El Fundi v. Deroche, 4
| Decision Date | 23 June 1980 |
| Docket Number | No. 80-1172,A,D,No. 2,E,No. 1,S,T,No. 4,4,1,2,80-1172 |
| Citation | 625 F.2d 195 |
| Parties | Niko EL FUNDI and Lela El Fundi, Appellants, v. Robert DEROCHE, Manager of Target Storeivisions of Dayton-Hudson Corporation, Sidney Goodron, Security Guardarget Storeinno H. Boener, Police Officerinnatt Roerner, Police Officerppellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Catherine A. Ludden, Hanft, Fride, O'Brien & Harries, P. A., Duluth, Minn., on brief, for appellants.
Appellees were not represented by counsel, and no brief was filed.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
Appellants Niko El Fundi and Lela El Fundi appeal the dismissal of two related civil actions brought under 42 U.S.C. § 1983 for alleged violations of civil rights. Pursuant to the recommendation of the United States Magistrate, the district court entered an order dismissing the original actions, brought in forma pauperis and filed pro se prior to service of process. Upon motion of appellants, we appointed counsel and allowed this appeal to proceed in forma pauperis. 1
The complaints allege that while shopping with their two grandchildren in Target Store No. 4, in Duluth, Minnesota, the appellants were unlawfully detained by store security guards. The complaints state that the guards locked the appellants and their grandchildren in an office and otherwise restrained them with physical force, threatened them with a cane and the use of handcuffs and denied them permission to use the restroom. The complaints further allege that the appellants were held until Duluth city police officers arrived, who issued the appellants a ticket summons for shoplifting. It is also alleged that $68.24 was taken unlawfully from appellant Niko El Fundi. Named as defendants were the manager of Target Store No. 4, two store security guards, two Duluth police officers, the County Court judge who accepted the appellants' plea of not guilty and appointed counsel to represent them, and the two public defenders who were appointed. In our order of March 10, 1980, we affirmed the dismissal of the complaint against the judge and the public defenders.
In recommending the dismissal of the action against the three Target employees, Magistrate Patrick J. McNulty found that those three appellees were not acting under color of state law as required by 42 U.S.C. § 1983. In so finding, Magistrate McNulty stated that the appellants' complaint failed to allege that those appellees were acting under color of state law. Both complaints, however, although crudely drafted, contained a statement that the action was brought under section 1983 "to redress the deprivation under the color of state law, of rights secured by the Constitution of the United States." The complaints also expressly stated: "Each defendant is sued individually and in his or her offical (sic) capacty (sic), at all times under color of Minnesota law." Further, the first...
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