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United States District Court, Northern District of Illinois, E. D

April 26, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Raymond ("Raymond") and Fred ("Fred") Klimzak (collectively "Klimzaks"), father and son, have sued the City of Chicago ("City"), Kane Services, Inc. ("Kane") and Jewel Companies, Inc. ("Jewel") under 42 U.S.C. § 1983 ("Section 1983"), charging several violations of law in the course of a wrongful detention and then wrongful arrest. Both the City and Jewel have moved that they be dismissed from the action for failure to state a cause of action and, in Jewel's case, for lack of subject matter jurisdiction as well.

Because the Complaint may not fairly be read to claim that Jewel acted "under color" of state law as required by Section 1983, the Complaint is dismissed as to Jewel. Kane stands in exactly the same posture as Jewel under the Complaint, and the Court therefore dismisses the Complaint as to Kane sua sponte. Finally, the City's motion to dismiss is likewise granted. All three dismissals are however without prejudice.


Jewel contracted with Kane to provide security services at the Jewel store at Cermak Road and Wolcott Avenue, Chicago. On February 1, 1978 Kane security guards on duty at the store detained Fred (then a minor), accused him of shoplifting and searched him. Both the detention and search were without probable cause and unjustified.

Jewel and Kane refused to allow Fred to communicate with his parents or an attorney during his detention. After Fred was allowed to leave the store (the Complaint does not allege just how that came about), Raymond and Fred returned to the store "to ask for an apology due to the public humiliation and disgrace, mental distress, and anguish suffered by the son."

Jewel's and Kane's agents refused to apologize to Fred, continuing to accuse him of theft. They detained and searched Raymond, threatened to handcuff him and struck him without justification. They refused to allow Raymond to use the public telephone to call the police, but eventually they themselves telephoned police and charged Raymond with a crime (unidentified in the Complaint).

Chicago police officers came to the store, took Raymond to a police station and searched him without probable cause. Kane's and Jewel's agents charged Raymond with criminal conduct requiring bail. Raymond was "forced to defend these malicious charges . . . all to his public disgrace, humiliation, and mental distress." Raymond was not found guilty.

Jewel and Kane and Section 1983 Liability

Neither Jewel nor Kane nor any employee of either holds any governmental or official position. To invoke Section 1983 Klimzaks must adduce facts that convert such private parties into persons acting "under color" of state law.

  This Court has recently dealt with the law in this area.
See Davis v. Carson Pirie Scott & Co., 530 F. Supp. 799, 801
(N.D.Ill. 1982). Without more, a merchant's detention of a
suspected shoplifter is not "under color" of state law just
because authorized by a statute like the Illinois Retail Theft
Act, Ill.Rev.Stat. ch. 38, § 16A-5 (the "Act").*fn2 Warren v.
Cummings, 303 F. Supp. 803

 (D.Colo. 1969); Weyandt v. Mason's Stores, 279 F. Supp. 283,
286-88 (W.D.Pa. 1968). That is only one facet of the general
rule that state-enacted self-help provisions do not
automatically clothe private actors with state authority. Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d
185 (1978).

Conversely, statutes like the Act do not provide total insulation from Section 1983 to merchants who act under them. This Court's Davis opinion (530 F. Supp. at 802) examined the case law and concluded such merchants could be held state actors for Section 1983 purposes where each of two discrete characteristics is present:

    (1) In detaining the suspect, the merchant must
  act in accordance with a preexisting plan between
  merchant and police.

    (2) That plan's content must involve the
  merchant's exercise of functions "exclusively
  reserved to the state."

See generally El Fundi v. Deroche, 625 F.2d 195, 196 (8th Cir. 1980); White v. Scrivner Corp., 594 F.2d 140, 143-44 (5th Cir. 1979); Duriso v. K-Mart No. 4195, 559 F.2d 1274 (5th Cir. 1977); Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th Cir. 1975).*fn3

Klimzaks' action against Kane and Jewel cannot survive such an analysis. Complaint ¶¶ 6 and 7 allege in conclusory terms that Kane's security guards and Jewel's store employees "at all times were acting . . . under color of statutes, ordinances, and customs of the State of Illinois and the City of Chicago." In like fashion Complaint ¶ 10 says the conduct of Kane and Jewel "was perpetrated pursuant to customary procedures agreed to by Chicago and its police department and in particular, pursuant to the provisions of Article 16A of Chapter 38 of the Illinois Revised Statutes, Section 16A-5 thereof. . . ."

Of course the first statements, merely echoing Section 1983 without stating any factual predicate for their conclusion, cannot suffice. And the Paragraph 10 statement, which alleges no "customary procedures" except conduct in conformity with the Act, is insufficient under Flagg Bros. and the Davis-analyzed cases — all of which require something more.

It is true that Complaint ¶ 12 alleges the Kane-Jewel conduct toward Fred violated the Act because there were no reasonable grounds to believe he had committed a theft. That however does no more than assert a possible claim under state law. Neither adherence to nor violation of the Act transforms the merchant into a state actor.

There are thus no facts to support the "under color" of law conclusions. And no inferences of fact may reasonably be drawn in Klimzaks' favor absent some factual predicate for those inferences. Complaint Count I must fail.

Count II, based on the same facts as Count I, can fare no better. Its legal theory is that the Act is an unconstitutional violation of Klimzaks "fifth [sic] and fourteenth amendment" rights. Again state action is required, and again none is alleged.

Count II also advances the legal conclusion:

  that the actions of Chicago in allowing the
  defendants Kane and Jewel to operate

  as a private police force are in conspiracy to
  violate the rights of plaintiff.

Once more the factual underpinning for that "conspiracy" conclusion is conspicuously absent. See Tarkowski v. Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir. 1980); Sparkman v. McFarlin, 601 F.2d 261, 268 (7th Cir. 1979) (en banc) (Sprecher, J., concurring). Moreover the asserted "conspiracy" is no more than an agreement*fn4 to allow Kane and Jewel to proceed in accordance with the Act. That is not action "exclusively reserved to the state." Like Count I, then, Count II is wanting in state action terms.

Count III does focus on different facts, but the legal result is the same. While the alleged acts may be wrongful, they too fail to convert Kane's and Jewel's agents into state actors. Nothing in Count III (or the Complaint read as a whole) states the Chicago police agreed to allow Kane and Jewel to exercise normal police functions (rather than the self-help activities allowed under the Act). No "color" of state law is thus present in Count III either.

City Liability Under Section 1983

Klimzaks are delinquent in responding to the City's motion to dismiss on the briefing schedule established by this Court. Under this District Court's General Rule 13(b), the motion will be considered without awaiting the tardy brief.

By definition the City is a state actor. But to sustain a Section 1983 claim against a municipality, a plaintiff must allege the municipality has acted in violation of the plaintiff's federally guaranteed rights. Klimzaks fail that test:

    (1) Count I alleges the City "agreed" to Kane's
  and Jewel's proceeding under the Act by detaining
  Fred. With no showing that Illinois' enactment
  was itself federally infirm, the City's
  "agreement" to its employment by private actors
  states no claim.

    (2) Count II says the City "allow[ed] . . .
  Kane and Jewel to operate as a private police
  force. . . ." Again the only facts alleged are
  the private parties' use of the Act, so the same
  result must be reached as under Count I.

    (3) Count III asserts Chicago police officers
  took Raymond in custody and searched him without
  probable cause. That claim does not survive under
  Monell v. Department of Social Services,
  436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611
  (1978), for it states nothing more than an
  impermissible respondeat superior concept.


Both motions to dismiss are granted, and Kane is dismissed as a defendant as well. Because the defects in Klimzaks' Complaint could conceivably be cured by the assertion of appropriate facts, such dismissal of the Complaint is without prejudice. However, if Klimzaks were to seek leave to replead, this Court would expect them and their counsel to be alert to their responsibilities and potential exposure under Fed.R.Civ.P. 11, 28 U.S.C. § 1927 and 42 U.S.C. § 1988.

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