The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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