559 F.2d 1274 (5th Cir. 1977), 77-1026, Duriso v. K-Mart No. 4195, Division of S. S. Kresge Co.

Docket Nº:77-1026
Citation:559 F.2d 1274
Party Name:Lawrence J. DURISO, Plaintiff-Appellee, Cross-Appellant, v. K-MART NO. 4195, DIVISION OF S. S. KRESGE COMPANY, et al., Defendant- Appellant, Cross-Appellee.
Case Date:September 28, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1274

559 F.2d 1274 (5th Cir. 1977)

Lawrence J. DURISO, Plaintiff-Appellee, Cross-Appellant,

v.

K-MART NO. 4195, DIVISION OF S. S. KRESGE COMPANY, et al.,

Defendant- Appellant, Cross-Appellee.

No. 77-1026

[*]

United States Court of Appeals, Fifth Circuit

September 28, 1977

Page 1275

[Copyrighted Material Omitted]

Page 1276

Gordon R. Pate, Beaumont, Tex., for defendant-appellant, cross-appellee.

Keith Griffin, Beaumont, Tex., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Eastern District of Texas.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

PER CURIAM:

Lawrence Duriso brought this suit under 42 U.S.C. § 1983 against K-Mart Food Store No. 4195 1 and Donald W. Cox, the store's assistant manager, alleging deprivation of his constitutionally guaranteed rights by an unlawful arrest on a petty theft charge. He also alleged malicious prosecution, but the district court directed a verdict in favor of defendants on this issue. A jury awarded Duriso $10,000 in damages, K-Mart and Cox appealed, and Duriso cross-appealed.

K-Mart and Cox contend that the district court erred in denying their motions for a new trial, directed verdict, and judgment notwithstanding the verdict because the evidence was insufficient to show either that plaintiff had been deprived of any rights cognizable under § 1983 or that K-Mart and Cox had been acting under "color of law" within the meaning of that section. Duriso argues on cross-appeal that the district court erred in directing a verdict on the malicious prosecution claim. We affirm the judgment below.

The evidence, viewed in the light most favorable to Duriso, 2 reveals the following sequence of events. On the evening of January 31, 1975, Duriso entered the K-Mart store to purchase cigarettes and grocery items. He selected several packs of cigarettes from a display rack and then proceeded cigarettes in hand, to the merchandise aisles. Cox observed Duriso take the cigarettes, and, believing him to be a possible shoplifter, followed him through the store. As Duriso looked for other items, he suddenly thought that he might not have sufficient money to cover his intended purchases. He placed the cigarettes on a shelf and checked the amount of cash in his money belt. Cox, assuming that Duriso was attempting to hide the cigarettes on his person, went to get the store manager. Meanwhile, Duriso, who had determined that he lacked the...

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