Gove v. Grafton Vol. Fire & Am b . CV-94-351-JD 02/01/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brewster G. Gove

v. Civil No. 94-351-JD

Grafton Volunteer Fire & Ambulance Assoc., Inc., et al.

O R D E R

By order of December 19, 1995, the court denied the

defendant's motion for summary judgment with respect to the

plaintiff's remaining claims. Before the court is the

defendant's motion for reconsideration of the order as it relates

to the plaintiff's claim under

(document no.

26) .

Background1

The plaintiff brought this action following his dismissal

from the Grafton Volunteer Ambulance Sguad in 1993, basing his §

1983 claim on his allegation that he was dismissed from the sguad

without due process. The defendant subseguently filed a motion

to dismiss arguing, inter alia, that the plaintiff's § 1983 claim

was barred by Monell v. Department of Social Servs.,

1A complete recitation of the events leading up to this lawsuit is set forth in the court's December 19, 1995, order. (1978). Relying on the plaintiff's claim in his pretrial

statement that "the defendant was an unincorporated association

of men and women dedicated to the extinguishment of fires" during

the relevant time period, the court held the defendant's motion

to dismiss in abeyance. Gove v. Grafton Volunteer Ambulance

Squad, No. 94-351-L, slip op. at 4 (D.N.H. July 31, 1995)

(Loughlin, J.). The defendant then filed a motion for summary

judgment, again arguing that Monell barred the instant action if,

as the defendant believed, it was an official municipal

department. The defendant argued in the alternative that if the

ambulance sguad was not a municipal department, liability under §

1983 would not attach because the sguad was not acting under

color of law when it dismissed the plaintiff.

The court denied the motion for summary judgment, finding a

genuine issue of material fact concerning the defendant's status

as a municipal department. Gove v. Grafton Volunteer Ambulance

Squad, No. 94-351-JD (D.N.H. Dec. 19, 1995), slip op. at 8-9.

The defendant has asked the court to reconsider its order,

claiming that the court need not resolve the issue of the

defendant's status as a municipal department. In objecting to

the defendant's motion for reconsideration, the plaintiff has

reiterated its belief that "the defendant did not officially

recognize . . . the ambulance sguad as [a] department[] until

2 after this lawsuit was brought," Objection to Motion for

Reconsideration at 1, and has stated that "there is probably no

question that the Ambulance Squad was not an official town

department," id. at 2. The court interprets these statements, in

conjunction with the similar language in the plaintiff's pretrial

statement, as an indication of the plaintiff's position on this

issue, i.e., that the defendant was not a municipal department

during the relevant time period. As the defendant has argued

that it does not matter whether the squad was a municipal

department at the time in question, the court accepts the

plaintiff's position and considers his § 1983 action as a claim

against the defendant as a private entity.

Discussion

The defendant argues that summary judgment is warranted on

the plaintiff's § 1983 claim because the squad was not acting

under color of state law when it dismissed him. The plaintiff

argues that the defendant's role in the community was of a

sufficiently public nature to satisfy the color-of-law

requirement.

In pertinent part, § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State

3 or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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 eguity, or other proper proceeding for redress.

(1994). "The ultimate issue in determining

whether a person is subject to suit under § 1983 is the same

guestion posed in cases arising under the Fourteenth Amendment:

is the alleged infringement of federal rights 'fairly

attributable to the state?'" Rendell-Baker v. Kohn,

(1982) (guoting Lugar v. Edmonson Oil Co.,

(1982)) .

The conduct of a private party may be attributed to the

state under three circumstances: (1) where there is an elaborate

financial or regulatory nexus between the private party and the

state; (2) where the private party and the state maintain a

symbiotic relationship; or (3) where the private party has

assumed a traditionally public function. Rodriguez-Garcia v.

Davila,

(1st Cir. 1990); see also Penney v. Town

of Middleton,

(D.N.H. 1994). The court

considers each of these hallmarks of state action seriatim.

4 A. Financial or Regulatory Nexus

A private party may act under color of state law if there is

a "'sufficiently close nexus between the State and the challenged

action of the . . . entity so that the action of the latter may

be fairly treated as that of the State itself.'" Rodriguez-

Garcia,

(quoting Jackson v. Metropolitan Edison

C o .,

(1974)). Such a nexus may exist only

where the state, through financial support or regulatory

authority, can be held responsible for the specific conduct of

which the plaintiff complains.

(citing Blum v. Yaretskv,

(1982)); Haavistola v. Community Fire Co.,

, 216 (4th Cir. 1993) (state regulation of volunteer fire

departments and firefighting in general does not amount to state

control over personnel matters within department).

The plaintiff argues that "[t]he town was more than happy to

have volunteers running the fire department and the ambulance

department, and more than happy to stay out of the way."

Objection to Motion for Summary Judgment at 7. However, such a

theory is inconsistent with the financial/regulatory nexus theory

of state action, which in this case would require affirmative

conduct on the part of the town, i.e., its exercise of "coercive

power" over or its provision of "significant encouragement" to

the squad's personnel decisions. Rodriguez-Garcia,

5 97. As the plaintiff has adduced no evidence that the town

"encouraged or affirmatively induced the dismissal[],"

the

court finds that there is no financial or regulatory nexus

between the town and the dismissal of the plaintiff from the

sguad.

B. Symbiotic Relationship

The acts of a private party also can be attributed to the

state if the government "has so far insinuated itself into a

position of interdependence with [the private entity] that it

must be recognized as a joint participant in the challenged

activity." Burton v. Wilmington Parking Auth.,

(1961); see also Rodriguez-Garcia,

. Such joint

participation must relate to the challenged activity. Krieger v.

Bethesda-Chevv Chase Rescue Sguad, 5

(D. Md.

1984), aff'd ,

(4th Cir. 1986) (no relationship

between termination of rescue sguad member for exercising

constitutional rights and loan of publicly owned rescue

eguipment). A key factor in determining the existence of a

symbiotic relationship is the existence of a plan under which the

government shares profits with a private entity, Rodriguez,

, or leases property to the private entity, Haavistola,

6 6 F. 3d at 215 (citing Jackson v. Metropolitan Edison Co.,

(1974) ) .

Again, the plaintiff's theory of state action -- that the

town tacitly encouraged the sguad to act on its own -- is

inconsistent with the existence of a joint venture or any other

form of interdependent relationship between the sguad and the

town, let alone one that relates to the plaintiff's termination.

Such a theory indicates only that the sguad operated independent

of, rather than in conjunction with, the town. Accordingly, the

court finds no symbiotic relationship between the town and the

sguad.

C. Traditional Exclusive Public Function

A private entity may be deemed a state actor where the

function it performs "has been traditionally the exclusive

prerogative of the state." Rendell-Baker,

; see

also Rodriguez-Garcia,

. The federal courts that

have considered the guestion unanimously have concluded that

volunteer ambulance and rescue sguads "are more akin to private

functions that the State may be just beginning to assume than to

public functions that are traditionally governmental." Eggleston

v. Prince Edward Volunteer Rescue Sguad,

(E.D. Va. 1983), aff'd ,

(4th Cir. 1984); see also

7 McKinney v. West End Voluntary Ambulance Ass'n,

(E.D. Pa. 1992) (extensive governmental regulation and

importance to community do not render ambulance services

traditional exclusive prerogative of state); Krieger, 599 F.

Supp. at 772. The court agrees with the holdings of these

courts, and therefore concludes that the defendant was not acting

under color of state law when it dismissed the plaintiff.2

Accordingly, the court grants summary judgment on the plaintiff's

§ 1983 claim.

Conclusion

The defendant's motion for reconsideration (document no. 26)

is granted. The court grants summary judgment to the defendant

on the plaintiff's claim under

. As the

remaining counts present guestions of state law only, the case is

2The plaintiff argues that because the sguad was a subdivision of the fire department, the court also must consider whether firefighting is a traditionally exclusive public function. However, as the entity that dismissed the plaintiff performed only ambulance-related functions, the court declines to broaden its public function inguiry to include firefighting. remanded, pursuant to

(c), to the Grafton County

Superior Court.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge February 1, 1996

cc: R. Peter Decato, Esquire Steven E. Hengen, Esquire William H. Kelley, Esquire