                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2008

Showalter v. Brubaker
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2950




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2950


                              BARBARA SHOWALTER,

                                                    Appellant

                                           v.

          MICHAEL BRUBAKER, KRISTIN EBERSOLE, KENNETH BRANDT,
           NATHAN MYER, ROBERT YARNELL, and DAVID ZIMMERMAN




                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                   (No. 07-cv-0878)
                     The Honorable Juan R. Sanchez, District Judge


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 15, 2008

       Before: McKEE and GARTH, Circuit Judges, and RODRIGUEZ, District Judge *

                                  (Filed June 13, 2008)


                              OPINION OF THE COURT




   *
    The Honorable Joseph H. Rodriguez, Senior District Judge for the United States
District Court, District of New Jersey, sitting by designation.
RODRIGUEZ, District Judge

       Barbara Showalter appeals from the District Court’s Memorandum Opinion and

Order granting the motions of the appellees to dismiss her 42 U.S.C. § 1983 Complaint

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons below, we

will affirm the District Court’s dismissal.

                                              I.

       Because we write solely for the parties, who are familiar with the facts and

procedural history of the case, we will set forth only those facts necessary to our analysis.

       Appellant Showalter is an animal rights activist who opposes dog breeding

facilities in Lancaster County, Pennsylvania. The appellees are various individuals who

are involved in dog breeding or its political sphere: Michael Brubaker is a Pennsylvania

state senator; Kristin Ebersole is the Executive Director for the Pennsylvania State

Senate’s Agriculture and Rural Affairs Committee, which is chaired by Brubaker;

Kenneth Brandt is a dog breeding lobbyist; and Nathan Meyer, Robert Yarnell, and David

Zimmerman are associated with various organizations interested in dog breeding.

       On February 26, 2007, Showalter observed a meeting of the appellees in a parking

lot outside a convenience store. Ostensibly recognizing some of these individuals,

Showalter photographed the meeting from behind a bank of gasoline pumps. One of the

appellees apparently saw Showalter doing this, and pointed her out to the others.

Brubaker and Ebersole then “rapidly approached” Showalter, who retreated to her parked

vehicle. (A19.) The pair caught up with her, and Brubaker allegedly stood behind her car


                                              2
while Ebersole pounded on its windows. Afraid, Showalter attempted to flee, but was

prevented from reversing out of her parking space because Brubaker initially refused to

move from behind her car. Finally, however, Brubaker relented, and she drove away.

       Showalter filed this action and claimed the appellees violated her rights under the

First and Fourth Amendments to the United States Constitution. In particular, she

asserted that Brubaker and Ebersole’s actions constituted unlawful retaliation against her

for exercising her First Amendment right to photograph the group’s meeting. She also

alleged Brubaker and Ebersole violated her Fourth Amendment right to be free from an

unreasonable seizure in that they prevented her from immediately driving away.

Showalter claimed the other appellees similarly violated her rights because they

“concurred” with Brubaker and Ebersole’s actions. (A21.) She also brought a variety of

state tort claims against the appellees arising out of the incident.

       The District Court granted the appellees’ motions to dismiss the Complaint for

failure to state a claim. It reasoned that Showalter did not sufficiently allege the appellees

acted under color of state law, which is essential to a § 1983 claim. It additionally

declined to exercise supplemental jurisdiction over Showalter’s state tort claims.

                                              II.

       We have jurisdiction over appeals from all final decisions of the District Courts

pursuant to 28 U.S.C. § 1291. We review a District Court’s dismissal under Rule

12(b)(6) de novo. Merle v. United States, 351 F.3d 92, 94 (3d Cir. 2003). “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual



                                               3
allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’

requires more than labels and conclusions, and a formulaic recitation of a cause of

action’s elements will not do.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65

(2007) (internal citations omitted). Thus, a defendant’s motion to dismiss for failure to

state a claim should be granted unless the plaintiff’s factual allegations are “enough to

raise a right to relief above the speculative level on the assumption that all of the

complaint’s allegations are true (even if doubtful in fact).” Id. at 1965 (internal citations

omitted).

                                              III.

       We agree with the District Court’s conclusion that Showalter failed to state a

viable § 1983 claim. “‘To state a claim under § 1983, a plaintiff must allege the violation

of a right secured by the Constitution and laws of the United States, and must show that

the alleged deprivation was committed by a person acting under color of state law.’”

Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v.

Atkins, 487 U.S. 42, 48 (1988)). To satisfy the color of state law requirement, a plaintiff

must show that the defendant “used authority derived from the state in causing the alleged

harm.” Id. (citing Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998)); see West, 487

U.S. at 49 (“The traditional definition of acting under color of state law requires that the

defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the authority of state law.’”)



                                               4
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

       State officials may be state actors for purposes of § 1983 liability. Angelico v.

Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). However, a state employee

or officer whose purely private acts were not furthered by any actual or purported state

authority will not be found to have acted under color of state law. Bonenberger v.

Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997); Barna v. City of Perth Amboy, 42 F.3d

809, 816 (3d Cir. 1994).

       In this case, Showalter inadequately alleged action under color of state law.

Although Brubaker and Ebersole are state officials, the Complaint provides no facts from

which we could reasonably infer that they invoked their state authority or otherwise

attempted to exercise the power vested in them by state law. To the contrary, it asserts

the pair acted outside the scope of their state employment and that they were “not

authorized to restrain or apprehend [Showalter] . . . .” (A20.) Even viewing them in the

light most favorable to Showalter, these allegations suggest Brubaker and Ebersole were

pursuing their own private motives when they allegedly accosted her.2

       Showalter argues Brubaker and Ebersole are estopped from contesting this issue



   2
     Showalter argues the District Court improperly applied the Rule 12(b)(6) standard by failing
to view the allegations in the light most favorable to her. For example, she points to its
determination that her own fear, and not Brubaker or Ebersole’s state authority, caused her to
retreat to her car. She contends this demonstrates its “clear tendency to subjectively interpret and
embellish” her allegations. (Apnt’s Br. 8.) We disagree. Instead, it shows the District Court,
like us, found no allegations from which it could reasonably infer that Brubaker or Ebersole
invoked their state authority.

                                                 5
because they claimed the parking lot rendezvous was a legislative meeting entitling them

to legislative or sovereign immunity. In other words, she contends the pair cannot

simultaneously assert a government immunity and also assert they engaged in only private

action. This contention is unpersuasive, however, because litigants are free to make

alternative arguments in support of their positions. See F ED. R. C IV. P. 8(d)(2). In any

event, the fact that Brubaker and Ebersole may have been engaged in a legislative

meeting does not automatically convert their alleged wrongs into action under color of

state law. See Bonenberger, 132 F.3d at 24 (explaining that an act is not necessarily

committed under color of state law simply because it is committed by an on-duty state

employee).3

       The Complaint is similarly deficient with respect to the remaining appellees–

Brandt, Meyer, Yarnell, and Zimmerman. These individuals are not alleged to be public

officials or employees, nor are they alleged to have any particular connection to

Pennsylvania state government apart of their interest in the legislative process. Instead,

Showalter asserts they violated her rights when they “concurred that Brubaker and

Ebersole should pursue [her] and presumably acquire her camera.” (A21-22.)

       Under certain circumstances, private parties may be classified as state actors, for §

1983 purposes, if they conspire with state officials to deprive a claimant of her


   3
     Showalter additionally seems to argue that she has alleged action under color of state law, at
least with respect to Brubaker, because she recognized him as a state senator. She cites no
authority for this proposition and we do not see how the happenstance of Showalter’s knowledge,
in itself, suffices to demonstrate that Brubaker invoked his state authority.

                                                6
constitutional rights. Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998). However,

this requires a showing that the private party was a willful participant who jointly

engaged with a state official in the challenged action. Dennis v. Sparks, 449 U.S. 24, 27-

28 (1980). Thus, “[a] private action is not converted into one under color of state law

merely by some tenuous connection to state action.” Groman v. Township of Manalapan,

47 F.3d 628, 638 (3d Cir. 1995).

       Here, the private appellees’ mere alleged concurrence with Brubaker and Ebersole

is too tenuous to conclude their conduct was committed under color of state law.

Moreover, Showalter’s failure to sufficiently allege state action by Brubaker or Ebersole

forecloses her ability to make such a showing with respect to the private appellees.

       Finally, the District Court acted within its discretion when it declined to exercise

its supplemental jurisdiction over Showalter’s various state tort claims. See 28 U.S.C. §

1367(c)(3).

                                               IV.

       For the foregoing reasons, we will affirm the decision of the District Court

dismissing the Complaint in this matter.4




   4
     Because we have determined that Showalter did not properly allege action under color of
state law, it is unnecessary for us to address Brubaker and Ebersole’s additional arguments,
namely that they are entitled to immunity and that Showalter has not alleged the deprivation of
any constitutionally protected rights.

                                                7
