Prowisor v. Bon-Ton, Inc.

• Decision Date: 06 April 2006
• Docket Number: No. 05 Civ. 0166(WCC).,05 Civ. 0166(WCC).
• Citation: 426 F.Supp.2d 165
• Parties: Joshua PROWISOR, Plaintiff, v. BON-TON, INC., Town of Newburgh and Roger S. Roth, sued in his individual capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 165

426 F.Supp.2d 165

Joshua PROWISOR, Plaintiff, v. BON-TON, INC., Town of Newburgh and Roger S. Roth, sued in his individual capacity, Defendants.

No. 05 Civ. 0166(WCC).

United States District Court, S.D. New York.

April 6, 2006.

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Sussman Law Offices, Goshen, New York, for Plaintiff, Michael H. Sussman, of counsel.

Eustace & Marquez, White Plains, New York, for Defendant Bon-Ton, Inc., Rose M. Cotter, of counsel.

Law Offices of Monte J. Rosenstein, P.C., Middletown, New York, for Defendants Town of Newburgh and Roger S. Roth, Monte J. Rosenstein, of counsel.

OPINION AND ORDER

CONNER, Senior District Judge.

Plaintiff Joshua Prowisor brings this § 1983 action against defendants the Town of Newburgh (the "Town"), Town Police Officer Roger S. Roth, in his individual capacity, and Bon-Ton, Inc. (collectively, "defendants") for violations of his Fourth and Fourteenth Amendment rights arising out of his detention by Bon-Ton department store security guards and subsequent arrest by Officer Roth based on suspicion of shoplifting. Defendants now move for summary judgment pursuant to FED. R. Civ. P. 56. For the reasons stated herein, defendants' motions are granted.

BACKGROUND

On January 28, 2004, Prowisor, a thirty-three year old Caucasian male, entered the Bon-Ton department store in Newburgh, New York for the asserted purpose of exchanging certain clothing items. (Pl. Rule 56.1 Stmt. ¶¶ 1, 6, 10.) Prowisor claims that after he selected larger sizes of the returnable items, he brought both the returnable and new items, along with the receipts reflecting the prior purchases, to the sales counter, where he deposited them before returning to the sales floor to continue shopping. (Id. ¶¶ 12-14.) At some point, Prowisor approached a display of earmuffs and selected a pair before continuing to shop in other areas of the store. (Id. ¶¶ 16, 18-19.) Prowisor asserts that he later decided not to buy the earmuffs and placed them back where he had found them.¹ (Id. ¶¶ 19-21; Prowisor Dep. at 34-36.) Immediately thereafter, and as he was heading to the sales counter, Prowisor received a cellular telephone call from his girlfriend. (Pl. Rule 56.1 Stmt. ¶ 23.) In an attempt to get better reception, Prowisor began walking around the store, but hung up after he could not get a clear signal. (Id.) As he was returning to the sales counter (id. ¶¶ 24-25, 27-28), Prowisor was approached by two Bon-Ton security guards, Rajcoomar and Kenneth Carlson, who accused Prowisor of shoplifting.² (Id. ¶ 30; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶ 4.)

While the parties' accusations regarding their respective behavior toward one another differ drastically (Prowisor Dep. at 45, 49-50, 53; Carlson Dep. at 20-22; Sussman Decl., Ex. 6), it is undisputed that the two security guards escorted Prowisor to the store security office, at which point the security guards called the Town Police Department. (Pl. Rule 56.1 Stmt. ¶ 35; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶ 3.) Officer Roth was dispatched to the store, having been informed by the dispatcher that Bon-Ton had placed an individual in custody for suspected larceny. (Defs. Town/Roth Rule 56.1 Stmt. ¶ 3; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶ 3.) Roth testified that when he arrived, the door to the store security office was closed. (Roth Dep. at 65.) After entering the room, Rajcoomar and Carlson informed Roth that they had witnessed Prowisor steal the earmuffs and that they wished to institute criminal proceedings. Rajcoomar, as the senior security guard and Carlson's supervisor, signed and swore to a Complaint/Information averring the facts supporting the charge of theft. (Defs. Town/Roth Rule 56.1 Stmt. ¶¶ 4-5; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶¶ 4-5.) Despite Prowisor's protestations. Roth handcuffed and arrested him. (Pl. Rule 56.1 Stmt. ¶¶ 49-52.) Roth was not given the allegedly shoplifted earmuffs, which, after being stored in Bon-Ton's security locker for 15 days, were returned to the sales floor. (Id. ¶¶ 54, 92; Carlson Dep. at 12-13.) Nor did the security guards show Prowisor or. Roth the videotape recorded by the store security cameras that allegedly showed Prowisor's actions. (Pl. Rule 56.1 Stmt. ¶¶ 37-39, 73, 94; Rajcoomar Tr. Testimony at 65; Carlson Dep. at 23-24.)

Roth then transported Prowisor to the Newburgh Police Department where he was booked. (Defs. Town/Roth Rule 56.1 Stmt. ¶ 6; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶ 6; Pl. Rule 56.1 Stmt. ¶¶ 80-81.) Roth told Prowisor that he had been "arrested on the sworn statement of another person and the Town of Newburgh is acting as an agent of the Bon Ton and that goes into the determination of an arrest being made." (Roth Dep. at 39.) According to plaintiff, Roth, upon looking at Prowisor's driver's license, commented, "Well, you're not Puerto Rican," apparently in response to the security guard's comments to Roth that Prowisor was of Puerto Rican descent. (Pl. Rule 56.1 Stmt. ¶¶ 84-85.) Defendants assert that Roth's statement was made in response to plaintiffs protestations that the security guards detained him because they thought he was Puerto Rican. (Defs. Town/Roth Rule 56.1 Stmt. ¶ 6; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶ 6.) Plaintiff was released on his own recognizance, and Roth drove plaintiff back to his car in the shopping mall parking lot. (Pl. Rule 56.1 Stmt. ¶ 86 & n. 10.) The events, in their entirety, took no more than 45 minutes. (Id. at n. 10; Prowisor Dep. at 69; Roth Dep. at 5-7.)

Plaintiff subsequently was acquitted following a jury trial in the Justice Court of the Town of Newburgh. (Defs. Town/Roth Rule 56.1 Stmt. ¶ 7; Def. Bon-Ton Am. Rule 56.1 Stmt. ¶ 7.)

DISCUSSION

I. Standard of Review

Under FED. R. Civ. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. To defeat summary judgment, the non-movant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994).

II. Section 1983 State Actor Requirement

Plaintiff alleges Bon-Ton is liable for false arrest and malicious prosecution under § 1983 because its security guards "acted in concert" with Officer Roth in order to effectuate plaintiffs arrest. (Complt.¶¶ 24, 32.) To state a claim under § 1983, a plaintiff must allege a deprivation of a federal right by someone acting under color of state law. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002). "For a private individual or entity to be deemed to have been acting under color of state law the allegedly unconstitutional conduct of which plaintiff complains must be `fairly attributable to the state.'" Bishop v. Toys "R" Us-NY LLC, 414 F.Supp.2d 385, 396 (S.D.N.Y. 2006) (quoting Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003) (internal quotations omitted), cert. denied, 539 U.S. 942, 123 S.Ct. 2610, 156 L.Ed.2d 628 (2003)). Conduct will be "fairly attributable to the state" where there is "`such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Id. (quoting Tancredi, 316 F.3d at 312). "A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." Ciambriello, 292 F.3d at 324. "Instead, there must be a sufficiently high level of entanglement between the state and the private actor such that the latter can be considered the state itself." Milton v. Alvarez, No. 04 Civ. 8265, 2005 WL 1705523, at *3 (S.D.N.Y. July 19, 2005); see also Tancredi, 316 F.3d at 313 ("State action may properly be found where the state exercises coercive power over, is entwined in [the] management or control of, or provides significant encouragement, either overt or covert to, a private actor, or where the private actor operates as a willful participant in joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies.").

"Generally, the acts of private security guards, hired by a store, do not constitute state action under § 1983." Guiducci v. Kohl's Dep't Stores, 320 F.Supp.2d 35, 37 (E.D.N.Y.2004) (collecting cases); see also Bishop, 414 F.Supp.2d at 396. Here, neither the Complaint nor the evidence before the Court indicates sufficient relationship of the Bon-Ton security guards to the Town Police to establish either the close nexus or high level of entanglement standard. See Milton, 2005 WL 1705523, at *3. Rather, Bon-Ton merely called the police to have a suspected shoplifter arrested, a situation courts in the Second Circuit have repeatedly held does not constitute state action absent special circumstances, i.e., guards sworn as "special patrolman" or cooperative interactions of guards and police. See, e.g., Ciambriello, 292 F.3d at 324; Bishop,...