United States District Court, Northern District of Illinois, E. D
April 26, 1982
RAYMOND KLIMZAK AND FRED J. KLIMZAK, PLAINTIFFS,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Raymond ("Raymond") and Fred ("Fred") Klimzak (collectively
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
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
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
1977); Smith v. Brookshire Bros., Inc., 519 F.2d 93
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
(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.