Iskander v. Village of Forest Park

• Decision Date: 05 October 1982
• Docket Number: Nos. 81-2089,81-2112,s. 81-2089
• Citation: 690 F.2d 126
• Parties: Soad R. ISKANDER, Plaintiff-Appellee, v. VILLAGE OF FOREST PARK and Zayre, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 126

690 F.2d 126

Soad R. ISKANDER, Plaintiff-Appellee, v. VILLAGE OF FOREST PARK and Zayre, Inc., Defendants-Appellants.

Nos. 81-2089, 81-2112.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 9, 1982.

Decided Oct. 5, 1982.

Frederick W. Temple, Hubbard, Hubbard, O'Brien & Hall, Chicago, Ill., John J. Quan, O'Shea & Quan, Forest Park, Ill., for defendants-appellants.

John P. DeRose, DeRose & Russo, Oak Brook, Ill., for plaintiff-appellee.

Before PELL, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and ESCHBACH, Circuit Judge.

ESCHBACH, Circuit Judge.

When attempting to exit a Zayre department store in Forest Park, Illinois, plaintiff-appellee was detained for alleged shoplifting by a store detective, who called local police. The officer dispatched to the scene arrested plaintiff on a misdemeanor theft charge and transported her to the police station where she was booked, strip searched, and held in custody until her husband posted the necessary bond. Defendants-appellants Zayre, Inc. and the Village of Forest Park appeal from money judgments entered on jury verdicts against them in this § 1983 action alleging that the detention, arrest, and strip search violated plaintiff's rights under the Fourteenth Amendment. For the reasons set forth below, we reverse the judgment against Zayre and remand for entry of judgment n. o. v. in favor of Zayre. As to Forest Park, we reverse in part, vacate in part, and remand for a new trial.

Plaintiff's complaint, a series of legal conclusions, alleges that her detention, arrest, and search incident to the arrest on a shoplifting charge violated her Fourteenth Amendment rights. Plaintiff asserted claims under 42 U.S.C. § 1983 in addition to pendent state law claims for false arrest and malicious prosecution. The pendent claims were abandoned before trial. Named as defendants were the store detective who initially detained plaintiff, his employer (Zayre, Inc.), the arresting officer, the police matron who allegedly conducted the strip search of plaintiff, and their employer (the Village of Forest Park). The jury returned a general verdict for plaintiff against the store detective, the arresting officer, Zayre, and Forest Park, but rendered a verdict in favor of the police matron which plaintiff does not appeal. While $40,000 in damages labeled compensatory and $100 in nominally punitive damages were assessed against Zayre and $10,000 in nominally compensatory damages were entered against Forest Park, no damages were assessed against the store detective or the arresting officer, neither of whom has appealed. Both Zayre and Forest Park appeal the denials of their motions for judgment n. o. v. and their alternative motions for a new trial, asserting numerous grounds.

In reviewing the denials of appellants' motions for judgment n. o. v. we must determine if the evidence warranted submission of the case to the jury: viewing the evidence and reasonable inferences drawn therefrom in the light most favorable to the appellee, we inquire whether the record is insufficient to support the verdict as a matter of law. E.g., Appleman v. United States, 338 F.2d 729, 730 (7th Cir. 1964) cert. denied, 380 U.S. 956, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965).

Zayre

A recitation of the observations of the store detective which caused him to believe that plaintiff had stolen some merchandise is unnecessary. Although the detective's testimony concerning his observations presents strong support for a probable cause arrest, for purposes of this appeal, we will assume, arguendo, that he lacked probable cause for the detention. We further assume, arguendo, that the store detective was acting under color of state law ¹ and that his actions constituted a violation of plaintiff's rights under 42 U.S.C. § 1983. See generally Annot. 44 A.L.R.Fed. 225 (1979) (liability for false arrest under § 1983). The question before us is whether there is any evidence upon which Zayre could be found liable under § 1983.

Initially, it is clear that Zayre's liability may not be based merely on the employer-employee relationship between it and the store detective. "Section 1983 will not support a claim based on a respondeat superior theory of liability." Polk Co. v. Dodson, 454 U.S. 312, ----, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). See also Powe v. City of Chicago, 664 F.2d 639, 649-51 (7th Cir. 1981); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981); Chapman v. Pickett, 586 F.2d 22, 27 (7th Cir. 1978); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071, 1083 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), disapproved on other grounds, Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981); McDonald v. Illinois, 557 F.2d 596, 601-02 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977); Adams v. Pate, 445 F.2d 105, 107 n.2 (7th Cir. 1971). See generally Annot. 51 A.L.R.Fed. 285 (1981). Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), a private corporation is not vicariously liable under § 1983 for its employees' deprivations of others' civil rights. Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir. 1974) (alternative holding); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976); Weiss v. J. C. Penney Co., 414 F.Supp. 52 (N.D.Ill.1976). Contra Classon v. Shopco Stores, Inc., 435 F.Supp. 1186, 1187-88 (E.D.Wisc.1977) (misinterpreting, in our view, the significance of certain conclusory language in Adickes v. S. H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), a case in which the vicarious liability issue appears not to have been raised).

In order to warrant submission of her case against Zayre to the jury, plaintiff had to show an "impermissible policy" or a "constitutionally forbidden" rule or procedure of Zayre, Polk Co. v. Dodson, supra, 454 U.S. at ----, 102 S.Ct. at 454, which was the "moving force of the constitutional violation." Monell v. Department of Social Services, supra, 436 U.S. at 694, 98 S.Ct. at 2037. Even assuming that plaintiff proved that her detention by the store detective was without probable cause and invaded her civil rights, that single act of unconstitutional conduct does not support the inference that the conduct was pursuant to an impermissible Zayre policy. See Powe v. City of Chicago, supra, 664 F.2d at 650. Indeed, the only link between Zayre's policies and the store detective's actions advanced by plaintiff is the conclusory testimony that he was acting in accordance with Zayre's operating procedures pertaining to shoplifting suspects. This statement, however, is wholly insufficient to raise a triable issue of whether Zayre had an unconstitutional policy or custom. Walters v. City of Ocean Springs, 626 F.2d 1317, 1323 n.3 (5th Cir. 1980). In short, the only Zayre policy which plaintiff points to in support of her verdict is Zayre's policy of detaining shoplifting suspects and calling the police. That entirely legitimate policy, of course, does not subject Zayre to liability.

Because the evidence was insufficient to warrant submission of plaintiff's case against Zayre to the jury, we reverse the district court's denial of Zayre's motion for judgment n. o. v. Moreover, upon our consideration of the record in this case, we remand the case to the district court for entry of judgment n. o. v. in favor of Zayre. See Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967).

Forest Park

Our preceding analysis also disposes of plaintiff's claim against Forest Park concerning her putatively unlawful arrest. There is no evidence suggesting that Forest Park had any impermissible policy which was a proximate cause of the assumed deprivation of her rights. Once again, the only official policy established-dispatching officers to the scene of an alleged shoplifting incident and in some cases effectuating arrests-is an entirely legitimate one which naturally does not subject the municipality to liability. Thus, we reverse the judgment against Forest Park, in part, and remand for dismissal of plaintiff's § 1983 false arrest claim against it.

The evidence concerning the strip search of plaintiff, however, did warrant submission of that claim to the jury. Concerning that claim, not only did plaintiff testify that an unknown individual peered through a window at her when she was disrobed during the strip search, but further, plaintiff presented evidence showing that the Forest Park police department customarily conducted strip searches in a room with a window facing a corridor through which numerous individuals might be passing at any given time. While defendant presented conflicting evidence that there was no window in the room where plaintiff was searched, plaintiff clearly met her burden of establishing a jury question as to whether an impermissible official policy or custom was the source of the claimed constitutional violation. ² Defendant's reliance on Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), in support of its strip search policy is unavailing in this case. Bell recognizes that even in cases where routine strip searches are justified by legitimate security concerns, they nevertheless "must be conducted in a reasonable manner." Id. at 560, 99 S.Ct. at 1885. Defendant naturally does not maintain that routine strip searches may be conducted in a room open to the prying eyes of passing strangers consistent with the reasonableness requirement imposed on all searches under the Fourth Amendment, nor would such a contention be entertained. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th...