Unpublished Disposition, 934 F.2d 324 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1991)

Mary POSTMA, individually, and as administratrix of theEstate of her deceased daughter, CatherineMichelle Braley, Plaintiff-Appellant,v.Robert WATERS, et al., Defendant-Appellee.

No. 90-55167.

United States Court of Appeals, Ninth Circuit.

Argued and submitted April 1, 1991.Decided May 30, 1991.

Before CHAMBERS, SCHROEDER and REINHARDT, Circuit Judges.


MEMORANDUM* 

Mary Postma, individually and as the administratrix of her daughter Catherine Michelle Braley's estate, appeals the district court's grant of summary judgment in favor of Robert Mallon and Robert Waters, Los Angeles County deputy sheriffs, in Postma's civil rights action arising from the rape and murder of Braley. Postma alleges that her daughter was murdered by the deputy sheriffs acting under the color of state law.

The standard of review for a summary judgment motion is de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). The appellate court must determine, viewing the record in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

In order to prove a 42 U.S.C. § 1983 civil rights claim, appellant must demonstrate: (1) that a constitutional deprivation occurred; (2) that the deprivation occurred without due process of law; and (3) that appellees cause the deprivation while acting "under color of law." Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). "It is clear that under 'color' of law means under 'pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded." Screws v. United States, 325 U.S. 91, 111 (1945).

The Supreme Court has stated that "generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibiliteis pursuant to state law." West v. Atkins, 108 S. Ct. 2250, 2256 (1988). In determining whether or not an action is under color of state law, the Ninth Circuit, like the Sixth and Seventh Circuits, looks to the nature of the actions involved as well as the surrounding circumstances, and not simply to the defendant's official capacity. See United States v. McGreevy, 652 F.2d 849 (9th Cir. 1981); Traver v. Meshiry, 627 F.2d 934, 938 (9th Cir. 1980). The Seventh Circuit has described the trial court's task succinctly. "The essential inquiry [is] whether [the] actions related in some way to the performance of a police duty." Gibson v. City of Chicago, 910 F.2d 1510, 1517 (7th Cir. 1990). The Sixth Circuit has also found that " [t]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. 'It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law.' " Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), cert. granted, 425 U.S. 910, cert. dism'd. as improvidently granted, 429 U.S. 118 (1976) (quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968)).

Several times during the lower court proceedings the court asked appellant to come forth with some evidence to support allegations that the officers were acting under color of law. The only evidence that was produced is that which we discuss below. We alsBo note, incidentally, that in the supporting affidavits appellant has only circumstantial evidence to link appellees to the murder.

Appellant presents one affidavit from one patron in the bar saying that he received a business card from Waters. This along with the other evidence, is not enough to lead a jury to believe that the appellees persuaded Braley to accompany them by using their police identities.

Both sides agree that Mallon did use his county-issued vehicle as a place for engaging in intercourse with Braley. While this may not be the prescribed usage for the vehicle, in and of itself that is not sufficient to convert Mallon's social activity into activity under color of law; nor, taken in conjunction with the Bother evidence, does it raise a genuine issue of disputed fact as to the critical question.

Finally appellant argues that one could infer that appellees may have been taking Braley into protective custody because she was intoxicated. There is no evidence whatsoever to uphold this theory. On the contrary more than one witness states that when they left the bar, the officers and Braley were acting in a purely social manner.

Because there is no genuine issue of material fact, the lower court grant of summary judgment for the defendants is affirmed.

Affirmed.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3