673 F.2d 771 (5th Cir. 1982), 81-3382, Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc.

Docket Nº:81-3382
Citation:673 F.2d 771
Party Name:Carolina HERNANDEZ, Plaintiff-Appellant, v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC., et al., Defendants-Appellees.
Case Date:April 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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673 F.2d 771 (5th Cir. 1982)

Carolina HERNANDEZ, Plaintiff-Appellant,




No. 81-3382

United States Court of Appeals, Fifth Circuit

April 22, 1982

Michael H. Ellis, John J. Gillon, Jr., New Orleans, La., for plaintiff-appellant.

C. Monk Simons, III, New Orleans, La., for defendants-appellees.

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

Before CLARK, Chief Judge, REAVLEY and RANDALL, Circuit Judges.


The district court granted a directed verdict against the plaintiff in this action under 42 U.S.C. § 1983 because it concluded that the plaintiff had presented no evidence that the defendant's conduct was "state action." We affirm.

Security officers in defendant's store detained plaintiff because they suspected her of shoplifting. A police officer was called; he arrested plaintiff and took her to the police station for booking. The shoplifting charges were subsequently dropped because no representative of the store appeared for the criminal trial.

Plaintiff's contention that defendant's conduct was state action because defendant

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was performing a function "exclusively reserved to the state" and was detaining her pursuant to La.Code Crim.P.Ann. art. 215 (West Supp.1982) are foreclosed by our decision in White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir. 1979). In order to establish the requisite state action, plaintiff had to prove a "customary" or "pre-existing" arrangement between defendant and the police for detaining suspected shoplifters. White v. Scrivner Corp., 594 F.2d at 143; Smith v. Brookshire Bros., 519 F.2d 93, 94 (5th Cir. 1975), cert. denied, 424 U.S. 915, 96 S.Ct. 1115, 47 L.Ed.2d 320 (1976).

Plaintiff presented absolutely no evidence of such an arrangement. Plaintiff's own evidence demonstrated that defendant's employees called the police. Defendant's assistant chief of security, called as an adverse witness, testified that the police officer made his own investigation of the incident: the officer interviewed defendant's employees and plaintiff, wrote out his own report, and made his own determination concerning arrest. Plaintiff herself admitted that the police officer asked her questions. Plaintiff's only other witness on this issue, the arresting police officer, had no...

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