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ROBINSON v. TOWN OF COLONIE

February 28, 1995

ANGELESE ROBINSON and E. KEITH ROBINSON, Plaintiffs,
v.
THE TOWN OF COLONIE; MICHAEL J. TORREY, who at all times mentioned herein was a Town of Colonie Police Officer, individually and in his official capacity; JOSEPH VALIQUETTE, JR., who at all times mentioned herein was a Town of Colonie Police Officer, individually and in his official capacity; DAVID MESICK, who at all times mentioned herein was a Town of Colonie Police Officer, individually and in his official capacity; and THE TJX OPERATING COS., INC., d/b/a T.J. MAXX, Defendants.


NEAL P. McCURN, SENIOR, U.S. DISTRICT JUDGE


The opinion of the court was delivered by: NEAL P. MCCURN

INTRODUCTION

 Plaintiffs filed this action against TJX Operating Companies, Inc. ("T.J. Maxx") and Police Officers Michael J. Torrey, Joseph Valiquette, Jr., and David Mesick as well as the Town of Colonie (referred to collectively as "the Town Defendants") on November 25, 1991. Plaintiffs subsequently filed an amended complaint and a second amended complaint. Their second amended complaint contains both federal and state causes of action.

 The first three causes of action are based upon alleged violations of plaintiffs' federal constitutional and statutory rights. The first of these, brought pursuant to 42 U.S.C. § 1983, alleges that defendants discriminated against them because of their race and color in violation of those rights of plaintiffs which are protected by the First, Fourth, Thirteenth, and Fourteenth Amendments to the United States Constitution. The second alleges that defendants discriminated against plaintiffs on the basis of their race and color in violation of 42 U.S.C. § 1981. Finally, the third alleges that defendants unlawfully conspired to deprive plaintiffs of the equal protection of the laws in violation of 42 U.S.C. § 1985(3).

 Plaintiffs' fourth through seventh causes of action are pendent state statutory and common law claims. Their fourth cause of action alleges that defendants discriminated against plaintiffs on the basis of their race and color in a place of public accommodation in violation of New York State Executive Law § 296(2)(a). Their fifth, sixth and seventh causes of action allege various common law tort claims based upon defamation, unlawful imprisonment, and intentional infliction of emotional distress.

 Having completed discovery, the Town Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"). *fn1" Plaintiffs opposed this motion in its entirety and, in addition, cross-moved for partial summary judgment on the issue of the liability of defendant Torrey on their Fourth Amendment and state law false imprisonment claims. The court took these motions under advisement without oral argument. The following constitutes the court's decision with respect to these motions.

  BACKGROUND

 The incident which forms the basis of plaintiffs' claims occurred on November 2, 1991, at the T.J. Maxx store in the Town of Colonie. On that date at approximately 5:00 p.m., the Town of Colonie Police dispatcher received a call from Tom Moss, store manager of T.J. Maxx, that three black gentlemen had walked out of the store with a woman's jacket. See Sprio Affidavit dated July 2, 1993, at P 6 and Exhibit C attached thereto. At Mr. Moss' request, the dispatcher called for a police unit to respond. See id. As a result of this call, a person was handcuffed and arrested for the larceny of a woman's coat. See id.

 Approximately one hour later, the Town of Colonie Police dispatcher received a call from Susan Miner, Assistant Manager of T.J. Maxx, stating that

 
the shoplifters are back in. They've been coming up and they open the doors and they walk in and they look at coats and they walk back out and now we just followed two of em' in, a man and a woman, and he put a sweater on and started to leave, but the woman saw watching, a management--.

 See Sprio Affidavit dated July 2, 1993, at P 7 and Exhibit C attached thereto.

 Officer Torrey was the first one to arrive on the scene in response to Ms. Miner's call. See Sprio Affidavit at P 8. Upon his arrival, he was referred to Mary Pennant, the supervisor in charge that evening. See id. At his deposition, Officer Torrey stated that Ms. Pennant told him that "she had some subjects in the store that she believed were there to shoplift." See Torrey Deposition, attached to Sprio Affidavit as Exhibit D ("Torrey Deposition"), at 29. He asked her if anyone had seen these persons shoplift. She responded that "she had an employee that witnessed one of the subjects place a set of socks in his coat and another one of the subjects put a sweater on and walked [sic] into another department, and then took [sic] the sweater off and left [sic] it in that department." See id. at 29-30. Officer Torrey spoke to the employee who had seen what allegedly had transpired. This employee told him that the man in the shirt department, Mr. Robinson, was the one who had put the sweater on and then had taken it off in another department. See id. at 45-46. None of the T.J. Maxx employees had seen Mrs. Robinson do anything suspicious. See id. at 44. Officer Torrey also stated that when he asked Ms. Pennant what she wanted him to do about the situation, she told him that she did not want the suspects arrested but that she wanted them to leave the store. See id. at 30.

 After requesting backup, Officer Torrey approached the Robinsons who were in the shirt department. See Torrey Deposition at 46. Officer Torrey asked plaintiffs to come with him toward the front of the store. See id. at 47. The Robinsons asked him what the problem was, to which he responded "The store would like you to go out for the evening." See id. Mrs. Robinson asked why, and Officer Torrey stated that "They don't need a reason. If you don't want to leave you will be arrested for trespass." See id. at 49; A. Robinson Declaration at PP 12-13. Plaintiffs then followed Officer Torrey into the vestibule at the front of the store. See Torrey Deposition at 50; A. Robinson Declaration at P 17.

 Once plaintiffs and Officer Torrey were in the vestibule, they had a further conversation concerning the reason that plaintiffs were being asked to leave. See Torrey Deposition at 51. At that time, Officer Torrey told plaintiffs that "the store is asking you to leave, they feel you are here to commit petit larceny and they would like you to leave." See id. During this conversation, Mrs. Robinson stated more than once that "the reason you are asking us to leave is because we are black." See id. According to Officer Torrey, he advised plaintiffs that that was not the reason. See id.

 At Mrs. Robinson's request that she be allowed to talk to a supervisor, Officer Torrey went inside the store to get one. See Torrey Deposition at 52; A. Robinson Declaration at P 20. Ms. Miner returned to the vestibule with Officer Torrey. Although Officer Torrey does not remember exactly what Ms. Miner said to the Robinsons, plaintiffs state that she told them "There was an earlier incident involving some minorities, and everyone is still very nervous and very upset." See Torrey Deposition at 52-53; A. Robinson Declaration at P 24.

 At some point in time while plaintiffs and Officer Torrey were in the vestibule, Officers Mesick and Valiquette arrived separately. When Officer Mesick arrived, Mrs. Robinson asked him why plaintiffs were being asked to leave. See Mesick Deposition, attached as Exhibit E to Sprio Affidavit ("Mesick Deposition"), at 23. He told her that he did not know but that he would go inside and ask. See id. at 22. Officer Mesick spoke to a management person who told him that a security employee thought Mr. Robinson had picked up a couple of pairs of socks and attempted to conceal them in his coat and then had gone into another part of the store. See id. at 24. Since the security employee thought Mr. Robinson might have been attempting to shoplift, the store was asking plaintiffs to leave. See id.

 Officer Mesick returned to the vestibule and told plaintiffs what he had learned. See Mesick Deposition at 25. At his deposition, Officer Mesick stated that he told plaintiffs that the police were not forcing them to leave the store but were asking them to cooperate with the store's request. See id. at 26. He also told plaintiffs that if they believed that their rights were being violated they should contact the store on Monday and talk to management. See id. at 26; A. Robinson Declaration at P 39.

 Officer Mesick then asked the Robinsons for their driver's licenses. See Mesick Deposition at 26; A. Robinson Declaration at P 21. He then had Officer Torrey radio plaintiffs' names and dates of birth to the dispatcher. See Mesick Deposition at 27; Torrey Deposition at 55; A. Robinson Declaration at P 28. Both Officer Torrey and Officer Mesick stated that this was standard procedure when the police confronted someone in any kind of incident. See Mesick Deposition at 27; Torrey Deposition at 56. Officer Mesick also told plaintiffs that here had been an earlier incident involving a black person who had been arrested for shoplifting and that the people inside the store felt that plaintiffs might have been involved with the earlier group. See Mesick Deposition at 29. He also stated that this might be the reason the store was asking plaintiffs to leave. See id.; A. Robinson Declaration at P 38. According to plaintiffs, Officer Mesick also told them that "perhaps [Mrs. Robinson] needs to find another place to shop. They don't want you in here." See A. Robinson Declaration at P 33.

 After Officer Torrey returned plaintiffs' driver's licenses to them, Mrs. Robinson asked for the store manager's name. See Torrey Deposition at 61. Officer Torrey went into the store and asked Ms. Pennant for her name, address, and telephone number. See id. He returned to the vestibule and gave Mrs. Robinson this information. See id. Mrs. Robinson then asked for the assistant manager's name. See id. at 62. Officer Torrey went into the store and asked Ms. Miner for this information. See id. When he returned to the vestibule, plaintiffs were no longer there. *fn2" See id.

 When Officer Valiquette arrived at the store, plaintiffs, Officer Torrey and Officer Mesick were in the vestibule. He heard Officer Torrey explain to plaintiffs that they were being asked to leave because an employee had seen Mr. Robinson put a pair, or several pairs, of socks underneath his coat. See Valiquette Deposition at 32. He also heard plaintiffs deny that the incident had occurred. See id. While Officer Torrey was in the store getting the name of the employee who had seen what allegedly had occurred, Officer Valiquette believed that things were getting heated because someone had mentioned that the reason plaintiffs were being asked to leave was because they were black. In response, Officer Valiquette said, "I hope in this day and age no one is going to ask someone to leave a store because they are black. That's ridiculous. Personally, if that was [sic] the case I would have been the first one to leave the store." See id. at 35.

 After plaintiffs left T.J. Maxx, they got into their car and drove to a telephone booth from which Mrs. Robinson called the local television stations and told them about the incident. See Robinson Deposition, attached as Exhibit B to D'Agostino Affidavit ("Robinson Deposition"), at 60. The Robinsons then returned home where they made several telephone calls to tell people how they had been treated. See id. at 62. Mr. Robinson called Mr. Flowers, who had been at T.J. Maxx at the time of the incident and who had handed Mr. Robinson his telephone number. See id. at 56, 67. The next day, Mr. Flowers returned the call and asked if he could give plaintiffs' names to a friend of his, Al Conyers, who worked at the NAACP. See id. at 68. Plaintiffs met with Mr. Conyers on the Monday following the incident. See id. at 71. Mr. Conyers wanted to arrange a meeting with T.J. Maxx. See id. On the following Friday, plaintiffs, together with the NAACP, held a press conference in front of T.J. Maxx. See id. at 75. In addition, they asked T.J. Maxx to remove the store's management and to put its employees through sensitivity training. See id. at 84. On November 25, 1991, plaintiffs filed the instant action.

 I. Summary Judgment Standard

 The court may not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see generally Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The party seeking summary judgment bears the burden of demonstrating that no genuine factual issue exists. See Cronin v. Aetna Life Ins. Co., No. 94-7419, 1995 WL 37636, at *4 (2d Cir. Jan. 25, 1995) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994). In making its determination as to whether any genuine factual dispute exists, the court must resolve all ambiguities in favor of the nonmovant. See Cronin, 1995 WL 37636, at *4 (citations omitted). Moreover, the court must view the inferences to be drawn from the underlying admissions, affidavits, exhibits, interrogatory answers, and depositions in the light most favorable to the nonmoving party. See id. (citations omitted).

 The court may grant summary judgment if the movant shows that little or no evidence may be found to support the nonmovant's case. See Gallo, 22 F.3d at 1223. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Id. at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Finally, the court must keep in mind that its "task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue-resolution." Id. at 1224; see also Cronin, 1995 WL 37636, at *5.

 It is with these guidelines in mind that the court must determine whether the parties are entitled to the relief they seek with respect to any of plaintiffs' causes of action.

 II. Federal Causes of Action

 A . Plaintiffs' First Cause of Action - 42 U.S.C. § 1983 *fn3"

 As the Second Circuit recently stated "section 1983 provides an instrument by which an individual deprived of a federal right by a person acting under color of state law may be compensated." Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912-13, 68 L. Ed. 2d 420 (1981)). As the Eagleston court noted,

 
it is well established that in order to state a claim under § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.

 Id. at 875-76 (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)); see also Flowers v. The TJX Companies, Inc., No. 91-CV-1339, slip op. at 7 (N.D.N.Y. July 15, 1994) (Munson, S.J.).

 Moreover, "it is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1294) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)) (other citations omitted).

 In the present case, there is no dispute that the police officers were acting under color of state law. What is disputed, however, is whether these officers deprived plaintiffs of any federal rights and, if such deprivation did occur, whether these officers are shielded from suit by the doctrine of qualified immunity. Since plaintiffs allege that defendants violated several of their federal rights, the court will discuss each of their claims seriatim.

 1. First Amendment - Freedom of Association

 The Supreme Court's decisions in the First Amendment area have referred to "freedom of association" in two distinct senses. See Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).

 
In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State . . . In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.

 Id. at 617-18, 104 S. Ct. at 3249, 82 L. Ed. 2d at .

 In support of their motion, the Town Defendants assert, first of all, that there is no protection under the First Amendment for unlawful or suspected unlawful activity such as shoplifting. See Town Defendants' Memorandum of Law at 14. Moreover, the Town Defendants argue that there is no common interest of membership at issue here nor any interference with plaintiffs' choice to enter into any intimate or private relationship. See id.

 To the contrary, plaintiffs contend that the Town Defendants restrained plaintiffs' first amendment right to associate with and speak to those with whom they wanted to communicate. See Plaintiffs' Memorandum of Law at 26. Specifically, plaintiffs assert that by forcibly detaining them in the vestibule defendants prevented them from communicating and socializing with other shoppers. See id. In addition, plaintiffs aver that although they made clear their desire to voice their complaint to store management, the police officers prevented them from remaining in the store and forced them to leave and register their complaint on another day. See id.; A Robinson Declaration at PP 15, 39.

 Even assuming that the Town Defendants did interfere with plaintiffs' right to associate with other shoppers and to voice their complaint to store management, these are not the types of "relationships" which the First Amendment seeks to protect. Thus, the court concludes that plaintiffs have failed to produce any evidence which would support a claim that the Town Defendants violated plaintiffs' First Amendment right to freedom of association. Accordingly, the court grants the Town Defendants' ...


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