                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2005

Harvey v. Plains Twp Pol Dept
Precedential or Non-Precedential: Precedential

Docket No. 04-1148




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                                             PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 04-1148


                  ELIZABETH HARVEY

                         Appellant

                             v.

PLAINS TOWNSHIP POLICE DEPARTMENT; EDWARD J.
 WALSH; RONALD DOMBROSKI; PLAINS TOWNSHIP
          BOARD; JOAN A. CHUKINAS


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 01-cv-01768)
        District Judge: Honorable A. Richard Caputo


                 Argued April 18, 2005
  Before: ROTH, FUENTES, and BECKER, Circuit Judges.

                  (Filed: August 30, 2005)

JAMES A. SWETZ (ARGUED)
Cramer, Swetz & McManus, P.C.
711 Sarah St.
Stroudsburg, PA 18360
      Attorney for Appellant

C. KENT PRICE (ARGUED)
Shawn E. Smith
Thomas, Thomas & Hafer, LLP
305 N. Front St.
P.O. Box 999
Harrisburg, PA 17108-0999
       Attorneys for Appellees Plains Township Police
       Department, Edward J. Walsh, Ronald Dombroski, and
       Plains Township Board

ROBERT T. PANOWICZ (ARGUED)
11 West Market St., Suite 1122
Wilkes-Barre, PA 18701
      Attorney for Appellee Joan A. Chukinas

                               ____

                   OPINION OF THE COURT




FUENTES, Circuit Judge.

       This appeal raises questions regarding the liability of a
police officer and a landlord involved in an ex parte private
repossession by a former boyfriend of the plaintiff. We hold that
a police officer actively involved in such a repossession may be
engaged in state action in violation the Fourth Amendment. We
will reverse the grant of summary judgment in favor of the officer
because the District Court improperly resolved a material factual
dispute in favor of the police officer on this issue. We also hold
that the landlord, who, according to the plaintiff, participated in
the repossession by opening the door to the plaintiff’s apartment at
the direction of the police officer, was not engaged in state action.
We will therefore affirm summary judgment in the landlord’s
favor. We will also affirm summary judgment in favor of the
Police Department, the Police Chief, and the Township Board
because the plaintiff did not show any evidence of deliberate
indifference.

                 I. Facts & Procedural Posture

       This case centers around a private repossession of property




                                 2
by an ex-boyfriend from his former residence.1 In 1998,
Plaintiff/Appellant Elizabeth Harvey and her then-boyfriend
Edward Olowiany jointly leased an apartment in the township of
Plains, Pennsylvania. After the relationship deteriorated, Harvey
obtained a Protection from Abuse Order (“PFA”) against
Olowiany, which granted Harvey the exclusive right of possession
of the apartment, and ordered Olowiany to retrieve all of his
belongings immediately after entry of the PFA. At the PFA
hearing, Olowiany requested that he be allowed to return to the
apartment, in order to pick up furnishings and other things that
would be difficult to remove during his first trip. His request was
denied, although he claims that the judge noted that he could return
if he made arrangements with Harvey.

       Olowiany’s attorney sent a letter to Harvey asking her to set
a time for Olowiany to retrieve his remaining property. The letter
also contained an itemized list of that property. Harvey did not to
respond to the letter. The attorney sent a second letter, stating that
on September 18, 1999 at 2:00 p.m., Olowiany would arrive to
retrieve his belongings accompanied by a Plains Township police
officer. He sent a copy of this letter to the Plains Township Police
Department (“Police Department”) and to Harvey’s landlord, Joan
Chukinas. Because she was residing elsewhere at the time, Harvey
claims she never received the second letter.

       On September 18, Officer Ronald Dombroski was sent to
the Harvey residence by a supervisor in order to keep the peace at
the repossession. Dombroski was given a copy of the list of items
to be retrieved, as described in Olowiany’s attorney’s first letter.
At the agreed-upon time, Olowiany, Dombroski, and Chukinas
arrived at the apartment. Harvey, apparently unaware that her
apartment was to be entered, was not present. Dombroski directed
Chukinas to unlock the door, so that Olowiany could retrieve his




       1
        Because this is an appeal from the grant of summary
judgment to all defendants, our stated facts reflect those presented
by the plaintiff below.

                                  3
property.2 After entry, Olowiany removed items from the
apartment. While Dombroski claims that he attempted to verify
that only listed items were taken, upon returning to the apartment,
Harvey found that it was in disarray and that many items were
missing, including several that were not included in the list
accompanying the first letter.

       Harvey brought suit under 42 U.S.C. § 1983 against
Dombroski, Chukinas, Police Chief Edward Walsh, the Plains
Township Police Department, and the Plains Township Board.3
The essence of her complaint is that the actions of Dombroski and
Chukinas were in violation of the Fourth Amendment, and that
Walsh, the Police Department, and the Township failed to
adequately train Dombroski. The defendants moved for summary
judgment, and the District Court found for all of them. It held that
Dombroski was protected by qualified immunity, because, although
he violated Harvey’s clearly established Fourth Amendment rights,
he acted reasonably. Chukinas prevailed because, in the District
Court’s view, she was not acting under color of law or in concert
with Dombroski. The failure to train claim against the remaining
defendants failed because Harvey did not set forth any evidence of
deliberate indifference or identify an appropriate alternative
training program. Harvey appeals from the District Court’s grant
of summary judgment to the defendants.4

                      II. Officer Dombroski



       2
       The District Court in its recitation of the facts and
subsequent analysis found that Dombroski merely assented to
Chukinas’s opening of the door, after she asked him whether she
could open it. This is a highly contested issue, as discussed later.
       3
        Perhaps curiously, Olowiany was apparently not included
as a defendant.
       4
         The District Court had federal question jurisdiction over the
civil rights action under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction over the District Court’s final order disposing of all
claim under 28 U.S.C. § 1291.

                                  4
        To prevail on this appeal with respect to Officer Dombroski,
Harvey must show: (1) that Dombroski took part in state action; (2)
that the state action violated her asserted constitutional rights; and
(3) that Dombroski is not entitled to qualified immunity with
respect to the constitutional violation. We address these issues in
that order.

       A.     State Action

        “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.” West v.
Atkins, 487 U.S. 42, 48 (1988). To satisfy the state action
requirement, the defendant must have used authority derived from
the state in causing the alleged harm. See Abbott v. Latshaw, 164
F.3d 141, 146 (3d Cir. 1998).

        In Abbott, we considered the state action question under
facts somewhat similar to those in this case. 164 F.3d 141. Mark
Abbott and Laurie Latshaw were a divorced couple. During their
marriage, Latshaw’s father purchased a van for the couple and
eventually sold any interest that he may have had in it to Abbott in
exchange for Abbott’s promise to pay off the loan, which Abbott
fulfilled. However, Abbott never received the title from Latshaw’s
father, and after the divorce, the father transferred the title to his
daughter, rather than Abbott. She then sought repossession of the
van by enlisting Albert Diehl, a county constable, notifying him of
these facts and paying him to help her retrieve the vehicle. To
prove that she owned the van, Latshaw showed the constable the
title and a temporary registration. Diehl asked Abbott for the keys
to the van, but Abbott refused, arguing that he paid for the van and
he owned it. Diehl then summoned the police, and, in response,
three officers arrived: Officer Sarsfield, Officer Stafford, and
Lieutenant George. At about the same time, Abbott’s attorney
arrived at the scene and boxed in the van, just as a locksmith had
completed a duplicate key for Latshaw. Lieutenant George ordered
the attorney to unblock the van, and arrested the attorney after he
refused to do so. In the meantime, Latshaw got into the van and
managed to get around the attorney’s car and drive away. Abbott

                                  5
filed a § 1983 action against his ex-wife Latshaw, Constable Diehl,
Officers Sarsfield and Stafford, and Lieutenant George, alleging
that they deprived him of his property–the van–without due process
in violation of the Fourteenth Amendment. The District Court
dismissed all of the claims based on qualified immunity or lack of
state action. On appeal, we considered whether state action could
be found with respect to the various actors.

          We found that Diehl’s actions could be considered state
action:

          The constable played a principal role in the seizure.
          Latshaw enlisted him, and paid for his help because
          she believed that she could not take the van from
          Abbott without it. According to Abbott, “Mr. Diehl
          walked into my office and identified himself as a
          constable and told me that he was [there to] take my
          vehicle,” and that “we’re going [to] take the vehicle
          one way or another.” The constable threatened to
          arrest Abbott for driving “her vehicle” if he tried to
          drive the van home. Viewing the record in the light
          most favorable to Abbott, we find that a reasonable
          jury could conclude that Diehl used his public
          authority to help Latshaw take possession of the van,
          and as such was obligated to notify Abbott of the
          seizure in advance and to provide him with a
          meaningful opportunity to be heard.

Id. at 147. As to the police officers, we found that the mere
presence of Sarsfield and Stafford at the repossession did not
constitute state action:

          The Greensburg police officers were called to the
          scene to check Latshaw’s documentation, which they
          did.    There is no evidence that two of the
          officers–Sarsfield and Stafford–did any more than
          this. The mere presence of police at the scene of a
          private repossession does not, alone, constitute state
          action causing a deprivation of a protected property
          interest. . . . Officers Sarsfield and Stafford confined

                                     6
       their conduct to the routine police procedures of
       checking the vehicle registration, and cannot be said
       to have used state action to deprive Abbott of his due
       process rights.

Id. at 147. We, however, did find George’s actions to qualify as
state action (at least for summary judgment purposes):

       Lieutenant George did not remain neutral, but
       advised Latshaw that she had a right to immediate
       possession of the van. Lt. George also ignored
       [Abbott’s attorney’s] ardent protest of the seizure,
       and threatened to arrest [the attorney] if he did not
       move his car to make way for Latshaw. Although he
       was not the instigator, a jury could find that Lt.
       George, by his conduct, joined forces with Diehl in
       the unconstitutional deprivation, going beyond the
       permissible conduct outlined in Menchaca.

Id. As to Latshaw, we first noted that, “[a]lthough not an agent of
the state, a private party who willfully participates in a joint
conspiracy with state officials to deprive a person of a
constitutional right acts ‘under color of state law’ for purposes of
§ 1983.” Id. at 147-48. We reinstated the claim against Latshaw,
finding that state action was sufficiently alleged, as “Abbott had
alleged in his complaint that Diehl acted ‘at the instance and
request of Defendant Latshaw’ and . . . the complaint depicted joint
action by Latshaw and Diehl in effectuating the recovery of the
van,” and that the allegations had at least some support in the facts.
Id. at 148.

       Here, Dombroski argues that his action does not constitute
state action, because he merely was present at a private
repossession–likening his conduct to Officers Sarsfield and
Stafford in Abbott. We reject this argument. In an answer to an
interrogatory, Chukinas, the landlord, states that she opened the
door “at the direction and with the permission of the Plains




                                  7
Township Police.” 5 App. 501; see also App. 368-69 (confirming
that Dombroski “ordered [her] to open the apartment”). Thus, for
purposes of summary judgment, we must accept for a fact that
Dombroski directed Chukinas to open the door. Moreover,
Chukinas stated, in her deposition, that “I would never have opened
the door if I didn’t have permission from the policeman.” App.
365-66. Like in Abbott, viewing the facts in this manner, it
appears that Dombroski “played a principal role in the seizure” and
a reasonable jury could conclude that Dombroski used his public
authority to help the ex-boyfriend gain entry to and seize property
from Harvey’s apartment. The record supports a finding that he
was not a mere spectator, but in fact a but-for cause of the seizure.

        Dombroski relies on cases that allegedly suggest that the
plaintiff’s presence, here Harvey’s presence, was necessary for
state action to have taken place. See, e.g., Barrett v. Harwood, 189
F.3d 297, 302-03 (2d Cir. 1999); Breiner v. Litwhiler, 245 F. Supp.
2d 614, 626 (M.D. Pa. 2003). While the presence of the plaintiff
at the alleged constitutional violation was important in these cases,
it was important not in itself but as an indicator of the role that the
defendant likely played. In Barrett, the Second Circuit found that
an officer’s warning to the plaintiff against “start[ing] any trouble”
was a reasonable peacekeeping response to the plaintiff’s violent
opposition to the repossession. 189 F.3d at 303. The court stated
that the “crucial question” was whether or not the officer was
“taking an active role that either affirmatively assisted in the
repossession over the debtor’s objection or intentionally
intimidated the debtor so as to prevent him from exercising his
legal right to object to the repossession.” Id. at 302-03. However,
we believe that the implication that the plaintiff must be present
was in response to the factual situation presented. This is made
clear by the court’s earlier more general formulation of the issue:



       5
        Interrogatories are part of the summary judgment record:
Summary judgment is only proper if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, 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) (emphasis added).

                                  8
“When an officer begins to take a more active hand in the
repossession, and as such involvement becomes increasingly
critical, a point may be reached at which police assistance at the
scene of a private repossession may cause the repossession to take
on the character of state action.” Id. at 302. Thus, we do not read
Barrett as embracing a rule that requires the plaintiff’s presence in
order to find state action.

        In Breiner, the district court assigned significance to the
plaintiff’s absence at the scene because it showed that she was not
intimidated by the police presence–intimidation being one method
by which an officer might help effectuate a constitutional violation.
Id. at 626. However, as in Barrett, what was ultimately important
was whether the injury to the plaintiff was aided by the use of state-
derived authority, not whether the alleged state action was
immediately directed at the plaintiff. Here, the record supports a
finding that the officer used his authority to compel Chukinas to
open the door.             Thus, the use of state-derived
authority–Dombroski’s order to open the door–was critical to the
repossession, satisfying the state-action test discussed above.6

       B.     Constitutional Violation

       The District Court found that “[t]he law was unquestionably



       6
         It is a much different question whether state action could be
found if Chukinas asked Dombroski if she could open the door and
he assented (such that there was no official order to open the door).
The cases above suggest that Dombroski’s mere assent to opening
the door, provided that the choice to open the door remained with
Chukinas, would not qualify as state action. See Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) (“Action taken by
private entities with the mere approval or acquiescence of the State
is not state action.” (emphasis added)). Although this is the
situation that Dombroski and Chukinas now present, Chukinas’s
earlier statements create a factual dispute that must be resolved in
Harvey’s favor, rendering this issue irrelevant at this point in the
case, with respect to the characterization of Dombroski’s action as
state action.

                                  9
clear in September, 1999, that the Fourth Amendment prohibited
unreasonable searches and seizures of a person’s home by the
police without a warrant.” App. 8 (citing Payton v. New York, 445
U.S. 573, 583-85 (1980)). In arguing that the District Court should
be affirmed, the defendants (including Dombroski) do not appear
to deny this contention.7 Instead, Dombroski focuses on state
action, as discussed above, and on the argument that he was at a
private repossession merely to keep the peace and did not go
beyond performing that function. Accordingly, we will not disturb
the District Court’s finding that Dombroski’s actions violated the
Fourth Amendment.

        In addition to the Fourth Amendment violation, Harvey
notes in her reply brief that she “also claims that her right to due
process was violated.” Reply Br. of Appellant at 4. It is unclear
whether a due process claim was properly raised in her complaint
or explicitly made before the District Court, as the finding by the
District Court that Dombroski violated the Fourth Amendment
allowed it to move to the reasonableness prong of qualified
immunity without having to consider other constitutional claims.
Of course, that claim could have provided a ground to deny
qualified immunity, but we need not dwell on this issue. As
Harvey neglected to raise this argument in her opening brief, we
find it waived.8 United States v. Pelullo, 399 F.3d 197, 222 (3d
Cir. 2005) (“It is well settled that an appellant’s failure to identify
or argue an issue in his opening brief constitutes waiver of that
issue on appeal.”) (citing In re Surrick, 338 F.3d 224, 237 (3d Cir.
2003)).


       7
         They do not argue that there was no search or seizure or
that his actions were in the nature of “community caretaking.” See
United States v. McGough, No. 04-12077, 2004 WL 3389374, at
*4 (11th Cir. June 15, 2005). We have not had the occasion to
consider such an exception and need not do so at this time.
       8
        We note in passing that our discussion of due process
claims for random and unauthorized official conduct in Brown v.
Muhlenberg Township casts doubt on the viability of a due process
claim here. 269 F.3d 205, 213-14 (3d Cir. 2001) (citing Hudson v.
Palmer, 468 U.S. 517, 533 (1984)).

                                  10
       C.     Qualified Immunity

        “Qualified immunity shields public officials performing
discretionary functions from § 1983 and Fourteenth Amendment
liability ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’” Abbott, 164 F.3d at 148 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Our qualified
immunity inquiry is a two step process. First, we must determine
whether the defendants violated “clearly established” rights. Id.
This entails a finding of a constitutional or statutory violation as
well as a finding that the violated right was clearly established at
the time of the violation. Second, we determine whether a
reasonable officer would have believed that his or her conduct
deprived the plaintiff of his or her constitutional rights. Id.

       The Fourth Amendment right violated here was clearly
established at the time that the events that gave rise to this case
took place. As the District Court noted, Payton made clear in 1980
that warrantless searches are not permissible absent an exception;
no such exception is implicated here.

        The main issue here is whether Dombroski’s belief that he
was acting lawfully was reasonable. The District Court found that
Dombroski’s conduct was reasonable, because he was ordered by
his superior to keep the peace during the repossession, was given
the letters sent by Olowiany’s attorney, and believed that Harvey
and Chukinas had received the letter detailing the time of the
repossession and the items to be removed (this latter belief was
deemed reasonable because the letter indicated that it was sent to
those parties). Thus, the District Court reasoned, “as far as
Dombroski knew, the necessary arrangements had been made for
Olowiany to retrieve his belongings, and his role was simply to
keep the peace.” App. 10. Accordingly, “Dombroski reasonably
believed that by allowing Chukinas to unlock the door, and his
entering the apartment, he was acting to keep the peace.” The
District Court found that “Dombroski was acting under a belief that
the owner of the property was retrieving possessions with
permission from the possessor.” Id.



                                11
        The essence of the District Court’s analysis appears to be
that it was reasonable for Dombroski to conclude that Harvey
consented to the repossession. This belief was based on the fact
that the letter detailing the time of the repossession was sent to
Harvey. We believe that it is unreasonable to conclude, on the
basis of a letter that the ex-boyfriend’s attorney sent Harvey, to
which she did not respond, that Harvey consented to the
repossession.9 Officer Dombroski had no reason to believe that
Harvey had received the letter or, more importantly, that she had
consented to the repossession. Especially with knowledge of the
existence of a domestic violence order, a reasonable officer should
have determined whether consent was given by Harvey for the
repossession. A reasonable officer at least would have refused to
assist with opening the door until he was satisfied that consent was
given. See Payton, 445 U.S. at 585 (reiterating that “‘physical
entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed’”) (quoting United States v. U.S.
District Court, 407 U.S. 297, 313 (1972)). That he was ordered to
keep the peace should be irrelevant, as Officer Dombroski’s actions
went well beyond merely keeping the peace. Dombroski’s
supervisor simply ordered him to keep the peace, not to have the
door opened in order for the ex-boyfriend to remove property.
App. 446 (“I was to go down there and to keep the peace down
there, because there was a PFA in effect, and [Olowiany] was
going to be removing some of his items from the residence.”).10



       9
       The letter read, in relevant part:
      Be advised that my client, Edward Olowiany,
      accompanied by the Plains Township Police
      Department, will present themselves at your
      residence to recover items from the apartment Mr.
      Olowiany previously shared with you on Saturday,
      September 18, 1999, at 2:00 P.M.
App. 94. The letter also stated that a copy was sent to Chukinas.
       10
         Although Dombroski has stated that he was also instructed
“to make sure that [Olowiany] adheres to the list,” App. 458, this
instruction did not require him to order the door to be opened, but
rather simply involved passive observation of the repossession.

                                12
        Our dissenting colleague argues that our conclusion runs
afoul of Anderson v. Creighton, 483 U.S. 635 (1987), because
Dombroski “could have believed that his conduct was lawful in
light of the information in his possession.” We certainly agree, as
we must, that Creighton requires a particularized inquiry, involving
consideration of both the law as clearly established at the time of
the conduct in question and the information within the officer’s
possession at that time. However, we part ways when considering
whether the information in Dombroski’s possession could
reasonably have supported the belief that his actions were
constitutional. As an initial note, there is no need to “particularize”
the Fourth Amendment right implicated here beyond “the basic
rule, well established by [Supreme Court] cases, that, absent
consent or exigency, a warrantless search of the home is
presumptively unconstitutional.” Groh v. Ramirez, 540 U.S. 551,
564 (2004) (citing Payton, 445 U.S. at 586-88) (discussing
qualified immunity and noting that “[n]o reasonable officer could
claim to be unaware” of this rule). As in Groh, there was no
exigency here, and the Groh Court rejected, over a dissent, the
notion that “ample room” must be made for mistaken judgments of
law or fact in cases in which no exigency exists. Id. at 565 n.9.
Thus, the simple question we are faced with is whether it was
reasonable for Dombroski to infer consent from the knowledge in
his possession. Our dissenting colleague notes that “there is a
presumption that a properly mailed item is received by the
addressee.” However, we do not see how Dombroski could
reasonably infer from the presumption of mailing that Harvey
consented to anybody entering her apartment.11 Our colleague



       11
         Our colleague also points to language in the PFA stating
that Olowiany was “to pick up personal belongings,” but notes the
possible tension between that provision and another provision
“grant[ing] exclusive possession of the residence.” App. 91. As
an initial note, while the record suggests that the Sergeant who
dispatched Dombroski had a copy of the PFA when explaining the
situation to Dombroski, it is unclear whether Officer Dombroski
actually read the PFA. App. 447. Accordingly, Dombroski’s
familiarity with the PFA appears to be an unresolved historical
issue within the province of the jury, and we should make the

                                  13
seems to question what Dombroski should have done “at what he
understood to be a long prearranged appointment.” He should have
done exactly what he was dispatched to do–keep the peace–and not
affirmatively aid in the removal of property from Harvey’s
apartment. We stress that, at this stage, we must take for a fact that
the officer ordered the landlord to open the door. This, and only
this, is the action we find to be unreasonable, and clearly so.

      Because we find Officer Dombroski’s conduct to be
unreasonable given the facts presented, we will reverse the District
Court’s grant of summary judgment on qualified immunity grounds
to Dombroski.12

                       III. Joan Chukinas

       The District Court, as regards to the culpability of the


favorable inference for Harvey that Dombroski was not familiar
with the PFA. In addition, one could understand the PFA as
mandating that Harvey make reasonable efforts to accommodate
Olowiany’s efforts to retain his belongings. However, there is no
evidence that she was being unreasonable, and the PFA does not
appear to grant a general right of entry to Olowiany.
       12
          The parties appear to be in disagreement over the proper
role of the jury in qualified immunity determinations. Although the
courts of appeals are not unanimous on this issue, this Court has
held that “qualified immunity is an objective question to be decided
by the court as a matter of law.” Carswell v. Borough of
Homestead, 381 F.3d 235, 242 (3d Cir. 2004) (citing Doe v.
Groody, 361 F.3d 232, 238 (3d Cir. 2004)). “The jury, however,
determines disputed historical facts material to the qualified
immunity question.” Id.; see also Curley v. Klem, 298 F.3d 271,
278 (3d Cir. 2002). “A judge may use special jury interrogatories,
for instance, to permit the jury to resolve the disputed facts upon
which the court can then determine, as a matter of law, the ultimate
question of qualified immunity.” Curley, 298 F.3d at 279. At this
stage, however, the summary judgment standard requires the Court
to resolve all factual disputes in Harvey’s favor and grant her all
reasonable inferences, obviating any need to look to a jury.

                                 14
landlord, found that, as a matter of law, “Chukinas’s conduct [did]
not rise to the level of a constitutional violation” because she
“neither acted under color of law, nor did she act in concert with
Dombroski.” App. 12. It found that she did not assert any state
authority in opening the door and that there are no facts alleged that
support a finding that Chukinas and Dombroski acted in concert.
Our discussion of the law regarding state action and of the alleged
constitutional violations provides the relevant background.

        Harvey argues that, because the door was unlocked through
some sort of interaction between Dombroski and Chukinas, they,
by definition, acted jointly, satisfying the test from United States v.
Price, 383 U.S. 787, 794 (1966) (“Private persons, jointly engaged
with state officials in the prohibited action, are acting ‘under color’
of law for purposes of [§ 1983].”), for private party state action.
However, the Price test requires more than joint action, but rather
requires that the private actor at least be “a willful participant in
joint activity with the State or its agents.” 383 U.S. at 794
(emphasis added). Thus, compelled participation by a private actor
may fall outside of the contours of state action.

       As we are considering Chukinas’s motion for summary
judgment here, we construe the facts in the most favorable light to
Harvey. The record supports three possible scenarios with respect
to Chukinas: (1) she acted on her own in opening the door for
Olowiany; (2) she acted with Dombroski’s permission in opening
the door, but the choice of whether or not to open it was hers; or (3)
she acted at Dombroski’s direction in opening the door. If, under
any of these scenarios, Chukinas could be considered to have
engaged in state action, we must reject the District Court’s finding
that Chukinas did not engage in such action.

       Under the first scenario, in which Chukinas acted without
any input from Dombroski, Dombroski would merely have been
present at the scene and would not have used any of the state’s
coercive powers. Accordingly, there would be no state action by
Dombroski, and Chukinas could not have acted jointly in state
action (as there was none). Therefore this scenario is of no help to
Harvey. The second scenario–in which Chukinas chose to act with
the permission of Dombroski–is not materially different from the

                                  15
first, as the action is not coerced. See supra note 6.

       This leaves the last scenario, under which Dombroski
ordered Chukinas to open the door. Chukinas argues that, unlike
in cases in which private parties have been found to have acted
jointly with state actors, she did not direct Dombroski to do
anything nor did she request his assistance with anything.
Moreover, she argues, she had no personal interest in getting the
door opened, unlike, for example, Latshaw’s use of the constable
in Abbott.

        The Supreme Court’s language requiring joint action or
action in concert suggests that some sort of common purpose or
intent must be shown. See Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 942 (1982) (finding that “[t]he Court of Appeals erred in
holding that in this context ‘joint participation’ required something
more than invoking the aid of state officials to take advantage of
state-created attachment procedures” (emphasis added)). Although
the facts of this situation appear to render Chukinas a “participant,”
they do not suggest that she was a willful participant. Price
requires willful participation; a private citizen acting at the orders
of a police officer is not generally acting in a willful manner,
especially when that citizen has no self-interest in taking the action.
See Black’s Law Dictionary 1593 (defining “willful” as
“[v]oluntary and intentional, but not necessarily malicious”); see
also United States v. Cheape, 889 F.2d 477, 478 (3d Cir. 1989)
(noting that the jury found that the defendant’s “actions were
wilful, and not the product of coercion or duress”). For the reasons
just discussed, we believe that the willful participation required
under Price means voluntary, uncoerced participation. See Sutton
v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir.
1999) (“[W]e would expect that the private defendant is not
responsible for the government’s compulsion.”). Chukinas would
therefore not be liable here because she had not willfully
participated in the state action, as compulsion by the state negates
the presence of willfulness.13



       13
          We stress that by stating that a private actor is not engaged
in state action simply because she is compelled to take an action by

                                  16
        Harvey points out that, in Reitz v. County of Bucks, we
noted that “[o]ther courts have recognized that conduct as
seemingly benign as towing a vehicle at the direction of a police
officer can result in § 1983 liability for a private defendant.” 125
F.3d 139, 148 (3d Cir. 1997) (citing Goichman v. Rheuban Motors,
Inc., 682 F.2d 1320, 1322 (9th Cir. 1982)). The situation described
in Goichman, however, arose within a detailed statutory scheme
empowering the towing companies that was created by the state to
accomplish its own prerogatives with respect to traffic regulation.
Also, Goichman concerned whether the towing could be considered
state action, not whether suit could be brought against the private
trucking companies.14 See supra note 11. Accordingly, under no
possible factual scenario presented here could we conclude that
Chukinas engaged in state action. We will therefore affirm the
grant of summary judgment in her favor.

             IV. The Township and Chief of Police

       Harvey makes failure to train claims against the Township


a state actor, we are not suggesting that the action itself may not be
attributed to the state. Indeed, it seems entirely proper to find that
the state actor engaged in state action, including whatever actions
the private party was compelled to undertake. See Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296
(2001) (“We have, for example, held that a challenged activity may
be state action when it results from the State’s exercise of ‘coercive
power’ . . . .”). For example, in this case, although Chukinas in
fact unlocked the door, that action is imputed upon Dombroski
because he used his state authority to cause that action.
       14
         We note also that when private parties enter into symbiotic
relationships with the government that “confer[] on each an
incidental variety of mutual benefits,” their conduct may become
so inextricably intertwined with the state action that the private
conduct may result in § 1983 liability. Burton v. Wilmington
Parking Auth., 365 U.S. 715, 724-25 (1961). Here, however,
Chukinas was not in a symbiotic relationship with Dombroski, as
there was no relationship between her and Dombroski that
conferred benefits upon either of them.

                                 17
and the Chief of Police. The District Court dismissed both claims
on summary judgment, finding, among other things, that Harvey
failed to offer any evidence of deliberate indifference on the part
of either the Township or the Police Chief. See Muhlenberg, 269
F.3d at 215 (“A municipality’s failure to train its police officers can
subject it to liability, however, ‘only where [it] reflects a
“deliberate” or “conscious” choice by [the] municipality–a “policy”
as defined’ in Supreme Court cases.”) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)); id. at 216 (“[T]he plaintiff must
identify specific acts or omissions of the supervisor that evidence
deliberate indifference and persuade the court that there is a
‘relationship between the “identified deficiency” and the “ultimate
injury.”’”) (quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989)). After carefully considering Harvey’s arguments and
reviewing the record, we find no reason to overturn the District
Court’s judgment as to the Township and the Chief of Police.

                                  VI.

       For the reasons discussed above, we will affirm the District
Court’s grant of summary judgment in favor of Chukinas, Plains
Township, and Chief Walsh. However, we will reverse the grant
in favor of Officer Dombroski and remand for proceedings
consistent with this opinion.

BECKER, Circuit Judge, concurring in part and dissenting in
part.

      I join in Parts I, II.A and II.B, III, and IV of the majority
opinion.15 However, I dissent from Part II.C because I believe


1
  I join in Part II.A and B with considerable misgivings. Although
there is some evidence in the record that Dombroski “ordered”
Chukinas to open the door, the great weight of the testimony, from
both Chukinas and Dombroski, is that Dombroski did not give an
“order” but merely told Chukinas that “she could open the door.” I
strongly suspect that a jury will find that there was no “order,” and, if
there was not, there was likely no state action, as the majority notes in
footnote 6 of its opinion. At all events, this case is a far cry from
Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998), on which the majority

                                   18
that Officer Dombroski was entitled to qualified immunity.
       At the summary judgment stage, we must begin the
qualified immunity analysis by determining whether, viewing
the evidence in the light most favorable to the plaintiff, “the
officer’s conduct violated a constitutional right.” Saucier v.
Katz, 533 U.S. 194, 201 (2001). If such facts establish a
violation, then, under the second step of the analysis, we must
ask whether the “right was clearly established.” Id.
       It is undisputed that “the Fourth Amendment prohibited
unreasonable searches and seizures of a person’s home by the
police without a warrant.” Maj. Op. at 10-11; see also Payton v.
New York, 445 U.S. 573, 585 (1980) (“‘[T]he chief evil against
which the . . . Fourth Amendment is directed’” is warrantless
entry and search of home”). While this general proposition, on
which the majority relies, may be enough for the first step of the
qualified immunity analysis, the majority’s characterization of
the “right” in question is framed with insufficient particularity to
determine whether it was “clearly established” under the second
step. Saucier, 533 U.S. at 201-02. Rather, to find that a right
was “clearly established,” “the right allegedly violated must be
defined at the appropriate level of specificity.” Wilson v. Layne,
526 U.S. 603, 615 (1999). In a fact-bound Fourth Amendment
situation, “the right the official is alleged to have violated must
have been ‘clearly established’ in a more particularized, and
hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987) (emphasis added). In other words, we
must inquire “whether a reasonable officer could have believed
[that his or her conduct] was lawful, in light of clearly
established law and the information the [officer] possessed.”
Id. at 641 (emphasis added).
       The majority misapplies the Anderson standard. Instead,
it simply concludes it was not reasonable for Dombroski to
believe that Harvey consented or that the PFA was sufficient
authorization for him to allow (or direct) entry into the
apartment. Anderson, however, posits a more forgiving inquiry


so heavily relies, where the action of the police officer was
significantly more aggressive and heavy-handed.

                                   19
even at the summary judgment stage.
        In my view, Officer Dombroski certainly could have
believed that his conduct was lawful in light of the information
in his possession. Dombroski was aware that Olowiany’s
attorney had written two letters to Harvey, the first asking her to
set a time for Olowiany to retrieve his remaining property (and
enclosing an itemized list of that property), and the second
stating that on September 18, 1999, at 2:00 p.m., Olowiany
would arrive to retrieve his belongings accompanied by a Plains
Township police officer. The letters were copied to the Police
Department and Chukinas. Although Harvey claimed in her
deposition that she was residing elsewhere at the time and that
she never received the second letter, Dombroski had no reason
to know that, and this post hoc representation rings hollow in
view of the fact that her possessions were still in the apartment
(including the ones that she claims that Olowiany “trashed” or
purloined). Moreover, under Third Circuit law there is a
presumption that a properly mailed item was received by the
addressee, see In re Cendant Corp. PRIDES Litig., 311 F.3d
298, 304 (3d Cir. 2002), and I do not see why Dombroski could
not rely on that presumption.
        The majority states that Dombroski had no reason to
believe that Harvey had received the letter or consented to the
repossession, and even goes on to say that a reasonable officer
should have determined whether consent was given by Harvey
for the repossession and refused to assist in the opening of the
door until he was satisfied that consent was given. Pray tell how
this local police officer sent on short notice to keep the peace at
what he understood to be a long prearranged appointment could
satisfy the majority’s prescriptions? Cf. Illinois v. Rodriguez,
497 U.S. 177, 185-86 (1990) (“It is apparent that in order to
satisfy the ‘reasonableness’ requirement of the Fourth
Amendment, what is generally demanded of the many factual
determinations that must regularly be made by agents of the
government . . . is not that they always be correct, but that they
always be reasonable . . . We see no reason to depart from this
general rule with respect to facts bearing upon the authority to
consent to a search.”).
        Additionally, Dombroski knew that the PFA, which
granted Harvey exclusive possession of the apartment, also

                                20
permitted Olowiany to pick up his personal belongings from the
apartment. The PFA could be interpreted as obviating the need
for Harvey’s consent.16 There has been sharp disagreement
among the Courts of Appeals as to whether it was clearly
established, as of 1999, that an officer may not rely on a writ of
replevin, writ of assistance, or other similar order to enter private
property. Compare Specht v. Jensen, 832 F.2d 1516, 1525 (10th
Cir. 1987) (finding no qualified immunity where the officers
relied on a writ of assistance) and Audio Odyssey, Ltd. v.
Brenton First Nat’l Bank, 245 F.3d 721 (8th Cir. 2001) judgment
vacated and then reinstated in full by 286 F.3d 498 (8th Cir.
2002) (en banc), with In re Foust, 310 F.3d 849, 859 (5th Cir.
2002) (holding it was not clearly established, as of 1998, that
officers could not occupy the entire premises in order to retrieve
property located inside the premises) and Salzer v. Dellinger,
1995 WL 283986 (7th Cir. April 21, 1995) (unpublished
opinion) (holding that it was not clearly established as of 1989
that an order of possession was not a substitute for a warrant).
The PFA presents an even stronger case for permitting entry than
a writ of replevin, assistance, or an order of possession, because
the property in question was formerly leased to both Olowiany
and Harvey, and the PFA served the dual purpose of allocating
the right of possession to Harvey and of permitting Olowiany to
retrieve his personalty. In light of the disagreement among the
circuits and the contradictory prescriptions in the PFA, I do not
believe it was clearly established that Dombroski could not
reasonably rely on the PFA to enter Harvey’s apartment without
a warrant or Harvey’s consent.
       Finally, Dombroski was acting on the orders of his
sergeant. While it is typically no defense for an officer to claim
he was simply “following orders,” Villanueva v. George, 659
F.2d 851, 855 (8th Cir. 1981) (en banc), “[p]lausible
instructions from a superior or fellow officer” can “support
qualified immunity where, viewed objectively in light of the

2
 The contradictory commands in the PFA appear to me to have been the true origin
of the problems in this case. The alleged intrusion into Harvey’s apartment and this
ensuing litigation might have been avoided if the Common Pleas judge had made
clear exactly how and when Olowiany was to retrieve his property from Harvey’s
apartment.

                                  21
surrounding circumstances, they could lead a reasonable officer
to conclude that the necessary legal justification for his actions
exists.” Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.
2000); see also Lauro v. Charles, 219 F.3d 202, 216 n.10 (2d
Cir. 2000). The sergeant’s order in this case could have given
Dombroski an additional basis for believing that the necessary
arrangements were made for proper entry into Harvey’s
apartment
        In sum, relying on the two letters from Olowiany’s
attorney, the PFA, and the orders from his supervisor,
Dombroski could have reasonably believed either that Harvey
consented to the entry or that the PFA authorized it. Under
these circumstances, I believe that Dombroski’s willingness to
tell Chukinas that she could open the door was reasonable, and
that he should be granted qualified immunity.




                                22
