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April 24, 1996

BETTY BANG and LAURA BANG, Plaintiffs, against UTOPIA RESTAURANT et al., Defendants.

The opinion of the court was delivered by: MUKASEY


 Laura and Betty Bang have sued a restaurant, its three owners, a police officer, and the City of New York for interfering with their civil rights. 42 U.S.C. § 1983 (1988). Two of the restaurant owners, George Tsopelas and Peter Tsoukalas, have moved to dismiss the claims against them for insufficient service of process and failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(5), 12(b)(6). For the reasons stated below, the motion is denied.


 The allegations in plaintiffs' Amended Complaint are as follows: Plaintiff Laura Bang suffers from Kallman's Disease, a severe, disfiguring glandular disorder recognized as a disability under the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (Am. Compl. P 4) Plaintiff Betty Bang is a relative of Laura Bang. (Id. P 3) Defendants George Tsopelas and Peter Tsoukalas are co-owners of defendant Utopia Restaurant, which is located on Manhattan's Upper West Side. (Id. P 7)

 On several occasions prior to February 1994, Tsopelas and his employees subjected Laura Bang to various forms of harassment while she dined at Utopia. (Id. PP 10-15) Tsoukalas often witnessed the harassment. (Id. P 15) On February 12, 1994, both plaintiffs entered Utopia and sat at a table in the restaurant's non-smoking section. (Id. P 23) Plaintiffs waited to be served, but none of the waiters on duty at that time approached their table. (Id. P 23) After some time, Tsopelas ordered Laura Bang to leave the premises and shouted an epithet at her when she declined to do so. (Id. P 24)

 Minutes later, Betty Bang went to the restaurant's counter, ordered and received two cups of coffee and some pastries, and returned to the table. (Id. P 25) A short time later, Tsopelas placed a telephone call, apparently to the police. (Id. P 31) About 30 minutes later, two officers arrived and engaged Tsopelas in a conversation lasting 20 minutes. (Id. P 32) One of those officers was Officer Dean, who also is a defendant in this action. (Id. P 33) As Tsopelas and the officers conversed, Laura Bang remained seated, quietly working on a crossword puzzle. (Id. P 34)

 Eventually Laura Bang prepared to leave the restaurant, at which time the conversation between Tsopelas and the officers abruptly ended. (Id. P 36) Without saying anything, the officers approached her, and Officer Dean placed his hand on one of her arms. (Id. P 37) Laura Bang sardonically asked Dean, "Is this what you do for your coffee and donuts?" (Id. P 38) Dean took offense to the remark and "forcefully pulled Laura Bang's arm way over her head and then down hard and then handcuffed her in the back and then jerked and pulled both her handcuffed hands nearly up to her shoulders while she screamed in pain." (Id. P 39) The officers violently removed Laura Bang from the restaurant and shoved her into a police cruiser, which took her to the 20th Precinct station house. (Id. PP 40-41)

 At the police station, Officer Dean escorted Laura Bang to a holding area and handcuffed her to a wire grating above her head, leaving her hanging in an uncomfortable position for two hours. (Id. PP 44-44A) After two hours, Laura Bang was formally charged with trespass and disorderly conduct, and was released. (Id. P 45)

 Plaintiffs allege that Betty Bang endured a similar ordeal. Shortly after Laura Bang was taken away in the police cruiser, Betty Bang was arrested by Dean's unidentified partner. (Id. P 58) Betty Bang believes that her arrest was for the sole purpose of intimidation; she suspects that the officers feared she would be a witness against them in a legal action. (Id. P 66) Like Laura Bang, Betty Bang was driven to the 20th precinct, handcuffed by Dean to a wire grating in a holding area, and released after about two hours. (Id. PP 60-62A) Betty Bang was charged only with criminal trespass. (Id. P 63)

 All criminal charges against plaintiffs eventually were dismissed. (Id. PP 47, 65) Plaintiffs filed this action in May 1995. Plaintiffs seek damages under § 1983 based on denial of rights guaranteed by the Americans With Disabilities Act. 42 U.S.C. §§ 12182, 12203 (1988 and Supp. V 1993). Plaintiffs also assert pendent state law tort claims for false arrest, malicious prosecution, false imprisonment, and assault and battery. The Amended Complaint does not specify which defendants are charged with which torts.

 Tsopelas and Tsoukalas have moved to dismiss on two grounds. First, they argue that the Amended Complaint fails to state § 1983 claims against them because there is no allegation that either defendant acted jointly with the police. Second, each defendant claims that he was not properly served with process.


 Section 1983 imposes liability only on persons who act "under color of state law." However, a private citizen may be deemed to be a state actor when he is "a willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27-28, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980). To establish joint action, a plaintiff must show that the private citizen and the state official shared a common unlawful goal; the true state actor and the jointly acting private party must agree to deprive the plaintiff ...

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