277 F.3d 743 (5th Cir. 2001), 00-30710, Morris v Dillard Department Stores Inc.

Docket Nº:00-30710
Citation:277 F.3d 743
Party Name:DEBORAH MORRIS, Plaintiff - Appellant v. DILLARD DEPARTMENT STORES, INC; ET AL, Defendants DILLARD DEPARTMENT STORES, INC; LIBERTY MUTUAL INSURANCE CO; R.W. BROWN; CITY OF BOSSIER CITY, Defendants - Appellees
Case Date:December 26, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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277 F.3d 743 (5th Cir. 2001)

DEBORAH MORRIS, Plaintiff - Appellant

v.

DILLARD DEPARTMENT STORES, INC; ET AL, Defendants

DILLARD DEPARTMENT STORES, INC; LIBERTY MUTUAL INSURANCE CO; R.W. BROWN; CITY OF BOSSIER CITY, Defendants - Appellees

No. 00-30710

United States Court of Appeals, Fifth Circuit

December 26, 2001

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Appeal from the United States District Court for the Western District of Louisiana

Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.

KING, Chief Judge:

On claims asserting discrimination, unlawful search and seizure, malicious prosecution, false arrest, false imprisonment, and intentional infliction of emotional distress, arising from the detention, arrest and search of the plaintiff on suspicion of shoplifting, the district court granted summary judgment in favor of all defendants on all claims. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff-Appellant Deborah Morris, an African-American, appeals from the district court's grant of summary judgment in favor of Defendants-Appellees Dillard Department Stores, Incorporated ("Dillard's"), Dillard's insurer, Liberty Mutual Insurance Company ("Liberty"), and police officer R.W. Brown on all constitutional and state law claims brought by Morris. On March 13, 1998, Morris and a friend, Maxine Crawley, were in Dillard's. Officer Brown was off-duty that day from his job as a municipal police officer for City of Bossier City ("the City") and working as a private security guard for Dillard's. Brown wore his police uniform while working as a private guard, as required by the City. An employee of Dillard's, Meshell Maxey, reported to Dillard's security that she observed a suspected shoplifter. When Brown responded to Maxey's report, he obtained Maxey's description of what she observed and Maxey's identification of Morris as the suspect. Maxey's account included that Maxey saw Morris conceal a shirt under her jacket and then replace the merchandise during the time Maxey called for security. Officer Brown subsequently followed Morris and Crawley through the store for some time and then out to the parking lot. In the parking lot, as Morris and Crawley sat in their car, Brown copied down the car's license plate number and returned to the store. At no point before Brown returned to the store, did he attempt to confront, question, detain, search, or arrest Morris or Crawley. Morris and Crawley subsequently returned to the store and confronted Brown. Brown then arrested Morris, handcuffed her, and led her through the store to the security office

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where she was held and subsequently searched by a female police officer called to the scene. Morris was transported to the police station and "booked." Officer Brown filled out a municipal police "Incident Report" detailing the eyewitness account Brown had obtained from Maxey, as well as his following and observing Morris, his notation of the license plate, and the subsequent arrest.

Morris filed suit in state court against Dillard's, Liberty, and Officer Brown. The suit was subsequently removed to federal court. Against Dillard's and Liberty, Morris brought claims pursuant to 42 U.S.C. § 1983 (1994), alleging false arrest and unlawful search and seizure in violation of the Constitution. She also alleged a violation of 42 U.S.C. § 1981 (1994), on the basis of her race, of her right to make and enforce contracts, and various state law claims for false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Morris also sued Brown in his individual capacity under 42 U.S.C. § 1983 alleging false arrest and unlawful search and seizure. On May 3, 2000, the district court granted summary judgment to all defendants on all claims.1 Morris now timely appeals the district court's summary judgment in favor of Dillard's and Liberty on the § 1983, § 1981, and state law claims, as well as the court's summary judgment in favor of Brown on the § 1983 claim.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, applying the same standards as the district court. See Horton v. City of Houston, 179 F.3d 188, 191 (5th Cir. 1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)). Summary judgment is only proper where no material issue of fact exists as to any element of the claim. FED.R.CIV.P. 56(c). Where the non-movant fails to show specific material facts in dispute, summary judgment is appropriate. Celotex, 477 U.S. at 324.

III. § 1983 CLAIM AGAINST DILLARD'S AND LIBERTY MUTUAL

The district court granted summary judgment in favor of Dillard's and Liberty on Morris's § 1983 claim alleging false arrest and unlawful search and seizure in violation of the Fourth Amendment because the court found that Dillard's was not a state actor as a matter of law. As a threshold matter, for a plaintiff to state a viable claim under § 1983 against any private defendant, such as Dillard's or Liberty, the conduct of the private defendant that forms the basis of the claimed constitutional deprivation must constitute state action under color of law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924, 928-32 (1982). The Supreme Court has recently reiterated that the focus of the inquiry into whether a private actor can be subjected to constitutional liability is whether "such a close nexus between the State and the challenged action'" exists "that seemingly private behavior may be fairly treated as

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that of the State itself." Brentwood Acad. v. Tennessee Secondary Sch. Athletic Assoc., 531 U.S. 288, 295 (2001) (internal quotation omitted).2 Our sister circuits have noted that the state action doctrine is oft characterized by courts and commentators as "one of the more slippery and troublesome areas of civil rights litigation," one which presents a "paragon of unclarity," Gallagher v. "Neil Young Freedom Concert", 49 F.3d 1442, 1447 (10th Cir. 1995) (internal quotations and citations omitted), and that this is "particularly true in the area of off-duty police officers acting as security guards" for a private defendant, such as Dillard's. Chapman v. Higbee Co., 256 F.3d 416, 426 (6th Cir. 2001), reh'g granted, 270 F.3d 297 (6th Cir.2001). The Supreme Court has likewise recognized that the inquiry into whether private conduct bears sufficiently close nexus to the state is highly circumstantial and far from precise. Brentwood Academy, 531 U.S. at 295-96 (stating that "[w]hat is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity" and that "[f]rom the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action") (citations omitted).

This court has never before confronted the precise circumstance of this case in the context of a § 1983 claim brought against a private employer defendant, namely, one in which an off-duty police officer is employed as a private security guard and detains, searches or arrests the customer of his private employer subsequent to a report of suspicion made by another employee. However, in five decisions, this court has confronted analogous circumstances where either a merchant employee, or on-duty police officers called to the merchant's premises, have detained, searched or arrested a customer, and the customer has filed a § 1983 claim against the merchant. In those decisions, this court has developed a consistent doctrine applying a nexus-type test to determine when a private enterprise such as Dillard's may be subject to constitutional liability. See Bartholomew v. Lee, 889 F.2d 62, 63 (5th Cir. 1989); Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir. 1982) (per curiam); White v. Scrivner Corp., 594 F.2d 140, 141 (5th Cir. 1979); Duriso v. K-Mart No. 4195 Div. of S.S. Kresge Co., 559 F.2d 1274, 1277 (5th Cir. 1977) (per curiam); Smith v. Brookshire Bros., Inc., 519 F.2d 93, 94 (5th Cir. 1975) (per curiam). We first developed the test in Brookshire, in which customers brought a § 1983 claim against a merchant after a manager reported suspicion of shoplifting to police, and the police then detained, fingerprinted, and "booked" the customers. Brookshire, 519 F.2d at 94. We held that in order to subject the merchant to liability, plaintiffs had to show that the police and the store managers were acting "in concert; that [the private merchant] and the police had a customary plan whose result was the detention in the present case." Id. We found the requisite nexus in that case and subjected the merchant to liability where we found that the police and

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merchant maintained a pre-conceived policy by which shoplifters would be arrested based solely on the complaint of the merchant. See id. at 94-95.

We have refined application of the doctrine since Brookshire in three subsequent decisions, White, Hernandez, and Bartholomew, in which we established that a merchant is not a state actor unless the conduct on the part of a guard or officer giving rise to the claimed deprivation occurred based solely on designation of suspicion by the merchant and was not accompanied by any independent investigation by the officer. See Bartholomew, 889 F.2d at 63 (declining to find state action on the part of a defendant shopping mall where arresting officers made the arrest of customers causing a disturbance based not only on the request of mall security, but also on independent observation); Hernandez, 673 F.2d at 771-72 (upholding a bench verdict in favor of a merchant on a § 1983 claim where the plaintiff was detained in a store on suspicion of shoplifting, a police officer was called to the scene, the officer performed an independent investigation and arrested...

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