Gipson v. Supermarkets General Corp.

• Decision Date: 07 February 1983
• Docket Number: Civ. No. 81-2845.
• Citation: 564 F. Supp. 50
• Parties: Leroy C. GIPSON, Sr., and Peggy Gipson, his wife, Plaintiffs, v. SUPERMARKETS GENERAL CORPORATION, a Delaware corporation and Realty Maintenance, Inc., a New Jersey corporation, Defendants.
• Court: U.S. District Court — District of New Jersey

564 F. Supp. 50

Leroy C. GIPSON, Sr., and Peggy Gipson, his wife, Plaintiffs, v. SUPERMARKETS GENERAL CORPORATION, a Delaware corporation and Realty Maintenance, Inc., a New Jersey corporation, Defendants.

Civ. No. 81-2845.

United States District Court, D. New Jersey.

February 7, 1983.

Louis A. DiMare, Jr., Jaffe & Schlesinger, Springfield, N.J., for plaintiffs.

Elliott Abrutyn, Morgan, Melhuish, Monaghan & Spielvogel, Livingston, N.J., for defendant Supermarkets General Corp.

OPINION

ANNE E. THOMPSON, District Judge.

This matter comes before the court on motion of the defendant, Supermarkets General Corporation "SGC", to dismiss this action under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim upon which relief can be granted. Since matters outside the pleadings have been considered by the court, this motion will be treated as one for summary judgment and disposed of as provided by Rule 56. The United States Court of Appeals for the Third Circuit has recently reiterated the standard for granting summary judgment.

Rule 56 of the Federal Rules of Civil Procedure provides that a trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We have characterized summary judgment as "`a drastic remedy,'" and have made clear "that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties." Ness v. Marshall, 660 F.2d 517 at 519 (3d Cir. 1981) (quoting Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir.1974)). Moreover, "inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 95 (3d Cir.1982), quoting Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 403 (3d Cir.1981).

I. FACTS

The relevant facts and procedural posture of this case are as follows. The plaintiffs are Leroy C. Gipson, Sr. and his wife Peggy Gipson. On December 20, 1979, the Gipsons were grocery shopping at the Linden, New Jersey, Pathmark store which is owned by Supermarkets General Corporation. Gipson alleges that while they were already at the checkout counter, his wife sent him back into the store to get a different brand of glue. At the same time he picked up a jar of deodorant. Gipson states in his affidavit submitted in opposition to this motion that he placed the deodorant in his overcoat pocket so that he could hold the box of glue up to the light with both hands to read the fine print. As he was returning to the checkout counter with the two items, Gipson was stopped by Detective Guerrero, a store security guard, and accused of trying to steal the glue by placing it up his sleeve. Gipson and Detective Guerrero were then accompanied by Store Manager Zirkel to an area near the store office. Gipson claims that he denied trying to steal anything. Also, he claims that when he was alone with Zirkel, Gipson explained that he was employed by Realty Maintenance, Inc. "Realty" as a maintenance man at the SGC warehouse in Woodbridge, New Jersey. Gipson was very concerned that any accusation of shoplifting would affect his job.

Gipson was then presented with a form stating that he released SGC, its officers and employees from any liability in connection with the transaction. (Complaint, Exhibit "A"). The names of the parties and the statement that Gipson was stopped and questioned about the two items were added on the form. Gipson states in his affidavit that he was told that if he did not sign the form, Zirkel would call the Linden policeman in the store and have Gipson and his wife arrested. He claims that he was also told that if he did sign the release form, it would not leave Zirkel's desk.

Gipson signed the release form. He then returned to the checkout counter and purchased the glue and deodorant. The following day, Gipson reported to work at the SGC Woodbridge warehouse. That afternoon the SGC supervisor told Gipson that due to the incident at the Linden Pathmark he received orders from SGC security to fire him.

The Gipsons filed suit against SGC, Service Employees International Union Local 389 AFL-CIO and Realty on September 4, 1981. An amended complaint was filed on October 26, 1981. On March 18, 1982, arbitration proceedings were held. The arbitrator ruled in an opinion dated May 6, 1982, that Gipson was to be reinstated to his former or comparable position with seniority unimpaired and that he was to receive three months back pay. Following the May 6, 1982 award, a stipulation of dismissal was filed as to defendant Local 389.

II. DISCUSSION

The Gipsons' federal claims against SGC are brought under 42 U.S.C. § 1983 with jurisdiction pursuant to 28 U.S.C. § 1343 and under § 301 of the Labor Management Relations Act of 1947 "LMRA", 29 U.S.C. § 185(a). This motion concerns only the § 1983 claims. In the complaint, Gipson alleges that SGC violated his constitutional right not to be deprived of liberty, privacy or property or to be punished without due process of law. More specifically, the complaint states that SGC's employees and agents were acting in concert with the local police, according to a customary plan and under color of law, when Gipson was detained, searched and deprived of his liberty against his will in the Pathmark Linden store. The complaint asserts that SGC's employees and agents acted under color of state law when they detained Gipson. In addition, the complaint asserts that SGC exercised control over the employment policies of Realty causing Gipson to be summarily discharged from his employment with Realty. The complaint also states that by this termination Gipson was deprived of his property rights without due process of law in direct contravention of the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and provisions of the LMRA. In support of this assertion, the complaint goes on to state that pursuant to Article I, Paragraph 1 of the Constitution of the State of New Jersey and case law thereunder, the right to employment is a constitutional right protected by state law. (Count 1, §§ 21-24).

SGC filed the instant motion to dismiss returnable April 5, 1982. The long delay in deciding this motion has been due in part to the plaintiffs' request to adjourn the motion until they had received sufficient answers to their interrogatories. On January 4, 1983, Magistrate John W. Devine ordered SGC to provide more specific answers. The plaintiffs' brief in opposition to SGC's motion was received January 24, 1983. The plaintiffs submitted with their brief an affidavit of Leroy Gipson, Sr., the opinion and award of arbitration, a copy of the release form which also accompanied the complaint and an excerpt from Pathmark's "Store Security and Loss Prevention Guide."

A suit pursuant to § 1983¹ must satisfy two criteria. The plaintiff must show that the defendant deprived him of a right "secured by the Constitution and the laws" of the United States and the plaintiff must show that the defendant deprived him of this right while acting "under color of any statute ...." "It is clear that these two elements denote two separate areas of inquiry." Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978), citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).

The court finds that as a matter of law SGC's employees and agents did not act under color of state law. In addition, the court finds that as a matter of law Gipson was not deprived of any constitutional right by the actions of SGC's agents.

A. State Action

In New Jersey, a merchant's right to detain persons suspected of shoplifting is stated in N.J.S.A. 2C:20-11.² The issue of whether a merchant or an employee who detains a customer pursuant to this statute is acting under color of state law appears to be one of first impression in New Jersey.

Generally, courts which have considered similar detentions by store personnel and store detectives have held that they were not acting under color of state law and have dismissed the plaintiff's § 1983 claim. In Weyandt v. Mason's Stores, Inc., 279 F.Supp. 283 (W.D.Pa.1968), the plaintiff alleged that while she was a customer in a department store, store employees took her to a private office; slapped and beat her; refused her request to contact an attorney; forcibly restrained her from leaving the office; forcibly searched her and then took her to the justice of the peace where she was charged with shoplifting. This charge was later dismissed. In reviewing the plaintiff's later § 1983 suit, the federal district court found that the Pennsylvania statute which authorized detention of suspected shoplifters by merchants was intended to license a qualified right of self-help. This permitted detention by a shopkeeper was distinguished from an arrest since it furthered purely private interests — i.e., the recovery of concealed unpurchased goods. Id. at 286-87. The Weyandt court thus viewed the defendants as acting under license of state law rather than under authority of state law and dismissed the plaintiff's § 1983 suit.

The Weyandt opinion was relied on by the court in Battle v. Dayton-Hudson Corp., 399 F.Supp. 900 (D.Minn.1975). In that case, the plaintiff was held in accordance with a statute which allowed a merchant to detain a customer for the "sole purpose of delivering him to a peace officer ...." Id. at 902-3....