The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Roy C. Dennis ("Dennis") is the only remaining defendant in
this action originally brought by Willis Jenkins ("Jenkins")
under 42 U.S.C. § 1983 ("Section 1983") against Dennis, White
Castle Systems, Inc. ("White Castle") and Rainey Security, Inc.
("Rainey"). Jenkins alleges that Dennis, an employee of Rainey,
unlawfully beat and arrested Jenkins while assigned to duty as a
security guard at a White Castle restaurant. Dennis has moved to
dismiss this action for lack of jurisdiction, claiming that his
alleged conduct was not "under color" of state law — a
prerequisite to maintaining an action under Section 1983. For the
reasons stated in this memorandum opinion and order, Dennis'
motion is granted.
Dennis is employed by Rainey, an Illinois corporation, as a
licensed security guard. Rainey has contracted to provide White
Castle with certain security guard services, and pursuant to that
agreement Dennis was assigned to the White Castle restaurant at
1550 East 79th Street in Chicago. It was there that on September
14, 1978 Dennis
allegedly engaged in the unlawful actions on which this lawsuit
Were Dennis employed by the State of Illinois, there would be
a direct predicate for arguing that he acted "under color" of
state law in allegedly beating and arresting Jenkins, rendering
this action maintainable under Section 1983. Jenkins contends
that the same conclusion follows from Illinois' extensive
mandatory regulation and licensing scheme for detectives and
investigators (the "Illinois Detective Act"), with which Dennis
is required to comply and under which he is licensed.
Ill.Rev.Stat. ch. 111, §§ 2601-39 (see particularly § 2639, which
gives the state and not any local government unit the exclusive
"power to regulate the private Detective Business"). Jenkins
cites two district court decisions in which actions were held
maintainable under Section 1983 against "private detectives"
licensed in Pennsylvania and South Carolina. DeCarlo v. Joseph &
Co., 251 F. Supp. 935 (W.D.Pa. 1966); Thompson v. McCoy,
425 F. Supp. 407 (D.S.C. 1976).
Existence of a state licensing scheme does not necessarily make
a licensee's actions those of the state for either Fourteenth
Amendment or Section 1983 purposes. Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974);
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32
L.Ed.2d 627 (1972). Rather, as stated by our Court of Appeals in
Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761-62 (7th Cir.
1973) (citations omitted):
The "under color of" provision encompasses only
such private conduct as is supported by the state.
That support may take various forms, but it is quite
clear that a private person does not act under color
of state law unless he derives some "aid, comfort or
incentive," either real or apparent, from the state.
Absent such affirmative support, the statute [Section
1983] is inapplicable to private conduct.
Under that test, nothing in the Illinois Detective Act renders
the action of a licensee "state" action for Section 1983
purposes. That Act does set out extensive licensing and
registration requirements. But it authorizes no actions by
licensees on behalf of the state, nor does a license grant any
otherwise unauthorized authority.*fn1 In short, although a
"detective" must be licensed under the Act, a license does not
afford the licensee any particular "aid, comfort or incentive"
from the state.*fn2
DeCarlo and Thompson are plainly distinguishable. In each of
those cases the statute specifically authorized "detectives" to
make arrests*fn3 — effectively a grant of police authority. In
that respect this action is more closely analogous to Weyandt v.
Mason's Stores, Inc., 279 F. Supp. 283 (W.D.Pa. 1968), which held
that a Pennsylvania statute (different from the one at issue in
DeCarlo) authorizing department store detectives temporarily to
detain suspected shoplifters did not render such detentions
"under color" of state law.
Jenkins has thus failed to support the conclusory allegation
that Dennis' claimed conduct giving rise to this lawsuit was
undertaken "under color" of state law. Because Jenkins has
alleged no other basis for federal jurisdiction, the action must
be dismissed in its entirety.
Dennis' motion is granted. This action is ...