889 F.2d 62 (5th Cir. 1989), 88-3882, Bartholomew v. Lee

Docket Nº:88-3882
Citation:889 F.2d 62
Party Name:Angela BARTHOLOMEW, Et Al., Plaintiff-Appellants, v. Harry LEE, Et Al., Defendants, Jim Wilson and Associates, Inc., etc., et al., Defendants-Appellees.
Case Date:December 01, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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889 F.2d 62 (5th Cir. 1989)

Angela BARTHOLOMEW, Et Al., Plaintiff-Appellants,

v.

Harry LEE, Et Al., Defendants,

Jim Wilson and Associates, Inc., etc., et al., Defendants-Appellees.

No. 88-3882

United States Court of Appeals, Fifth Circuit

December 1, 1989

Susanne B. Weiner, Jernigan & Weiner, New Orleans, for plaintiffs-appellants.

James S. Thompson, Porteous, Hainkel, Johnson & Sarpy, New Orleans, La., for Wilson & Assoc. and Gene Knight.

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

Before GEE, DAVIS and JONES, Circuit Judges.

PER CURIAM:

Appellants, arrested by Jefferson Parish deputies for creating a disturbance in a Marrero, Louisiana, shopping mall, appeal from a summary judgment in their attempted civil rights action against the mall that neither it nor its employees acted under color of state law in the premises. The only contention seriously advanced for reversal is that the mall's security guards acted "in concert" with the deputies, so that their actions constituted those of the

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state. We have upheld that theory of recovery in several decisions, of which a representative example is Smith v. Brookshire Brothers, Inc., 519 F.2d 93 (5th Cir.1975).

Crucial to making out a case on such a theory, however, is a finding that the state police acted according to a preconceived plan and on the say-so of the private actor, not on the basis of their own investigation:

The plaintiffs had to show that the police and the store managers were acting in concert; that Brookshire and the police had a customary plan whose result was the detention in the present case. Adickes v. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

The district court decided that such a plan had been evidenced: "The arrests by the Police Department of the City of Lufkin were made without the filing of a valid complaint and without any investigation, all of which was pursuant to said preconceived plan." (Finding of Fact 4; emphasis added). We do not believe that such a finding is clearly erroneous. Many colloquies at trial gave testimony to the proposition that Brookshire officials knew that they could have people detained merely by calling the police and designating the detainee.

Smith, Id. at 94.

Appellants point to no evidence whatever demonstrating the existence of a customary or preconceived...

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