Frank Lee filed an action under 42 U.S.C. SEC. 1983 against the Town of Estes Park a Colorado municipality and three of its policeman namely Chief of Police Robert W. Ault Sergeant Walter F. Kappely and Officer Gregg Filsinger. Also joined as a party defendant was Odd Lyngholm the operator of a Standard Oil gas station in Estes Park. Lee also asserted pendant claims against Lyngholm Filsinger and Estes Park based on false arrest and false imprisonment.

The district court granted summary judgment on Lee's 1983 claim in favor of Estes Park Chief Ault Sergeant Kappely and Odd Lyngholm the service station operator and also dismissed without prejudice the pendant state claims against Lyngholm and Estes Park. Lee now appeals from that order as it relates to his SEC. 1983 claim. At oral argument Lee's Counsel stated that he was abandoning any challenge to Court's dismissal without prejudice of the pendant state claims. Apparently those claims or some of them have since been pursued to conclusion in the state court. n1

Lee's SEC. 1983 and pendant claims against Officer Filsinger were tried to a jury which returned a verdict in favor of Filsinger. Lee also appeals from the judgment entered on that verdict claiming trial error by the district court.

The genesis of this dispute is the Estes Park flood in 1982. The Lawn Lake Dam broke and flooded Estes Park causing considerable destruction of property. Mrs. Imogene Scott Cooper's mobile home was carried off by the floodwaters and part of it ended up on or adjacent to the Standard Oil gas station leased and operated by Odd Lyngholm.

When her mobile home was carried away by the flood Mrs. Cooper lost a metal box which contained items of some value to her. In an effort to assist Mrs. Cooper in locating the box Frank Lee the plaintiff and his friend Earl Hunter went to the area where part of the mobile home had been found which as stated was on or adjacent to the Lyngholm service station and were using metal detectors in an effort to locate the metal box when Odd Lyngholm arrived on the scene. Lee and Hunter admittedly went behind a yellow plastic ribbon carrying the words "Police Line -- Do Not Cross."

Apparently Lyngholm believed that Lee and his friend were looters and an argument ensued which culminated in Lyngholm making according to Lee a citizen's arrest of Lee and taking him in Lyngholm's vehicle to police headquarters in Estes Park. At the scene of the arrest Lyngholm accused Lee and his friend of trespassing on his property. Lee tried to explain his presence but Lyngholm was not impressed. One word lead to another and in this setting Lyngholm made a "citizen's arrest " using those very words according to Lee and Lyngholm then proceeded to escort Lee to the town's police station. n2

At police headquarters Lyngholm and Lee were met by Officer Filsinger who arrived at the station at about the same time. Filsinger separated Lyngholm and Lee and led Lee to a back room where he left Lee alone for about 10 or 15 minutes while he questioned Lyngholm. After talking with Lyngholm Officer Filsinger decided to charge Lee with disorderly conduct Lyngholm signing the summons as the "complainant." Lyngholm thereafter left the station. Filsinger then served the summons on Lee and Lee too left the station house. Lee was neither fingerprinted nor photographed. The disorderly conduct charge was later dismissed on recommendation of the city Counsel. Based on this sequence of events Lee brought the present action in the United States District Court for the District of Colorado.

Lyngholm

The district court granted summary judgment in favor of Lyngholm on Lee's SEC. 1983 claim on the ground that Lyngholm's actions in making a "citizen's arrest" and transporting Lee to the police station were the actions of a private citizen and that there was no showing that Lyngholm acted in concert with the police or otherwise acted under color of law within the meaning of SEC. 1983. We agree.

If we understand Lee's argument he does not contend that the events which transpired at the service station give rise to a SEC. 1983 action. He recognizes that Warren v. Cummings 303 F. Supp. 803 (D. Colo. 1969) is at odds with such an argument. Rather Lee contends that what subsequently happened at the police station involving Lyngholm and Officer Filsinger gives rise to his SEC. 1983 claim. We disagree.

Although the color of state law requirement of SEC. 1983 is perhaps typically met by action on the part of a state official it is nonetheless well established that private individuals in a proper case can also be held liable under SEC. 1983. See Dennis v. Sparks 449 U.S. 24 27-28 66 L. Ed. 2d 185 101 S. Ct. 183 (1980).

However in order to hold a private individual liable under SEC. 1983 it must be shown that the private person was jointly engaged with state officials in the challenged action or has obtained significant aid from state officials or that the private individual's conduct is in some other way chargeable to the State. Application of this general rule to the instant case would mean according to Lee that Lyngholm and Filsinger were jointly engaged in the alleged constitutional deprivation and that therefore both were acting under the color of state law. In thus arguing Lee relies on Lugar v. Edmondson Oil Co. Inc. 457 U.S. 922 73 L. Ed. 2d 482 102 S. Ct. 2744 (1982).

In Lugar the Edmondson Oil Company sought and obtained under Virginia law prejudgment attachment of property belonging to an alleged debtor of the company. The attachment was later dismissed when Edmondson failed to establish the statutory grounds for attachment. The alleged debtor then brought a SEC. 1983 action against Edmondson and its president alleging that in attaching his property they acted "jointly" with the State to deprive him of his property without due process of law.

The district court and the Fourth Circuit Court of Appeals held that the action of Edmondson and its representative did not constitute state action as required by the Fourteenth Amendment and that the complaint therefore did not state a claim under SEC. 1983.

The Supreme Court reversed the Court of Appeals in Lugar and in so doing laid down a "two-part approach" to determine whether conduct allegedly depriving a party of his federal rights may be "fairly attributable" to a state and in this connection spoke at page 937 as follows:

First the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. Second the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official because he has acted together with or has obtained significant aid from state officials or because his conduct is otherwise chargeable to the State. Without a limit such as this private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.

We do not believe that Lugar supports Lee's position. Lugar was concerned with prejudgment attachment obtained by a private party availing himself of state law and jointly acting with state officials. We are disinclined to apply Lugar to a fact situation where a private party is simply reporting suspected criminal activity to state officials who then take whatever action they believe the facts warrant. Court in Lugar in footnote 21 on page 939 commented in this regard as follows:

Contrary to the suggestion of JUSTICE POWELL's dissent we do not hold today that "a private party's mere invocation of state legal procedures constitutes 'joint participation' or 'conspiracy' with state officials satisfying the SEC. 1983 requirement of action under color of law." Post at 951. The holding today as the above analysis makes clear is limited to the particular context of prejudgment attachment (emphasis ours).

As indicated above judgment was entered in favor of Lyngholm on Lee's SEC. 1983 claim on motion for summary judgment and not on a motion to dismiss under Fed. R. Civ. P. 12 (b)(6). Pretrial discovery which included depositions of all participants indicated that there was no genuine issue of material fact. And in our view those undisputed facts established that Lyngholm really did nothing more than report what he deemed to be criminal activity to the proper authorities.

While he was perhaps "insistent " Officer Filsinger made the decision as to whether Lee should be charged with any offense and if so what offense should be charged. In this regard Lyngholm wanted Lee charged with criminal trespass but Filsinger rejected that suggestion and decided to file a lesser charge of disorderly conduct. There is no suggestion in the record before us that there was any prearrangement between Lyngholm and Filsinger or that they were somehow acting as a team. As mentioned Filsinger's motion for summary judgment on Lee's SEC. 1983 claim was denied and that phase of the case was heard by a jury which found for Filsinger.

However the district court did not err in granting Lyngholm's motion for summary judgment as the record clearly indicates that Lyngholm was not himself a state actor nor was he acting under color of state law.

In support of our resolution of the matter see Benavidez v. Gunnell 722 F.2d 615 (10th Cir. 1983) where we held that the mere furnishing of information to police officers who take action thereon does not constitute joint action under color of state law which renders a private actor liable under SEC. 1983. See also Cruz v. Donnelly 727 F.2d 79 (3d Cir. 1984). In Cruz a shopkeeper called police when he suspected a person of shoplifting in his store and when the police arrived the shopkeeper asked that the suspect be searched. The police did so and found nothing. The suspect then brought a civil rights action against the shopkeeper.

The district court granted summary judgment for the shopkeeper and the Third Circuit affirmed. On appeal it was argued that the shopkeeper and the police "acted in concert" and that therefore the shopkeeper as well as the police acted under color of state law. The Third Circuit rejected this argument. In so doing the Third Circuit discussed Lugar and concluded that it did not control. The Third Circuit held that even though the shopkeeper asked the police to search the suspect the decision to search was the decision of the police and that the actions of the shopkeeper vis-a-vis the actions of the police were not under the color of law.

Estes Park Ault Kappely

We find no error on the part of the district court in granting summary judgment in favor of Estes Park Chief Ault and Sergeant Kappely on Lee's SEC. 1983 claim. Neither Chief Ault nor Sergeant Kappely saw or conversed with Lee on the day in question. Officer Filsinger was the only officer involved with Lee and Lyngholm. Lee's SEC. 1983 claim against Kappely is based on the fact that the latter in a supervisory capacity read and initialed Officer Filsinger's "incident report." We find no nexus between Kappely's action and Lee's claimed deprivation of federal rights. n3

Lee's SEC. 1983 claim against Estes Park and Chief Ault is premised on the allegedly inadequate training of Officer Filsinger who if he had been properly trained would under Lee's reasoning have acted differently at the station house when Lyngholm brought Lee to the station house on a citizen's arrest. The connection between the allegedly inadequate training and the claimed injury is not apparent to us. n4

Filsinger

As stated Lee's SEC. 1983 claim and pendant claims for false arrest and false imprisonment against Officer Filsinger were tried to a jury which found in favor of Filsinger. On appeal Lee complains about instructions given the jury on "good faith" as a defense and the definition of "trespass." At trial there was a dispute as to whether Lee was or was not trespassing on Lyngholm's premises. We are not persuaded that either of the instructions here complained about is an incorrect statement of the law and we perceive no reversible error.

Lee also complains that he was forced to trial with only one defendant Filsinger and that he should have been allowed to proceed to trial against all defendants named in the complaint. However as indicated Estes Park Ault Kappely and Lyngholm were properly dismissed from the case prior to trial.

Judgment affirmed.