594 F.2d 140 (5th Cir. 1979), 77-2016, White v. Scrivner Corp.

Docket Nº:77-2016.
Citation:594 F.2d 140
Party Name:Lois WHITE et al., Plaintiffs-Appellants, v. SCRIVNER CORPORATION et al., Defendants-Appellees.
Case Date:April 30, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 140

594 F.2d 140 (5th Cir. 1979)

Lois WHITE et al., Plaintiffs-Appellants,

v.

SCRIVNER CORPORATION et al., Defendants-Appellees.

No. 77-2016.

United States Court of Appeals, Fifth Circuit

April 30, 1979

Page 141

Roy L. Brun, Shreveport, La., for plaintiffs-appellants.

Richard H. Switzer, Shreveport, La., for defendants-appellees.

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

Before THORNBERRY, CLARK and RONEY, Circuit Judges.

CHARLES CLARK, Circuit Judge:

While Lois White, her daughter Sandra White, and her sister Gloria Pratt were shopping in a Scrivner Corporation food store one night, the assistant manager of the store accused Lois White of stealing a roast from the store's meat counter and requested that she and her two relatives accompany him to a room in the back of the market. The women were asked for permission to search their purses and, upon examining the contents, the assistant manager found a pistol in Lois White's handbag. He then told the women to stand against a wall in the room while he called the police, who arrived a short time later and arrested Lois White for carrying a concealed weapon. Neither the police nor the assistant manager ever found any of the store's goods in Lois White's possession. White and her relatives subsequently filed this 42 U.S.C. § 1983 action against Scrivner and the employees involved in the incident, alleging that the detention and search infringed the plaintiffs' rights under the fourteenth amendment. This action was tried to the district court without a jury. The court found for the defendants and held that the employees' actions did not violate any of the plaintiffs' constitutional rights. We affirm.

To establish a claim under 42 U.S.C. § 1983, plaintiffs must show that the defendants acted under color of state law to deprive them of a right secured by the Constitution and laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185, 192 (1978); Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142, 150 (1970). Plaintiffs here offer three arguments to meet the under-color-of-law requirement. First, they contend that the employees, in detaining them and searching their purses, were performing a function exclusively reserved to the state and therefore should be treated as state actors. Second, plaintiffs assert that state action should be found since the defendants acted under a state statute permitting detention of suspected shoplifters. 1 Third, they assert that state action was present here since the defendants acted in concert with the police to detain and search the plaintiffs.

Plaintiffs' first and second arguments are governed by the Supreme Court's recent decision in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). In Flagg Brothers, a warehouseman threatened to invoke the provisions of a New York statute to sell the plaintiff's goods in order to pay past-due storage fees.

Page 142

Plaintiff brought suit under § 1983 seeking damages and an injunction to prohibit the proposed sale. The Supreme Court held that the plaintiff failed to show that the warehouseman's threats were made under color of state law. The Court first rejected the notion that the warehouseman, in threatening to sell the plaintiff's goods, was performing a public function. Although it reaffirmed the principle that a private party's performance of public functions can in certain situations be...

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