An individual's work as a town volunteer may be insufficient to prove that the individual acted "under color of" state law, for purposes of a §1983 count against the municipality. In 2001, the plaintiff, Jane Doe, met the defendant, Peter Waraksa and his wife. Jane Doe and her children, John Doe 1, John Doe 2 and John Doe 3, frequently visited the Waraksa residence for a swim and a barbecue. Waraksa took John Doe 1 to town events, museums, parades and amusement parks. In or about 2003, Jane Doe worked a late shift. The Waraksas babysat the children overnight. Waraksa joined a volunteer group, the municipality's Emergency Management Agency. John Doe 1 joined as a cadet. The plaintiffs alleged that between May and August 2005, Waraksa sexually abused 12-year-old John Doe 1, 6-year-old John Doe 2 and 3-year-old John Doe 3. The plaintiffs sued Waraksa, Waraksa's neighbor, State Trooper Mary Buckley, and the Town of East Windsor, alleging that they violated their civil rights under 42 United States Code §1983. The plaintiffs alleged that John Doe 1 did not resist Waraksa, because he used his power as a town Emergency Management Agency supervisor. The municipality and Buckley argued that Waraksa acted as a private citizen and did not invoke the authority of the town's Emergency Management Agency at the time of the alleged abuse. Courts have held that the "under color of" law requirement in §1983 suits is only met when an individual actively abuses state power. Waraksa did not gain access to the plaintiffs as a result of being a municipal official. Waraksa did not actively abuse power conferred by a state authority when he allegedly engaged in sexual abuse. John Doe 1 admitted that Waraksa did not threaten him or induce him based on his official power. A reasonable factfinder could not conclude Waraksa used his authority as a town volunteer to engage in alleged sexual abuse. "Because the challenged action, albeit tragic and reprehensible, does not constitute state action," wrote the court, "Plaintiffs' Section 1983 claims necessarily fail." The court granted summary judgment on the §1983 count.   

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