Rojas v. Alexander's Dept. Store, Inc., 86 C 0956.
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
| Writing for the Court | White, Fleischner & Fino (John Mulcahy, of counsel), New York City, for defendant |
| Citation | 654 F. Supp. 856 |
| Parties | Fernando ROJAS and Petrucia Rojas, Plaintiffs, v. ALEXANDER'S DEPARTMENT STORE, INC., Defendant. |
| Docket Number | No. 86 C 0956.,86 C 0956. |
| Decision Date | 30 December 1986 |
654 F. Supp. 856
Fernando ROJAS and Petrucia Rojas, Plaintiffs,
v.
ALEXANDER'S DEPARTMENT STORE, INC., Defendant.
No. 86 C 0956.
United States District Court, E.D. New York.
December 30, 1986.
Eleanor Jackson Piel, New York City, for plaintiffs.
White, Fleischner & Fino (John Mulcahy, of counsel), New York City, for defendant.
NICKERSON, District Judge.
Plaintiffs brought this action under 42 U.S.C. § 1983 alleging that defendant through agents acting as police officers wrongfully arrested plaintiff Fernando Rojas in the presence of plaintiff Petrucia Rojas, all in violation of their constitutional rights.
Defendant Alexander's Department Store (Alexander's) moves for an order (a) dismissing the complaint for lack of subject matter jurisdiction and for failure to state a claim, (b) dismissing the claims insofar as they allege state claims of false arrest and false imprisonment as barred by N.Y.Civ. Prac.Law § 215(3) requiring such actions to be commenced within a year, and (c) dismissing the claim of Petrucia Rojas because she lacks standing to make the claim.
Alexander's submits affidavits in support of the motion. Plaintiffs submit an affidavit in opposition to the motion and also move for leave to file an amended complaint adding a claim that Alexander's discriminated against plaintiffs because they are of "South American (Spanish)" extraction. The court treats Alexander's motion as one for summary judgment pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
From the affidavits the following facts emerge. Plaintiffs were in Alexander's Department Store on November 9, 1984. Fernando Rojas, with a telephone answering machine in his hand, was stopped and detained by store detectives employed by Alexander's. According to plaintiffs, Petrucia Rojas was in another part of the store waiting for Fernando, her husband. When he did not appear she searched him out and found him handcuffed in the security office, causing her embarrassment and anxiety. After a few hours he was released from custody and given a summons to appear and answer to charges of petit larceny and possession of stolen property. Almost a year later he was acquitted on
Defendant claims that the store detectives who arrested and held Fernando Rojas were private citizens and not public officials, and that therefore defendant did not act under color of state law. Moreover, defendant asserts that it cannot be held vicariously liable under section 1983 for the acts of its employees.
Although the detective who held Fernando Rojas, handcuffed him and told him he was under arrest was paid by Alexander's, she was also apparently a "special patrolman" appointed by the New York City Police Commissioner pursuant to the New York City Administrative Code § 434a-7.0. The summons was signed by her as "SPO" (Special Police Officer) and specified her shield number.
Under the Administrative Code such a special patrolman "shall ... possess all the powers and discharge all the duties of the police force, applicable to regular patrolmen." Such a special patrolman, with the power to arrest, is a government official subject to section 1983 liability. Cf. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951).
Alexander's potential liability under section 1983 for having employed the detective is a more difficult issue. Although it is not clear whether the arresting detective was commissioned as a special patrolman at Alexander's behest (one of several procedures available under § 434a-7.0 of the Administrative Code), the court is of the view that, in any event, the decision to employ a "special patrolman" involves a utilization for Alexander's benefit of state law enforcement authority sufficient to satisfy section 1983's "under color" of state law requirement. See, e.g., Thompson v. McCoy, 425 F.Supp. 407, 410 (D.S.C.1976). In addition, the...
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