Robert Allen Howerton, and Roxanna Howerton v. Jess Gabica and Marjorie Gabica

The Howertons appeal the dismissal after trial of their section 1983 claim. It was dismissed on the ground that sufficient state action had not been shown. We have jurisdiction under 28 U.S.C. § 1291 (1976). We reverse and remand.

I

In March 1977, the Howerton family leased from the Gabicas a trailerhouse, one of the few available rentals in the small town of Kooskia. The Howertons had financial difficulties and were unable to pay their August rent. A few days after Mrs. Howerton returned from the hospital following the birth of a fourth child, Mrs. Gabica went to the trailer to request that the Howertons look for a new residence. Mr. Howerton threatened to harm Mrs. Ga-bica, an older woman, should she return to the trailer. Mrs. Gabica then prepared a three-day eviction notice to serve on the Howertons; according to the Howertons this notice did not conform to the requirements of Idaho state law. Fearing harm from Mr. Howerton, Mrs. Gabica requested a uniformed police officer of the Kooskia Police Department to serve the eviction notice. Although there was contradictory testimony as to who actually served the notice, it is undisputed that an officer was present at the time the…