The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Beverly M. Davis ("Davis") sues Carson Pirie Scott & Company
("Carson's") and its employee David Chimino ("Chimino") for
injuries arising from an allegedly unlawful arrest. Defendants
have moved to dismiss. For the reasons stated in this memorandum
opinion and order their motion is granted.
Davis' Theories of Recovery
Davis alleges violations of 42 U.S.C. § 1983 ("Section 1983")
and the First, Fourth, Fifth, Ninth and Fourteenth Amendments to
the Constitution. Both Carson's and Chimino are private parties
not holding any governmental or official position. For Davis to
maintain an action under any of the provisions, she must plead
facts that adequately demonstrate defendants acted under color of
state law.*fn3 Davis asserts a number of theories in that
respect — none successfully.
First Davis seeks to rely on the Illinois Retail Theft Act (the
"Act"), Ill.Rev.Stat. ch. 38, § 16A-5:
Any merchant who has reasonable grounds to believe
that a person has committed retail theft may detain
such person, on or off the premises of a retail
mercantile establishment, in a reasonable manner and
for a reasonable length of time for all or any of the
(a) to request identification;
(b) to verify such identification;
(c) to make reasonable inquiry as to whether such
person has in his possession unpurchased
merchandise and, to make reasonable investigation
of the ownership of such merchandise;
(d) to inform a police officer of the detention of
the person and surrender that person to the
custody of a police officer.
Case law is clear that such a statute, standing alone, does not
convert private parties' conduct under its authority into state
action. All arguments that state-enacted self-help provisions
automatically clothe private actors with state authority were
definitively scotched in Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). State action based on
such retail theft statutes, without more, has been rejected by
several courts. Warren v. Cummings, 303 F. Supp. 803 (D.C.Colo.
1969); Weyandt v. Mason's Stores, Inc., 279 F. Supp. 283, 286-88
(W.D.Pa. 1968); see this Court's opinion in Jenkins v. White
Castle Systems, Inc., 510 F. Supp. 981 (N.D.Ill. 1981) ...