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reciting four tests courts have applied to decide whether a private individual acted under the color of state law
Summary of this case from Lee v. Brown Group Retail, Inc.Opinion
Case No. 01-4016-SAC
May 23, 2003.
MEMORANDUM AND ORDER
This case comes before the court on the motion of the Kroger Co., d.b.a. Dillon Stores Division ("Dillons"), and American Sentry Security System, Inc., ("Sentry") to dismiss the case. Defendant City of Topeka has previously been dismissed as a party. See Dk. 56. Plaintiffs represent that after the City's dismissal, plaintiff Shela Copeland is no longer a plaintiff in the case, as "she has no claims against defendants Dillons or Sentry." (Dk. 53, p. 2).
The court need not decide the status of plaintiff Shela Copeland, Kyong Wood's daughter, given the court's decision herein on the motions to dismiss the case. For convenience, the court will refer herein to Kyong Wood as "plaintiff."
Plaintiff brings 42 U.S.C. § 1983 and supplemental state law claims against Dillons and Sentry based upon an incident in which she was detained at a Dillons store due to suspicion of shoplifting and/or destruction of property. Defendants move to dismiss the case, alleging that it fails to state a claim for relief, pursuant to Fed.R.Civ.P. 12(b)(6). Specifically, defendants allege that plaintiff has failed to properly plead state action, or action under color of law, as is required for all § 1983 cases.
Sentry's motion/memorandum neither incorporates Dillons' motion, which expressly relies upon the stated rule, nor cites to Rule 12(b)(6). Nonetheless, the court finds that Sentry's motion is appropriately brought pursuant to that rule.
Procedural errors
Before examining the merits of the motions, the court addresses plaintiff's objection that defendants failed to follow the local rules regarding the manner in which motions and supporting memoranda are to be filed. D.Kan. R. 7.1 states, in pertinent part, that motions in civil cases "shall be accompanied by a brief or memorandum . . ." This rule contemplates that a motion and its supporting memorandum shall be filed as two separate pleadings, not as one, as both defendants have done.
The court believes that the violation apparently flows from defense counsels' lack of familiarity with the rules, rather than from blatant disregard for their requirements. Accordingly, the court shall permit the pleadings to remain as they are, but advises counsel for defendants that they shall not be excused from any future lack of compliance with the court's rules. The court thus examines the merits of the motions to dismiss.
12(b)(6) Standards
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir. 1991).
The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)). A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), 1219, and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998); see Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1262 (10th Cir. 1998). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).
§ 1983 Requirements
Defendants claim that plaintiff has failed to allege that they, as private security guards and/or store employees, acted under color of law, as is required for all § 1983 claims.
It is well established that private actors are not usually subject to liability under § 1983.
Plaintiffs alleging a violation of § 1983 must demonstrate they have been deprived of a right "secured by the Constitution and the laws of the United States," and that the defendants deprived them of this right acting under color of law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (citations omitted). "Thus, the only proper defendants in a Section 1983 claim are those who represent [the state] in some capacity, whether they act in accordance with their authority or misuse it." See Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (citations and quotations omitted). However, a defendant need not be an officer of the state in order to act under color of state law for purposes of § 1983. (citation omitted). Rather, courts have applied four separate tests to determine whether a private party acted under color of law in causing an alleged deprivation of federal rights: (1) the nexus test; (2) the symbiotic relation test; (3) the joint action test; and (4) the traditional public powers test or public functions test. See Gallagher, 49 F.3d at 1447.Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000).
Plaintiff states that the gravamen of her argument is not that the defendants conspired with the City of Topeka officers to violate her civil rights, but that they engaged in other acts sufficient to meet the requirements of the joint action test. Compare Anaya v. Crossroads Managed Care Systems, 195 F.3d 584, 596 (10th Cir. 1999) (a requirement of the joint action charge . . . is that both public and private actors share a common, unconstitutional goal."); Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir. 1994) (§ 1983 pleadings must specifically present facts tending to show agreement and concerted action.)
Defendants allege that none of the acts they engaged in are sufficient, under any of the four tests noted above, to meet plaintiff's burden to plead state action. Defendants rely primarily upon the general rule that "an individual does not act under color of law merely by reporting an alleged crime to police officers who take action thereon." Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983). Nor does the making of a citizen's arrest constitute acting under color of law for § 1983 purposes. See Carey v. Continental Airlines, 823 F.2d 1402, 1404 (10th Cir. 1987); Lee v. Town of Estes Park, 820 F.2d 1112 1114-15 (10th Cir. 1987); see also, Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984) (finding no acts under color of law where a shopkeeper called the police to search a suspected shoplifter, but the police found nothing.); see generally Sarner v. Luce, 129 F.3d 131, 1997 WL 687449, *1 (10th Cir. 1997) (finding plaintiff failed to plead overt or significant action by the other defendants such that defendant was a state actor.).
These same principles apply to merchants, as the Tenth Circuit has stated:
Generally, merchants are not considered to be acting under color of law for purposes of 1983 when they detain a person suspected of shoplifting or other crimes, call the police, or make a citizen's arrest. See Gramenos v. Jewel Cos., 797 F.2d 432, 435-36 (7th Cir. 1986), cert. denied, 481 U.S. 1028 (1987); Cruz v. Donnelly, 727 F.2d 79, 81 (3d Cir. 1984); White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir. 1979); Hurt v. G.C. Murphy Co., 624 F. Supp. 512, 514 (S.D.W. Va.), aff'd, 800 F.2d 260 (4th Cir. 1986); cf. Flagg Bros. v. Brooks, 436 U.S. 149, 165-66 (1978) (holding that state enacted provisions which permit self-help do not automatically convert private action into state action); Carey, 823 F.2d. at 1404 (holding that complaint to police and citizen's arrest by Continental Airlines employee does not constitute state action).Jones v. Wal-Mart Stores, Inc., 33 F.3d 62, 1994 WL 387887, *3 (10th Cir. 1994) (Table).
Analysis
The court has reviewed plaintiff's complaint to determine whether it sufficiently alleges facts showing the defendants acted under the color of law as required by 42 U.S.C. § 1983. Two paragraphs of plaintiff's § 1983 claim refer generally to state action. Paragraph 2 states:
Defendants used their powers under color of state law to direct and control the City police department for purposes that were adverse to plaintiffs . . . and were detrimental to the public welfare and safety.
Paragraph 8 states:
Defendants the Kroger Co., d.b.a. Dillons, and Sentry wrongfully invoked the police power of the City of Topeka. The City of Topeka, by and through its police officers, wrongfully acceded to the request and participated in the unlawful actions of the other defendants. . . .
These conclusory allegations fall far short of meeting the pleading requirements in § 1983 cases. See Fries v. Helsper, 146 F.3d 452, 458 (7th Cir.), cert. denied, 525 U.S. 930 (1998) ("Mere allegations of joint action or a conspiracy do not demonstrate that the defendants acted under color of state law and are not sufficient to survive a motion to dismiss).
The factual allegations of plaintiff's complaint, incorporated by reference, include the following allegations of acts by defendants, prior to the arrival of the City of Topeka police officers: "A Dillons security guard supplied by Sentry came up behind [plaintiff] in the parking lot and without notice or warning grabbed her hand, removing her car keys"; "one or more employees of Dillons wrongfully detained and falsely imprisoned plaintiff"; "the guard then directed [plaintiff] to go back into the store where the security guard was joined by another guard"; the "security guards refused to allow [plaintiff] to call her husband or get a glass of water that she had requested"; the security guards did not respond to her when she asked if she was being charged; and "Dillons security guards together pulled her arms behind her in a forceful and painful manner, and placed handcuffs on her forcibly pushed (sic) her backward causing her to strike a railing in the room, [injuring her]." Dk 1, p. 3.
City of Topeka police officers then arrived, having been called by one or more Dillons employees. The following allegations relate to acts thereafter: "The police officers declined to take plaintiff's complaint" that she had been "physically injured by the treatment of Dillons security guards"; one of the officers called her residence and stated that plaintiff had been arrested for shoplifting; and when plaintiff asked one or more of the City officers to loosen her handcuffs, "at first the officer declined, telling her that if she didn't move her hands, the cuffs would not be so tight." Dk. 1, p. 4. Plaintiff's daughter then arrived, demanded that plaintiff's handcuffs be removed, and was removed from the detention room by one of the police officers who told her that her mother was going to be charged with criminal damage to property. The remaining relevant allegation is that "together the security guards and Topeka police watched a video on multiple occasions that purported to record the action of [plaintiff.] Thereafter, the officers removed the cuffs from [plaintiff] and allowed her and Shela Copeland to leave." Dk. 1, p. 4. No charges were filed against plaintiff or her daughter.
Nothing in plaintiff's complaint sufficiently alleges that defendants, or either of them, engaged in acts under color of state law. Instead, the seizure and subsequent treatment of plaintiff at Dillons cannot be fairly attributed to the City of Topeka under any of the tests for state action. For a merchant or its security officers to call the police when they suspect shoplifting or destruction of property is insufficient to constitute state action. No acts allegedly taken by officers of the City of Topeka at the scene reveal prior collusion with defendants, or compliance with any requests by the defendants, or either of them, let alone the requisite joint action. Plaintiff's assertion that defendants "directed and controlled" the City police department is conclusory and unsupported by the facts alleged in the complaint. No allegations in the complaint support a conclusion that plaintiff's treatment resulted from any concerted action, prearranged plan, customary procedure, or policy that substituted the judgment of a private party for that of the police, or allowed a private party to exercise state power. See Carey, 823 F.2d at 1404. Thus even if everything alleged in the complaint is true, plaintiff fails to state a claim under § 1983.
State law claims
Plaintiff's complaint includes state law claims of false arrest and imprisonment, assault and battery, and outrage and/or negligent infliction of emotional distress. Over these claims, this court has no original jurisdiction.
Having dismissed the federal claims over which this court has original jurisdiction, the court in the exercise of its statutory discretion declines to assume supplemental jurisdiction over the plaintiff's state law claims against the defendants. 28 U.S.C. § 1367(c)(3); see Tonkovich v. Kansas Bd. of Regents, 254 F.3d 941, 945 (10th Cir. 2001). The plaintiff advances no substantial reasons for exercising such jurisdiction. "[G]iven the relative lack of pretrial proceedings — including a total absence of discovery — considerations of `judicial economy, convenience, fairness' do not favor `retaining jurisdiction.'" Tonkovich, 254 F.3d at 945 (quoting in part Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995)). At this juncture, the most common response is to dismiss the state law claims without prejudice. Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1237 (10th Cir. 1997).
Plaintiff requests that the state law claims "should be remanded to state court for trial" so that she will not lose her remedies for defendant's behavior. Given the state's savings statute, see K.S.A. § 60-518, plaintiff's fear of losing her state law remedies is unfounded. The court finds no unique circumstances justifying its exercise of supplemental jurisdiction.
IT IS THEREFORE ORDERED that Dillons' motion to dismiss (Dk. 42), and Sentry's motion to dismiss (Dk. 37) are granted.
IT IS FURTHER ORDERED that the court declines to exercise supplemental jurisdiction over the remaining state law claims and dismisses the same without prejudice.