Naffe v. Frey

A government employee acts under the color of law when, while he is performing his duty, he purposefully influences the behavior of others, which thereby inflicts harm on the plaintiff.

Nadia Naffe, the plaintiff, accused O’Keefe of sexual assaulting her. The defendant Frey, a criminal prosecutor, used his website to post threatening statements and shared substantial private information about Naffe because he claimed the sexual harassment claim was frivolous. Nadia Naffe was involved James O’Keefe in an undercover sting documentary to highlight the politic wrongdoings of Representative Maxine Water’s. One day, as O’Keefe checked his email on Naffe’s smart phone and did not log out. Naffe retained O’Keefe’s log-in information. As the friendship of Nafee and O’Keefe came to an end, friend of O’Keefe, John Patrick Frey, also a political activist, published derogatory comments about Naffe on his Internet blog and Twitter. As a result, Naffe sued Frey for allegedly action under the color of state law as the Deputy District Attorney under a 42 U.S.C. §1983 claim. The district court dismissed her cause of action. On appeal, the Ninth Circuit analyzed whether the factual allegations showed that Frey acted under the color of state law. The panel stated that a government employee acts under the color of law when, while he is performing his duty, he purposefully influenced the behavior of others, which thereby inflicts harm on the plaintiff. The panel held Frey’s public duties did not include updating his website, his comments were not related to being a prosecutor, and he included a disclaimer. AFFIRMED in part, REVERSED in part, and REMANDED.