the District

Court erred by requiring the jury to find—as a prerequisite for his claims against

the City—that Detective Walker acted under color of law. Second, he argues that

the Court erred in granting judgment as a matter of law in favor of Chief Harper.

And third, he contends the Court erroneously permitted defendants to argue that

their disciplinary decisions were influenced by past decisions of the union-

mandated arbitrators reversing officer terminations.


2
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3),
(4). This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                           6
      We find no error in the District Court’s instruction requiring the jury to find

that Detective Walker acted under color of law before imposing liability against

the City. Section 1983 affords a remedy for constitutional deprivations brought

about by state actors. Here, however, the jury determined that Detective Walker

was acting as a private citizen when he assaulted Fate. Without state action, there

can be no constitutional deprivation. And if Detective Walker did not violate the

constitution, “it is inconceivable that [the City] could be liable to [Fate].” City of

Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Pitchell v. Callan, 13

F.3d 545, 549 (2d Cir. 1994). Moreover, the Supreme Court has been clear that “a

State’s failure to protect an individual against private violence simply does not

constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cnty.

Dep’t of Social Serv., 489 U.S. 189, 197 (1989).

      Fate’s reliance on Stoneking v. Bradford Area School Dist., 882 F.2d 720

(3d Cir. 1989), is misplaced. In Stoneking, a former high school student sued her

school district and its officials under § 1983 and the Fourteenth Amendment for

failing to protect her from a band teacher who sexually assaulted her over a period

of years. But in Stoneking, there was no question that the band teacher was acting

under color of law when he sexually assaulted the plaintiff. Indeed, the Court noted

that much of the abuse alleged in the complaint “occurred in the course of [the

band teacher’s] performance of his official responsibilities, such as during school-

                                          7
sponsored events and trips, and sometimes on school property.” Stoneking, 882

F.2d at 724. As a result, the Court did not directly confront the situation we face—

where the state employee’s wrongful conduct was unquestionably not under color

of law. Because Detective Walker was not acting under color of law, we agree with

the District Court that there was no basis for a municipal liability claim against the

City.3

         Because we accept the jury’s determination that Detective Walker was not

acting under color of law, and thus his conduct was not attributable to the state, we

need not consider the other arguments raised in this appeal. Without any state

action depriving Fate of his constitutional rights, there can be no supervisory

liability against Chief Harper. Additionally, Fate’s evidentiary challenges had no

bearing on the jury’s determination that Detective Walker was not acting under

color of law.

         For the forgoing reasons, we will affirm the judgment of the District Court.

3
       We note that Fate briefly attempts to use what amounts to a failure to train
argument to find the City liable. While this could be an alternative theory of liability,
absent a finding that Detective Walker acted under color of law, we are not persuaded by
Fate’s attempts. See Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (“Failure to
train can serve as a basis for § 1983 liability only ‘where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into
contact.’”) (quoting Canton v. Harris, 489 U.S. 378, 388 (1989)). While we acknowledge
that Detective Walker’s actions were egregious, we cannot attribute Fate’s injuries to any
policy, practice, nor failure to train, on the part of the City of Pittsburgh. Detective
Walker’s actions in this incident were those of a private actor and were not prompted by
any policy or practice implemented by the City of Pittsburgh or Detective Walker’s
superiors.

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