United States District Court, D. Vermont
OPINION AND ORDER (DOC. 1)
GEOFFREY W. CRAWFORD, JUDGE UNITED STATES DISTRICT COURT.
Ivo Skoric, proceeding pro se, brings this action under 42
U.S.C. § 1983 against his former employer Defendant
Killington Ski Resort (Killington), alleging that Killington
violated his constitutional rights when it issued a notice of
trespass against him on January 25, 2017. (Doc. 1-2 at 4.) He
seeks rescission and withdrawal of the notice against
trespass as well as money damages. (Id.) Mr. Skoric
has filed a motion to proceed in forma pauperis
under 28 U.S.C. § 1915 (see Doc. 1), and has
submitted an affidavit (Doc. 1-1) that makes the showing
required under § 1915(a). Accordingly, the request to
proceed in forma pauperis (Doc. 1) is GRANTED.
However, for the reasons set forth below, the complaint is
the in forma pauperis statute, the court conducts an
initial screening of the complaint. See 28 U.S.C.
§ 1915(e)(2). The court is required to read a pro se
plaintiffs complaint liberally and construe it to raise the
strongest arguments it suggests. Harris v. Miller,
818 F.3d 49, 56 (2d Cir. 2016) (per curiam). However, the
court must dismiss the complaint if it determines that the
action fails to state a claim on which relief may be granted.
See 28 U.S.C. § 1915(e)(2)(B)(ii).
Killington Did Not Act Under Color of State Law
court concludes that Mr. Skoric has failed to state a §
1983 claim. Under 42 U.S.C. § 1983, a claimant may bring
suit against "[e]very person who, under color of any
statute ... of any State . . . subjects, or causes to be
subjected, any citizen ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and law
. . . ." Wyatt v. Cole, 504 U.S. 158, 161
(1992) (alterations in original) (quoting 42 U.S.C. §
1983). "The purpose of § 1983 is to deter state
actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails."
Id. "A § 1983 claim has two essential
elements: (1) the defendant acted under color of state law;
and (2) as a result of the defendant's actions, the
plaintiff suffered a denial of her federal statutory rights,
or her constitutional rights or privileges." Annis
v. Cty. of Westchester, 136 F.3d 239, 245 (2dCir. 1998).
case, the first element is lacking. Here, nothing in Mr.
Skoric's allegations suggests that Killington was acting
under color of state law when it issued the notice against
trespass. Killington is a private company; there is no
sufficient allegation that Killington is a state actor.
court rejects Mr. Skoric's contention that Killington
should be considered a state actor because it operates on
leased public land. (See Doc. 1-2 at 4.) As this
court has observed in a separate case, a portion of the land
upon which Killington operates is indeed leased from the
State of Vermont. See Post v. Killington, Ltd, No.
5:07-CV-252, 2010 WL 3323659, at *1 (D. Vt. May 17, 2010);
see also Sherburne Corp. v. Town of Sherburne, 124
Vt. 481, 207 A.2d 125 (1965). That fact alone, however, does
not bring this case within the ambit of the "symbiotic
relationship" test in Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961).
Burton, the owner of a private restaurant that
leased space in a state-owned building practiced racial
discrimination. The Supreme Court held that the owner's
discriminatory action qualified as state action because
"the state owned the building, paid the building's
maintenance, owned an adjacent parking lot and therefore had
a direct financial interest in the restaurant's success,
and dedicated the building for public purposes, thereby
conferring tax exempt status on the building."
Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1082
(2d Cir. 1990) (citing Burton, 365 U.S. at 723-24).
Burton "does not stand for the broad
proposition . . . that leasing property from a government
agency transforms a private actor into a state actor for
purposes of section 1983 liability" in all cases.
Lattibeaudiere v. AMR Servs. Corp., No. CV 95 5269
(RJD), 1996 WL 518076, at *3 (E.D.N.Y. Sept. 3, 1996).
Rather, the outcome of the analysis depends on the facts of
each individual case. See Burton, 365 U.S. at 723
(multiple "factors" were relevant to whether state
action was present); see also Hadges, 918 F.2d at
1081 (the test in Burton does not lend itself to
"formulaic applications"; the court must instead
"sift through and weigh the facts to determine whether
the alleged ties between the State and the private actor are
sufficiently strong to attribute the private actor's
conduct to the state"); Int'l Soc 'y for
Krishna Consciousness, Inc. v. Air Canada, 727 F.2d 253,
255 (2d Cir. 1984) (per curiam) (each inquiry is
the complaint alleges no facts regarding the details of the
relationship between Killington and the State of Vermont. But
the relevant details do appear in state public records,
including the 1960 lease itself,  and Appendix A4 of the State
Auditor's January 20, 2015 report entitled State Land
Leases Boost Ski Industry, but Are Dated and
Inconsistent.The court may take judicial notice of these
documents. See Giraldo v. Kessler, 694 F.3d 161, 164
(2d Cir. 2012) (court may take judicial notice of
"relevant matters of public record"); Moore
U.S.A., Inc. v. Standard Register Co., 139 F.Supp.2d
348, 363 (W.D.N.Y. 2001) (courts considering matters of
public record on a rule 12(b)(6) motion may consider
"published reports" and "records of
arrangement in this case does not meet Burton's
symbiotic-relationship test. The State of Vermont does have
an ownership interest in some of the land and structures at
Killington, but the court concludes that that is not by
itself enough. Neither is the payment of rent. Killington
makes lease payments to the State of Vermont under the terms
of the 100-year lease. The rental payment depends on
Killington's gross receipts, and in fiscal year 2014 it
was about $1.2 million. The court concludes that the
lessor-lessee relationship is not sufficient by itself to
constitute the symbiotic relationship that was present in
Burton. It is true that the State gains greater tax
revenues if Killington's gross receipts increase, but
that link is insufficient to forge a symbiotic relationship.
Hadges, 918 F.2d at 1082.
Burton Court also considered the tax advantages of
the arrangement in that case: "Should any improvements
effected in the leasehold by Eagle [the restaurant] become
part of the realty, there is no possibility of increased
taxes being passed on to it since the fee is held by a
tax-exempt government agency." Burton, 365 U.S.
at 724. The arrangement in this case similarly creates
certain tax advantages for Killington, since the lift
facilities are real estate and are also deemed to be the
property of the State. See Sherburne, 124 Vt. at
486, 207 A.2d at 128 (lift facilities at Killington (then
called Sherburne) are real estate owned by the State of
Vermont, and thus exempt from taxation). The court is not
persuaded, however, that the tax advantage is sufficient to
qualify the relationship as symbiotic.
case is distinguishable from Burton in key respects.
Whereas in Burton the upkeep and maintenance of the
building was the responsibility of the governmental entity,
the 1960 lease in this case specifies that the lessee is
generally responsible for maintenance of all lifts,
buildings, and structures. Perhaps most importantly, the
Burton Court noted the "peculiar
relationship" of the restaurant to the parking facility
in which the restaurant was located: restaurant guests had a
convenient place to park, and the convenient dining might
drive additional demand for the parking facility.
Burton, 365 U.S. at 724. There is no such symbiotic
relationship in this case: nothing in Mr. Skoric's
allegations or in the lease suggests that Killington is
operated as an integral part of a public building or other
public enterprise. For these reasons, the court concludes
that the symbiotic-relationship test is not met, and that Mr.
Skoric has failed to allege that Killington acted under color
of state law.